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MILLS v. FOX

October 21, 1976

THELMA MILLS, Plaintiff,
v.
CLARE FOX, Individually and as Director of Haym Salomon Home for the Aged; JOSEPH SALZMAN, Individually and as Assistant Director of Haym Salomon Home for the Aged; "JANE" WEINBERG, Individually and as Director of Nurses of Haym Salomon Home for the Aged; LEON DAVIS, Individually and as President of Local 1199, Drug and Hospital Union; and LARRY BAKER, Individually and as District Representative of Local 1199, Drug and Hospital Union, Defendants



The opinion of the court was delivered by: PLATT

MEMORANDUM AND ORDER

 PLATT, D.J.

 This case was brought by Thelma Mills against various defendants charging discrimination in the termination from her job at the Haym Salomon Home for the Aged under Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. § 2000e, et seq.), and under 42 U.S.C. § 1983 for violation of her civil rights.

 Defendants Clare Fox, Joseph Salzman and the Haym Salomon Home for the Aged move to dismiss under FRCP 12(b)(1) on the grounds that Haym Salomon Home for the Aged ("Home") *fn1" is exempt from Title VII in that it is not an employer as defined in 42 U.S.C. § 2000e(b).

 Further, defendants Leon Davis, Larry Baker and District 1199 National Union of Hospital and Health Care Employees ("Union") move to dismiss under FRCP 12(b)(1) on the grounds that as to Davis and Baker, individual officers and agents of a union may not be sued under 42 U.S.C. § 2000e, and because the plaintiff failed to file a charge against Davis and Baker with the Equal Employment Opportunity Commission ("EEOC"). The Union moves to dismiss on grounds that the plaintiff has failed to exhaust her administrative remedies.

 The Union also moves to dismiss under FRCP 12(b)(6) on the grounds that the complaint fails to state a claim upon which relief may be granted because the complaint fails to allege any discriminatory conduct by the Union, and because the plaintiff has failed to exhaust her internal Union remedies.

 In the alternative, defendants move to strike paragraphs numbered 2 and 3 of the complaint under FRCP 12(f) on the grounds that punitive damages and attorneys' fees are not authorized in an action founded on 42 U.S.C. §§ 2000e or 1983.

 We turn first to a problem not raised by defendants' motions but which was argued by the parties in their briefs. For an action under 42 U.S.C. § 1983 there must be jurisdiction under 28 U.S.C. § 1343 which requires that the acts complained of were done "under color of state law." There is no such allegation in plaintiff's complaint. Plaintiff does assert in her memorandum in opposition to the motion that the Home is "a recipient of state benefits in terms of tax exemptions, financial assistance and is dependent on assistance of the state and federal government to the extent that it could not in all probability operate without them . . . and is subject to extensive and pervasive state regulation . . ."

 The Supreme Court has discussed the problem of state action in a long line of cases. District of Columbia v. Carter, 409 U.S. 418, 34 L. Ed. 2d 613, 93 S. Ct. 602 (1973); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 32 L. Ed. 2d 627, 92 S. Ct. 1965 (1972); Evans v. Abney, 396 U.S. 435, 24 L. Ed. 2d 634, 90 S. Ct. 628 (1970); Burton v. Wilmington Parking Authority, 365 U.S. 715, 81 S. Ct. 856, 6 L. Ed. 2d 45 (1961). In Jackson v. Metropolitan Edison Co., 419 U.S. 345, 42 L. Ed. 2d 477, 95 S. Ct. 449 (1974), the Court decided that a public utility was not acting for the State as follows, 419 U.S. at 358:

 
". . . In common with all corporations of the State it pays taxes to the State, and it is subject to a form of extensive regulation by the State in a way that most other business enterprises are not. . . .
 
* * *
 
". . . Under our decision this is not sufficient to connect the State of Pennsylvania with respondent's action so as to make the latter's conduct attributable to the State for purposes of the Fourteenth Amendment."

 If anything, there is even less reason to find state action by a nursing home than by a public utility. Therefore plaintiff's action under 42 U.S.C. § 1983 is dismissed.

 The next and most difficult of defendants' contentions is that the Home is exempt from coverage under 42 U.S.C. § 2000e because the Home is not an employer as defined in § 2000e(b). The defendants claim that they fit within the section of § 2000e(b) that says an employer shall not include "a bona fide private membership club (other than a labor organization) which is exempt from taxation under section 501(c) of Title 26 . . ." There is no dispute that the Home is exempt from ...


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