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Hornick v. Noyes


*fn*: June 3, 1983.


Appeals from the United States District Court for the Western District of Wisconsin. No. 76 C 313 -- James E. Doyle, Judge.

Bauer, Eschbach and Coffey, Circuit Judges.

Author: Coffey

COFFEY, Circuit Judge.

The tangled history of this case begins in March of 1972 when the pro se appellant Ella Hornick (now approximately seventy-five years of age) became a permanent resident of the Madison, Wisconsin YWCA and was assigned to a room on the fifth floor, one of the floors designated for elderly women. (The previous twenty years Mrs. Hornick spent as a resident of a state mental institution in Pennsylvania.) The record indicates that there was considerable friction among the residents of this floor, and numerous complaints about the appellant were made to the Resident Director, defendant Doris Hoopman. In response, the President of the Board of the YWCA, defendant Ruth Noyes, on February 3, 1976 informed the appellant that a meeting of the staff and floor residents would be held on February 13, 1976 for the purpose of discussing these problems. The appellant declined to attend.*fn1 On February 13, 1976 the YWCA, through its Executive Director (defendant Gertrude Ramey), and Board President Noyes decided that the appellant's residency should be terminated. Accordingly, a letter was sent February 23, 1976 directing the appellant to vacate the premises of the Y on or before March 31, 1976 (appropriate notice for a month-to-month tenancy). On March 10, 1976, the appellant filed a complaint with the Madison Equal Opportunities Commission (EOC) against the Y, alleging that her pending eviction was motivated by anti-semitism.*fn2 A representative of the EOC arranged to visit with Hornick and the staff at the Y on March 30, 1976 to see if a conciliation could be effected, and to interview other residents in order to investigate the charges. The appellant declined to participate. Instead, she filed a state court suit on that date seeking to enjoin the Y from terminating her residency. On April 7, 1976 the Y filed an eviction action. (The state court ultimately concluded that Mrs. Hornick's tenancy was yearly; a new eviction petition was filed March 14, 1977, and the appellant was evicted by the sheriff on June 14, 1978.)

On May 10, 1976 the appellant filed suit, amended July 19, 1976, in federal district court against Noyes, Ramey, Hoopman, and the YWCA seeking injunctive and monetary relief under 42 U.S.C. §§ 1983, 1985 and 1986. The complaint was dismissed on March 21, 1978 by Judge Doyle for failure to show the state action necessary for a claim under these statutes. We affirmed, with an unpublished order dated June 24, 1980, but remanded to the district court in order that the court might determine whether the pro se complaint, liberally construed, stated a cause of action under the public accommodations title (Title II) of the Civil Rights Act of 1964, 42 U.S.C. § 2000a.*fn3 We also noted that to prevail on such a claim, the appellant would have to demonstrate that she had in fact met the procedural prerequisites of § 2000a-3(c) prior to filing the suit. On remand, Judge Doyle found that the appellant's EOC complaint had been filed only against the Y; accordingly he dismissed the suit as to the three individual defendants. The appellant promptly appealed the decision; this appeal is No. 81-1511. In October of 1981, a seven-day bench trial was held before Judge Doyle with the Y as the only defendant. The appellant was represented by appointed counsel who presented twenty-four witnesses and numerous exhibits. Judge Doyle concluded that the appellant's eviction was not the result of religious discrimination within the meaning of § 2000a.*fn4 The plaintiff promptly appealed that adverse decision; this is appeal No. 81-2891. We have consolidated these two pro se appeals for consideration today.*fn5

I. No. 82-1511

As directed by this court in its order of remand of June 24, 1980, 624 F.2d 1106, Judge Doyle had to determine whether the appellant had met the procedural requirements of § 2000a-3(c)*fn6 prior to the filing of her July, 1976 amended complaint. He found that the complaint filed March 10, 1976 with the Madison EOC*fn7 named only the YWCA as the party complained against; no other respondent was listed. In the narrative portion of the complaint form (Item 5. "Explain What Unfair Thing Was Done"), defendants Noyes, Ramey and Hoopman were described as the YWCA agents who committed the allegedly unlawful acts. The district judge concluded that mere narrative mention of the actions of the respondent's agents was not sufficient to make those individuals respondents within the purview of § 2000a-3(c). We agree. The individual defendants were properly dismissed.

We also note that under Title II, only injunctive relief is available to a prevailing plaintiff. See Newman v. Piggie Park Enterprises, 390 U.S. 400, 19 L. Ed. 2d 1263, 88 S. Ct. 964 (1968). Should Mrs. Hornick prevail against the YWCA, which can act only through its agents, the Y would be ordered to reinstate her; no additional relief is available and no purpose is served by suing the individuals in addition to the YWCA. The case against the three individuals is in any event moot; all three are no longer associated with the Madison Y. Any injunction that might issue in Case No. 82-2891 would enjoin the Y and its present and future agents, whoever they might be. In an action for reinstatement in the Madison Y, a suit against individuals not associated with the Y is simply meaningless. The judgment in Case No. 81-1511 is AFFIRMED.

II. No. 82-2891

After the trial, Judge Doyle found that several of the elderly ladies on the fifth floor were anti-semitic, as was the Assistant Resident Director (not a defendant, and not one of the Y decision makers). The judge further found that some of the residents' complaints about Mrs. Hornick could well have been prompted by anti-semitism. Nevertheless, he found that the three decision makers, Noyes, Ramey and Hoopman, were themselves not motivated by anti-semitism (if indeed they even had knowledge that Mrs. Hornick was of Jewish origin), and that they had clearly articulated and set forth a nondiscriminatory reason (the necessity of maintaining a harmonious residential program for women, many of whom had psychiatric or physical problems, who were unable to live by themselves) for seeking the appellant's eviction. The appellant countered at trial that these decision makers knew or should have known of the anti-semitic basis for the residents' complaints. In rejecting this argument, the district judge placed particular stress on the fact that the decision makers had arranged two formal meetings at which the appellant could have apprised them of the anti-semitism problem, if in fact any existed, and that on each occasion she had refused to participate. He concluded that the Y management had thereby sufficiently discharged any duty of inquiry that it might have had into the motivations of the complainants. Thus, in the absence of any evidence of anti-semitism on the part of the Y management, the Y could not be held liable under Title II.

This case thus presents a novel question under Title II, namely, the extent to which Title II liability can be premised on religious prejudice somewhere in the causal sequence of events that leads to eviction, but on the part of persons other than the decision makers. It speaks well for this society that there is a paucity of Title II litigation, but we are faced with an absence of precedent on this point to aid in deciding this case. A preliminary question, then, is the theory under which this case should be evaluated.

It is clear that the YWCA is a place of public accommodation for purposes of Title II. See, e.g., Nesmith v. YMCA, 397 F.2d 96 (4th Cir. 1968); Stout v. YMCA, 404 F.2d 687 (5th Cir. 1968). Nevertheless, the residential situation at the Madison YWCA does not seem to be the type of public accommodation contemplated by § 2000a. In the paradigmatic Title II case, the only personal interaction, and consequently the only locus of discrimination, is the "vertical" interaction between the proprietor of the motel, theater or restaurant (or his agent) who refuses to permit a minority traveler or patron to make use of the facilities; any allegedly discriminatory behavior is on the part of the defendant proprietor (or his agents, for whom he is responsible). The prejudices of other individuals are not at issue -- except in those cases in which the proprietor discriminates in order to avoid antagonizing white customers. See, e.g., United States by Katzenbach v. Gulf-State Theaters, Inc., 256 F. Supp. 549 (D.Miss. 1966). Even in this fact situation, however, it is the defendant proprietor who makes the discriminatory decision "on the grounds of race, color, religion or national origin" -- even if he is personally without prejudice and makes his decision for what he considers to be sound business reasons.

In contrast, the situation at the Madison YWCA involves substantial "horizontal" interactions among long-term residents. In addressing this Title II oddity, Judge Doyle suggested that the situation might be more analogous to a Title VII employment case in which there are long-term "horizontal" relationships among employees as well as a hierarchical chain of command that separates the ultimate decision maker (e.g., the personnel director) from, e.g., the assembly line worker who is fired.*fn8 As the district judge posed the hypothetical question, suppose that assembly line workers, motivated by religious or racial prejudice, falsely complain about a co-worker's work or safety habits, and the information is passed up the chain of command until the worker is discharged. Does management have an obligation to inquire whether any bad conduct report, nondiscriminatory on its face, is actually false, and was initiated for discriminatory reasons? The judge suggested that management would have no such obligation in the absence of some clear and specific claim (presumably raised by the worker who had received the bad conduct reports) that there was in fact discrimination afoot. While we of course do not decide such a Title VII case here, we agree that the courts cannot create a presumption (even a rebuttable one) that any firing or denial of public accommodation facilities is discriminatory -- unless, that is, management is somehow put on notice that there may be a discrimination problem.*fn9

Given that we conclude that the burdens of proof and production were correctly allocated, the only remaining question is whether the evidence supports the finding of no violation of § 2000a. In reviewing factual findings of the district court, we are bound by the "clearly erroneous" standard of Rule 52(a), Federal Rules of Civil Procedure. This rule rests in part on the district court's unique opportunity to view and weigh the testimony of the witnesses to assess their credibility. Medtronic, Inc. v. Benda, 689 F.2d 645, 647 (7th Cir. 1983) (citing Inwood Laboratories, Inc. v. Ives Laboratories, Inc., 456 U.S. 844, 102 S. Ct. 2182, 2188, 72 L. Ed. 2d 606 (1982)). In this case the evidence consists almost entirely of the testimony at trial of plaintiff, the Y staff members, and numerous other witnesses. We will reverse a decision based on witness credibility only if we are left with a "definite and firm conviction that a mistake has been committed." Id. After a careful review of the record, we find no basis for questioning the district court's implicit credibility determinations, and conclude that the court's findings are not clearly erroneous. Accordingly, the judgment in Case No. 81-2891 is AFFIRMED.



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