Clark v. Louisa County School Bd., Civ. A. No. 79-0403-R.

Decision Date15 July 1979
Docket NumberCiv. A. No. 79-0403-R.
PartiesRebecca L. CLARK v. LOUISA COUNTY SCHOOL BOARD.
CourtU.S. District Court — Eastern District of Virginia

Harold R. Bailes, Francis L. Buck, Bailes & Buck, Ltd., Charlottesville, Va., for plaintiff.

D. Patrick Lacy, Jr., David H. Worrel, Bell, Ellyson, Lacy & Baliles, Richmond, Va., Stephen C. Harris, Louisa County Atty., Louisa, Va., for defendants.

MEMORANDUM

WARRINER, District Judge.

Plaintiff has filed a complaint alleging that she was discharged from a position as a teacher in the Louisa County public school system because she, a white woman, is married to a Negro man. Though the jurisdictional statement of the complaint is not free from confusion it appears that she believes the facts alleged state claims under 42 U.S.C. §§ 1981, 1983, 1985, Title VI and Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d et seq. and 2000e et seq.) as a result of violations of rights secured to plaintiff by the First and Fourteenth Amendments to the Constitution of the United States. Plaintiff also appears to have alleged a pendent State claim for a denial of certain rights and procedures granted her under Virginia Code §§ 22-217.1 through 217.8.

On 7 May 1979 defendants filed their joint motion to dismiss the complaint. Though the motion called for dismissal of the complaint in its entirety the brief in support thereof did not address the pendent State claim. The time within which plaintiff was required by Local Rule 11(F) to respond to the motion has expired and plaintiff has failed to respond. The Court will consider the motion on the present state of the pleadings taking up each basis for dismissal in the order presented in defendants' brief.

Title VII of Civil Rights Act of 1964

Defendants' motion to dismiss claims grounded under Title VII of the Civil Rights Act of 1964 is supported by an exhibit consisting of a copy of the charge filed by plaintiff with the Equal Employment Opportunity Commission. Considering the exhibit the Court must view the motion to dismiss as a motion for summary judgment with respect to Title VII. Fed.R.Civ.P. 12(b).

It is clear from the reading of the complaint and an examination of the charge that plaintiff failed to file the charge within the time required by 42 U.S.C. § 2000e-5(e) and it is also clear that no right to sue letter required by 42 U.S.C. § 2000e-5(f)(1) has been issued. Both requirements are jurisdictional and plaintiff's non-compliance ousts the Court of jurisdiction of her Title VII claim. Doski v. M. Goldseker Co., 539 F.2d 1326, 1329 (4th Cir. 1976). Accordingly, defendants will be granted summary judgment with respect to those counts alleging a claim under Title VII of the Civil Rights Act of 1964.

Title VI of Civil Rights Act of 1964

Though plaintiff asserts a claim under Title VI of the Civil Rights Act of 1964 she fails to allege any factual basis for such a claim. Though it might be assumed that a public school system is a "program or activity receiving federal financing assistance" one would have to assume it since plaintiff failed to allege it. She further fails to allege that the "primary objective of the federal financial assistance is to provide employment." This latter requirement of Title VI is not a fact which might readily be assumed even if it had been alleged. Finally, Title VI contains detailed provisions for administrative proceedings which must be exhausted before funding may be terminated. Plaintiff alleges no such administrative exhaustion. In the absence of any factual basis for a Title VI claim, plaintiff's Title VI claim must be dismissed.

There is a further reason for dismissing the claim asserted under Title VI. It is most doubtful that Congress intended a private right of action under Title VI. In University of California Regents v. Bakke, 438 U.S. 265, 283-84, 98 S.Ct. 2733, 2797, 57 L.Ed.2d 750 (1978) the majority specifically refused to determine whether Title VI gave a private right of action. The reasoning of Mr. Justice White fully supports his view that it would be "incredible" to believe that Congress so intended. Further, Mr. Justice White speaking specifically of public schools said: "Wherever a discriminatory program was a public undertaking, such as a public school, private remedies were already available under other statutes, and a private remedy under Title VI was unnecessary. Congress was well aware of this fact."

This Court accordingly holds that there is no private right of action under Title VI and such counts accordingly will be dismissed.1

42 U.S.C. § 1985

The defendants in this action consist of the Louisa County School Board and present and former members and employees thereof. The only aspect of Section 1985 which could possibly be applicable to these defendants under the allegations of the complaint is Subsection 3. This Court held in Fowler v. Department of Education, 472 F.Supp. 121, 122 (E.D.Va.1978) that employees of an agency, required by their duties to work in concert, cannot, for that reason, be held to have violated 42 U.S.C. § 1985(3). This position is supported by Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir. 1972) where the Court said:

If the challenged conduct is essentially a single act of discrimination by a single business entity, the fact that two or more agents participated in the decision or the act itself will normally not constitute the conspiracy contemplated by § 1985(3).

This Court continues to adhere to that view.

Further, even if co-workers engaged in their mutual endeavor be considered "conspirators" it is necessary that there be allegations of fact bringing them within the ambit of the statute. In this case there is no allegation showing that defendants went "on the highway or on the premises of another" nor is there a factual allegation of where they went or what they did in forming and carrying out the conspiracy. Indeed, the sole allegation supporting a Section 1985(3) claim consists of using the words "acted in concert and conspired." Even under modern notice pleadings such allegations are grossly insufficient. Eisman v. Pan American World Airlines, 336 F.Supp. 543, 553 (E.D.Pa.1971). Accordingly, the claim asserted under Section 1985(3) will be dismissed.

42 U.S.C. § 1981

Defendants argue that race is not the basis of plaintiff's complaint but instead that plaintiff grounds her cause of action on her associational rights of marriage. In so doing defendants overlook the substance of plaintiff's claim and view only the form. While the aspect of racial discrimination which allegedly resulted in plaintiff's termination of employment is miscegenation, that is merely one of the many situations upon which racial discrimination fixes. Plaintiff sufficiently alleges that she, a member of the white race, has been discriminated against because she is married to a member of the black race. In the absence of...

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  • Sims v. Unified Government of Wyandotte County
    • United States
    • U.S. District Court — District of Kansas
    • August 14, 2000
    ...Nov.26, 1990); Richards v. New York State Dept. of Correctional Servs., 572 F.Supp. 1168, 1175 (S.D.N.Y.1983); Clark v. Louisa County Sch. Bd., 472 F.Supp. 321, 323 (E.D.Va. 1979). The court concludes that the "primary purpose" element of a Title VI claim requires plaintiff to plead factual......
  • Buschi v. Kirven
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • October 29, 1985
    ...opinion, 679 F.2d 876 (4th Cir.1982); Fowler v. Department of Education, 472 F.Supp. 121, 122 (E.D.Va.1978); Clark v. Louisa County School Board, 472 F.Supp. 321, 324 (E.D.Va.1979); and Buntin v. Board of Trustees, 548 F.Supp. 657, 660 The intracorporate conspiracy doctrine, as it is known ......
  • Richards v. NEW YORK STATE DEPT. OF CORR. SERVICES
    • United States
    • U.S. District Court — Southern District of New York
    • October 7, 1983
    ...an essential element of the claim. See Sabol v. Board of Education, 510 F.Supp. 892, 896 (D.N.J. 1981); Clark v. Louisa County School Board, 472 F.Supp. 321, 323 (E.D.Va.1979). Thus, we dismiss this claim, with leave to replead. 4. Sufficiency and Timeliness of Claims under Sections 1981 an......
  • ST. AGNES HOSP. OF CITY OF BALTIMORE v. Riddick
    • United States
    • U.S. District Court — District of Maryland
    • September 10, 1990
    ...by their duties to work in concert, cannot, for that reason, be held to have violated 42 U.S.C. ? 1985(3)." Clark v. Louisa County School Board, 472 F.Supp. 321, 324 (E.D. Va.1979), citing Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir.1972). Plaintiff's theory is that the ACGME constitu......
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