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SOLIN v. STATE UNIV. OF NEW YORK

June 28, 1976

Esther F. SOLIN, Plaintiff,
v.
STATE UNIVERSITY OF NEW YORK, Defendant



The opinion of the court was delivered by: LASKER

LASKER, District Judge.

 Esther Solin sues the State University of New York (SUNY) on behalf of herself and others under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., and 42 U.S.C. § 1981. She alleges that SUNY has engaged in a widespread policy of discrimination against caucasian female applicants for employment and caucasian female employees ". . . in positions involving teaching, research or related duties with respect to hiring, tenure, promotions, assignments to preferred jobs, failing to provide equal job training opportunities, denial of correct seniority, denial of tenure, denial of compensation and employment benefits and in other ways." (Complaint, Para. 11) Solin moves for a class action determination. SUNY moves for judgment on the pleadings pursuant to Rule 12(c), Federal Rules of Civil Procedure, or, alternatively, for a change of venue pursuant to 28 U.S.C. § 1404(a).

 I.

 Motion for Judgment on the Pleadings

 SUNY argues that the complaint must be dismissed because (1) it fails to allege facts sufficient to raise a civil rights claim; (2) the action cannot be maintained against SUNY; and (3) Solin has not been aggrieved within the meaning of Title VII.

 A.

 Paragraph 11 of the complaint, quoted above, sets forth allegations which, if true, establish a violation of 42 U.S.C. § 2000e-2, which provides in pertinent part:

 
"(a) It shall be an unlawful employment practice for any employer -- (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges, of employment, because of such individual's race, color, religion, sex, or national origin."

 SUNY contends that to allege a violation of the statute the complaint must at least assert (1) that the plaintiff belongs to a minority group, (2) applied for a position for which she was qualified, (3) was rejected for the position, and (4) after the rejection the position remained open and the defendant continued to seek applicants. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Although Solin alleges the first three facts, she does not include the fourth. Accordingly, the complaint is dismissed unless within twenty days Solin amends her complaint to include the allegations required by McDonnell Douglas Corp., supra.

 B.

 SUNY further asserts that even if the complaint states a cause of action, the case cannot be maintained against it because (1) Solin applied for a position, and was rejected, at only one of its branches; (2) it is not a "person" within the meaning of the Civil Rights statutes; (3) the suit is barred by the Eleventh Amendment; and (4) it was not named as a respondent in Solin's charge before the EEOC as required by 42 U.S.C. § 2000e-5(e).

 1.

 According to the defendant, the fact that Solin applied for a position at the College of Purchase does not state a cause of action against SUNY, because the hiring determination was not made by anyone involved with administering the entire state college system. However, SUNY's actual involvement in the faculty appointment decisions at particular campuses raises issues of fact which cannot be determined on a motion for judgment on the pleadings. Solin's allegation that the decision not to offer her a faculty position was part of SUNY's overall discriminatory policy against caucasian ...


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