Smith v. Private Industry Council

• Decision Date: 04 November 1985
• Docket Number: Civ. A. No. 85-0274.
• Parties: Harvey J. SMITH, Sr., Plaintiff, v. PRIVATE INDUSTRY COUNCIL OF WESTMORELAND AND FAYETTE COUNTIES, INC., Carl Bartolomucci, Individually, and as Executive Director of the Private Industry Council of Westmoreland and Fayette Counties, Inc., Edward J. Lyons, Individually, and as Chairman of the Private Industry Council of Westmoreland and Fayette Counties, Inc., Defendants.
• Court: U.S. District Court — Eastern District of Pennsylvania

622 F. Supp. 160

Harvey J. SMITH, Sr., Plaintiff, v. PRIVATE INDUSTRY COUNCIL OF WESTMORELAND AND FAYETTE COUNTIES, INC., Carl Bartolomucci, Individually, and as Executive Director of the Private Industry Council of Westmoreland and Fayette Counties, Inc., Edward J. Lyons, Individually, and as Chairman of the Private Industry Council of Westmoreland and Fayette Counties, Inc., Defendants.

Civ. A. No. 85-0274.

United States District Court, W.D. Pennsylvania, Civil Division.

November 4, 1985.

John W. Murtagh, Jr., Greenfield & Murtagh, Pittsburgh, Pa., for plaintiff.

Albert C. Gaudio, Monessen, Pa., Alex E. Echard, Greensburg, Pa., for defendants.

MEMORANDUM AND ORDER

SIMMONS, District Judge.

Plaintiff, Harvey J. Smith, Sr., a black adult male, filed a Complaint against the Defendants on February 6, 1985, alleging two separate causes of action under federal law. Count I of the Complaint against Defendant Private Industry Council of Westmoreland and Fayette Counties, Inc. only, was brought under Title VII of the Civil Rights Act of 1964; Count II of the Complaint, against all the Defendants, was brought under 42 U.S.C. § 1985(3).

The Defendants filed a joint Motion to Dismiss, and/or Strike, pursuant to Rule 12 of the Federal Rule of Civil Procedure. The issues raised by the Defendants can be summarized as follows:

1. The Complaint allegedly fails to state a cause of action under 42 U.S.C. § 1985(3), because:

a. Charges of employment discrimination are allegedly cognizable only under 42 U.S.C. § 2000e, et seq.;

b. But in any case, the gravamen of a complaint under 42 U.S.C. § 1985(3) is a conspiracy, and, allegedly, as a matter of law, a conspiracy cannot be made out between a corporation and its directors or officers.

2. The complaint fails to state a cause of action under 42 U.S.C. Section 2000e, et seq. because:

a. The Plaintiff allegedly did not fulfill all of the conditions precedent to filing a complaint under this statute; and

b. In any case, the application of 42 U.S.C. Section 2000e et seq. to the defendants is allegedly a violation of the Eleventh Amendment to the Federal Constitution, and the Supremacy Clause, as well as a violation of principles of federalism.

3. In addition the Defendants have raised, but not briefed, the following issues:

a. The Court allegedly lacks subject matter jurisdiction;

b. The Court allegedly lacks personal jurisdiction;

c. The Complaint allegedly is not timely.

For the reasons hereinafter set forth, Defendants' Motion to Dismiss and/or Strike is denied.

I. FACTS

The Defendants are described in the Complaint as follows: Defendant Private Industry Council of Westmoreland and Fayette Counties, Inc. ("PIC"), is a non-profit corporation, incorporated under the Laws of Pennsylvania. Defendant Carl Bartolomucci is the Executive Director of Defendant PIC. Defendant Edward J. Lyons was at all times relevant hereto a member of the "New Appointing Council" responsible for selecting the Executive Director of PIC.

The operative factual allegations set forth in Plaintiff's Complaint are as follows:

10. The Defendant, Private Industry Council, of Westmoreland and Fayette Counties, Inc., has in violation of the provisions of Title VII of the Civil Rights Act of 1964, denied and continues to deny the Plaintiff equal opportunity for employment because of the Plaintiff's race. In particular, the Defendant, Private Industry Council of Westmoreland and Fayette Counties, Inc., has engaged in the following unlawful practices with the purpose and effect of denying black persons equal opportunity for employment:

a. the Defendant, Private Industry Council of Westmoreland and Fayette Counties, Inc., did not post a position vacancy notice for the position of Executive Director of the Private Industry Council of Westmoreland and Fayette Counties, Inc.;

b. the Defendant, Private Industry Council of Westmoreland and Fayette Counties, Inc., did not advertise a position vacancy notice for the position of Executive Director of the Private Industry Council of Westmoreland and Fayette Counties, Inc.;

c. the Defendant, Private Industry Council of Westmoreland and Fayette Counties, Inc., arbitrarily preselected Defendant, Carl Bartolomucci, for the position of Executive Director without consideration of any comparative qualifications or the utilization of any procedures normally and customarily utilized in the hiring process;

d. the Defendant, Private Industry Council of Westmoreland and Fayette Counties, Inc., denied the Plaintiff, and another black person, a female, an equal opportunity to be hired for the position of Executive Director;

e. the Defendant, Private Industry Council of Westmoreland and Fayette Counties, Inc., failed to provide an opportunity for advancement to Plaintiff and another black person, a female, on the same basis as opportunity for advancement is provided for white persons;

f. the Defendant, Private Industry Council of Westmoreland and Fayette Counties, Inc., failed to interview the Plaintiff and another black person, a female, for the position of Executive Director, despite the superior qualifications of the Plaintiff and the other black person;

g. the Defendant, Private Industry Council of Westmoreland and Fayette Counties, Inc., failed to request the Plaintiff and another black person, a female, to submit a resume for consideration in filling the position of Executive Director; and

h. otherwise discriminated against the Plaintiff on the basis of race.

13. From on or about the 1st day of July, 1983, until the present, in the Western District of Pennsylvania, the Defendants, Private Industry Council of Westmoreland and Fayette Counties, Inc., Carl Bartolomucci, individually and as Executive Director of the Private Industry Council of Westmoreland and Fayette Counties, Inc., and Edward J. Lyons, individually and as Chairman of the Private Industry Council of Westmoreland and Fayette Counties, Inc., did conspire for the purpose of directly and/or indirectly depriving the Plaintiff, Harvey J. Smith, Sr., a black citizen of the United States of the equal protection of the laws, or of equal privileges and immunities under the laws and in the furtherance of this conspiracy one or more of the Defendants did, or caused to be done, an act or acts in furtherance of the object of the conspiracy whereby the Plaintiff was injured in his property and deprived of his rights and privileges as a citizen of the United States, all of which is more fully set forth below and all of which was done as the result of a discriminatory racial animus, and all of which was and is in violation of the provisions of Title 42 U.S.C. § 1985(3).

14. The Defendants, and each of them, did conspire to fill the position of Executive Director of the Private Industry Council of Westmoreland and Fayette Counties, Inc., without advertising or posting a notice of vacancy, without soliciting or receiving resumes from qualified and interested candidates, and on the basis of political favoritism and the arbitrary pre-selection of Defendant, Carl Bartolomucci, without regard to the superior qualifications of the Plaintiff and other qualified candidates, all of which was done in a manner, and with the purpose, of depriving the Plaintiff of the equal protection of the laws and for a racially discriminatory reason and motive.

16. The Defendants performed the following overt acts, among others, in furtherance of the conspiracy, that is to say,

a. the Defendants arbitrarily preselected Defendant, Carl Bartolomucci, as Executive Director in an improper manner and on an inappropriate basis, i.e. political favoritism;

b. the Defendants filled the position without advertising c. the Defendants filled the position without posting;

d. the Defendants filled the position without soliciting or accepting resumes from qualified candidates;

e. in or about late August, 1983, the Defendant, Edward J. Lyons, advised the Plaintiff that he would not even be considered for the position and that he should apply for a lesser position;

f. the Defendants met and acted in concert, at a location and time and on a date known to them, but unknown to Plaintiff, to preselect the Defendant, Carl Bartolomucci, as Executive Director; and

g. the Defendants refused to consider the Plaintiff for the position in question on the basis of his race.

In appraising the sufficiency of the Complaint this Court follows the accepted rule that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the Plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957); Polite v. Diehl, 507 F.2d 119, 124 n. 12 (3d Cir.1974); Helstroski v. Goldstein, 552 F.2d 564, 565 (3d Cir.1977). To do substantial justice, reasonable inferences will be drawn to aid the pleader. Fed.R.Civ.P 8(f); 5 Wright, Federal Practice and Procedure, § 1363 at 657.

II. CLAIM UNDER § 1985(3)

The Defendants cite Great American Federal Savings and Loan Association, et al. v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979), for the proposition that violations of Title VII cannot be redressed by a suit under 42 U.S.C. § 1985(3),¹ but only by the procedures outlined in 42 U.S.C. § 2000e et seq. That is not, however, the precise holding of Novotny.

In Novotny, a male officer of a savings and loan institution brought an action under § 1985(3) alleging he was fired because he had supported females in their efforts to end sex discrimination. Novotny claimed his firing was in violation of Section 704(a) of Title VII of the Civil Rights Act of 1964.

The Supreme Court specifically held that the remedial provisions of Title VII were the exclusive vehicle for the protection of rights which were themselves created by Title VII.

Section 1985(3) provides no substantive rights itself; it merely provides a remedy for violation of the

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