Appeal from the United States District Court for the Western District of Pennsylvania (Pittsburgh) (D.C. Civil No. 80-1550).
BEFORE: ADAMS, GIBBONS, and STAPLETON, Circuit Judges.
STAPLETON, Circuit Judge.
This is an appeal from a summary judgment entered in favor of the defendants below. Appellant, Majid Ghaidan Al-Khazraji, alleges that he, a U.S. citizen, was denied tenure at St. Francis College on account of his race, religion, and national origin. On appeal, appellant's case is premised on title VII, 42 U.S.C. § 1981 and pendent state law claims. We affirm the district court as to the Title VII claim, and reverse as to the Section 1981 and pendent claims.
Majid Ghaidan Al-Khazraji was employed for over five years as an associate professor at St. Francis College in Loretto, Pennsylvania. Al-Khazraji, who was born in Iraq, is a United States citizen and a member of the Muslim faith. He has received advanced academic degrees from Cornell University and the University of Wisconsin.
Al-Khazraji applied for tenure at St. Francis in January, 1978. On February 10, 1978, the Tenure Committee voted to recommend to the Board of Trustees that tenure not be granted. Al-Khazraji was informed of that decision and on February 23, 1978, the Board adopted the Tenure Committee's recommendation.
On March 20, 1978, Al-Khazraji received a one-year written contract from St. Francis for the 1978-1979 academic year. This contract was not renewable beyond May 26, 1979. Al-Khazraji signed this terminal contract.
Although apparently no established procedures existed. Al-Khazraji sought internal review of this adverse decision. He did not at that time take any other action. Christian Oraver, president of St. Francis, and David McMahon, Al-Khazraji's department chairperson, advised him in a series of meetings "not to 'do anything until St. Francis made a final decision on [his] petition for reconsideration of the denial of [his] tenure application."*fn1 Al-Khazraji understood this as a request to refrain from taking action with any outside agency until he had "exhausted all of his options at the college."*fn2 In September, 1978, the Faculty Senate unanimously voted to permit the Faculty Affairs Committee to review the Tenure Committee's decision. The Faculty Affairs Committee did so and in January, 1979, recommended that the Faculty Senate request reconsideration of the tenure decision. On February 6, 1979, the Tenure Committee met and decided to not reconsider Al-Khazraji's application. Al-Khazraji worked his last day at the college on May 26, 1979.
On May 10, 1979, Al-Khazraji filed a suit against St. Francis in the Court of Common Pleas of Cambria County, Pennsylvania. In his complaint Al-Khazraji alleged that St. Francis had violated its own tenure guidelines in denying him tenure. He also alleged that the decision was motivated by "bias, prejudice and discrimination," and that the College had improperly considered his "ethnic (Arab) and religious (Muslim) background." This lawsuit was dismissed with prejudice on October 26, 1983, for failure to prosecute. Al-Khazraji did not appeal this dismissal.
In September, 1978, almost seven months after learning of the Tenure Committee's first rejection of his application, Al-Khazraji contacted the Pennsylvania Human Relations Commission ("PHRC") and inquired about his rights under civil rights statutes. At that time, the PHRC did not docket cases which "charged termination as a result of wrongful doing until the termination had taken place. notification of impending termination at some future date was considered insufficient reason to docket the charge or to proceed with the investigation."*fn3 Al-Khazraji was told that he could not file a charge with the PHRC until he had worked his last day at St. Francis College. He filed a complaint with PHRC on June 22, 1979, within thirty days of completing his final contract with St. Francis and over one year after he had first been informed of the Tenure Committee's decision. This complaint was deemed simultaneously filed with the Equal Employment Opportunities Commission.
On May 19, 1980, Al-Khazraji's PHRC complaint was dismissed. PHRC notified plaintiff of this in a letter, dated May 30, 1980, which gave two reasons for the dismissal. First, because "the alleged act(s) of discrimination occurred beyond the ninety (90) day period permitted by the statute of limitations;" second, because "Prior to filing your complaint, you took civil or criminal action that was based on the same issues as those raised in your complaint." Al-Khazraji did not appeal this dismissal.
On August 6, 1980, the EEOC issued to Al-Khazraji a right to sue letter.
On October 30, 1980, Al-Khazraji filed a pro se complaint in the United States District Court for the Western District of Pennsylvania against St. Francis College. This complaint alleged violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. by the college. He subsequently secured counsel and filed amended complaints naming the members of the Tenure Committee as additional defendants in their individual and official capacities. The amended complaints added allegations that the defendants had violated 42 U.S.C. §§ 1981, 1983, 1985(3), 1986, as well as the Pennsylvania Human Relations Act, 43 P.S. § 951 et seq. Al-Khazraji also alleged breach of contract and intentional infliction of emotional distress under Pennsylvania law.
On February 9, 1981, Judge Ziegler dismissed Al-Khazraji's claim under 42 U.S.C. § 1986 as untimely.
On September 30, 1981, Judge Ziegler dismissed Al-Khazraji's Title VII claim as untimely, relying on Delaware State College v. Ricks, 449 U.S. 250, 66 L. Ed. 2d 431, 101 S. Ct. 498 (1980). Al-Khazraji v. Saint Francis College, 523 F. Supp. 386 (W.D.Pa. 1981). Having dismissed the Title VII claim, Judge Ziegler also dismissed the ancillary 42 U.S.C. § 1985(3) claim. However, he retained Al-Khazraji's 42 U.S.C. §§ 1981 and 1983 claims and the pendent state law claims. Defendants had argued that these federal claims were barred by statutes of limitations. Judge Ziegler disagreed, and, following Davis v. United States Steel Supply, 581 F.2d 335 (3d Cir. 1978), applied a six-year statute of limitations to both actions.
Judge Ziegler refused to view the Section 1981 claim as raising only a claim of discrimination based on national origin and not on race. Ziegler read Al-Khazraji's complaint as alleging that Al-Khazraji was denied tenure because he was of the "Arabian" race.*fn4 He held that this could serve as the basis for a civil rights action under Section 1981, 523 F. Supp. at 391-92. Al-Khazraji's case thus went forward based on Sections 1981, 1983, and the pendent state law claims.
On August 30, 1981, and October 8, 1982, the District Court denied certain requests by Al-Khazraji for discovery of the Tenure Committee's reasons for denying tenure.
On November 28, 1984, defendants moved for summary judgment on the remaining issues in the case. On March 12, 1985, Judge Mencer granted summary judgment for defendants. Judge Mencer held that Al-Khazraji had not made out a prima facie case under Section 1981 because, since 1978, the only other person to receive tenure in the Department of Behavioral Science at St. Francis was Al-Khazraji's wife. Additionally, Judge Mencer held that a claim of discrimination of the basis of being an Arab is not cognizable under Section 1981.
Judge Mencer also dismissed the Section 1983 claim for lack of action taken under color of state law. Having dismissed the federal claims, Judge Mencer dismissed the pendent state law claims. Al-Khazraji appealed. Defendants raise a number of arguments supporting affirmance. These will be discussed seriatim.
The Rules of Decision Act, 28 U.S.C. § 1938 requires federal courts to give a prior state court judgment the same res judicata effect as would be provided by the courts of that state. Migra v. Warren City School District, 465 U.S. 75, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984); Ligas v. City of Pittsburgh, 765 F.2d 53 (3d Cir. 1985). Appellees argue that Al-Khazraji's suit in federal court is res judicata because of the prior state court and PHRC actions filed by Al-Khazraji. Neither contention is persuasive.
1. Effect of The State Court Action
Al-Khazraji's state court action never proceeded to a judgment on the merits. Rather, pursuant to Cambria County Court of Common Pleas Rule of Court No. 33, the action was dismissed for failure to prosecute.*fn5 Pennsylvania courts give no res judicata effect to a dismissal for failure to prosecute. See e.g., Robinson v. Trenton Dressed Poultry Co. 344 Pa. Super. 545, 496 A.2d 1240 (1985); Bon Homme Richard Restaurants, Inc. v. Three Rivers bank and Trust Company, 298 Pa. Super. 454, 444 A.2d 1272 (1982). Thus, the state court action is not res judicata to this suit.
2. Effect of PHRC Dismissal
The Pennsylvania Human Relations Act, 43 P.S. § 962(c), states:
In cases involving a claim of discrimination, if complainant invokes the procedures set forth in this act, that individual's right of action in the courts of the Commonwealth shall not be foreclosed. If within one (1) year after the filing of a complaint with the Commission, the Commission dismisses the complaint... the commission must so notify the complainant. On receipt of such a notice the complainant shall be able to bring an action in the courts of common pleas of the Commonwealth based on the right to be free from discrimination granted by this act. . . .
42 P.S. § 962(c) (emphasis added).
Appellees have not rebutted the clear statement in Section 962(c) that a dismissal by the PHRC does not foreclose resort to state courts. See Nestor v. Quaker State Coca-Cola Bottling Company, 579 F. Supp. 289 (W.D. Pa. 1984); Fye v. Central Transportation Inc., 487 Pa. 137, 409 A.2d 2 (1979). Moreover, the letter received by Al-Khazraji from the PHRC dismissing his complaint read, in part: "In addition, the Pennsylvania Human Relations Act as Amended by Act 318, provides that upon receipt of this official notice, you may engage a private ...