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 entity, the fact that two or more agents participated is of no consequence. See Weaver v. Gross, 605 F. Supp. 210, 214-15 (D.D.C. 1985) (rejects theory that continuing violations by single corporation may provide basis for conspiracy).
The law, however, is not without exception. Where individual defendants are named and those individuals acted outside the scope of their employment or for personal reasons, then an intracorporate conspiracy may be actionable under Section 1985(3). Cross, 721 F.2d at 1156. See Hodgin v. Jefferson, 447 F. Supp. 804, 807 (D. Md. 1978) (unauthorized acts in furtherance of a conspiracy may state a claim under Section 1985(3)); Rackin v. University of Pennsylvania, 386 F. Supp. 992, 1005 (E.D. Pa. 1974) (tenured members of English department deprived plaintiff of opportunity to teach certain courses, established unprecedented requirements for tenure, denied plaintiff tenure and discharged her); Coley v. M & M Mars, Inc., 461 F. Supp. 1073, 1076 (M.D. Ga. 1978) (continuing harassment by individual defendants). The actions of Girls Club staff members and Girls Club board members individually named in this suit just do not fit within the exceptions. There is simply no evidence of individual acts of animus or harassment.
With respect to agreements by the Girls Club with individuals or organizations outside of the group, the plaintiff points to the NEOC, the Black Ministerial Alliance, the City of Omaha, and the Metro Right to Life Committee.
The plaintiff alleges that NEOC agreed with the Girls Club to find against the plaintiff on her discrimination charge in order to cover up the discriminatory motive of the Girls Club and to enhance the credibility of the policy. White v. Bloom, 621 F.2d 276, 281 (8th Cir.), cert. denied, 449 U.S. 995, 66 L. Ed. 2d 292, 101 S. Ct. 533 (1980) (conspiracy with an immune defendant is cognizable). Specifically, the plaintiff alleges that the NEOC violated the plaintiff's right to due process when it employed unfair procedures in arriving at its decision.
This Court does not need to pass upon the constitutionality of the procedures employed by the NEOC, because, even assuming all of the plaintiff's facts to be true and assuming that a due process violation did occur, the plaintiff failed to produce even a shred of evidence from which a jury could infer that such a violation was part of a plan to deprive the plaintiff of her rights. Even if the NEOC procedure was lacking, there is no evidence whatever that it was motivated by discriminatory design. Dunn v. Gazzola, 216 F.2d 709, 711 (1st Cir. 1954) (failure to give notice to woman plaintiff charged with child neglect does not provide a basis for a Section 1985(3) cause of action).
The only purported links between the Girls Club and the NEOC are Carmen Gottschalk and Marian Andersen who are acquainted with each other through their respective husbands. Mrs. Andersen testified that she did not know that Mrs. Gottschalk was a member of the NEOC until after this case was filed in early 1983. Mrs. Gottschalk testified that she did not know Mrs. Andersen was on the board of the Girls Club at the time she was appointed to the NEOC. Mrs. Gottschalk testified that she did not know anyone who appeared on behalf of the Girls Club at the hearing; and that she did not speak to anyone about this matter, including her spouse, before or after the July 9 hearing. Assuming, arguendo, that a jury were to disbelieve all of the evidence presented by the plaintiff with regard to Ms. Andersen, Commissioner Gottschalk and their knowledge of or communications with each other, there still is no evidence in the record which supports the plaintiff's burden of proof that a conspiracy was formed. There is no evidence that any other Commissioner knew anyone from the Girls Club, or that there was any contact between any representative of the Girls Club and the NEOC, other than as Mr. Butz testified (see footnote 20).
The failure of proof on this crucial evidentiary point precluded any inference by a jury that an agreement between the NEOC and the Girls Club could have existed. The Court recognizes that it is not necessary that an agreement be express and that it may be inferred from circumstantial evidence. However, it is simply not reasonable to allow a jury to speculate that two women, acquainted through spousal business activity, may have been conduits through which an unlawful conspiracy flowed. The plaintiff had the duty to present facts, not bare allegations.
The plaintiff also claims that the "tentacles" of the conspiracy reached various "affinity" groups in the community and that these groups also agreed with the Girls Club to endorse the policy as part of the alleged cover up. Any evidence of an agreement between the defendant Girls Club and a non-party would also have been sufficient to create a question for the jury. However, there was no such evidence presented. The evidence shows that the vice chairman of the Metro Right to Life Committee, Peter Bataillon, was contacted, sometime after the NEOC hearing, by a board member of Girls Club to see if the Girls Club could have an opportunity to respond to comments made within the community about the policy and to present its position with respect to the policy. The request was honored, the Girls Club's position was presented, and the Metro Right to Life Committee was satisfied with the explanation (testimony Peter C. Bataillon). No further action was taken.
Regardless of whether the Metro Right to Life Committee agreed or disagreed with the policy, and regardless of whether the Committee understood or misunderstood how the policy was applied, there is absolutely no evidence that the Committee agreed with the Girls Club to deprive black women or single black women or the plaintiff, in particular, of any rights whatsoever. And an endorsement of the Girls Club policy, if any, by the Metro Area Right to Life Committee, fails to provide even the weakest circumstantial evidence of an agreement to violate the plaintiff's rights or to cover up discrimination.
The plaintiff points toward two other actions to buttress her claim of conspiracy. First, she argues that rule 11 was not effective at the time she was fired, and, that after she was fired, the board of directors officially adopted the policy to cover up the Girls Club's discriminatory actions. Second, the plaintiff points to evidence which shows that after the July 9, 1982, NEOC hearing, the Girls Club had approximately twenty-four internal meetings, i.e., board of directors and staff gatherings, where the policy was discussed. These acts, even if shown to be evidence of a conspiracy, are only relevant to the intra-corporate theory which the Court has already determined could not exist as a matter of law in this case since no individual acts of malfeasance were alleged or established. Therefore, a discussion of these allegations and theories is not necessary with respect to the conspiracy claim (see Title VII findings of fact, infra).
2. Deprivation of a Protected Right
In order to fully and fairly examine the plaintiff's claims, the Court assumed, for the purposes of the defendants' motions to dismiss made at the close of plaintiff's case-in-chief, that plaintiff could, arguendo, establish that an illicit agreement or understanding was reached. Even then, plaintiff's claim fails.
As stated earlier, Section 1985(3) does not confer any substantive rights. It is merely a statutory channel through which a plaintiff may vindicate alleged violations or deprivations of constitutional rights. Gobla v. Crestwood School District, 609 F. Supp. 972, 978 (M.D. Pa. 1985). In order for a plaintiff to establish a claim for relief under Section 1985(3), there must be proof that some cognizable, federally protected, predicate right has been violated. Griffin v. Breckenridge, 403 U.S. at 103-104.
Giving the plaintiff the benefit of the most liberal interpretation of her claims, the Court construes the fourth amended complaint (filing 97) as alleging a violation of equal protection or privileges and immunities as a result of discrimination on the basis of race, privacy and gender.
The Court assumes that the basis of the gender or sex-based claim is that the plaintiff believes that she was treated differently than males because of her sex. And, because the plaintiff has alluded to, but never briefed nor argued, a theory of "privacy," the Court will assume that by pleading violations of the first, ninth and fourteenth amendments that she intended to encompass a "right to privacy" violation. See, e.g., Eisenstadt v. Baird, 405 U.S. 438, 31 L. Ed. 2d 349, 92 S. Ct. 1029 (1972); Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. Ct. 705 (1973).
Lower courts have continued to struggle to determine which rights are protected under the statute.
The Supreme Court in Griffin suggested that the proper approach in determining the scope of Section 1985(3) is to examine, independently, the rights and classes which the statute protects. Griffin v. Breckenridge, 403 U.S. at 102, 106. This will be done.
For purposes of redressing conspiratorial discrimination based upon race, 42 U.S.C. § 1981 may serve as the substantive basis for a cause of action under Section 1985(3). Thompson v. International Ass'n of Machinists and Aerospace Workers, 580 F. Supp. 662, 667-68 (D.D.C. 1984). However, the plaintiff was not able to establish sufficient evidence to create a jury question under Section 1981. Therefore, the evidence is not sufficient to provide the substantive basis for Section 1985(3) purposes.
In order to address the plaintiff's claim of conspiracy to discriminate on the basis of sex, it must first be determined whether such a claim is legally cognizable under Section 1985(3). In Great American Federal Savings & Loan Ass'n v. Novotny, the Supreme Court held that employment discrimination claims which are covered by the statutory scheme of Title VII cannot be asserted through a Section 1985(3) claim, 442 U.S. at 378. The plaintiff's sex-based claim appears to address an allegedly unlawful employment practice covered by Title VII (pregnancy) and Novotny, therefore, bars the Section 1985(3) sex-based claim.
It is the allegations involving the right to privacy that are more problematic. At the crux of the privacy argument is a belief held by the plaintiff that rule 11 is, in reality, a morality standard intended to discriminate against black females, (fourth amended complaint, filing 97, par. 15).
The plaintiff also argues that the policy was designed to promote abortion by making abortion a condition of employment.
And, because a man can more easily conceal his involvement in an unmarried pregnancy, he is not subjected to similar treatment. In Novotny no substantive rights besides Title VII were alleged as the basis of Section 1985(3). The Court found it unnecessary to consider "whether a plaintiff would have a cause of action under § 1985(3) where the defendant was not subject to suit under Title VII or a comparable statute." Great American Federal Savings & Loan Ass'n v. Novotny, 442 U.S. at 370 n.6. Following Novotny it has been held that Section 1985(3) does provide a cause of action where Title VII has not been pled. See, e.g., Skadegaard v. Farrell, 578 F. Supp. 1209, 1218 (D.N.J. 1984) (sexual harassment). In so holding the Court pointed out that the right which the plaintiff sought to protect was "'independent' of those provided in Title VII" and existed before the passage of Title VII. Id. at 1218.
The right of privacy would appear to be "independent" of any rights protected by Title VII.
The Court has been unable to find any case wherein the right of privacy has formed the substantive basis of a Section 1985(3) conspiracy.
And, although privacy may well provide a claim, it is not necessary for the Court to resolve the issue here because the plaintiff has failed to adduce any evidence which creates a jury question under the third prong of the Griffin test requiring class-based animus.
3. Class Based Invidiously Discriminatory Animus
In addition to establishing that the defendants entered into an agreement to deprive the plaintiff of protected rights, the plaintiff was required to present some evidence that the defendants were motivated because the plaintiff was a member of a class that the defendants disliked or hated. Griffin v. Breckenridge, 403 U.S. at 102; Shortbull v. Looking Elk, 507 F. Supp. 917, 921 (S.D. 1981), aff'd, 677 F.2d 645 (8th Cir.), cert. denied, 459 U.S. 907, 74 L. Ed. 2d 168, 103 S. Ct. 211 (1982). There are two prongs associated with this element of the Griffin test. First, Griffin's language requires that the plaintiff be a member of, or associated with a protected class. Griffin v. Breckenridge, 403 U.S. at 102-03. Second, there is a requirement that there be a "mens rea" present, i.e., that the conspirators have a particular hatred of the protected group. Shortbull v. Looking Elk, 507 F. Supp. 917 at 921, quoting, Harrison v. Brooks, 519 F.2d 1358 (1st Cir. 1975).
Not surprisingly both women and blacks are cognizable classes under Griffin. Life Insurance Co. of North America v. Reichardt, 591 F.2d 499, 505 (9th Cir. 1979) (conspiracy against a class defined by sex); Griffin v. Breckenridge, 403 U.S. 88, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (conspiracy against class defined by race). The plaintiff in this case is defined by both race and sex, alone or in combination. Jefferies v. Harris County Community Action Ass'n, 615 F.2d 1025, 1032-33 (5th Cir. 1980) (class defined as black women). The class or classes of which the plaintiff is a member are clearly within the protection of the statute.
It is the "invidiously discriminatory animus" requirement of the Griffin test where the plaintiff has failed. Evidence of adverse impact, if any, simply does not fulfill the mens rea requirement necessary to show irrational or invidious class discrimination. See Shortbull v. Looking Elk, 507 F. Supp. at 921.
The fact that the enforcement of the policy, initially or later, may have already impacted or perhaps will impact women, blacks, black women or single black women, more heavily is irrelevant. There is no evidence of an agreement, or understanding, or intent, to invidiously discriminate against any such group.
4. Injury or Deprivation
The final element for which the plaintiff was required to produce evidence is that the alleged act(s) in furtherance of the conspiratorial agreement caused her injury or deprivation. Griffin v. Breckenridge, 403 U.S. at 103. Unlike a criminal conspiracy the gravamen of a civil conspiracy is resulting damage Nalle v. Oyster, 230 U.S. 165, 183, 57 L. Ed. 1439, 33 S. Ct. 1043 (1913). The plaintiff claims that she lost her job, incurred medical costs, and suffered emotional distress. Because the Court has concluded: (1) no agreement existed; (2) there may have been no cognizable right; and (3) no class-based animus was present, it is not necessary to examine the causal relationship between the alleged acts and the alleged harm.
COMMON LAW CONSPIRACY
The plaintiff failed to establish sufficient facts to defeat the defendants' motion for a directed verdict on the issue of common law conspiracy. The elements which must be proven for common law conspiracy essentially mirror the requirement of 42 U.S.C. § 1985(3), with the exception that there need not be a showing of racial animus. Dixon v. Reconciliation, Inc., 206 Neb. 45, 291 N.W.2d 230, 233 (1980).
In retrospect the foregoing analysis may seem overly detailed and unnecessarily analytical. However, the Court is very mindful that jury issues should be preserved for jury consideration. In fact, the admonition of the Court of Appeals to reserve ruling on issues of sufficiency of evidence until after a jury verdict is usually followed by this Court. Therefore, the sustaining of a motion to dismiss upon completion of the plaintiff's case-in-chief happens only after careful consideration of the evidence adduced. Nonetheless, this is a case in which such action was proper.
The plaintiff has sought, through a series of judgmental allegations and conclusory affidavits and statements, to spin a web of deceit, discrimination and conspiracy involving dozens, even hundreds, of individuals and organizations in the Omaha community. At some point, illusory conclusions and unsupported suspicions must give way to fact. Mere contentions which are passed off as established fact must be held up to critical analysis. Otherwise, our system of justice becomes a vehicle for slander, intimidation, and character assassination.
Every law suit must be a search for truth. Here, the truth is that plaintiff, given the chance, failed to connect slightly related facts with anything relevant to the real issues of the case. Therefore, the dismissal is and was correct.
The Title VII claims were not dismissed at the conclusion of the plaintiff's evidence. They were the subject matter of evidence from the defendants and rebuttal evidence from the plaintiff. Accordingly, the Court begins, anew, an analysis of the facts and law as they may be applicable to the Title VII issues.
This action presents a novel question: whether a private service organization, which by all accounts is dedicated to helping young girls reach their fullest potential, may, without being guilty of discrimination under the law, fire unmarried women who become pregnant? The ultimate issue in this case is whether the rule permitting the termination of single employees who become pregnant, or cause a pregnancy, unlawfully discriminates against the plaintiff, individually, or has an unlawfully discriminatory impact upon a class of women or black women, of which the plaintiff is a member.
SCOPE OF THE CLAIM
The charges which were originally filed by the plaintiff with the NEOC and EEOC alleged discrimination on the basis of sex and marital status (Exhibits P-61-1 and P-61-1A).
The charges were investigated as sex and marital status violations.
The plaintiff now seeks to attack the rule on the basis of race and gender discrimination. The law permits the scope of the lawsuit to exceed the scope of the charges where the kind of discrimination which is alleged in the lawsuit is related to, or growing out of, the allegations made during the pendency of the case before the Commission. Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970) (charge of harassment and discharge will support complaint alleging discrimination in promotion); see also Johnson v. Nekoosa-Edwards Paper Co., 558 F.2d 841, 846 n.11 (8th Cir.), cert. denied, 434 U.S. 920, 98 S. Ct. 394, 54 L. Ed. 2d 276 (1977). The plaintiff alleges that "black single women" comprise the class adversely affected by rule 11. In essence, the plaintiff is alleging a combination of racial and sex-based discrimination.
This Court will address race discrimination only insofar as rule 11 may have an impact upon the class of black women. To the extent that the plaintiff seeks to independently address racial discrimination under Title VII, the claim is barred.
NATURE OF THE CASE
This case is neither a class action nor a "mixed motive" case.
It is also unclear whether plaintiff has sought to advance this case on a theory of disparate impact or disparate treatment, or both.
Often the distinctions between the theories are not clear.
It is not uncommon for a disparate treatment claim and disparate impact claim to arise in the same litigation from the same set of facts. See, e.g., Jones v. International Paper Co., 720 F.2d 496, 499-500 (8th Cir. 1983).
Claims of disparate impact are often utilized for class actions where it is alleged that a facially neutral rule falls more harshly on one group than on another. See, e.g., Reed v. Arlington Hotel Co., 476 F.2d 721, 723 (8th Cir.), cert. denied, 414 U.S. 854, 38 L. Ed. 2d 103, 94 S. Ct. 153 (1973).
There are, however, situations where it is appropriate for an individual to proceed under a disparate impact theory. Lasso v. Woodmen of the World Life Insurance Co., 741 F.2d 1241, 1245 (10th Cir. 1984), cert. denied, 471 U.S. 1099, 105 S. Ct. 2320, 85 L. Ed. 2d 839 (1985); Rule v. International Ass'n of Bridge, Structural and Ornamental Ironworkers, 568 F.2d 558, 566 (8th Cir. 1977) (individual claims in the nature of a pattern and practice suit). Under the facts of this case, an analysis under both disparate impact and disparate treatment is proper.
FINDINGS OF FACT
The Court adopts the findings of fact set forth in its earlier discussions.
The Court further finds as follows:
(1) The Girls Club employed approximately 132 different persons between 1975 and 1982. The work force at all relevant times was approximately sixty-five percent black and has never been less than fifty percent black. The work force is and has always been primarily female; there were sixteen males employed between the years 1975 and 1982;
(2) At the time that rule 11 was implemented there were ten staff members at the North Omaha Girls Club (nine were single and female, one was married and female);
(3) The Girls Club of Omaha has been actively engaged in a comprehensive program to reduce teenage pregnancies for at least five years;