The opinion of the court was delivered by: Baker, Chief Judge.
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
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
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
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
The defendants ISLD and Jones in his capacity as
Superintendent argue that because the plaintiff only seeks
money damages, the Eleventh Amendment bars her ...