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WINSEY v. PACE COLLEGE

May 6, 1975

Valentine R. Winsey, Plaintiff
v.
Pace College et al., Defendants


Tenney, D.J.


The opinion of the court was delivered by: TENNEY

TENNEY, D.J.:

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 U S C § 1983." (Complaint para. 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 para. 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. para. 4). *fn1" 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 ...


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