Tyrrell v. City of Scranton

Decision Date02 March 2001
Docket NumberNo. 3:CV-00-0738.,3:CV-00-0738.
Citation134 F.Supp.2d 373
PartiesPaul F. TYRRELL, Plaintiff, v. The CITY OF SCRANTON, Fire Fighters Local Union No. 669 The International Association of Fire Fighters AFL&#x2014;CIO,<SMALL><SUP>1</SUP></SMALL> Harrisburg Area Community College, James P. Connors, individually and as Mayor of the City of Scranton, Harvey Applegate, individually and as Fire Chief of the City of Scranton, Terrence Osborne, individually and as Deputy Chief of Scranton Fire Department, and Kevin B. Nelson, individually and as Fire Training Specialist for the Harrisburg Community College, Defendants.
CourtU.S. District Court — Middle District of Pennsylvania

Peter G. Loftus, Waverly, PA, for Paul F. Tyrrell.

Joseph G. Ferguson, Elizabeth Cronin Leo, Ryan C. Blazure, Jennifer Walsh Clark, Rosenn Jenkins, & Greenwald, L.L.P., Scranton, PA, for City of Scranton, James P. Connors, Harvey Applegate and Terry Osborne.

Thomas W. Jennings, Philadelphia, PA, for Fire Fighters Local, Union No. 669.

Jeffrey F. Champagne, McNees, Wallace & Nurick, Harrisburg, PA, Elizabeth A. Maguschak, McNees Wallace & Nurick, Hazleton, PA, Kimberly Colonna, Harrisburg, PA, for Harrisburg Area Community College and Kevin P. Nelson.

MEMORANDUM

CAPUTO, District Judge.

Plaintiff Paul Tyrrell brought the present age discrimination action on April 21, 2000 alleging that he was unlawfully removed from his position as a firefighter for the city of Scranton, Pennsylvania. (Amended Complaint, Doc. 23.) The seven defendants fall into three classes for purposes of this court's analysis: 1) the city of Scranton and its officers ("the city"); 2) the firefighters' union ("the union"); and 3) the Harrisburg Area Community College and its officer ("HACC"). In separate motions, HACC and the union have moved for the dismissal of some or all of Tyrrell's claims for failure to state a claim upon which relief can be granted.2 HACC has also requested that Tyrrell be required to make a more definite statement of his claims against it. (Doc. 26.) For the reasons set forth below, HACC's motion to dismiss will be granted in part and denied in part; its motion for a more definite statement will be denied; and the union's motion to dismiss will be denied.

BACKGROUND

Plaintiff Tyrrell was hired by the City of Scranton Fire Department in January of 1997. (Doc. 23 ¶ 12.) Pursuant to the collective bargaining agreement between the city and the firefighters' union, all newly hired firefighters were required to complete the Harrisburg Area Community College Fire Academy. (Id.¶ 17.) After Tyrrell was unable to complete the Academy due to an injury, the city terminated him on May 13, 1997. (Id.¶¶ 18-19.) Tyrrell then filed a grievance with the union which resulted in the union brokering his reinstatement, subject to his successful completion of the Fire Academy. (Id. ¶¶ 20-23.) However, as Tyrrell was unable to satisfy the physical training requirements of the Academy, the city once again terminated his employment on May 12, 1998. (Id.¶¶ 24-26, 32.) According to Tyrrell, the union refused to intervene on his behalf a second time. (Id.¶ 34.)

Tyrrell alleges that Defendants seek to exclude otherwise qualified older persons from city firefighter positions by subjecting applicants to rigorous physical requirements that are not bona fide occupational qualifications. (Id.¶¶ 23, 27-31.)3 Tyrrell was born on August 23, 1955, making him forty-one years of age at the time of his first termination and forty-two years of age at the time of his second termination. (Id.¶ 11.) To buttress his claim that the physical requirements imposed by the city are not bona fide occupational qualifications, Tyrrell avers that the city currently employs a number of firefighters over the age of forty who could no longer meet the physical demands of the Fire Academy. (Id.¶ 26.)

The amended complaint asserts a myriad of claims under six different counts. Count I is an age discrimination claim against the city under the federal Age Discrimination in Employment Act (ADEA). (Id.¶¶ 36-39.) Count II contains age discrimination claims against the union under the ADEA and the Pennsylvania Human Relations Act (PHRA). (Id. ¶¶ 40-43.) Count III contains age discrimination claims against HACC under the ADEA and PHRA, as well as under the federal Age Discrimination Act of 1975, the Pennsylvania Fair Educational Opportunities Act, and § 32 of Title 22 of the Pennsylvania Administrative Code. (Id.¶¶ 44-47.) Count IV is a PHRA age discrimination claim against the city. (Id.¶¶ 48-51.) Though Counts V and VI are somewhat redundant, it appears that Count V alleges violations of 42 U.S.C. § 1983 on the part of each defendant based on predicate violations of 42 U.S.C § 1981 and the First, Fourth, Fifth and Fourteenth Amendments to the United States Constitution. (Id.¶¶ 52-63.) Count VI asserts that Defendants violated 42 U.S.C. ¶¶ 1985(3) and 1986 by conspiring to commit or failing to prevent the commission of the predicate civil rights violations mentioned in Count V. (Id.¶¶ 64-66.) Counts V and VI also include claims for attorneys' fees under 42 U.S.C. § 1988. The pending motions argue that many of these claims must be dismissed for failure to state a claim upon which relief can be granted.

DISCUSSION

Dismissal under Federal Rule of Evidence 12(b)(6) for failure to state a claim upon which relief can be granted is appropriate "only if, after accepting as true all of the facts alleged in the complaint, and drawing all reasonable inferences in the plaintiff's favor, no relief could be granted under any set of facts consistent with the allegations of the complaint." Trump Hotels & Casino Resorts, Inc. v. Mirage Resorts, Inc., 140 F.3d 478, 483 (3d Cir.1998) (citing ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir.1994)). See also Heffernan v. Hunter, 189 F.3d 405, 408 (3d Cir. 1999). Even before this court turns to the principal claims in Tyrrell's complaint, it is apparent that two of his claims against HACC will not satisfy this standard.

Although Tyrrell has invoked the Pennsylvania Fair Educational Opportunities Act (PFEOA), the scope of that statute does not encompass age discrimination. The PFEOA prohibits discrimination in educational opportunity on the basis of "race, religion, color, ancestry, national origin, sex, handicap or disability." 24 P.S. § 5002(a)-(c). As the PFEOA makes no mention of age, Tyrrell's PFEOA claim of age discrimination will be dismissed.

Tyrrell also invokes § 32 of Title 22 of the Pennsylvania Administrative Code to support a claim of age discrimination against HACC. However, as HACC notes, there exists no private right of action to enforce § 32. § 32.6, the provision by which the educational equality regulations of § 32 are enforced, provides only that the Pennsylvania Department of Education shall take certain steps to secure the compliance of covered institutions, such as conciliation, mediation, persuasion and sanctions. 22 Pa.Code § 32.6. Because § 32 clearly contemplates only administrative enforcement of its institutional regulations, Tyrrell may not bring a private action to enforce its provisions. Accordingly, this claim will also be dismissed.

I. ADEA and PHRA Claims Against HACC

The ADEA makes it "unlawful for an employer ... to fail to hire or discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). Likewise, the PHRA prohibits employment discrimination on the basis of enumerated personal characteristics, including age. 43 P.S. § 954(a). Because Title VII, the ADEA and the PHRA have similar purposes and contain parallel provisions, courts use judicial interpretations of Title VII to interpret the ADEA, and in turn use interpretations of both federal statutes in interpreting the PHRA. See Kelly v. Drexel University, 94 F.3d 102, 105 (3d Cir.1996) ("While the Pennsylvania courts are not bound in their interpretations of Pennsylvania law by federal interpretations of parallel provisions in Title VII, the ADA, or the ADEA, ... its courts generally interpret the PHRA in accord with its federal counterparts."); Kocian v. Getty Refining & Marketing Co., 707 F.2d 748, 752 n. 3 (3d Cir.1983) (Title VII and the ADEA are construed similarly); Hull v. Rose, Schmidt, Hasley, & DiSalle, P.C., 700 A.2d 996, 1000 (Pa.Super.1997) (state courts interpreting PHRA look to federal interpretations of Title VII); Gottlieb v. Ladd Furniture, Inc., 1992 WL 174617, *5 (E.D.Pa.) (Title VII, the ADEA and the PHRA are given parallel constructions).

HACC argues that the ADEA does not furnish Tyrrell with a cause of action against it because Tyrrell was a student attending HACC, not an employee of HACC. (Brief of Defendants HACC and Kevin B. Nelson in Support of Their Motion, Doc. 39 at 8.) The Third Circuit has made statements concerning the ADEA which support this position:

In addition to its language, the legislative history of this statute evinces the clear legislative intent to prohibit age discrimination by employers against employees and applicants for employment. Therefore, if [the plaintiffs] were not [the defendant's] employees, ADEA is not applicable to their cause....

EEOC v. Zippo Manufacturing Co., 713 F.2d 32, 35 (1983) (citations and internal quotes omitted). However, the Zippo court resolved the issue by determining that the plaintiffs there were independent contractors. Id. at 38. As such, it was not essential to the court's holding that the plaintiffs were not the employees of the defendant, since the plaintiffs were not employees at all. See 29 U.S.C. § 630(f) (defining "employee" as "an individual employed by an employer"); Robinson v. Shell Oil Co., 519 U.S. 337, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) (stating that only an "employee" may sue under Title VII, and holding that former employees are "employees"). Consequently, it...

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