The opinion of the court was delivered by: BEAM
This matter is before the Court for decision after trial to the Court of Title VII claims and trial to a jury of claims brought under 42 U.S.C. § 1981 and 42 U.S.C. § 1985(3).
Because the facts and issues of this case are so intertwined the Court originally planned to permit the jury to hear all of the evidence, notwithstanding the fact that only the Court would be deciding the Title VII matters.
However, after the plaintiff rested, the defendants moved for a directed verdict which was argued and granted with respect to the claims under 42 U.S.C. §§ 1981 and 1985(3). The jury was excused and the Title VII issues were then tried to the Court.
In February of 1980, the plaintiff, Crystal Chambers, a twenty-two year old unmarried black female was employed by the defendant, Girls Club of Omaha. The Girls Club is a private, non-profit, tax exempt corporation that serves girls in the Omaha community between the ages of eight and eighteen. The Girls Club has a facility located in North Omaha which serves approximately 1500 members. There is also a Girls Club site in South Omaha which benefits about 500 members. In addition, approximately 1000 young women (non-members) per year make occasional visits to the Girls Club and another 6000 children participate in community wide programs. The membership of the North Omaha Girls Club is approximately ninety percent black and the membership at the South Omaha Girls Club is approximately fifty percent to sixty percent black (testimony Mary Heng-Braun and Exhibit P-38-3). The total number of staff employed by the Girls Club is thirty to thirty-five persons. The non-administrative personnel employed is 100% black at the North Omaha Girls Club and fifty percent to sixty percent black at the South Omaha Girls Club (testimony Mary Heng-Braun).
The Girls Club provides structured educational, vocational, and social programming and a variety of other unstructured opportunities, all designed to help young girls reach their full potential. The Girls Club's stated purpose is to provide behavioral guidance and to promote the health, education, and vocational and character development of girls, regardless of race, creed or national origin (Articles of Incorporation of Girls Club of Omaha, as amended, 1975, Exhibit P-19-3; and By-Laws of Girls Club of Omaha, as amended, 1980, Exhibit P-19-4). Specifically, its mission is to "provide a safe alternative from the streets and to help girls take care of themselves" (testimony Mary Heng-Braun). Stated another way, the role of the Girls Club is to maximize "life opportunities" for the greatest number of girls (testimony Mary Heng-Braun).
The Girls Club maintains that it is an organization which can be differentiated from schools and other youth programs because of the all girl population it serves, and the high staff to member ratio. In addition, the Girls Club maintains that the extensive contact and the close relationships which often develop between the staff and the members as a result of the open, comfortable atmosphere at the Girls Club differentiates it from schools and other youth programs (one staff person for every ten members physically present at the Girls Club) (testimony Mary Heng-Braun, Bobbie Kerrigan-Rawley and Marta Nieves). Those closely associated with the Girls Club contend that because of the unique nature of the Girls Club's operations, each activity, formal or informal, is premised upon the belief that the girls will or do emulate, at least in part, the behavior of staff personnel. Each staff member is trained and expected to act as a role model and is required, as a matter of policy, to be committed to the Girls Club philosophies so that the messages of the Girls Club can be conveyed with credibility (testimony Eileen Wirth, Mary Heng-Braun).
One such philosophy embraced by the Girls Club is that teenage pregnancy limits life's options for a young woman (see, e.g., testimony Marian Andersen, Dana Bradford, Mary Heng-Braun). The record is replete with evidence that teenage pregnancy is, without a doubt, a major social problem that exists nationally as well as within the Omaha community. It is uncontroverted that the problems associated with teenage pregnancy cut across racial, social and economic lines, but that the number of teenage pregnancies among blacks is presently much higher than among whites (testimony Dr. Harriette Pipes McAdoo and Kenneth Goc). Teenage pregnancy often deprives young women of educational, social and occupational opportunities, creating serious problems for both the family and society (testimony Dr. McAdoo).
In response to the problems associated with teenage pregnancies and the potential impact upon its members, the Girls Club of Omaha has endeavored to develop and maintain programs aimed at pregnancy prevention. The executive program director of the Girls Club, Marta Nieves, testified that in 1980-1981 the Girls Club of Omaha had seven formal programs that related to pregnancy prevention.
In 1981, in response to the pregnancies of at least two unmarried staff members, a rule was formulated by the Girls Club executive director, Mary Heng-Braun, that single persons who become pregnant or cause a pregnancy would no longer be permitted to continue employment at the Girls Club.
Bobbie Kerrigan-Rawley, the Girls Club's deputy director, announced the policy at a staff meeting October 31, 1981. The rule was formally ratified by the Board of Directors on March 15, 1982. This policy was later to be referred to as both rule 11 and the Negative Role Model Policy.
At some point, approximately three months after The Negative Role Model Policy was announced, during an evaluation conference, the plaintiff notified her supervisor, Bobbie Kerrigan-Rawley, that she was pregnant. Thereafter, on February 22, 1982, the plaintiff received a letter from the executive director, Mary Heng-Braun, notifying her that she would be terminated as of April 15, 1982, because of her pregnancy. (Exhibit P-30). Within six days of her termination the plaintiff, with the assistance of Nebraska Equal Opportunity Commission investigator, Timothy Butz, filed charges of discrimination based upon her sex and marital status with the Nebraska Employment Opportunities Commission (NEOC) and the federal Equal Employment Opportunity Commission (EEOC) (testimony Timothy Butz; Exhibits P-61-1 and P-61-1A). On July 9, 1982, the NEOC held a determination proceeding regarding the plaintiff's charges of discrimination and made a finding that there was no "reasonable cause" to believe that the plaintiff had been discriminated against. The plaintiff made a timely appeal of the NEOC determination to the EEOC in Denver, Colorado, and while the appeal was pending the plaintiff filed this suit in United States District Court for the District of Nebraska in Lincoln, Nebraska.
This action was filed on January 24, 1983, against the NEOC and its officers; the Omaha Girls Club, Inc., its director, deputy director and its officers; the Omaha World-Herald, Harold W. Andersen, Woodson Howe, John Gottschalk, Governor Charles Thone and Attorney General Paul Douglas (first complaint, filing 1). In her first complaint the plaintiff alleged violations of the first,
fifth, ninth, and fourteenth amendments of the Constitution of the United States, violations of the Civil Rights Act 42 U.S.C. §§ 1981, 1983, 1985, 1986 and 1988, and pendant state violations including: bad faith discharge, defamation, invasion of privacy, intentional infliction of emotional distress, and conspiracy to deprive her of a right to a livelihood (filing 1). In March of 1983, each defendant filed a motion to dismiss or, in the alternative, a motion for a more definite statement and to strike (filings 21, 22, and 23). The plaintiff responded by filing an amended complaint on May 10, 1983, that was identical to the first complaint (amended complaint, filing 28). The plaintiff further amended her petition by filing a complaint under 42 U.S.C. § 2000e against the Girls Club and its affiliated defendants on August 18, 1983 (filing 41).
On October 20, 1983, Judge Urbom dismissed the NEOC, its officers, Governor Charles Thone, Attorney General Paul Douglas, the claim under 42 U.S.C. § 1983, the pendant state claims of libel, slander, bad faith discharge, intentional infliction of emotional distress and invasion of privacy (filings 52 and 53). The Court specifically found that the NEOC and the Commissioners named in the complaint had absolute immunity (filing 52, at 4). The Court further found that the Girls Club could not be charged under Section 1983 which requires state action as there was no evidence of a sufficiently close nexus between the Girls Club (a private club) and the state, a link which is necessary to treat the Girls Club as an arm of the State; nor did the Court find evidence that the Girls Club was exercising traditional state powers. Id. at 3-4, citing, Marsh v. Alabama, 326 U.S. 501, 90 L. Ed. 265, 66 S. Ct. 276 (1946); Briscoe v. Bock, 540 F.2d 392, 395-96 (8th Cir. 1976).
Subsequent to the October 20, 1983, order (filings 52 and 53) the plaintiff moved the Court for leave to file a second amended complaint (filing 60). The Court denied leave to file the second amended complaint because the plaintiff had failed to bring the proposed second amended complaint into conformance with the order of October 20, 1983, (plaintiff attempted to again name the NEOC and individual NEOC members as defendants as well as again pleading the dismissed state claims) (filing 65). The plaintiff was directed to file a third amended complaint in conformance with the October 20, 1983, order. Id. The plaintiff's third amended complaint (filing 68) again sought to reinstate parties and claims which had been dismissed on October 20, 1983. The plaintiff was again directed to file an amended complaint which satisfied the Court's earlier orders (filing 90).
On May 17, 1984, a fourth amended complaint was filed naming: The Omaha Girls Club, Inc., Mary Heng-Braun, director; Bobbie Kerrigan-Rawley, deputy director; Mrs. Harold Andersen, Allan Lozier, Clarence Barbee, N.P. Dodge, Jr., Dennis R. Woods, Dana Bradford III, Richard Kizer, Kermit Brashear II, Eileen Wirth, and active members of the Omaha Girls Club Board (filing 97). To the extent parties were not properly named in the fourth amended complaint, they were dismissed as were the claims of conspiracy to commit libel, slander and invasion of privacy (filing 117).
On November 26, 1984, the plaintiff sought the recusal of Judge Urbom (filing 141). That motion was granted on December 31, 1984, (filing 150). The case was transferred to Judge Schatz (filing 150) and, subsequently transferred to Judge Beam (filing 164). In a memorandum opinion dated November 7, 1985, Judge Beam granted summary judgment on the conspiracy issues in favor of the Omaha World Herald, Harold W. Andersen, G. Woodsen Howe and John Gottschalk (filing 197). The Court found that there were insufficient facts to create even an inference that the Omaha World Herald and the associated individual defendants agreed with anyone to deprive the plaintiff of her rights.
As noted above, at the close of the plaintiff's case, the jury was excused and verdict directed in favor of the defendants on the claims under Sections 1981 and 1985(3). In Craft v. Metromedia, 766 F.2d 1205, 1218 (8th Cir. 1985), the Eighth Circuit set forth the following standard for submitting issues to a jury:
The standard of review as to the submissibility of (the plaintiffs) case is the same under both federal and Missouri law. Crues v. KFC Corp., 729 F.2d 1145, 1148 (8th Cir. 1984). We may find for (the defendants) only if 'all the evidence points one way and is susceptible of no reasonable inferences sustaining the position,' of (the plaintiff). Id. (quoting Dace v. ACF Industries, 722 F.2d 374, 375 (8th Cir. 1983)) (quoting Decker-Ruhl Ford Sales v. Ford Motor Credit Co., 523 F.2d 833, 836 (8th Cir. 1975)). Furthermore, we must resolve direct factual conflicts in favor of (the plaintiff), assume as true all facts in (her) favor which the evidence tends to prove, and give (her) the benefit of all reasonable inferences. We may not find for (defendant) if the evidence so viewed would 'allow reasonable jurors to differ as to the conclusions that could be drawn.' See Crues, 729 F.2d at 1148 (quoting Dace, 722 F.2d at 375).
Id. It was this test which this Court applied before the determination was made to direct a verdict and dismiss the jury.
Section 1981 is commonly used to redress racial discrimination in employment.
See, e.g., Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975) (aggrieved individual may sue for employment discrimination under 42 U.S.C. § 1981); Greenwood v. Ross, 778 F.2d 448, 455 (8th Cir. 1985) (retaliatory discharge is cognizable under Section 1981); see also, Choudhury v. Polytechnic Institute, 735 F.2d 38, 42 (2d Cir. 1984) (retaliatory discharge). Congress imposed within Section 1981, a broad proscription against private racially motivated conduct. See, Jones v. Alfred H. Mayer, 392 U.S. 409, 423, 427, 20 L. Ed. 2d 1189, 88 S. Ct. 2186 (1968) (private discrimination in the rental or sale of property prohibited (Section 1982)). Remedies and procedures for employment discrimination under Section 1981 are not co-extensive with the coverage of Title VII; each provides an independent avenue of relief.
Johnson v. Railway Express Agency, Inc., 421 U.S. at 460. Unlike Title VII, Section 1981 only provides a remedy for employment discrimination where an employment decision is racially motivated; it may not be used to redress sexual discrimination. DeGraffenreid v. General Motors, 558 F.2d 480, 486 n.2 (8th Cir. 1977).
In order to make out a case under Section 1981 purposeful or intentional discrimination must be shown.
General Building Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 383 n.8, 73 L. Ed. 2d 835, 102 S. Ct. 3141 (1982), aff'd, Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 104 S. Ct. 2576, 2590 n.16, 81 L. Ed. 2d 483 (1984); Washington v. Davis, 426 U.S. 229, 244-48, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976). Evidence of adverse or disparate impact alone is not sufficient under Section 1981 to show intentional discrimination. General Building Contractors Ass'n v. Pennsylvania, 458 U.S. at n.8. However, when evidence of disparate impact is combined with other circumstantial evidence such as departure from procedural norms or a history of discriminatory actions, a case of intentional discrimination may be made. See Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-68, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977).
The principles of order and allocation of proof are the same under Section 1981 as they are for Title VII claims of disparate treatment. Kenyatta v. Bookey Packing Co., 649 F.2d 552, 554 (8th Cir. 1981). However, it is not necessary to address how the proof should be ordered in this case because the plaintiff did not present sufficient evidence from which a jury could have inferred a discriminatory motive. See King v. University of Minnesota, 774 F.2d 224, 228-29 (8th Cir. 1985) (discharged tenured professor failed to make prima facie case under Section 1981 and the Court notes that the District Court could have directed a verdict for the defendants on the Section 1981 claim, had the case been tried before a jury).
In the eight days of presentation of evidence by the plaintiff in her case-in-chief, almost all of the facts adduced which related to race were those dealing with the general impact of the Negative Role Model Policy upon black women or single black women (testimony Dr. Harriette McAdoo and Kenneth Goc).
And, the Court, for the purposes of its ruling upon the motions for directed verdict, assumed that such impact was relevant and material to a determination of the plaintiff's Section 1981 claim.
There was evidence that the plaintiff is a single black woman; that the membership of the Girls Club of Omaha includes many young black women; that many of the members of the Omaha Girls Club are from households headed by a single black woman; that the neighborhood near the north unit of the Omaha Girls Club is inhabited by significant numbers of blacks; that the executive director of the Girls Club of Omaha, a married white woman, was given a paid maternity leave in 1983 and/or 1984; that another black woman, Pamela Simmons, was terminated under this policy; and that in 1983 the unit director of the north unit of the Girls Club, a then single white woman, may have resigned her position three or four weeks after becoming pregnant, and now, after being married, does volunteer and contract-consulting work for the Girls Club. However, the plaintiff failed to adduce evidence that she was treated differently because of her race, that racial animus existed on the part of the staff or any board member, that the Club deviated from its normal procedures, or that race was in anyway a factor in the termination decision, or the decision not to rescind the policy.
In fact, the evidence establishes that the plaintiff herself did not believe at the time she was terminated that she had been discriminated against because of race. Mr. Timothy Butz, investigator for the NEOC, testified that Ms. Chambers never alleged, during the entire course of the investigation, that she believed that she had been discriminated against because she was black. Mr. Butz testified that it was his normal practice to inquire as to why a complainant feels that he or she has been discriminated against and to specifically inquire as to whether race or national origin was a factor. Mr. Butz could not specifically recall this questioning of the plaintiff but indicated that his routine was almost certainly followed in this case (testimony Timothy Butz). The plaintiff, with the aid of Mr. Butz, filed complaints with the NEOC (Exhibit P-61-1) and the EEOC (Exhibit P-61-1A) which allege discrimination on the basis of sex and marital status. Mr. Butz also testified that he uncovered no facts in his investigation which were, in his view, consistent with racial discrimination. He also stated that he had the authority and the obligation under Nebraska law to amend a complaint on his own if, while investigating, he discovered facts in support of additional discrimination. No amendments were made. In addition, the plaintiff testified that she believed Mr. Butz was competent, knowledgeable and did an "excellent" job in his investigation and recommendations.
As indicated, the plaintiff did not produce any evidence of intentional racial discrimination. On the contrary, both the documentary and testimonial evidence which the plaintiff presented refutes the existence of racial motives. The plaintiff offered the Articles of Incorporation, as amended 1975, which state that the Girls Club's purpose is to serve girls without regard to race, creed or national origin (Exhibit P-19-1, para. 3). In addition, the plaintiff offered the Affirmative Action Plan for Girls Club of Omaha, adopted on October 28, 1981, designed to "correct the effects of past discrimination." (Exhibit P-7-7). The plaintiff's claim of discrimination is also dramatically discredited by the fact that the north unit of the Girls Club was purposefully located to better serve a primarily black population
(testimony Marty Schukert, Exhibit P-328); and by the fact that the plaintiff's position was filled by a black staff person who in turn was replaced by a new employee who was also black.
The testimony also shows that the staff, and in particular, Bobbie Kerrigan-Rawley, the Girls Club's white former unit director has continuously acted with great sensitivity for the problems of all staff members regardless of race. For example, Ms. Kerrigan-Rawley provided considerable support to Melanie Wells, a single black staff member who had a child while working at the Club. She loaned Ms. Wells money, drove her to work and to her babysitter, and helped her with the care of her baby (testimony Melanie Wells).
There is absolutely no evidence of any specific instance that a negative racial attitude or comment, from which discrimination could be inferred, has ever been shown or expressed by Girls Club personnel or a member of its board of directors. Based upon the evidence presented, it was simply not possible for a jury to find racial discrimination. Accordingly, the law required that the verdict be directed on the Section 1981 claim. See Washington v. Davis, 426 U.S. 229, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1978); Arlington Heights v. Metropolitan Housing Corporation, 429 U.S. 252, 50 L. Ed. 2d 450, 97 S. Ct. 555 (1977).
The defendants in this case have been charged with conspiracy under 42 U.S.C. § 1985(3). This section has its origin in the Civil Rights Act of 1871 and was designed to provide for recovery against those who conspire to deny a person equal protection of the laws or equal privileges and immunities of the law.
The statute has been construed to reach conspiracies involving private parties. Griffin v. Breckenridge, 403 U.S. 88, 101, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971). However, the reach of the statute has been limited by the Supreme Court. It cannot be used to litigate general tort claims in a federal forum. Id. at 101-02. The limitation makes the statute applicable only to conspiracies that are motivated by a dislike for a protected class of people. Id. Under the Griffin analysis there are four elements that must be established in order to prove a conspiracy: (1) that the defendant(s) had an agreement with at least one other person and participated or caused something to be done in furtherance of the agreement; (2) that the agreement was to deprive the plaintiff of a protected right; (3) that the defendant(s) were motivated by a dislike or hateful attitude toward a specific class of people and that the plaintiff was a member of that class; and (4) that the conspiracy caused deprivation or injury to the plaintiff. Id. at 103-04.
Section 1985 is a remedial statute; it does not confer any substantive rights. Griffin v. Breckenridge, 403 U.S. at 99-101; Great American Federal Savings & Loan Ass'n v. Novotny, 442 U.S. 366, 372, 60 L. Ed. 2d 957, 99 S. Ct. 2345 (1979). The plaintiff must, therefore, allege violation of an independent right that is protected under the statute. Griffin makes a distinction between protected classes and protected rights. Griffin v. Breckenridge, 403 U.S. at 102-106, 29 L. Ed. 2d 338, 91 S. Ct. 1790. However, exactly which classes and rights are protected is not altogether clear.
The facts adduced by the plaintiff regarding the conspiracy claim were intended to establish, at least circumstantially, that persons throughout the Omaha community agreed to deprive the plaintiff of her constitutional rights. Upon a motion for summary judgment, the conspiracy allegations with respect to the Omaha World Herald were carefully considered prior to trial and rejected by the Court (filing 196).
However, the Girls Club was not dismissed from the conspiracy claim and the claim, therefore, remained an issue for trial. The crux of the conspiracy issue, the plaintiff contends, is that representatives of the Girls Club agreed with one or more individuals or groups to validate a policy designed to condemn all black single mothers as immoral (fourth amended complaint, filing 97, para. III. 6.)
The plaintiff attempted to prove that the Girls Club conspired with members of the NEOC in order to obtain a favorable determination, which the plaintiff believes had the effect of enhancing the credibility of the policy. The plaintiff also attempted to show that the Girls Club engaged the aid of various non-parties, the City of Omaha, Metro Area Right to Life, and the Black Ministerial Alliance, for the purposes of: (1) intimidating the plaintiff; (2) drawing out the proceedings so that the plaintiff would drop her charges; (3) covering up the real intent [discriminatory] of the policy; (4) preventing the community agencies from helping the plaintiff; and (5) engaging in a massive public relations campaign in support of the policy (fourth amended complaint, filing 97, para. 23-56; conference in chambers January 13, 1986).
It would normally be up to a jury to decide whether a conspiracy existed, or a right was violated, or whether class-based animus motivated the conspiracy. However, given the benefit of all reasonable inferences, the jury could not have found from the evidence presented that an agreement existed between the Girls Club and any other group or person which was designed to deprive the plaintiff of a protected right. It is also questionable, as a matter of law, whether a protected right has been alleged which is cognizable under Section 1985(3). A discussion of each element follows:
The threshold requirement for a Section 1985(3) cause of action is some proof of concerted action or agreement between two or more persons. Griffin v. Breckenridge, 403 U.S. at 102. The plaintiff theorized that the defendants' actions were part of both an intra-corporate conspiracy and a conspiracy with outside individuals and organizations.
At the outset, the Court finds that an intra-corporate conspiracy did not exist within the Girls Club. The general rule with respect to intra-corporate conspiracies is that a corporation cannot conspire with itself. See Runs After v. United States, 766 F.2d 347, 354 (8th Cir. 1985) (Indian tribal council); Cross v. General Motors Corp., 721 F.2d 1152, 1156 (8th Cir. 1983), cert. denied, 466 U.S. 980, 104 S. Ct. 2364, 80 L. Ed. 2d 836 (1984) (corporation); Baker v. Stuart Broadcasting, 505 F.2d 181, 183 (8th Cir. 1974); see also Applicability of 42 U.S.C.S. § 1985(3), Providing Remedy to One Injured by Conspiracy to Deprive Him of Civil Rights, To Activity of Single Corporation or to Concerted Activity of Its Directors, Employees, Agents, and the Like, 52 A.L.R. Fed. 106 (1981); cf., Great American Federal Savings & Loan Ass'n v. Novotny, 442 U.S. 366, 372 n.11, (1979). The theory is that if the challenged act(s) are the act(s) of a single ...