United States District Court, Northern District of Illinois, E.D
July 21, 1982
LORRAINE SEIDEL, PLAINTIFF,
CHICAGO SAVINGS AND LOAN ASSOCIATION, AND CHICAGOLAND SERVICE CORPORATION, DEFENDANTS.
The opinion of the court was delivered by: Aspen, District Judge:
MEMORANDUM OPINION AND ORDER
Plaintiff Lorraine Seidel ("Seidel") was employed by defendants
Chicago Savings and Loan Association and Chicagoland Service
Corporation from 1958 until she was involuntarily discharged on
1980. Following her discharge, Seidel filed a complaint with the
Equal Employment Opportunity Commission alleging age and sex
discrimination in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. § 2000e et seq. She was
unsuccessful before the EEOC and after she received a right to
sue letter from that agency dated November 6, 1981, filed the
instant action seeking declaratory, injunctive and monetary
relief under the Civil Rights Act of 1866, 42 U.S.C. § 1981; the
Civil Rights Act of 1871, 42 U.S.C. § 1983, 1985(3), and 1988;
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Age
Discrimination in Employment Act of 1978, 29 U.S.C. § 621 et
seq.; and the Thirteenth and Fourteenth Amendments to the
Constitution. Jurisdiction is asserted pursuant to
28 U.S.C. § 1343.*fn1
This matter is presently before the Court on defendants' motion
for partial summary judgment with respect to a number of Seidel's
claims for relief under the Civil Rights Acts and the
Constitution.*fn2 In addition, defendants have moved for an award of
attorney's fees under 42 U.S.C. § 1988 and to dismiss the prayers
for compensatory and punitive damages and damages for mental
distress sought in connection with the Title VII and ADEA claims.
For the reasons set forth below, defendants' motion will be
granted in all respects except insofar as the claim for
attorney's fees is concerned. That matter will be taken under
advisement until the conclusion of this case.
Defendants challenge Seidel's claims under 42 U.S.C. § 1981 and
the thirteenth amendment on the ground that a necessary
ingredient of a cause of action under either the statute or the
amendment it was intended to implement is a claim of race
discrimination, Runyon v. McCrary, 427 U.S. 160, 168, 96 S.Ct.
2586, 2593, 49 L.Ed.2d 415 (1976), which is wholly absent from
Seidel's complaint. It is clear that allegations of age and sex
discrimination fall outside the scope of section 1981 or the
thirteenth amendment. Kodish v. United Air Lines, Inc.,
628 F.2d 1301, 1303 (10th Cir. 1980); Movement For Opportunity & Equality
v. General Motors Corp., 622 F.2d 1235 (7th Cir. 1980). Since
Seidel has not and cannot allege race discrimination under the
facts set forth in the complaint, her claims under the thirteenth
amendment and section 1981 must fail.
Seidel's claims under 42 U.S.C. § 1983 and the fourteenth
amendment must also fail for lack of an allegation of state
action. It is beyond dispute that "unless the requisite state
involvement has been alleged, the complaint does not state a
claim actionable under Section 1983." Cohen v. Illinois Institute
of Technology, 524 F.2d 818, 823 (7th Cir. 1975), cert. denied,
425 U.S. 943, 96 S.Ct. 1683, 48 L.Ed.2d 187 (1976); Johnson v.
Brelje, 482 F. Supp. 125, 130 (N.D.Ill. 1979). Similarly, "[t]he
provisions of the Fourteenth Amendment of the Constitution . . .
all have reference to state action exclusively, and not to any
action of private individuals." Virginia v. Rives, 100 U.S. 313,
318, 25 L.Ed. 667 (1879). Here, Seidel has not even attempted to
allege the existence of any state action in connection with her
claims of age and sex discrimination. Moreover, even if state
action had been alleged on the basis of defendants' status as a
chartered corporation, that would not have been sufficient to
state a claim for relief. Cohen v. Illinois Institute of
Technology, supra, 524 F.2d at 824-25.
In the Court's view, Seidel's claim under 42 U.S.C. § 1985(3)
is controlled by
the Supreme Court's decision in Great American Federal Savings &
Loan Association v. Novotny, 442 U.S. 366, 99 S.Ct. 2345, 60
L.Ed.2d 957 (1979). In that case, the Court held that section
1985 may not be invoked to redress violations of Title VII. 442
U.S. at 378, 99 S.Ct. at 2352. See also Justice Powell's
concurring opinion, 422 U.S. at 379, 99 S.Ct. at 2352. Cf.
Melmuka v. Northern Trust Co., 27 FEP Cases 1653, 1655 (N.D.Ill.
1981); Lyon v. Temple University, 507 F. Supp. 471, 478-79
(E.D.Pa. 1981) (no remedy under section 1985(3) for alleged
violation of ADEA or Equal Pay Act). Even if Novotny does not
completely settle the question, under the circumstances presented
in the instant case,*fn3 Seidel's section 1985 claim fails for a
more basic reason in that she has failed to allege the existence
of a conspiracy, the crux of a valid claim under that section of
the Civil Rights Act of 1871. Dombrowski v. Dowling,
459 F.2d 190, 196 (7th Cir. 1972). Moreover, we have strong doubts as to
whether an intracorporate conspiracy of the type that would be
involved in this case, even if it were alleged, would satisfy the
requirements of section 1985(3). See Johnson v. Brelje, supra,
482 F. Supp. 125; Bianco v. American Broadcasting Company,
470 F. Supp. 182 (N.D.Ill. 1979). Accordingly, Seidel's section 1985
claim must be dismissed.
Although Seidel's complaint asserts a cause of action under 42
U.S.C. § 1998, the Court assumes that is a typographical error
and that she intended to assert a cause of action under § 1988.
That section of the Civil Rights Act, however, merely instructs
federal courts as to what law to apply in cases arising under the
federal civil rights acts. It creates no substantive rights per
se. Harding v. American Stock Exchange, Inc., 527 F.2d 1366 (5th
Cir. 1975); Baker v. F & F Investments, 420 F.2d 1191 (7th Cir.),
cert. denied, 400 U.S. 821, 91 S.Ct. 42, 27 L.Ed.2d 49 (1970).
Furthermore, inasmuch as the Court has indicated that it will
dismiss all of Seidel's substantive claims under other sections
of the civil rights acts for other reasons, that portion of
section 1988 authorizing an award of attorney's fees to the
prevailing party under the civil rights laws is inapplicable as
far as Seidel is concerned.
Finally, the weight of authority clearly holds that neither
Title VII nor the ADEA afford relief in the form of either
punitive or compensatory damages, even for mental anguish.*fn4
DeGrace v. Rumsfeld, 614 F.2d 796, 808 (1st Cir. 1980); Stevenson
v. J.C. Penney Co., 464 F. Supp. 945, 948 (N.D.Ill. 1979); Plummer
v. Chicago Journeyman Plumbers' Local Union No. 130, 452 F. Supp. 1127,
1140 (N.D.Ill. 1978), reversed on other grounds,
657 F.2d 890 (7th Cir. 1981). Furthermore, in view of the fact that this
is not a class action, nor does Seidel seek reinstatement for
herself, her prayer for injunctive relief will be stricken as
well. Muller v. United States Steel Corp., 509 F.2d 923, 930
(10th Cir. 1975), cert. denied, 423 U.S. 825, 96 S.Ct. 39, 46
L.Ed.2d 41 (1975). See also Meyer v. Brown & Root Construction
Co., 661 F.2d 369, 374 (1st Cir. 1981).
Accordingly, defendants' motion to dismiss certain portions of
Seidel's complaint and prayer for relief is granted. Defendants'
motion for attorneys' fees under 42 U.S.C. § 1988 will be taken
under advisement until the conclusion of this case. It is so