Pendrell v. Chatham College

• Decision Date: 07 February 1974
• Docket Number: Civ. A. No. 71-1160.
• Citation: 370 F. Supp. 494
• Parties: Nan PENDRELL, Plaintiff v. CHATHAM COLLEGE, Pittsburgh, Pennsylvania, et al., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

370 F. Supp. 494

Nan PENDRELL, Plaintiff v. CHATHAM COLLEGE, Pittsburgh, Pennsylvania, et al., Defendants.

Civ. A. No. 71-1160.

United States District Court, W. D. Pennsylvania.

January 23, 1974.

As Amended February 7, 1974.

James H. Logan, Samuel A. Vitaro, Hymen Schlesinger, Pittsburgh, Pa., for plaintiff.

H. Woodruff Turner, Thomas R. Johnson, Kirkpatrick, Lockhart, Johnson & Hutchison, Robert E. Wayman, Allen T. Lane, Wayman, Irvin, Trushel & McAuley, Pittsburgh, Pa., amicus curiae for plaintiff.

Stanley M. Stein, Sheldon H. Nahmod, Pittsburgh, Pa., for defendants.

OPINION

TEITELBAUM, District Judge.

Nan Pendrell, the plaintiff in this action, is a former Associate Professor of Anthropology at Chatham College in Pittsburgh. At the end of the 1971-72 academic year, her employment contract with the college was not renewed. She thereupon filed suit under 42 U.S.C. § 1983¹ and § 1985(3)² against Chatham College, its president and provost, its Board of Trustees and the Board's chairman, and the chairman of the faculty committee on promotion and tenure. Her complaint alleges that she has been discriminated against on the basis of her age and sex.

Nan Pendrell had begun her academic career in 1957 at the age of 52. By 1961 she had graduated magna cum laude from Columbia University and had received a Ph.D. from that same institution in 1968. In the spring of 1968, a few months short of her 64th birthday, plaintiff accepted a teaching position at defendant Chatham College, and in September of that year assumed her teaching duties at the college.

Fourteen months later, in November of 1969, she became 65 years of age. Thus, nearly from the outset, her employment with Chatham was governed by the following provision in the faculty manual:

"Under rare and unusual circumstances and at the discretion and on the initiative of the College, appointment of a member of the faculty or of an administrative officer may be extended beyond the normal retirement age on an annual basis."

In February of 1971, plaintiff received from defendant Eddy, the president of the college, a letter of employment stating that the academic year 1971-1972 would be her final year of appointment on the faculty of Chatham. No reason was given in that writing for the termination of her employment. Plaintiff signed the letter of employment accepting the aforesaid condition, but filed the within civil action alleging that she had been deprived of certain of her constitutional rights.

Plaintiff alleges that she has been deprived of due process in that she was denied a hearing by defendants on the reasons for the nonrenewal of her employment. She alleges that she has been denied equal protection of the laws in that at least one male faculty member who is older than plaintiff has been retained by the college. In addition, her complaint alleges that her First Amendment rights have been abridged insofar as her dismissal was due to her "academic and extracurricular involvement in the struggles of black people and women for liberation, for basic equality and freedom from oppression."

The suit is before the Court on defendants' motion to dismiss. In sum, defendants contend that this Court lacks jurisdiction over the subject matter of this suit, that is, that plaintiff has failed to state a claim for relief under either Section 1985(3) or Section 1983. It is defendants' contention that plaintiff cannot demonstrate the existence of the requisite element of state action as to her Section 1983 claim and cannot show that a conspiracy existed as to her claim under Section 1985(3).³

On July 5 and 6, 1973, in accordance with Braden v. University of Pittsburgh, 343 F.Supp. 836 (W.D.Pa.1972), rev'd 477 F.2d 1 (3d Cir. 1973), an evidentiary hearing was held to determine whether plaintiff stated a cause of action under either of the relevant sections of the Civil Rights Act. On the basis of the evidence, the depositions and testimony presented at that hearing, and in accordance with the reasoning and case law set forth below, it is held that plaintiff has stated a claim upon which relief may be granted as to Section 1985(3) only. Defendant's motion to dismiss will be denied as to plaintiff's Section 1985(3) cause of action and granted as to the action brought under Section 1983.

The two elements which must be demonstrated in order to state a cause of action under 42 U.S.C. § 1983 are: (1) the deprivation of a constitutionally guaranteed right, (2) by a defendant who acted under color of state law. The state action requirement will be discussed first.

STATE ACTION

We start from the premise that "conduct that is formally `private' may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action." Evans v. Newton, 382 U.S. 296, 86 S.Ct. 486, 15 L.Ed.2d 373 (1966). But, as stated in Moose Lodge v. Irvis, 407 U.S. 163, 172, 92 S.Ct. 1965, 1971, 32 L.Ed.2d 627 (1972):

"While the principle is easily stated, the question of whether particular discriminatory conduct is private, on the one hand, or amounts to `State action,' on the other hand, frequently admits of no easy answer."

It is "only by sifting facts and weighing circumstances that the nonobvious involvement of the State in private conduct can be attributed its true significance." Burton v. Wilmington Parking Authority, 365 U.S. 715, 722, 81 S.Ct. 856, 860, 6 L.Ed.2d 45 (1961).

In practical application, the vague generalities of the Burton test have been formulated into five different approaches to the problem of determining whether state action exists in fact situations where the allegedly discriminatory acts were committed by persons who were not clearly employees or agents of government bodies. The first approach entails the itemization and tallying of contacts, primarily financial and regulatory, between the entity under examination and state and municipal authorities. If the number of contacts meets or exceeds a certain standard (which is rarely, if ever, defined), then state action is said to exist. The foremost example of this sort of judicial approach is Burton v. Wilmington Parking Authority, supra, wherein the operation of a restaurant by a private lessee within a publicly owned and financed parking garage building was held to constitute state action when the restaurant refused to serve a black customer. The Supreme Court listed the interconnections between the restaurant and the state and concluded:

"Addition of all these activities, obligations and responsibilities of the Authority . . . indicates that degree of state participation and involvement in discriminatory action which it was the design of the Fourteenth Amendment to condemn." (Emphasis added). Id. at 724, 81 S. Ct. at 861.

The difficulty in applying this sort of approach, of course, is that its fundamental nexus, the point at which some state involvement becomes too much, is never spelled out. A Court which knows only that the state involvement must be "significant", as stated in Reitman v. Mulkey, 387 U.S. 369, 375, 87 S.Ct. 1627, 18 L.Ed.2d 830 (1967), is left without a standard to apply in determining state action.

A variation on the contact counting approach is the attempt to find some "mutuality of benefit"⁴ or "symbiotic relationship"⁵ between the state and the discriminating entity. In reality, these two phrases usually identify the contact counting approach, either alone or combined with an interest analysis.

The second approach to a determination of whether state action exists in a particular fact situation involves an attempt to ascertain and balance the constitutional interests involved. The Supreme Court first referred to a balancing of interests test in a state action determination in Marsh v. Alabama, 326 U.S. 501, 508, 66 S.Ct. 276, 90 L.Ed. 265 (1946), wherein property rights were balanced against the freedoms of press and religion, but some evidence of interest balancing can probably be found in almost every state action adjudication.⁶

The interests involved are, of course, by their very nature, unquantifiable and almost always impossible to equate.⁷ It is difficult, for instance, and not particularly helpful to gauge the relative importance of one group's freedom against another group's right to equality. The balancing of interests approach, dealing as it does with ethereal concepts, applies so nebulous a standard as to be unworkable.

The third approach to a determination of state action involves the use of the public function theory of state action. This theory was first applied by the Supreme Court in Marsh v. Alabama, supra, the company town case, wherein it was held that since an ordinary municipality could not have barred Jehovah's Witnesses from distributing literature on city streets, the result could be no different where the town was in fact owned by a shipbuilding company. The public function theory—that state action exists where a private entity performs what would ordinarily be a municipal, governmental function—has also been applied by the Supreme Court to strike down discrimination where the issues were the conduct of elections for public office, Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953), and the maintenance of public parks, Evans v. Newton, supra.

In Marsh, Terry and Evans, the public function theory of state action is applied to activities which have long been the exclusive province of state or municipal government. In this case, the Court is urged to extend application of the theory to higher education, a function which, it is said, if it were not performed by private organizations, would be taken over by the state. The Court is not willing to undertake such an extension. There are few institutionalized activities which touch upon the public welfare which the modern state would not, or even has not taken over somewhere in the absence of private operation....