United States District Court, Northern District of Illinois, E.D
March 13, 1981
DONALD WRIGHT, PLAINTIFF,
METHODIST YOUTH SERVICES, INC., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Donald Wright ("Wright") brings this action under
42 U.S.C. § 2000e and following ("Title VII") and 42 U.S.C. § 1983,
1985 and 1988,*fn1 based on his allegedly unlawful
termination as an employee of Methodist Youth Services, Inc.
("Youth Services").*fn2 Defendants have moved to dismiss the
Complaint for failure to state a claim upon which relief can be
granted.*fn3 For the reasons stated in this memorandum opinion
and order, defendants' motion is granted in part and denied in
Youth Services is a not-for-profit corporation providing social
services to minors, primarily those who are wards of the State of
Illinois. Wright, a black male, was employed by Youth Services
from approximately June 1976 until July 1979. Wright alleges that
during the course of his employment his supervisor, Hillerman,
made overt homosexual advances towards Wright and that as a
result of Wright's resistance to those advances his employment
was terminated. Wright has exhausted his Title VII administrative
remedies and now seeks
both damages and injunctive relief in this action.
Section 1983 Claims
Wright charges that his termination violated his rights under
the Fourteenth Amendment and therefore Section 1983. By its terms
Section 1983 only applies to actions taken "under color" of state
law. Wright contends that several factors justify a finding of
state action despite Youth Services' being a private entity:
1. Youth Services receives and relies heavily on
2. Children are referred to Youth Services by a
3. Welfare programs are traditionally a public
function dealt with by government agencies.
Such linkages are insufficient to invoke the "under color" of
state law doctrine. Our Court of Appeals dealt with like claims
in Cannon v. University of Chicago, 559 F.2d 1063, 1071 (7th Cir.
1976), rev'd on other grounds, 441 U.S. 677, 99 S.Ct. 1946, 60
L.Ed.2d 560 (1977):
But, even assuming financial aid and assistance by
the state in whatever amounts, such aid and
assistance is insufficient for jurisdiction under §
1983 unless it can be shown that the State has
"affirmatively supported" the particular conduct
Wright fails that test, for the Complaint does not allege that
either the state funding or the system of referral is in any way
responsible for or promotes the alleged discrimination.
In limited circumstances a plaintiff need not establish such a
nexus between state support of a private activity and the alleged
discriminatory act — but only "by an allegation of facts
suggesting that the ostensibly private activity has acted as a
state instrumentality or a `joint participant,' in the language
of Burton v. Wilmington Park Authority, 365 U.S. 715, 725 [81
S.Ct. 856, 861-862, 6 L.Ed.2d 45] (1961)." Musso v. Suriano,
586 F.2d 59, 63 (7th Cir. 1978). As Musso went on to say, "Such an
allegation is dependent upon more than funding; it is dependent
upon facts suggesting control." Thus state action may be found
where a federal statutory program requires some private
involvement in the management of the program. See, Ginn v.
Matthews, 533 F.2d 477 (9th Cir. 1976). Again the Complaint
alleges no facts to permit the inference that Youth Services and
the State of Illinois became so intertwined that activities by
Youth Services constitute state action. See, Rendell-Baker v.
Kohn, 641 F.2d 14 (1st Cir. 1981).
Wright's claims under Section 1983 are therefore dismissed.
Section 1985 Claims
Section 1985 does not itself create substantive rights, but
only provides a remedy for the deprivation of federally protected
rights derived elsewhere. In that respect the Complaint looks to
the Fourteenth Amendment and Title VII, neither of which is
sufficient to ground an action under Section 1985.
Although defendants need not act under color of state law to be
subject to Section 1985, the Fourteenth Amendment protects an
individual only against state interference with his rights.
Dombrowski v. Dowling, 459 F.2d 190, 194 (7th Cir. 1972). Because
Youth Services was not acting "under color" of state law, by
definition there was no violation of the Fourteenth Amendment
that Wright can assert through Section 1985.
Wright also purports to assert a Section 1985 claim under Title
VII. But the Supreme Court has recently held that a conspiracy to
violate rights protected by Title VII cannot ground a cause of
action under Section 1985. Great American Federal Savings & Loan
Ass'n v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957
Accordingly, Wright's Section 1985 claims must also be
Title VII Claims
Wright's substantive claim is that his employment was
terminated because he refused homosexual advances made toward
him by Dale Hillerman. Though neither any of the parties nor this
Court has been able to locate any direct precedent for such a
claim, Title VII should clearly encompass it.
Several courts have upheld a female employee's Title VII claim
based on her termination for having refused sexual advances from
a male supervisor. See, e.g., Tomkins v. Public Service Electric
& Gas Co., 568 F.2d 1044 (3d Cir. 1977); Barnes v. Costle,
561 F.2d 983 (D.C.Cir. 1977); Garber v. Saxon Business Products, Inc.,
552 F.2d 1033 (4th Cir. 1977). Those holdings are predicated on
the notion that making a demand of a female employee that would
not be made of a male employee involves sex discrimination.
Wright's Complaint presents the obverse of that coin — an
alleged demand of a male employee that would not be directed to a
female. See, Bundy v. Jackson, 641 F.2d 934 (D.C.Cir. 1981)
(". . . discrimination is sex discrimination whenever sex is for
no legitimate reason a substantial factor in the
discrimination"). As stated in Barnes v. Costle, 561 F.2d at
990 n. 55:
It is no answer to say that a similar condition could
be imposed on a male subordinate by a heterosexual
female superior, or upon a subordinate of either
gender by a homosexual superior of the same gender.
In each instance, the legal problem would be
identical to that confronting us now — the exaction
of a condition which, but for his or her sex, the
employee would not have faced.
Wright's Complaint therefore states a cause of action under
One important Title VII issue was not addressed by the parties.
Wright's filings with the Equal Employment Opportunity Commission
and the Illinois Fair Employment Practices Commission charged
only Youth Services and not the individual defendants. It is a
jurisdictional prerequisite to a Title VII suit that a charge
have been filed with EEOC against the party sued.
42 U.S.C. § 2000e-5(f)(1).*fn4
That condition precedent has been held satisfied where an
individual defendant is "substantially identical" to the
organization against whom the EEOC charge was filed. Goodman v.
Board of Trustees of Community College District 524, 498 F. Supp. 1329,
1333 (N.D.Ill. 1980). However, Wright has failed to make
any allegation or showing that would draw Hillerman and Adler
into that net.
In light of the jurisdictional nature of that defect, this
Court dismisses defendants Hillerman and Adler from the action,
subject to their possible rejoinder upon a proper showing.
Defendants' motion to dismiss is granted in its entirety as
to the individual defendants and is granted in part and denied in
part as to Youth Services. All Section 1983 and 1985 claims are
dismissed, but the Title VII claim is upheld against Youth
Services. Youth Services is ordered to answer that portion of the
Complaint on or before March 30, 1981.