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MALONE v. SCHENK

December 2, 1985

BARBARA S. MALONE, PLAINTIFF,
v.
THEODORE M. SCHENK, JR., INDIVIDUALLY AND D/B/A SCHENK'S TAVERN; ROBERT SCHENK, INDIVIDUALLY AND AS AN EMPLOYEE OF SCHENK'S TAVERN; MICHAEL J. JONES, INDIVIDUALLY AND AS SUPERINTENDENT OF THE ILLINOIS STATE LOTTERY DIVISION; AND THE ILLINOIS STATE LOTTERY DIVISION, DEFENDANTS.



The opinion of the court was delivered by: Baker, Chief Judge.

ORDER

This is an action for damages under section 1 of the Civil Rights Act of 1866, 42 U.S.C. § 1981 (1982). Three of the defendants have moved for summary judgment.

The plaintiff, Barbara J. Malone alleges that on Tuesday, April 5, 1983, she and her brother, along with other black persons, entered Schenk's Tavern in Springfield, Illinois, to purchase Illinois State Lottery tickets for the daily game and the pick four game. The defendant, Theodore M. Schenk, Jr., owns and operates Schenk's Tavern, and the Illinois State Lottery Division (hereinafter referred to as the ISLD) has licensed Theodore Schenk as a sales agent of state lottery tickets. The defendant, Robert Schenk, an employee of the tavern, was tending bar and making lottery ticket sales. The plaintiff presented Robert Schenk with a piece of paper listing various sets of numbers which she and her brother wished to play. Robert Schenk, however, allegedly refused to sell the requested ticket, and ultimately threatened Malone and her brother with arrest if they did not leave the tavern. Malone contends that two of her numbers were chosen that day, and claims the $5,980 in lost prize money as damages. The plaintiff also seeks money damages for the humiliation, pain, and suffering caused by the alleged discrimination, and asks for punitive damages and attorneys fees.

Every defendant except Robert Schenk has moved for summary judgment. Theodore Schenk, the ISLD, and the defendant, Michael J. Jones, individually and as Superintendent of the ISLD, argue that section 1981 does not permit an award of damages on the plaintiff's theory of vicarious liability. The ISLD and Jones in his capacity as Superintendent also argue that they are agents of the State of Illinois, and that therefore the Eleventh Amendment precludes this court from asserting jurisdiction over them for Malone's claims of monetary damages. For the reasons below, the motions will be allowed in part and denied in part.

I. Vicarious Liability Under Section 1981

The courts have long held that "section 1983 will not support a claim based on a respondeat superior theory" of liability. Polk County v. Dodson, 454 U.S. 312, 325, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981). See also, e.g., Monell v. Department of Social Services, 436 U.S. 658, 691-95, 98 S.Ct. 2018, 2036-38, 65 L.Ed.2d 611 (1978); Ross v. Reed, 719 F.2d 689, 698 (4th Cir. 1983); Glick v. Sargent, 696 F.2d 413, 414-15 (8th Cir. 1983); Iskander v. Village of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982); Fulton Market Cold Storage Co. v. Cullerton, 582 F.2d 1071, 1083 (7th Cir. 1978), cert. denied 439 U.S. 1121, 99 S.Ct. 1033, 59 L.Ed.2d 82 (1979); Adams v. Pate, 445 F.2d 105, 107 n. 2 (7th Cir. 1971). The defendants argue that a similar rule applies to actions under section 1981. In support of their position, the defendants have cited three district court decisions dealing with vicarious liability under section 1981. Ganguly v. New York State Department of Mental Hygiene, 511 F. Supp. 420, 424 (S.D.N.Y. 1981); Davis v. Reed, 462 F. Supp. 410, 413 (W.D.Okla. 1977); and Boyden v. Troken, 352 F. Supp. 722, 723 (N.D.Ill. 1973). These decisions rely exclusively on an analogy to section 1983 and fail to undertake an analysis of the differences in constitutional authority and legislative history between sections 1981 and 1983.

The greater weight of authority in this and other circuits, however, holds that section 1981 does support a claim based on the vicarious liability of an employer for the acts of his agent. See, e.g., Miller v. Bank of America, 600 F.2d 211 (9th Cir. 1979) (bank liable under doctrine of respondeat superior for actions of supervisor violating section 1981 and the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1982)); Flowers v. Crouch-Walker Corp., 552 F.2d 1277 (7th Cir. 1977) (construction company liable under theory of respondeat superior for actions of construction site supervisor violating Section 1981); Haugabrook v. City of Chicago, 545 F. Supp. 276 (N.D.Ill. 1982) (in a very detailed analysis, court held theory of respondeat superior applicable to section 1981 actions, rejecting comparison to Section 1983); Jones v. Local 520, International Union of Operating Engineers, 524 F. Supp. 487 (S.D.Ill. 1981) (construction company liable for hiring agent's violations of section 1981). Most significantly, the United States Supreme Court indicated its agreement with this circuit on this question in General Building Contractors Association, Inc. v. Pennsylvania, 458 U.S. 375, 102 S.Ct. 3141, 73 L.Ed.2d 835 (1982). The Court reversed the district court's finding that an association of construction industry employers were vicariously liable for the acts of a union hiring hall which violated section 1981. The Supreme Court reversed because the facts did not establish the existence of an agency relationship between the union and the trade association. However, Justice O'Connor noted in her concurring opinion that such liability would be possible if an agency relationship could be established. She stated:

  Nothing in the court's opinion prevents the
  respondents from litigating the question of the
  employer's liability under § 1981 by attempting to
  prove the traditional elements of respondeat
  superior.

458 U.S. at 404, 102 S.Ct. at 3157.

This court is persuaded by the greater weight of authority that vicarious liability exists under section 1981. Clearly then, under section 1981, Theodore Schenk is liable for the acts of his employee, Robert Schenk. Furthermore, because no fundamental legal distinction exists between the liability of an employer for acts of an employee and the liability of a principal for acts of an agent, 53 Am.Jur.2d, Master and Servant, 23 (1970), both ISLD and the defendant Jones in his official capacity may also be vicariously liable.

Theodore Schenk and the state defendants also argue that even if section 1981 imposes vicarious liability upon them, the facts of the case preclude liability as a matter of law. These defendants argue if Robert Schenk actually refused to sell the plaintiff lottery tickets because of her race, such a refusal was not within the scope of his authority. In support of their theory, the defendants rely solely upon Illinois law.

Research does not reveal any section 1981 cases addressing the scope of an agent's authority. Numerous courts, however, have confronted this issue in suits under section 1982, a statute prohibiting discrimination in the sale or lease of property. Uniformly, the courts have held the principal liable for the agent's refusal to rent or sell because of race. See, e.g., Hobson v. George Humphreys, Inc., 563 F. Supp. 344, 352 (W.D.Tenn. 1982) (owner of property vicariously liable under section 1982 for real estate agent's discriminatory refusal to sell property); Izard v. Arndt, 483 F. Supp. 261, 263 (E.D.Wis. 1980) (co-owner of property vicariously liable under section 1982 for his co- owner/agent's discriminatory refusal to lease property); Williamson v. Hampton Management Co., 339 F. Supp. 1146 (N.D.Ill. 1972) (property management corporation vicariously liable under section 1982 for rental agent's discriminatory refusal to rent); accord Martin v. John C. Bowers & Co., 334 F. Supp. 5 (N.D.Ill. 1971). See also Marr v. Rife, 503 F.2d 735, 740 (6th Cir. 1974) (real estate broker vicariously liable under both section 1982 and the Fair Housing Act of 1968, 42 U.S.C. § 3601-3612, for his agent's discriminatory refusal to sell); accord Bradley v. John M. Brabham Agency, Inc., 463 F. Supp. 27 (D.C.S.C. 1978). In each case the court rejected the argument raised here that refusal to sell or lease because of race was outside the scope of the agent's authority. Because Congress originally enacted both section 1981 and section 1982 as parts of the Civil Rights Act of 1866, 14 Stat. 27 (1866), the Supreme Court has consistently relied upon a common legislative history to construe the two statutes similarly. See Runyon v. McCrary, 427 U.S. 160, 169-74, 96 S.Ct. 2586, 2594-96, 49 L.Ed.2d 415 (1976); Tillman v. Wheaton- Haven Recreation Association, 410 U.S. 431, 439-40, 93 S.Ct. 1090, 1094-95, 35 L.Ed.2d 403 (1973). Nothing in the legislative history indicates that section 1981 precludes holding employers vicariously liable for the acts of their employees. Therefore, all other defendants may be liable for Robert Schenk's acts if he refused to sell Malone a lottery ticket because of her race.

II. Congressional Abrogation of the Eleventh Amendment Issue

The defendants ISLD and Jones in his capacity as Superintendent argue that because the plaintiff only seeks money damages, the Eleventh Amendment bars her ...


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