1

 The City has not raised any objection to Ms. Conroy’s reliance upon a letter from

the EEOC, rather than from the Attorney General. See 42 U.S.C. § 2000e-5(f)(1). Such

an objection would likely fail given equitable considerations, but in any case, since there

has been no objection, the issue has been waived. See Zipes v. Trans World Airways,

Inc., 455 U.S. 385, 393 (1982). 

UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 LISA CONROY,

Plaintiff

v.

CITY OF PHILADELPHIA and

PHILADELPHIA POLICE

DEPARTMENT,

Defendants

CIVIL ACTION

No. 03-4240

OPINION

March 15, 2006

In or about August 2002, plaintiff Lisa Conroy filed a Charge of Discrimination

against the City of Philadelphia (“City”) and the Philadelphia Police Department with the

Equal Employment Opportunity Commission (“EEOC”), alleging sex-based

discrimination. In April 2003, the EEOC issued Ms. Conroy a right-to-sue letter.1 Ms.

Conroy then initiated this action by filing a pro se complaint in July 2003 against the City

and the Philadelphia Police Department. In March 2005, the Philadelphia Police

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 1 of 24
2

Department was dismissed as a defendant. In April 2005, Ms. Conroy, represented by

counsel, filed an amended complaint against the City, the Commonwealth of

Pennsylvania (“State”), the Pennsylvania State Police (“State Police”), and the Municipal

Police Officers’ Education and Training Commission (“MPOETC” or “Commission”). 

The amended complaint alleges violations of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e et seq., as well as 42 U.S.C. §§ 1983, 1985, 1986, and adds a state tort

claim.

On May 2, 2005, the City filed a motion to dismiss Ms. Conroy’s amended

complaint. On August 19, 2005, the State, State Police, and Commission (collectively,

“Commonwealth defendants”) also filed a motion to dismiss. Those two motions, and

Ms. Conroy’s responses, are presently before this court. 

I. Ms. Conroy’s Factual Allegations

Ms. Conroy’s amended complaint makes the following allegations, which must be

accepted as true in deciding defendants’ motions to dismiss: Ms. Conroy applied for a

position as a police officer with the City of Philadelphia’s Police Department. On

October 12, 2001, she was accepted into a training program (“Police Academy”) operated

by the Philadelphia Police Department as a recruit. 

On June 6, 2002, she was dismissed from the Police Academy because she failed a

required portion of the standard physical fitness examination––the “sit-and-reach”

flexibility test. Ms. Conroy contends that she passed all other portions of the

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 2 of 24
2

 The required fitness standards to become a police officer in Pennsylvania are

based on an age and gender matrix––i.e., an applicant must score at or above a certain

population percentile, in light of his or her age and gender. (One of Ms. Conroy’s exhibits

suggests the minimum sit-and-reach passing score for women her age was 19 inches,

while the minimum passing score for men in the same age range was 16.5 inches.) 

3

examination, and that her failure of the sit-and-reach test was the only factor leading to

her dismissal. 

Ms. Conroy alleges that “the standards to pass the sit-and-reach test were higher

for women than for men.”2 In addition, she argues that the sit-and-reach test is not

predictive of job performance, and states that the test was subsequently removed as a

requirement for police recruits. Amended Complaint (“Am. Complaint”) ¶¶ 25-26. 

Finally, Ms. Conroy alleges that while other “Police Officer Recruits who failed aspects

of the physical examination were offered the opportunity to retest, no such opportunity

was offered to Plaintiff or, to the best of Plaintiff’s knowledge and belief, to other failing

female Police Officers Recruits.” Id. ¶ 34.

Upon plaintiff’s dismissal from the Police Academy, Lieutenant Christopher Boyle

of the Academy allegedly suggested to Ms. Conroy that she should find a job more

suitable for a female. Am. Complaint ¶ 27. Ms. Conroy was subsequently offered a

position as a Correctional Officer, a position she says “entail[s] a significantly lower rate

of pay and prestige than that of a Police Officer.” She states that “compelled by financial

need, [she] accepted the position.” Id. ¶ 23.

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 3 of 24
4

II. Ms. Conroy’s Legal Claims

A. Amended Complaint

The first count of Ms. Conroy’s amended complaint contends that the sit-and-reach

portion of the examination was non-predictive of job performance, unlawfully

discriminatory against women, and therefore improper. She contends that her resulting

termination was unlawful and constituted denial of equal protection, resulting in

significant loss of income and earning potential. Ms. Conroy also contends that the

defendants’ “actions were malicious, intentional, and willful and were done with

deliberate indifference” to her rights, causing her “embarrassment, public humiliation,

damage to her personal and professional reputation, and loss of respect among her class

members.” Am. Complaint ¶¶ 38-39. The City of Philadelphia’s motion to dismiss

characterizes this as a Fourteenth Amendment claim under 42 U.S.C. § 1983. In light of

Ms. Conroy’s complaint to the EEOC, I presume this is also intended as a claim under

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

In count two, Ms. Conroy reiterates these allegations but adds a conspiracy

element and cites 42 U.S.C. § 1985. See Am. Complaint ¶¶ 41-42. I understand this to be

a Fourteenth Amendment equal protection conspiracy claim under 42 U.S.C. § 1985(3). 

In count three, Ms. Conroy alleges that the defendants “knew or should have

known of the violations of [her] constitutional rights” and “had the power and/or

authority to prevent” these violations. She then restates the claim that the defendants’

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 4 of 24
3

 Although Ms. Conroy seeks “reinstatement,” she does not allege that she was, at

any time, a police officer in the Philadelphia Police Department.

5

actions were “malicious, intentional, and willful” and done with “deliberate indifference,”

and restates her alleged pecuniary and non-pecuniary losses. Am. Complaint ¶¶ 46-49. 

This appears to be a claim under 42 U.S.C. § 1986.

The fourth count of Ms. Conroy’s amended complaint asserts that defendants’

conduct violated 42 U.S.C. §§ 1983, 1985, 1986. This count essentially restates

allegations contained in the first, second, and third counts. Ms. Conroy also reiterates the

alleged comment by Lieutenant Christopher Boyle. Am. Complaint ¶¶ 51-55.

Finally, Ms. Conroy’s fifth count makes a state tort claim for intentional infliction

of emotional distress. Am. Complaint ¶¶ 57-60.

As to the relief sought, Ms. Conroy requests “full reinstatement as a Police Officer

with the Philadelphia Police Department3 or, in the alternative . . . readmi[ssion] to the

Philadelphia Police Academy.” Am. Complaint at 7-8. Ms. Conroy also seeks categories

of damages, without elaboration, as follows: “frontpay, if appropriate; . . . backpay, if

appropriate; . . . [compensation] for the wages and benefits of employment lost due to

Defendant’s unlawful conduct; . . . compensatory damages for future pecuniary losses,

pain and suffering, convenience, mental anguish, loss of enjoyment of life, and other

nonpecuniary losses as allowable.” Id. at 8. Finally, Ms. Conroy seeks punitive damages,

as well as interest, costs, fees, and expenses. Id.

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 5 of 24
6

B. Claims Withdrawn

Ms. Conroy now voluntarily withdraws Count V of her amended complaint––the

state tort claim for intentional infliction of emotional distress––as to the City of

Philadelphia, as well as her claim of punitive damages against the City of Philadelphia. 

In light of the State’s sovereign immunity, Ms. Conroy also voluntarily withdraws her 42

U.S.C. §§ 1983, 1985, 1986 claims against the Commonwealth defendants.

III. Discussion

A. City’s Motion to Dismiss

1. Overview

First, defendant City of Philadelphia (“City”) argues that Ms. Conroy has failed to

state any claim against the City. See City’s Mot. to Dismiss (“MTD”) at 2; Fed. R. Civ.

Pro. 12(b)(6). The City contends that it was required by the State to administer the sitand-reach test and to reject any recruits who failed the examination. The City maintains

that the State has sole responsibility for setting the standards, which led to the rejection of

Ms. Conroy, and therefore Ms. Conroy’s claims are only properly made against the State. 

Second––if its first argument does not prevail––the City advances the narrower

contention that Ms. Conroy’s 42 U.S.C. § 1985(3) and 42 U.S.C. § 1986 claims are based

on overly vague and conclusory allegations, and should be dismissed for failure to state a

conspiracy claim.

While I agree with the City’s second argument and therefore will dismiss Ms.

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 6 of 24
7

Conroy’s § 1985(3) and § 1986 claims, I reject the City’s first argument and conclude that

dismissal of Ms. Conroy’s Title VII and § 1983 claims against the City would be

improper. 

Ms. Conroy’s amended complaint takes issue with the use of the sit-and-reach test

on the ground that it is not job predictive, and impliedly contests the legality of the ageand gender-specific standards used to determine if one has passed the test. See Am.

Complaint ¶¶ 25-26. Examination of relevant statutes and regulations supports the City’s

position that it was required to comply with the State’s minimum training qualifications

for police officers and to apply the State’s minimum standards for physical fitness.

However, the City has not shown where it is that the State officially set forth the specific

requirement under which Ms. Conroy was dismissed. Moreover, as explained infra, even

if the City’s actions were compelled by the State’s rules, the City would not be

immunized from suit.

Ms. Conroy may also have a claim against the City if the test was improperly

applied to her––that is, if the City conducted the process in a gender-discriminatory

fashion in refusing to let her retake the sit-and-reach portion of the test. See Am.

Complaint ¶ 34 (alleging that while men were allowed to retake parts of the test, she and

other females were not). It is not clear that the City was required to reject Ms. Conroy

without giving her another opportunity to pass the sit-and-reach test. 

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 7 of 24
4

 The Pennsylvania State Police is an agency of the State and is responsible for the

administration of the Municipal Police Officers’ Education and Training Commission,

which is also an agency of the State. See 53 Pa. C.S.A. § 2161 et seq. 

5

 The powers and duties of the Commission are set out in 53 Pa. C.S.A. § 2164,

and include the following:

(1) To establish and administer the minimum courses of study for basic and

in-service training for police officers and to revoke an officer's certification

when an officer fails to comply with the basic and in-service training

requirements or is convicted of a criminal offense or the commission

determines that the officer is physically or mentally unfit to perform the

duties of his office or determines that a police officer subject to section

2166.1 (relating to prohibition on political activity) has engaged or

participated in the conducting of political or election campaign activity in

violation of that section.

... 

(8) To require minimum standards for physical fitness, psychological

evaluation and education as prerequisites to employment as a police officer.

...

(14) To make such rules and regulations and to perform such other duties as

may be reasonably necessary or appropriate to implement the education and

training program for police officers.

8

2. Ms. Conroy’s Claims Against the City, Generally 

The Municipal Police Education and Training Act, 53 Pa. C.S.A. § 2161 et seq.

(Pennsylvania Act 120), provides that the Commonwealth of Pennsylvania’s Municipal

Police Officers’ Education and Training Commission must establish a training program

for all municipal police officers. See 53 Pa. C.S.A. § 2161.4 The Commission is further

tasked with promulgating minimum training qualifications, including mandatory

minimum standards for physical fitness. See 53 Pa. C.S.A. § 2164(1), (8), (14).5

Under 53 Pa. C.S.A. § 2167(a), all municipalities are required to train all members

of their police departments in accordance with the provisions established by the

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 8 of 24
9

Commission. The statute goes on to say that “[a]ny person hired as a police officer shall

be ineligible to receive any salary, compensation or other consideration for the

performance of duties as a police officer unless the person has met all of the requirements

as established by the commission and has been duly certified as having met those

requirements by the commission.” 53 Pa. C.S.A. § 2167(b). The final subsection, 53 Pa.

C.S.A § 2167(c), states that “[a]ny person who orders, authorizes or pays as salary to a

person in violation of the provisions of this subchapter commits a summary offense and

shall, upon conviction, be sentenced to pay a fine of $100 or be imprisoned for a term not

to exceed a period of 30 days.” Furthermore, “[t]he commission may stop payment of all

funds paid or payable to municipalities under this subchapter for any violation of this

subchapter.” Id.

The Commission, acting pursuant to 53 Pa. C.S.A. § 2161 et seq., has promulgated

a number of regulations regarding the training of officers. The basic training course

requirements set by the Commission are broadly discussed in the Pennsylvania

Administrative Code, Title 37, § 203.11(a)(11). Subsection 203.11(a)(11) provides that

to be certified as police officers, applicants must “successfully complete a basic police

training course given at a Commission-certified school,” and to do so must achieve the

minimum grades established by the Commission. See also 37 Pa. Admin Code §

203.11(a)(11)(F) (requiring “minimum grade as established by the Commission”). 

Pennsylvania Administrative Code, Title 37, § 203.51(b) lists “physical conditioning”

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 9 of 24
6

 Ms. Conroy’s amended complaint acknowledges that the sit-and-reach was

established pursuant to the Commission’s powers under 53 Pa. C.S.A. § 2161 et seq. See

Am. Complaint ¶ 21. However, the subsequent paragraph erroneously attributes her

dismissal to 37 Pa. Admin. Code § 203.11(a)(8)(v). See id. ¶ 22 (asserting that the sitand-reach test was “required . . . pursuant to, inter alia, [37] Pa. Admin. Code §

203.11(a)(8)(v)”). 

Subsection 203.11(a)(8) was added to 37 Pa. Admin. Code § 203.11 in December

2003––after Ms. Conroy had been dismissed––to require applicants to pass a physical

fitness evaluation before becoming eligible for training (i.e., an entrance examination). 

See 33 Pa. B. 6046 (Dec. 12, 2003). It makes the sit-and-reach test one of the five

physical fitness elements applicants must pass “to be eligible for employment” as a police

officer; the regulation specifies that a “person will not be enrolled in a recruit training

program” unless he or she has scored in the 30th percentile for his/her age and gender. 

Ms. Conroy, on the other hand, was nearing the end of her training when she failed

her sit-and-reach examination. It appears that the sit-and-reach test she failed was part of

the physical fitness testing area––a required component of her basic training course (i.e.,

an exit examination). See Commission, Curriculum, at http://www.mpoetc.state.pa.us/

mpotrs/lib/mpotrs/miscellaneous/basic_police_curriculum_test_areas.pdf (listing the

“academy physical requirements” as one of the testing areas). I conclude that subsection

10

among the mandatory areas to be covered by the basic police training curriculum. 

(a) Whether state-mandated standards for police officers exempt the City

from liability for the sit-and-reach test.

In its motion to dismiss, the City contends that it was required by the State to

administer the sit-and-reach test. However, the City does not identify or cite any source

for this requirement. Ms. Conroy acknowledges that the Commission was empowered by

the State to set, and indeed established, various standards for police officers. However,

Ms. Conroy’s memorandum of law opposing the City’s motion to dismiss argues that

there is no evidence on record that “the sit-and-reach is one of those standards” set by the

Commission. See Pl.’s Memo. of Law Opposing City’s Mot. to Dismiss at 6.6

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 10 of 24
203.11(a)(11) and subsection 203.51(b), discussed supra, are the proper sources of

general authority. The question of whether (or where) the sit-and-reach test, specifically,

is set forth by the Commission as a component of a mandatory physical fitness exit

examination is discussed infra. In light of Ms. Conroy’s mistaken attribution and in light

of the arguments presented in her memorandum of law, I do not construe Ms. Conroy’s

complaint to have conceded that the sit-and-reach test she failed was required by state

law.

11

A variety of unofficial sources indicate that a final physical fitness test––consisting

of the same elements as the entrance examination––is administered prior to graduation

from basic police training programs in Pennsylvania, and that applicants must score at the

50th percentile to pass, and thereby qualify for state certification. See, e.g., Commission,

Academy Physical Fitness Requirements: Final Test Final Requirements, at

http://www.mpoetc.state.pa.us/mpotrs/cwp/view.asp?a=1133&q=

441066 (last modified Apr. 19, 2004); see also United States v. City of Erie,

Pennsylvania, – F. Supp. 2d. –, 2005 WL 3610687 at *n.8 (W.D. Pa. Dec. 13, 2005) (“In

order to complete academy training and obtain Act 120 certification, an individual must

take the same MPOETC test [as the one described in § 203.11(a)(8)] and perform each of

the components of the test at the 50th percentile of the individual’s gender and age

group.”); Brophy v. City of Phila., 2004 WL 1717616 (E.D. Pa. July 28, 2004) (implicitly

referencing the 50th percentile requirement by noting that a 73 year old male applicant

was required to complete the 1.5 mile run in 16:07 minutes, which is the 50th percentile

mark given his age and gender). Nonetheless, I must agree with Ms. Conroy that, to date,

it has not been shown that the Commission promulgated a requirement that police officer

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 11 of 24
7An “undue hardship” defense may, in certain circumstances, excuse a wrongdoer

acting pursuant to a state statute or regulation from liability for discrimination. For

example, Title VII affords an exception to liability for religious discrimination based on

undue hardship. See 42 U.S.C. § 2000e(j). In a 1990 Title VII case, the Third Circuit held

that “it would be an undue hardship to require a school board to violate an apparently

valid criminal [state] statute,” which prohibited public school teachers from wearing

religious dress, because doing so would require “exposing its administrators to a

substantial risk of criminal prosecution, fines, and expulsion from the profession.”

United States v. Bd. of Educ. for the Sch. Dist. of Phila., 911 F.2d 882, 891 (3d Cir. 1990)

(en banc).

While the instant case also entails some risk of criminal enforcement under 53 Pa.

C.S.A § 2167(c), it differs from United States v. Board of Education for the School

District of Philadelphia on several critical grounds, particularly the lack of a statutory

basis for an undue hardship defense in cases of gender-discrimination. Cf. EEOC v.

Illinois, 69 F.3d 167, 169 (7th Cir. 1995) (suggesting, in an age-discrimination suit, that

the appropriate target for suit might be the school districts which fired two teachers, and

not the state under whose regulatory mandate the teachers were fired––where the state’s

12

recruits pass a final sit-and-reach test in order to be certified. 

Assuming arguendo that the State mandated use of the sit-and-reach examination

at the time Ms. Conroy was tested, then the question remains whether the City can be

sued for its actions pursuant to the State’s requirements. The City contends it is not

amenable to suit, but cites no case law to support its proposition. And such case law as

there is suggests an outcome contrary to the City’s position. 

Typically, an alleged immediate wrongdoer can be sued: “[a] person aggrieved by

the application of a legal rule does not sue the rule maker . . . . He sues the person whose

acts hurt him.” Quinones v. City of Evanston, 58 F.3d 275, 277 (7th Cir. 1995) (noting, in

an age-discrimination case against a municipality, that “a discriminatory state law is not a

defense to liability under federal law; it is a source of liability under federal law”).7

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 12 of 24
provision was clearly invalid and there was no evidence the state tried to enforce it);

Davis v. City of Camden, 657 F. Supp. 396, 403 (D.N.J. 1987) (noting the role of the

qualified immunity defense in protecting officials from personal liability for reasonably

relying upon and enforcing state law). 

13

The viability of a § 1983 claim against the City for actions mandated by state law

merits separate discussion, in light of the “municipal policy requirement” described in

Monell v. New York City Dep’t of Soc. Servs., 436 U.S. 658 (1978) (holding that a

municipality is liable under § 1983 for constitutional deprivations resulting from its own

policies or customs, but cannot be held vicariously liable). In 1987, a New Jersey district

court noted that “somewhat surprisingly, there [was] little authority” on this issue. Davis

v. City of Camden, 657 F. Supp. 396, 402 (D.N.J. 1987). Nearly twenty years later, that

assessment remains apt; it appears that the Davis v. City of Camden opinion remains the

only discussion in this circuit of § 1983 liability for municipal acts required by state law. 

The court in Davis considered whether “because the policy [at issue] was

mandated by a state regulation, the policy was not a ‘county policy’ as contemplated by

Monell and its progeny, but a state policy that county officials merely enforced; and that

accordingly, the County [could not] be held liable under § 1983 . . . .” Davis, 657 F.

Supp. at 402. The court concluded that the County of Camden was liable for its “official

adoption” of an unconstitutional strip search policy, notwithstanding the fact that the

policy was mandated by a state regulation. Id. I am persuaded by the detailed reasoning

presented in Davis that a municipality may be held liable where it has, in some way, 

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 13 of 24
14

affirmatively adopted the policy or custom––albeit one that is required by the

state––which is the driving force behind the alleged violation. See id. at 402-04

(discussing Supreme Court precedent including Monell and Owen v. City of

Independence, 445 U.S. 622 (1980), as well as case law from other circuits); see also

Evers v. County of Custer, 745 F.2d 1196, 1198-99, 1203-04 (9th Cir. 1984) (drawing

upon Monell and Owen, and concluding that the County of Custer could be held liable

under § 1983 for decisions made and actions taken pursuant to the state code); Caminero

v. Rand, 882 F. Supp. 1319, 1324 (S.D.N.Y. 1995) (reviewing the limited case law from

other circuits and concluding that § 1983 liability is proper where “a plaintiff alleges that

a municipality inflicted a constitutional deprivation by adopting an unconstitutional policy

that was in some way authorized or mandated by state law,” as potentially distinct from

instances in which the municipality “simply enforces state law” and does not adopt any

“specific policy in the area at issue”). 

I conclude that the City remains subject to suit. The City has not yet established

that it was acting pursuant to a State requirement. Even assuming the City was so acting,

a State mandate is no bar to the City’s liability for gender-discrimination under Title

VII––the Supremacy Clause directs that federal law takes priority. Nor does the

prohibition against vicarious liability under 42 U.S.C. § 1983 preclude municipal liability

under that statute in this case, since Ms. Conroy has adequately alleged that the City

affirmatively adopted the testing policy, which was the moving force behind her alleged

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 14 of 24
8 Davis suggests that Evers v. County of Custer, cited in the text supra, is an

example of a court imposing liability on a local government body for unconstitutional

policies which were “authorized, but not mandated by state law.” Davis, 657 F. Supp. at

403. However, this reading of Evers seems to overlook the fact that the state code

imposed a “duty” on local officials to take action. Evers v. County of Custer, 745 F.2d

1196, 1198 n.1 (9th Cir. 1984). 

Although I differ with Davis as to the proper characterization of Evers, I agree that

some courts have distinguished between a municipality’s liability for acts authorized by

the state, versus those required by the state––concluding that a local government may not

be insulated from liability for acts merely authorized by the state (or where the local body

has some discretion), but is insulated from liability for acts commanded by the state. See,

e.g., Bethesda Lutheran Homes & Servs., Inc. v. Leean, 154 F.3d 716 (7th Cir. 1998);

Garner v. Memphis Police Dep’t, 8 F.3d 358, 364 (6th Cir. 1993).

Even if this position were to be adopted by the Third Circuit, dismissal of Ms.

Conroy’s § 1983 claims at this time would be inappropriate given the allegations

contained in Ms. Conroy’s complaint and the ambiguity of the contextual materials

currently before this court. 

15

constitutional deprivation. See, e.g., Am. Complaint ¶¶ 21, 26, 32-34 (alleging that the

City adopted specific policies and/or customs, in accordance with the State’s

requirements for police officers); see also Pl.’s Memo. of Law Opposing

Commonwealth’s Mot. to Dismiss, Ex. A. (Letter from the EEOC investigator, discussing

the City’s Police Academy’s alleged policies for rejecting candidates); cf. Davis, 657 F.

Supp. at 404.8

(b) Whether Ms. Conroy’s allegation that she was not accorded an

opportunity to retake the sit-and-reach test grounds a claim under Title VII and/or § 1983.

I now turn to Ms. Conroy’s allegation that she was not given an opportunity to

retake the fitness test. The Commission’s regulations discuss, at subsection

203.11(a)(11)(ii)(F)(I)-(II), the implications of failing a tested area: 

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 15 of 24
16

(I) Applicants not achieving the minimum grade in any tested area shall

repeat the failed training in that area before being eligible to take the

examination in that tested area at a Commission-certified school. If the

applicant fails to achieve the minimum grade on the applicant's second

attempt, the applicant shall be required to successfully retake and pass the

entire basic police training course to qualify for certification. 

(II) Applicants not achieving the minimum grade in two separate tested

areas during one basic police training course shall be required to retake and

pass the entire basic police training course in order to qualify for

certification. 

In Brophy v. City of Philadelphia, the court noted that “[a]lthough the statute

provides applicants not achieving the minimum grade in any tested area shall repeat the

failed training in that area before being eligible to take the examination, Brophy presents

no evidence that he requested to repeat the training or was denied such opportunity.” 2004

WL 1717616, at *7. Similarly, Ms. Conroy makes no allegations regarding a request to

repeat training; she asserts only that she was not given a second chance to take the sitand-reach test.

It is clear from the regulations that the City was prohibited from hiring Ms. Conroy

as a police officer without her passing the various required tests. See 53 Pa. C.S.A. §

2167(b)-(c). However, the regulatory language of subsection 203.11(a)(11)(ii)(F)(I)-(II)

does not make clear either that the City had to expel Ms. Conroy from the training

program after the first failed sit-and-reach, or that the City was required to let her retake

the test (or abused its discretion by not offering her the chance to retake the test). While

it is not apparent that Ms. Conroy had a clear entitlement to a second opportunity to take

the test, the language of subsection 203.11(a)(11)(ii)(F)(I)-(II) at least suggests that she

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 16 of 24
17

could have been allowed a second chance. Thus, Ms. Conroy may have a Title VII claim

against the City if she can establish, as alleged, that she was refused an opportunity to

retake the test on the basis of gender. See 42 U.S.C. § 2000e-2(a) (2000); see also Tex.

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981) (allowing disparate treatment

claim by an employee based on claims of gender discrimination). She may also have a

related § 1983 claim if she can show that this was done pursuant to one of the City’s

official policies or customs. Cf. Am. Complaint ¶ 34.

3. Ms. Conroy’s Conspiracy-Related Claims

The City argues that Ms. Conroy’s conspiracy claims, under 42 U.S.C. § 1985(3)

and 42 U.S.C. § 1986, fail because she has not alleged “more than ‘vague and conclusory

allegations.’” See City’s MTD at 4 (quoting Gutierrez v. Lynch, 826 F.2d 1534, 1538 (6th

Cir. 1987)). 

It is well settled that conspiracy claims must be pled with some degree of

specificity: “[Plaintiff] must allege specific facts that the Defendants reached an

understanding or agreement to violate the [Plaintiff’s] constitutional rights.” Boykin v.

Bloomsburg Univ. of Penn., 893 F. Supp. 409, 417 (M.D. Pa. 1995) (citing Ersek v.

Township of Springfield, 822 F. Supp. 218) (E.D. Pa. 1993) (Ditter, J.)). Ms. Conroy’s

amended complaint alleges no facts regarding a conspiracy; the extent of her allegation is

simply her statement that the Commission, through its adoption of the sit-and-reach test,

and the City, through its application of the test, conspired to deny Ms. Conroy her equal

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 17 of 24
18

protection rights. This is insufficient, and so Ms. Conroy’s 42 U.S.C. § 1985 conspiracy

claims will be dismissed. 

Relatedly, Ms. Conroy’s 42 U.S.C. § 1986 claims must be dismissed. See Toth v.

Bristol Township, 215 F.2d 595, 599 (E.D. Pa. 2002). Section 1986––which provides a

cause of action against those who know a § 1985 violation is to be committed and have

the power, but fail, to prevent it––requires a predicate violation of 1985. See, e.g., Clark

v. Clabaugh, 20 F.3d 1290, 1295 (3d Cir. 1994).

B. Commonwealth Defendants’ Motion to Dismiss

Since Ms. Conroy has voluntarily withdrawn her § 1983, § 1985, and § 1986

claims against the Commonwealth defendants, the only remaining claims against those

defendants are her Title VII claim and her state tort claim. 

1. Title VII of the Civil Rights Act of 1964

The Commonwealth defendants argue two grounds for dismissal of Ms. Conroy’s

Title VII claim: (1) the fact that Commonwealth defendants were not Ms. Conroy’s

employer or prospective employer, and (2) the lack of notice of a right to sue these

defendants prior to filing her amended complaint. Because I agree with the

Commonwealth defendants’ first argument, I will not reach the second.

Title VII, 42 U.S.C. § 2000e-5, allows an aggrieved person to bring suit against an

“employer, employment agency, labor organization, or [in some cases a] joint labormanagement committee.” To satisfy this Title VII requirement, the defendant need not be

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 18 of 24
19

the plaintiff’s actual or direct employer: “[W]here [a] defendant, though not the

plaintiff’s employer, nevertheless has such a degree and range of control over the plaintiff

that it is the plaintiff’s de facto or indirect employer . . . the relationship of the parties

should be regarded as an employment relationship.” Tyrrell v. City of Scranton, 134 F.

Supp. 2d 373, 380 (M.D. Pa. 2001) (observing that a plaintiff must allege an actual or de

facto employment relationship–past, present, or prospective–with the employer and

holding that students in a training program were not “employees” of that program); see

United States v. Bd. of Educ. for the Sch. Dist. of Phila., 911 F.2d 882, 891 (3d Cir.

1990). 

The Commonwealth defendants maintain that they cannot be considered Ms.

Conroy’s employer, despite the State’s controls over the hiring and certification process. 

Ms. Conroy concedes that the City had some forms of independent control over the hiring

of Ms. Conroy but maintains that the State had “sufficient sway” that it should be

considered her de facto employer. 

Whether or not the Commonwealth defendants qualify as indirect employers for

the purposes of a Title VII claim depends on whether the State is deemed to have

“extensive control” or to have played a purely regulatory role.

In United States v. Board of Education for the School District of Philadelphia, 911

F.2d 882 (3d Cir. 1990), the Third Circuit found that the Commonwealth in “various ways

exercise[d] control over the terms of employment of public school teachers” but held that

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 19 of 24
20

the Commonwealth (as opposed to the municipality) was not liable to the teachers, as

their employer, under 42 U.S.C. § 2000e-2(a). Id. at 891-92. The court reached this

holding because the Commonwealth’s “control [was] exercised exclusively in its

regulatory capacity rather than in the course of a customary employer-employee

relationship.” Id. at 891 (citing George v. New Jersey Board of Veterinary Medical

Examiners, 635 F. Supp. 953, 956 (D.N.J. 1985), aff'd, 794 F.2d 113 (3d Cir.1986)

(holding that licensing activities of the New Jersey Board did not make the Board of

Veterinary Medical Examiners an “employer” under Title VII)). 

The district court in Tyrrell v. City of Scranton distinguished between a theory

under which Title VII liability would be applicable “wherever a defendant employer has

control over the plaintiff's access to employment, even where the plaintiff is not employed

by the defendant, but by a third party”––also known as an “aiding or abetting” or

“interference” model, cf. Sibley Memorial Hosp. v. Wilson, 488 F.2d 1338, 1341 (D.C.

Cir. 1973)––and the “narrower” approach taken by the Third Circuit in United States v.

Board of Education for the School District of Philadelphia. Tyrrell, 134 F. Supp. 2d at

378. In this regard, the court also likened the Third Circuit’s approach to that taken by

the Seventh Circuit in EEOC v. Illinois, 69 F.3d 167, 169 (7th Cir. 1995). Tyrrell, 134 F.

Supp. 2d at 379-80.

In EEOC v. Illinois, the EEOC challenged the State’s administrative code, which

required teachers to retire at age 70. The court observed that the “state was acting in its

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 20 of 24
21

regulatory rather than its proprietary capacity, for it was regulating other employers, the

school districts.” EEOC, 69 F.3d at 170. The court acknowledged that the State

“exert[ed] more control over public school teachers than . . . probably over any other

persons formally employed by local governments in the state.” However, the court

concluded that the key powers of hiring and firing remained in the hands of the local

districts, although constrained by the state’s code. Id. at 171-72 (citing cases holding that

the State’s role in licensing of teachers did not make the State their “employer”). The

Seventh Circuit held that the State did not qualify as an indirect employer of the teachers

because its control was not “so extensive[],” and therefore the State was not liable under

the ADEA. Id. at 171.

In the instant case, the State essentially functions as a licensor––granting

certification to individuals to become police officers. While I note that provisions such

as 53 Pa. C.S.A. § 2167(c) (threatening to stop payments of funds to municipalities who

ignore the state’s mandatory qualifications for police officers) add complexity to the

instant case, the more important fact is that the State does not tell Philadelphia when to

hire or fire a police officer, or how much to pay them. Cf. EEOC v. Illinois, 69 F.3d at

169, 171-72. Furthermore, Philadelphia may add its own eligibility requirements to those

imposed by the State; city residency requirements are a familiar example. See McCarthy

v. Phila. Civil Serv. Comm’n, 424 U.S. 645 (1976) (upholding Philadelphia’s municipal

regulation requiring city employees to meet residency requirements). 

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 21 of 24
9

 For example, in addition to its residency requirement, Philadelphia also requires

that new police officer hires be between the ages of 19 and 40. See Philadelphia Police

Dep’t, at http://www.ppdonline.org/career/career_require.php. The State’s regulations

require only that they be 18 years of age or older. See 37 Pa. Admin Code § 203.11(a)(1).

22

In sum, the City’s ability to place its own requirements upon the hiring process,9 its

control over the rate of hiring, and its authority vis à vis firings, all militate against

finding that the Commonwealth has an indirect or de facto employment relationship with

Ms. Conroy. Therefore, Ms. Conroy’s claims against the State will be dismissed. 

2. State Tort Law Claim

Finally, in light of the dismissal of Ms. Conroy’s federal claims against the State, 

her state law claim for intentional infliction of emotional distress will also be dismissed. 

See United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966); Carnegie-Mellon Univ. v.

Cohill, 484 U.S. 343, 350 n.7 (1988).

Conclusion

An order effectuating the foregoing rulings accompanies this opinion. 

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 22 of 24
UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

 LISA CONROY,

Plaintiff

v.

CITY OF PHILADELPHIA and

PHILADELPHIA POLICE

DEPARTMENT,

Defendants

CIVIL ACTION

No. 03-4240

ORDER

March __, 2006

Defendant City of Philadelphia and the Commonwealth defendants––the

Commonwealth of Pennsylvania, the Pennsylvania State Police, and the Municipal Police

Officers’ Education and Training Commission––have moved for dismissal of this suit

brought by plaintiff Lisa Conroy.

Plaintiff has now withdrawn her state tort claim for intentional infliction of

emotional distress (Count V) as to the City of Philadelphia, as well as her claim of

punitive damages against the City. Plaintiff has also now withdrawn her 42 U.S.C. §§

1983, 1985, 1986 claims (Counts I-IV, except insofar as a Title VII claim is made)

against the Commonwealth defendants. 

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 23 of 24
Accordingly, and for the reasons stated in the foregoing memorandum opinion, it

is hereby ORDERED as follows:

(1) Count V of plaintiff’s amended complaint and plaintiff’s claim for punitive

damages are DISMISSED, as withdrawn, against the City of Philadelphia. 

(2) Defendant City of Philadelphia’s motion to dismiss (Docket # 24) is

GRANTED in part and DENIED in part. The motion is GRANTED with regard to

plaintiff’s claims under 42 U.S.C. § 1985 and 42 U.S.C. § 1986. Therefore, Counts II and

III of the amended complaint, as well as Count IV insofar as it makes such claims, are

DISMISSED against the City. With regard to Count V of plaintiff’s amended complaint

and plaintiff’s claim for punitive damages, the City’s motion is DISMISSED as moot. 

The remainder of the City’s motion is DENIED.

(3) Counts II, III, and IV, as well as Count I insofar as it makes a claim under 42

U.S.C. § 1983, of plaintiff’s amended complaint are DISMISSED, as withdrawn, against

the Commonwealth defendants, with the further result that the portion of the

Commonwealth defendants’ motion to dismiss (Docket #27) that is directed at the

foregoing counts of the amended complaint is DISMISSED as moot. The balance of the

Commonwealth defendants’ motion to dismiss, which is directed at plaintiff’s claims

under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., is GRANTED. 

(4) Count V of plaintiff’s amended complaint is DISMISSED as to the

Commonwealth defendants.

 /s/ Louis H. Pollak 

Pollak, J.

Case 2:03-cv-04240-LP Document 29 Filed 03/15/06 Page 24 of 24