MEMORANDUM OF OPINION
MANOS, District Judge.
On February 17, 1976 plaintiff Helen Piascik, a woman, initiated an action charging the defendant Cleveland Museum of Art with rejecting her application for employment because of her sex in violation of 42 U.S.C. § 2000e, et seq.; 20 U.S.C. § 1681, et seq.
In August, 1973 the Cleveland Museum of Art [Museum] desired to hire three security guards and listed these employment opportunities with the Ohio Bureau of Employment Services. In late September, 1973, the Museum developed two openings for night watchmen. Guards and watchmen perform the similar security function of guarding the Museum's valuable art treasures, however, guards' hours and working conditions differ from those of watchmen. The guards are generally assigned to specific posts within the Museum during the daytime when it receives visitors. Watchmen work at night, checking entrances to make sure that they are locked and securing the building from damage. On the morning of September 19, 1973 Robert Singleton began work in one of the guard positions, and on
On September 21, 1973 plaintiff Piascik went to the Museum to interview for the job of security guard. She was told to apply for the job by Miss Catherine Gaethers, a social worker at St. Luke's Hospital, who thought the Museum had an opening for a guard. Mrs. Piascik spoke with Captain McGuigan of the Museum's security staff who discussed guard duties with her and who also discussed whether women were employed as security guards in the Museum.
Miss Catherine Gaethers testified that she is a social worker in the psychiatric department of St. Luke's Hospital and in 1973 she counseled Piascik who suffered from repeated nose bleeds for which no organic diagnosis was found. The hospital staff had diagnosed Piascik's problem as psychologically based probably caused by the stress she suffered from a prolonged period of unemployment and financial problems. Gaethers concluded that the best therapy for Piascik would be to obtain employment for her. Believing that the Art Museum had three openings for guards, Gaethers discussed such employment with Piascik and persuaded her to apply. Gaethers phoned the Museum and spoke with Captain McGuigan, who indicated that the Museum needed security personnel. After encountering some difficulty with McGuigan, Gaethers spoke with Albert Grossman, the Museum's operations administrator, who told her that women were not employed as security guards by the Museum. Despite the difficulty she encountered with the Museum officials Gaethers instructed Piascik to apply for the job. Gaethers testified that after Piascik was interviewed by McGuigan she told Gaethers that McGuigan said that the Museum did not hire women as security guards. Armed with this information from Piascik, Miss Gaethers sent Dr. Herman E. Lee, Director of the Museum, a letter dated September 21, 1973, which states in part:
Gaethers testified that shortly after she sent her letter Lee advised her by phone that McGuigan was in error, and that the Art Museum considered women candidates for the position of security guard. Gaethers also claims that the following day Lee admitted the truth of her charges with respect to McGuigan's conduct and reprimanded him.
Albert Grossman, Operations Administrator of the Museum, testified that he possessed absolute authority over hiring guards and watchmen and that the criteria for hiring were reliability, honesty and trustworthiness. Despite the absence of a guard opening when Grossman received Mrs. Piascik's completed employment application, he nevertheless processed her application, i. e., checked her employment history and recommendations, because Director Lee instructed him to process it. In the course of processing Piascik's application Grossman learned that she did not leave her previous place of substantial employment, at the Davis Bakery, because of a "disagreement," as she indicated on her Museum application,
Lee testified that after Piascik's employment application was processed, he decided that she should not be hired by the Museum, because of her prior discharge by the Davis Bakery for failure to follow the employer's policies with respect to handling cash at a cash register.
PIASCIK WAS NOT DENIED EMPLOYMENT BECAUSE OF HER SEX
Plaintiff Piascik charges that she was denied employment as a security guard at the Cleveland Art Museum because of her sex. However, the Court finds that the three security guard positions which were available at the Museum in August, 1973 were filled by the close of business on September 21, 1973, the day on which Piascik first inquired about those positions from the Museum,
The Court also concludes that the Museum employment officials, at Director Lee's express order, processed Piascik's employment application for a position, despite the fact that it had no guard openings, anticipating that she might qualify for other employment at the Museum, such as the similar position of "night watchman," for which two vacancies materialized on approximately September 20, 1973. See, Grossman's testimony. However, before the watchmen positions were filled, and while the Museum was processing Piascik's application, Museum officials discovered that she failed to candidly disclose in her application that she was terminated from her employment at Davis Bakery for failing to adhere to employer policy regarding the handling of cash at cash registers and that as a consequence Davis would not rehire her. See, Joint Exhibit 6 (Forms Letters dated September 26, 1973 and November 20, 1973; compare, Piascik's Museum Employment Form, p. 2); Grossman's testimony. Subsequently Dr. Lee
This Memorandum of Opinion is adopted as findings of fact and conclusions of law pursuant to Fed.R.Civ.P. 52(a).
IT IS SO ORDERED.
"No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . .." Jurisdiction is properly invoked for this claim under 28 U.S.C. §§ 1343(4), 1331(a). Dr. Lee's testimony indicates that the Museum receives federal assistance for an educational program it operates for the East Cleveland school system, and it also operates library, slide, and teaching facilities for eighty to ninety Case Western Reserve University students, for which the Museum is paid. The Court is satisfied that the operation of the Museum qualifies as an "education[al] . . . activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). Having established that § 1681(a) covers the defendant, the Court must determine whether § 1681(a), which contains no express private right of action, contains an implied private right of action. Arguably no such implied private right exists because § 1682 suggests administrative enforcement and § 1683 suggests judicial review of only such administrative enforcement actions. Furthermore, the legislative history of § 1681(a) reveals that it was enacted in the same bill which removed the specific exclusion of educational institutions from Title VII of the Equal Employment Opportunity Act. See, 1972 U.S.Code Cong.Admin. News 2462, 2511-12, 2566; and subsequent amendments discussed in 1974 U.S.Code Cong. Admin.News 6779, 6796. Based on this legislative history the defendant might have argued that Congress did not intend to create an implied private right of action to vindicate § 1681(a) claims, because it simultaneously amended Title VII to permit sex discrimination in employment suits brought against educational institutions. Therefore, the defendant could have argued that Congress intended §§ 1682, 1683 to be the only method of enforcing the prohibitions contained in § 1681. See, Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26 (1975), where the court held that "In determining whether a private remedy is implicit in a statute not expressly providing one, several factors are relevant. . . . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff."
The Court recognizes that § 1681(a) charges of sex discrimination in employment against defendants covered by § 1681(a) duplicates the express private remedy for such employment discrimination contained in Title VII, see, 42 U.S.C. § 2000e-5(b), (f). However, § 1681(a) renders unlawful many forms of sex discrimination in educational programs and activities. Section 1681(a), and the legislative history supporting it, express a powerful Congressional intent to eradicate sex discrimination in non-religious, non-military, co-educational programs, including, but certainly not limited to sex discrimination in employment in educational activities. See, U.S.Code Cong.News, supra. Without the recognition of a private cause of action under § 1681(a), individual litigants who suffered from non-employment related sex discrimination which violated the express prohibitions of § 1681(a), would be left with no remedy for the personal injury which they suffered to their education. Such a result would cripple Congress' effort to insure sexually equal educational opportunity in non-sectarian, non-military, co-educational programs. Thus recognition of an implied private right of action for vindicating violations of § 1681(a) is consistent with Congress' intent in enacting that provision, and must be recognized in the absence of an express statement by Congress that §§ 1682, 1683 comprise the exclusive means of enforcing the rights conferred by § 1681(a). This implied private right is implicitly recognized in Trent v. Perritt, 391 F.Supp. 171, 173 (S.D.Miss. 1975) where a male public high school student was permitted to argue that the school's hair length code violated his rights under § 1681(a). Of course since this Court has found that the plaintiff has not established that she was sexually discriminated against, she ultimately does not prevail on her well pleaded § 1681 claim.