Winsey v. Pace College, 74 Civ. 2573.

• Decision Date: 06 May 1975
• Docket Number: No. 74 Civ. 2573.,74 Civ. 2573.
• Citation: 394 F. Supp. 1324
• Parties: Valentine R. WINSEY, Plaintiff, v. PACE COLLEGE and Jack S. Schiff, Individually and in his capacity as Agent for Pace College, Defendants.
• Court: U.S. District Court — Southern District of New York

394 F. Supp. 1324

Valentine R. WINSEY, Plaintiff, v. PACE COLLEGE and Jack S. Schiff, Individually and in his capacity as Agent for Pace College, Defendants.

No. 74 Civ. 2573.

United States District Court, S. D. New York.

May 6, 1975.

Vladeck, Elias, Vladeck & Lewis, New York City, for plaintiff; Judith P. Vladeck, Deborah A. Watarz, of counsel.

Simpson, Thacher & Bartlett, New York City, for defendants; Albert X. Bader, Jr., Martin H. Zuckerman, Harold S. Parsons-Lewis, of counsel.

MEMORANDUM

TENNEY, District Judge.

Defendants, Pace College ("Pace") and Jack S. Schiff ("Schiff"), move pursuant to Rules 12(b)(1), 12(b)(6), and 56 of the Federal Rules of Civil Procedure for an order dismissing the complaint for lack of subject matter jurisdiction or for failure to state a claim upon which relief can be granted or, in the alternative, granting summary judgment in favor of defendants. For the reasons set forth below, the motion is granted in part and denied in part.

Facts

Plaintiff is Ms. Valentine R. Winsey ("Winsey"), a former Associate Professor at Pace. Defendants are Pace, a large city university, and Schiff, the Executive Vice President of Pace.

Winsey had been employed by Pace, first as a Lecturer and then as an Associate Professor from 1966-1970. In February of 1970, Pace placed Winsey on a one year terminal contract of employment to cover the 1970-71 academic year. On July 30, 1970, Winsey filed a complaint against Pace with the Commission on Human Rights of the City of New York ("City Commission") alleging that Pace had denied her a promotion and had terminated her employment based solely on her sex. The City Commission reached a decision on July 3, 1972, in which it found sex discrimination as alleged and consequently ordered, inter alia, the reinstatement of Winsey. This decision was brought on for review before the New York State Supreme Court. On November 13, 1972, the New York State Supreme Court set aside the order of the City Commission. This action was affirmed by the Appellate Division of the Supreme Court, First Department, on May 14, 1974. Leave to appeal to the New York State Court of Appeals was denied on July 2, 1974.

In the interim, while the above-mentioned appeals were pending, Pace advertised for teachers qualified in psychiatry and biology to teach a course entitled "Human Sexuality" (December of 1972). Winsey applied for this position on December 19, 1972, but failed to get the job. Winsey thereafter filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). That complaint alleged that Pace's refusal of employment in the latter instance was an act of retaliation against her for the previous action which she had initiated against Pace. On March 14, 1974, Winsey received a "Notice of Right to Sue" from the EEOC. The instant action followed, charging Pace with a violation of 42 U.S.C. § 2000e-3(a) and charging Schiff with a tortious interference with Winsey's right to seek and secure employment.

Jurisdiction

Winsey, in her complaint, states that jurisdiction is premised upon 42 U.S.C. § 2000e-3(a), 42 U.S.C. § 2000e-5(f)(1) and (3), and 42 U.S.C. § 1983. Additionally, Winsey seeks to assert jurisdiction over the individual tort claim via the pendent jurisdiction of this Court.

Jurisdiction is validly invoked pursuant to 42 U.S.C. § 2000e-5(f)(3) which reads in pertinent part:

"(3) Each United States district court . . . shall have jurisdiction of actions brought under this subchapter. Such an action may be brought in any judicial district in the State in which the unlawful employment practice is alleged to have been committed . . .."

The assertions of jurisdiction under 42 U.S.C. § 2000e-3(a) and 42 U.S.C. § 2000e-5(f)(1) are irrelevant.

42 U.S.C. § 1983 does not in itself confer jurisdiction on the district court to hear cases arising under the Civil Rights Statutes. It is the substantive provision, and its jurisdictional counterpart is 28 U.S.C. § 1343(3). The complaint simply makes the bare assertion that "jurisdiction also lies under 42 USC § 1983." (Complaint ¶ 1). The only fact which the Court can find in the complaint which could conceivably support this assertion is the statement that Pace "is an educational institution duly organized under the laws of the State of New York." (Complaint ¶ 6). This statement appears to be patently insufficient in the face of the command of Rule 8(a)(1) of the Federal Rules of Civil Procedure which calls for "a short and plain statement of the grounds upon which the court's jurisdiction depends . . .." However,

"where a litigant raises claims under the Civil Rights Statutes, even though a complaint appears to be insubstantial, the more judicious approach is to assume jurisdiction and then decide whether the pleading states a claim for relief." Stambler v. Dillon, 302 F.Supp. 1250, 1252 (S.D. N.Y.1969).

This approach will be employed here.

The 42 U.S.C. § 1983 Claim

42 U.S.C. § 1983 provides a remedy where a person suffers a deprivation of "any rights, privileges, or immunities secured by the Constitution and laws". The act complained of, however, must be one done "under color of any statute, ordinance, regulation, custom, or usage, of any State".

Defendants assert that the acts complained of were private acts, and that the intrusion of the state, if any, was so minimal that it would fail to elevate essentially private acts to the level where they would be deemed acts of the state.

Winsey claims that Pace did act under color of state law in denying employment to her in that "the College receives substantial monies from governmental entities". (Watarz Affid. ¶ 4).¹ However, since information concerning the receipt of governmental funds is in the sole possession of Pace, she requests relief under Rule 56(f) of the Federal Rules of Civil Procedure, to deny summary judgment and to allow leave to prepare additional affidavits and to take depositions to establish state action.

The assertion by Winsey

"overlooks the essential point — that the state must be involved not simply with some activity of the institution alleged to have inflicted injury upon a plaintiff but with the activity that caused the injury. Putting the point another way, the state action, not the private action, must be the subject of complaint." Powe v. Miles, 407 F.2d 73, 81 (2d Cir. 1968).

Thus, if the Court were to grant relief under Rule 56(f) and it were to be established that Pace did in fact receive substantial monies from the State, this would still not suffice to show the requisite state action. The amount of funding received is simply immaterial unless it can be shown to have caused the alleged injury, to wit, the retaliation.

Since the Court has looked beyond the fact of the pleadings in reaching its conclusion, this motion to dismiss for failure to state a claim will be treated as a motion for summary judgment. See Fed.R.Civ.P. 12. Rule 56(c) of the Federal Rules of Civil Procedure provides in pertinent part that summary judgment "shall be rendered forthwith if the pleadings . . . together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." See generally Empire Electronics Co. v. United States, 311 F.2d 175 (2d Cir. 1962). The moving party has the burden of showing both the absence of any genuine issue of material fact and that movant is entitled to judgment as a matter of law. Dean Construction Co. v. Simonetta Concrete Const. Corp., 37 F.R. D. 242 (S.D.N.Y.1965).

Since the amount of funding, even if established, has not been shown (nor have the barest allegations been made) to be the cause of the alleged injury, it is not material. Therefore, Pace has carried its burden of showing the absence of any issue of material fact and that it is entitled to summary judgment. A claim under 42 U.S.C. § 1983 must fail, as a matter of law, since state action cannot be proven.² Defendants' motion for summary judgment as to this claim must be granted.

The 12(b)(1) Claim

Defendants next allege pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure that this Court lacks jurisdiction since plaintiff has not completed the proper deferral of her charge to the appropriate state or local agency as required by Section 706(c) of the Equal Employment Opportunity Act ("the Act"), 42 U.S.C. § 2000e-5(c).³ Plaintiff contends that there was a valid deferral.

Jurisdictionally, there are several prerequisites to the commencement of a Title VII action in this Court. If the alleged violation occurs in a state or locality which is empowered to investigate the charge and grant relief, then relief, in the first instance, must be sought at the state or local level. 42 U.S.C. § 2000e-5(c). Once the state or local proceedings have been terminated or after the expiration of sixty days since the commencement of the state or local proceedings, the complaint may be brought on before the EEOC. 42 U.S.C. § 2000e-5(c). Upon a finding by the EEOC that there is "reasonable cause to believe that the charge is true", 42 U.S. C. § 2000e-5(b), the EEOC issues to the complainant a "Notice of Right to Sue". 42 U.S.C. § 2000e-5(f)(1). At this stage the exhaustion of administrative remedies is deemed to be complete and resort to the federal court is proper. See Griffin v. Pacific Maritime Association, 478 F.2d 1118, 1120 (9th Cir.), cert. denied, 414 U.S. 859, 49 S.Ct. 69, 38 L.Ed.2d 109 (1973); Rouse v. Gulf Oil Corporation, 350 F.Supp. 178, 179 (E.D.Pa.1972).

The facts relating to the alleged deferral or the lack thereof are not in dispute. Winsey filed her complaint directly with the EEOC on March 14, 1973. She did not seek prior relief from any state or local agency although both the City Commission and the New York State Human Rights Commission are empowered to investigate and to provide relief where retaliation is alleged. See, e. g., N.Y. Executive Law...