De Tore v. Local No. 245 of Jersey City Public Employees Union

• Decision Date: 08 January 1980
• Docket Number: No. 79-1873,79-1873
• Citation: 615 F.2d 980
• Parties: 22 Empl. Prac. Dec. P 30,706 Vincent DE TORE a/k/a Vicky De Tore, Appellant, v. LOCAL # 245 OF the JERSEY CITY PUBLIC EMPLOYEES UNION, Thomas DeCarlo, Joseph Onorato, William G. Spedding, Joseph Spangenberg, Nicholas Palladino, Michael Sylvestri, Maureen McDevitt, James D. Healey, James Iorio, S. F. Ray Marshall, Secretary of United States Department of Labor, the Department of Public Works of the City of Jersey City, Division of Automotive Services of the Department of Public Works of the City of Jersey City, Paul T. Jordan, M.D., Patrick J. McGovern, M.D., Thomas F. X. Smith, and the City of Jersey City, Jointly, Severally, and in the Alternative. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 980

615 F.2d 980

22 Empl. Prac. Dec. P 30,706

Vincent DE TORE a/k/a Vicky De Tore, Appellant, v. LOCAL # 245 OF the JERSEY CITY PUBLIC EMPLOYEES UNION Thomas DeCarlo, Joseph Onorato, William G. Spedding, Joseph Spangenberg, Nicholas Palladino, Michael Sylvestri, Maureen McDevitt, James D. Healey, James Iorio, S. F. Ray Marshall Secretary of United States Department of Labor, the Department of Public Works of the City of Jersey City Division of Automotive Services of the Department of Public Works of the City of Jersey City, Paul T. Jordan, M.D Patrick J. McGovern, M.D., Thomas F. X. Smith, and the City of Jersey City, Jointly, Severally, and in the Alternative.

No. 79-1873.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6) Jan. 8, 1980.

Decided Feb. 28, 1980.

Victor Ruskin, Daniel Hoberman, Arnold Gerst, Robert E. Margulies, Ruskin & Hoberman, Jersey City, N. J., for appellant.

Robert J. Del Tufo, U. S. Atty., Anne C. Singer, Asst. U. S. Atty., Newark, N. J., Ellen Beard, U. S. Dept. of Labor, Washington, D. C., for appellee Ray Marshall, Secretary of Labor.

Louis P. Caroselli, Corp. Counsel, Jersey City, N. J., Thomas Fodice, First Asst. Corp. Counsel, West Orange, N. J., Joanne Monahan, Jersey City, N. J., for appellee City of Jersey City, et al.

Before SEITZ, Chief Judge, and ADAMS and WEIS, Circuit Judges.

OPINION OF THE COURT

SEITZ, Chief Judge.

This is an appeal by the plaintiff from two orders of the district court dismissing her complaint. Plaintiff was employed as a clerk-typist by the Department of Public Works of the City of Jersey City, Division of Automotive Services (the Department) almost continuously from 1972 until mid-1975. After being dismissed in February, 1975, she was rehired on March 10, 1975. Beginning on this date, her salary was paid from funds made available to the city under the Comprehensive Employment and Training Act (CETA), 29 U.S.C. §§ 801-992 (1976), a federal funding program administered by the Department of Labor. ¹ Only four months later, however, plaintiff was discharged from this employment.

The essence of plaintiff's complaint is that the defendants violated her constitutional rights in terminating her employment. She named as defendants a public employees union and two of its officers (the union defendants), ² the City of Jersey City, its Department of Public Works and a division of that department, and various city officials and employees (the city defendants), and the Secretary of Labor (the Secretary). More specifically, plaintiff's complaint sets forth claims under two federal civil rights statutes, 42 U.S.C. §§ 1983, 1985(3) (1976). ³ She alleges that the defendants discharged her "for no other reason than plaintiff being a transsexual." She also states in her complaint that the defendants refused to afford her a hearing to contest her discharge and that as a result of the defendants' conduct, she has been unable to secure permanent employment and has suffered mental anguish. She alleges that these actions deprived her of a property interest in continued employment without due process and violated her right to equal protection. In addition, plaintiff also claims that the facts stated in her complaint and a supporting affidavit allege an infringement of a liberty interest in future employment. Finally she asserts that the discrimination against her violated a constitutional right to assert one's sexual preference.

After a hearing, the district court granted the Secretary's motion to dismiss for failure to state a claim upon which relief could be granted and the city defendants' motion for summary judgment. We shall examine these decisions of the district court separately.

I. Claims Against the Secretary

The district court granted the Secretary's motion to dismiss after considering memoranda submitted by the parties and hearing oral argument. Because the district court considered matters outside the pleadings, however, it should have treated the Secretary's motion as a motion for summary judgment. See Fed.R.Civ.P. 12(b)(6). Therefore, we will treat the district court's order as, in effect, granting summary judgment in favor of the Secretary. See Sprague v. Fitzpatrick, 546 F.2d 560, 563 (3d Cir. 1976), cert. denied, 431 U.S. 937, 97 S.Ct. 2649, 53 L.Ed.2d 255 (1977). Viewing the order in this light, we will affirm the district court's judgment as to the Secretary because we find, on this record, that plaintiff has raised no genuine issue of material fact concerning the Secretary's liability and that the Secretary is entitled to judgment as a matter of law.

First, despite the breadth of plaintiff's claims, she nowhere alleges in her complaint or supporting affidavit any acts or omissions by the Secretary or any employee of the Department of Labor that related to the termination of her employment. It appears that the Secretary was not even informed of plaintiff's dismissal until almost three years later, when she filed this suit.

Moreover, we do not think that the Secretary may be held vicariously liable for the acts of the city defendants who did participate in the decisions concerning plaintiff's discharge. We have held that liability may not be imposed in § 1983 suits on the basis of respondeat superior. See Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3d Cir. 1976). Even if a different rule applies under § 1985(3), an issue we do not decide, we agree with the district court's ruling that the city defendants, in deciding to discharge plaintiff, were not acting as servants of the Secretary and that therefore, their actions were not attributable to him.

In reaching this conclusion, we find the Supreme Court's decision in United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976), instructive. There, the Court was faced with the analogous question of whether a local agency that received federal financial assistance under the Economic Opportunity Act of 1964 was an agency of the federal government, making the United States liable for its negligence under the Federal Tort Claims Act. The Court concluded that:

the question here is not whether the community action agency receives federal money and must comply with federal standards and regulations, but whether its day-to-day operations are supervised by the Federal Government.

Id. at 815, 96 S.Ct. at 1976. Although the community action group had to comply with numerous regulations concerning the expenditure of the federal funds, the Court found that local officials maintained complete control over the operation of the agency's programs. Therefore, the Court concluded that the community action agency was not a "federal agency" and that its acts did not subject the United States to liability.

CETA does condition receipt of federal funds on compliance with many statutory provisions and regulations. See, e. g., 29 U.S.C. § 815 (1976). Nevertheless, the planning and implementation decisions that are crucial to the operation of the recipient's programs are made at the local level, see, e. g., 29 U.S.C. § 814 (1976), ⁴ and there is no thorough day-to-day federal supervision of local operations. Moreover, CETA is a successor program to the Economic Opportunity Act that the Court construed in Orleans, and it is designed to be even more decentralized than its predecessor in order to allow local officials to better meet local manpower needs. See H.Rep. No. 93-659, 93d Cong., 1st Sess. reprinted in 1973 U.S.Code Cong. & Admin.News pp. 2935, 2936.

Control over the servant's conduct or the right to control his conduct is crucial to the imposition of vicarious liability. See Restatement (Second) of Agency § 220(1) (1958). Here, the Secretary did not exercise any control over the city defendants' decision to discharge plaintiff. Indeed, there is no evidence in the record indicating that the Secretary was even aware of plaintiff's discharge until she filed this suit. Moreover, the Secretary had no right to control the challenged conduct in this case because he had no direct responsibility for the city defendants' initial hiring and firing decisions. Therefore, we hold that the Secretary is not liable for any allegedly unlawful acts committed by the city defendants in discharging plaintiff and that he is entitled to summary judgment.

II. Claims Against the City Defendants

Approximately two weeks after the district court granted the city defendants' motion for summary judgment, it entered an order dismissing the complaint against them. However, the district court filed no opinion with this order, and the order itself contains no discussion of the grounds underlying the district court's decision.

The only indication we have of the basis for the entry of summary judgment in favor of the city defendants is a statement made by the district court in its order dismissing the complaint against the Secretary. There the court stated that plaintiff had no property interest in employment, and therefore no due process right to a hearing, merely because her job was funded by CETA.

On appeal, plaintiff does not assert that CETA or the regulations promulgated under it create a property interest in continued employment that is protected by due process. ⁵ See Maloney v. Sheehan, 453 F.Supp. 1131 (D.Conn.1978). See also Gooley v. Conway, 590 F.2d 744 (8th Cir. 1979); White v. City of Paterson, 137 N.J.Super. 220, 348 A.2d 798 (App.Div.1975). Instead, she argues that she has a property interest in her employment that entitles her to due process protections because she is a member of a public employees union that has negotiated a collective bargaining agreement with the City of Jersey City under which union members may be discharged only for "just cause." Plaintiff asserts that this protection against dismissal without "just cause" creates a legitimate claim of entitlement to continued employment. See Bishop v. Wood, 426 U.S. 341, 96 S.Ct. 2074, 48...