Weise v. Syracuse University, Nos. 372

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtBefore SMITH, OAKES and TIMBERS; SMITH
Citation522 F.2d 397
Parties10 Fair Empl.Prac.Cas. 1331, 10 Empl. Prac. Dec. P 10,294 Selene WEISE, Appellant, v. SYRACUSE UNIVERSITY et al., Appellees. Jo Davis MORTENSON, Appellant, v. SYRACUSE UNIVERSITY et al., Appellees. ockets 74-1977, 74-2092.
Docket NumberD,383,Nos. 372
Decision Date14 July 1975

Page 397

522 F.2d 397
10 Fair Empl.Prac.Cas. 1331,
10 Empl. Prac. Dec. P 10,294
Selene WEISE, Appellant,
v.
SYRACUSE UNIVERSITY et al., Appellees.
Jo Davis MORTENSON, Appellant,
v.
SYRACUSE UNIVERSITY et al., Appellees.
Nos. 372, 383, Dockets 74-1977, 74-2092.
United States Court of Appeals,
Second Circuit.
Argued Jan. 6, 1975.
Decided July 14, 1975.

Page 400

James I. Meyerson, New York City, for appellants Weise and Mortenson.

David N. Sexton, Syracuse, N. Y. (Bond, Schoeneck & King, William F. Fitzpatrick, Syracuse, N. Y., of counsel), for appellees Syracuse University, and others.

Elsa Dik Glass, Atty., EEOC (William A. Carey, Gen. Counsel, Joseph T. Eddins, Assoc. Gen. Counsel, Beatrice Rosenberg and Charles L. Reischel, Attys., EEOC, Washington, D. C.), for Equal Employment Opportunity Commission as amicus curiae.

Before SMITH, OAKES and TIMBERS, Circuit Judges.

SMITH, Circuit Judge:

These are appeals from orders of the United States District Court for the Northern District of New York, James T. Foley, Chief Judge, dismissing for lack of jurisdiction and failure to state a claim on which relief could be granted two actions alleging sex discrimination by Syracuse University in the employment of faculty members. 1 Plaintiff Selene Weise claims that she was denied a position and plaintiff Jo Davis Mortenson that she was terminated from her position on account of sex. Both plaintiffs sued the University, its Chancellor and Vice-Chancellor, and various faculty members and committees, seeking relief for a deprivation of constitutional rights, 42 U.S.C. § 1983; 2 for a conspiracy to

Page 401

deprive them of the equal protection of the laws, 42 U.S.C. § 1985(3); 3 and for redress of violations of Title VII of the 1964 Civil Rights Act, as amended, prohibiting sex discrimination in employment, 42 U.S.C. § 2000e Et seq. 4 They sought declaratory and injunctive relief, punitive and actual damages, and costs and attorneys' fees; Weise also demanded appointment to a position, while Mortenson claimed reinstatement. Judge Foley held that the complaints alleged insufficient indications of state action on the part of the University to support the claims under § 1983 and § 1985; that the actions sought relief for alleged discrimination which occurred while private universities were exempt from Title VII, and that the lifting of the exemption was not retroactive; and that in any event the plaintiffs' failure to file timely charges with the Equal Employment Opportunity Commission (EEOC) precluded their Title VII actions. Accordingly he dismissed the complaints. We reverse and remand for further proceedings.

I. PLAINTIFFS' ALLEGATIONS

A. Weise.

In 1969 Weise applied for a position as lecturer in the Department of Public Address at Syracuse University. She was turned down in favor of an allegedly less-qualified male. Thereafter, in January of 1970, she requested consideration for a teaching assistantship for the academic year 1970-71. Although Weise was hired for this position in March, 1970, she filed charges pursuant to the Human Rights Law of New York, Executive Law, McKinney's Consol.Laws, c. 18, § 290 Et seq. (McKinney 1972), alleging sex discrimination in the denial of her application for the lecturer's position. On December 14, 1970, seven days after the hearing on that charge commenced, she was notified that her appointment as teaching assistant would be terminated at the end of the academic year. Sensing that this was no mere coincidence, Weise filed an additional charge, this time alleging retaliation. These complaints were dismissed by the State Division of Human Rights on April 21, 1972, and Weise's appeals were dismissed by the Division's Appeal Board on June 1, 1973. She also filed charges with the EEOC on May 8, 1972.

Undaunted by her previous rebuffs, on January 28, 1973, Weise wrote to defendant Irwin who had participated in the 1969 decision not to hire her as a lecturer

Page 402

requesting consideration for any teaching position. When she received no response, she went to see Dr. Irwin, who acknowledged receipt of her letter but declined to discuss the matter. She then spoke to defendant Ried, who told her that he and Dr. Irwin had agreed not to grant any teaching assistantships to doctoral candidates such as Weise but rather to give priority to first year masters candidates. Weise alleges that on information and belief she was the only person affected by this decision; she further claims that at the time she was denied consideration for a teaching assistantship because she was a doctoral candidate, a male had his teaching assistantship renewed despite the fact that he was also a doctoral candidate. On June 25, 1973, she filed a new charge with the EEOC consolidating it with her prior charge regarding this denial of a teaching assistantship. On June 28, 1973, the EEOC issued a Notice of Right to Sue, 42 U.S.C. § 2000e-5(f)(1), 5 and on September 18, 1973, she commenced this action by filing her complaint in the district court.

B. Mortenson.

Plaintiff Mortenson, who has a Ph.D. in English, was employed as an Assistant Professor in Syracuse's Department of English from 1966 through 1968, teaching lower and upper level undergraduate courses. According to the complaint, when defendant Bryant became chairman of the department in 1968 he gave her less desirable assignments in terms of courses and scheduling while assigning less qualified males to teach more desirable classes. In the fall of 1969, the tenured staff of the English Department met to consider the prospects for tenure of plaintiff Mortenson and three male faculty members, including Peter Mortenson, who was soon to become plaintiff's husband. Peter Mortenson and Donald Morton were advised that they would be recommended for tenure the following year; plaintiff Mortenson and Joseph Roesch were told that they would be terminated in June, 1971. In the fall of 1970, however, Roesch was extended until June, 1972, and plaintiff Mortenson was told by a tenured professor that Roesch's extension was granted because he was married and it was a difficult year to find work. In the fall of 1970, however, Bryant reaffirmed the decision to terminate plaintiff Mortenson who by then had married Peter Mortenson because tenure could not be granted to both a husband and wife. Plaintiff's appointment was terminated as scheduled, despite the fact that she held a Ph.D. and had some of her work published, whereas neither Roesch nor Morton, both of whom were retained, possessed either qualification.

Mortenson actively pursued a variety of administrative remedies. On December 10, 1970, she filed charges with the New York State Division of Human Rights. After a hearing, the Division held, in November, 1972, that plaintiff had not been discriminated against in violation of New York's Human Rights Law. This determination was upheld by the Division's Appeal Board on September 30, 1973.

Mortenson was somewhat more successful with the University's internal grievance procedures. In April, 1971, she filed charges with the Academic Freedom, Tenure and Professional Ethics Committee of the University Senate. Hearings were held before a ten-member panel in the spring of 1972, and in January,

Page 403

1973, the panel issued its report, concluding that Mortenson's discharge had violated applicable procedure and was without adequate consideration of her qualifications. The panel divided equally on the issue of sex discrimination, however, and thus that charge was not upheld.

Armed with this favorable decision, Mortenson requested reconsideration of her termination. Her request was turned down by defendant Sutton (who had succeeded Dr. Bryant as chairman of the English Department) and the defendants Executive and Tenure Committees and their members, defendants Hoffman, Theiner and Burne. Mortenson maintains that this failure to reconsider her termination was invidiously motivated.

On September 24, 1973, Mortenson filed a complaint with the EEOC in Buffalo, alleging that her termination and the subsequent actions occurring "up to and including today" were in violation of Title VII. On September 27, 1973, the District Director dismissed the charge as untimely filed since the discriminatory acts complained of had occurred more than 300 days before the filing of the charges, 42 U.S.C. § 2000e-5(e), and issued a Notice of Right to Sue. On September 30, Mortenson advised the District Director that he had misinterpreted her charge, and she added two revised pages which made it clear that she was including the refusal to reconsider her termination as part of the course of discriminatory conduct. The District Director acknowledged receipt of her letter on December 3.

On December 7, Mortenson filed her complaint in the district court, alleging the issuance of the September 27, Notice of Right to Sue in satisfaction of the jurisdictional requirement of 42 U.S.C. § 2000e-5(f)(1). When it became clear to Mortenson's counsel that the defendants were claiming lack of jurisdiction for failure to file timely charges with the EEOC the stated reason for the Commission's dismissal of the original charge he sought a new Notice based on the amended charges. This Notice was issued on March 26, 1974, under a new case number.

II. STATE ACTION

Whether the actions of a private university constitute state action, a prerequisite for maintenance of a suit under 42 U.S.C. § 1983, is a question that has been the frequent subject of this court's attention, with varying results. Disciplinary measures taken against students of the New York State College of Ceramics at Alfred University were held to qualify as state action because the College, while situated on an otherwise private campus, was in reality a state institution, publicly controlled and financed, although managed by private administrators. Powe v. Miles, 407 F.2d 73, 82-83 (2d Cir. 1968). On the other hand, a contrary conclusion was...

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207 cases
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    ...conduct is involved confined to racial discrimination cases. As the Second Circuit recently held in Weise v. Syracuse University, 522 F.2d 397 (2d Cir. 1975), a less exacting state action standard is appropriate when the state gives aid to a school which practices sex discrimination in its ......
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