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June 16, 2004.

CONSUELA SMITH, a mother and next friend of "BOY Y," a minor; AUDREY HAYES, a mother and next friend of "BOY W" and "BOY X," minors; FRANK and DEBRA GRIGGS, mother and next friend of "BOY Z," individually and on behalf of the parents and next friend of the SAINTS OF SAINT SABINA BASKETBALL PLAYERS, Plaintiffs,
THE CHICAGO ARCHDIOCESE (d.b.a. The CATHOLIC BISHOP OF CHICAGO); CARDINAL FRANCIS GEORGE; THE SOUTHSIDE CATHOLIC CONFERENCE, a non-profit organization; MICHAEL PHELAN, Southside Catholic Conference Chairman; MIKE MEHALEK, Southside Catholic Conference Commissioner; and HOWARD LENZEN, Southside Catholic Conference Chairman, Defendants.

The opinion of the court was delivered by: JOHN W. DARRAH, District Judge


Plaintiffs filed a five-count fourth-amended complaint against Defendants, alleging negligence by all Defendants (Count I); breach of contract by all Defendants (Count II); violation of 42 U.S.C. § 1981 by all Defendants (Count III); fraud against the Southside Catholic Conference ("SCC"), Michael Phelan, Mike Mehalek, and Howard Lenzen (Count IV); and intentional infliction of emotional distress against the SCC, Phelan, Mehalek, and Lenzen (Count V). Presently before the Court is Plaintiffs' Motion for Summary Judgment, the Chicago Archdiocese and Cardinal George's Motion for Summary Judgment, and the SCC, Phelan, Lenzen, and Mehalek's Motion for Summary Judgment. BACKGROUND

The Catholic Bishop of Chicago, a sole corporation, is the legal name for the Archdiocese of Chicago. The Archdiocese encompasses Cook and Lake Counties in Illinois. (Def.'s 56.1(a)(3) Statement ¶ A1).*fn1 Howard Lenzen was Chairman and Executive Director of the SCC for one year. His term as Chairman ended on August 16, 2001. Lenzen served on the Executive Committee as Chairman from August 1999 until August 16, 2001. (Id., ¶ A2). Michael Phelan succeeded Lenzen as Chairman of the SCC. Phelan served as Chairman throughout the 2001-2002 season. (Id., ¶ A3). Mike Mehalek was the Boys' Basketball Commissioner for the SCC during the 2001-2002 season. (Id., ¶ A4). Mehalek did not serve on either the Executive Committee or the SCC Board at any time in 2001 and 2002. (Def.'s 56.1(a)(3) Statement ¶ B14). The SCC was formerly known as the Southwest Catholic Conference. (Def.'s 56.1(a)(3) Statement ¶ A5). The SCC was reorganized as an Illinois non-profit corporation in 1998. (Id., ¶ A6). Cardinal Francis George is the Archbishop of Chicago. (Def.'s 56.1(a)(3) Statement ¶ B2).

  During the 2001-2002 season, athletic teams from twenty-two parish schools were members of the SCC. (Def.'s 56.1(a)(3) Statement ¶ A8). Of the twenty-two member parishes, eighteen participated in seventh grade boys' basketball. (Id., ¶ A9). Nineteen of the twenty-two member parishes participated in eighth grade boys' basketball. (Id., ¶ A10).

  The SCC is operated by its Board of Directors and its Executive Committee. (Def.'s 546.1(a)(3) Statement ¶ A11). The Board consists of one member from each member school. (Id., ¶ A12). The Board has final authority on all SCC matters and votes on all major issues, including membership applications and terminations. (Id., ¶ A13). The Executive Committee consists of a chairman, a vice chairman, a recording secretary, a treasurer, and an executive director. (Id., ¶ A14). The Executive Committee members do not vote on major issues and do not vote on membership applications and terminations. (Id., ¶ A15). The Executive Committee is responsible for organizing Board meetings and managing the SCC's finances. (Id., ¶ A16). Patricia Contey served as Executive Director of the SCC during the 2001-2002 season. (Def.'s 56.1(a)(3) Statement ¶ B12).

  Plaintiffs are African-Americans that attended St. Sabina Academy during the 2001-2002 school year. (Def.'s 56.1(a)(3) Statement ¶ A17). St. Sabina Academy is located in the Auburn-Gresham neighborhood in Chicago. (Id., ¶ A18). Plaintiffs were members of St. Sabina's seventh and eighth grade basketball teams. (Id., ¶ A19).

  In April 2001, Christopher Mallette, the Athletic Director of St. Sabina, contacted the SCC and inquired about the possibility of St. Sabina participating in SCC sports. (Def.'s 56.1(a)(3) Statement ¶ A22). Lenzen visited St. Sabina to meet with Mallette, tour the facilities, and evaluate St. Sabina's sports and academic programs. (Id., ¶ A24). Lenzen found St. Sabina's program "very impressive" and "very organized." Following the visit, Lenzen began recruiting St. Sabina as a potential member of the SCC. (Id., ¶ A25). In April 2001, Lenzen, in a written communication, informed the Board that he found St. Sabina qualified to become a member and recommended that the Board consider St. Sabina's application to become a full member of the SCC. (Id., ¶ A26). Lenzen saw the opportunity to begin a "process of coming together with an African-American parish that is strong and viable." (Id., ¶ A27). Lenzen concluded that "there is no other answer than to have St. Sabina become a full member of the SCC." (Id., ¶ A28). Following Lenzen's letter, the SCC invited St. Sabina to attend a Board meeting and discuss their application. (Id., ¶ A29). Mallette attended the May 17, 2001 meeting and made a presentation on behalf of St. Sabina. (Id., ¶ A30).

  On May 25, 2001, the full Board met and considered St. Sabina's membership application. (Def.'s 56.1(a)(3) Statement ¶ A31). During the meeting, a police officer from Christ the King spoke about crime in the area surrounding St. Sabina. (Id., ¶ A32). The police officer discussed crime statistics for the Sixth District of the Chicago Police, which includes St. Sabina. (Id., ¶ A33). The Board did not voice concerns about St. Sabina itself, or the racial composition of its parish, but did discuss the area in which the school is located. (Id., ¶ A34). Board members voiced concerns about crime statistics, the safety of the area around St. Sabina, and the safety of travel into the Auburn-Gresham neighborhood. (Id., ¶ A35). The Board voted to deny St. Sabina's application by a vote of 11-9, citing safety concerns as the reason for the denial. (Def.'s 56.1(a)(3) Statement ¶ B20).

  The entire Board was present for the vote on St. Sabina's application. (Def.'s 56.1(a)(3) Statement ¶ A 38). The vote was the first time the Board voted on a new membership since it had incorporated in 1998. (Id., ¶ A36). At that time, the Board had no established protocol for calling for a vote and whether the votes would be made in the open or by ballot. (Id., ¶ A37). Lenzen presided over the meeting but did not vote because he did not have voting power under the SCC bylaws. (Id., ¶ A39). Phelan was not a member of the Board and had no voting power. (Id., ¶ A 40). Mehalek was not a member of the Board and did not attend or vote at the May 25, 2002 meeting. (Id., ¶ A41). Lenzen was stunned and disappointed with the result and reserved the right to come back to the Board for another vote after he contacted Mallette to address some of the Board members' concerns with regard to safety. (Def.'s 56.1(a)(3) Statement ¶¶ A44-45). Following the vote, Lenzen telephoned Mallette to inform him of the decision by the Board and that he would not give up on the matter. (Def.'s 56.1(a)(3) Statement ¶ B21).

  After the May 25, 2001 Board meeting and vote, St. Sabina's pastor, Michael Pfleger, wrote twenty-one other pastors a letter in which he stated that he believed the denial of St. Sabina's membership was based on racism. (Def.'s 56.1(a)(3) Statement ¶ A48). Father Pfleger believed that racism was involved in the decision, and he wanted to "bring out" the reasons he believed St. Sabina was rejected by the Board. (Id., ¶ A49). Anita Baird, the Director of the Archdiocese's Office of Racial Justice, also expressed her belief that the decision to deny membership was based on racism. (Id., ¶ A50).

  Several days later, Cardinal George returned from Rome to find that the denial of St. Sabina's membership application had become a major news story in Chicago. (Def.'s 56.1(a)(3) Statement ¶ A52). Cardinal George believed that safety was a legitimate concern but also realized the importance of allowing children of different backgrounds to get to know one another through sports. (Id., ¶ A54). Cardinal George encouraged parish pastors and coaches to admit St. Sabina to the SCC and attempted to foster a rapport between St. Sabina and the SCC. (Id., ¶¶ A55-56). On May 31, 2001, the leadership of the Archdiocese issued a statement rejecting the SCC's reported safety concerns as a justifiable reason not to accept St. Sabina into the SCC. (Def.'s 56.1(a)(3) Statement ¶ B23). In addition, St. Sabina proposed to supply buses for SCC teams competing against St. Sabina to address the SCC's safety concerns. The SCC rejected this proposal. (Plaint.'s 56.1(a)(3) Statement ¶ 63).

  Cardinal George also told pastors and coaches to reconsider St. Sabina's request to be admitted into the SCC and to find a way to admit St. Sabina. (Plaint.'s 56.1(a)(3) Statement ¶ 70). He also influenced the SCC to consider St. Sabina's request for certain rules to be in place upon its admission into the SCC. (Id., ¶ 73). Cardinal George promised Father Pfleger that he would talk to individual parish pastors about the SCC and accepting St. Sabina into the SCC. (Id., ¶ 74).

  On June 20, 2001, Cardinal George stated in an article published in The Catholic New World, the Archdiocesan newspaper, that "Concern for safety and fear of violence are legitimate fears; but the words are, as we all know, often code words to mask racism." (Def.'s 56.1(a)(3) Statement ¶ B24). That same day, Lenzen called the Board to vote again on St. Sabina's membership. (Def.'s 56.1(a)(3) Statement ¶ A60). Both prior to and following the May 2001 vote, Lenzen had proposed to Mallette that St. Sabina agree to play all of its games on the road for its first three years in the SCC; but Mallette flatly refused that suggestion. (Def.'s 56.1(a)(3) Statement ¶ B22). The Board approved St. Sabina's membership application without conditions. (Def.'s 56.1(a)(3) Statement ¶ A67). Lenzen announced the Board's decision in a press release dated June 20, 2001. (Id., ¶ A68). The only other SCC parishes that applied for admission into the SCC were Cardinal Bernardine and St. Alexander, predominantly white catholic parishes. These two parishes were admitted in the Spring 2003 without initial denials and without restrictions. (Plaint.'s 56.1(a)(3) Statement ¶ 44). In July 2001, St. Sabina withdrew from the SCC. (Def.'s 56.1(a)(3) Statement ¶ B34). Cardinal George informed St. Sabina that it could not withdraw from the SCC and that other parishes that were members of the SCC could not forfeit games against St. Sabina. (Id., ¶ B35). However, St. Sabina refused to accept membership until the SCC met three non-negotiable demands, including: (1) the SCC adopt a rule prohibiting forfeitures, (2) equal safety measures at all games, and (3) a policy addressing inappropriate behavior. (Def.'s 56.1(a)(3) Statement ¶¶ A69-70). The demands were transmitted to the SCC in a July 13, 2001 letter from St. Sabina to the SCC. (Id., ¶ A71). According to SCC bylaws, the bylaws and sports rules may only be amended once annually in March. (Id., ¶ A72). Nevertheless, Lenzen called a special meeting of the Board on August 9, 2001. (Id., ¶ A73). The Board approved a rule prohibiting teams from forfeiting, a rule that set minimal health and safety standards, and a policy to deal with inappropriate behavior. (Id., ¶ A74). St. Sabina attended and participated in the August 9, 2001 Board meeting. (Id., ¶ A75).

  On July 12, 2001, the Office of Racial Justice of the Archdiocese of Chicago sent a letter to Mallette in which Bishop Goedert, vicar general of the Archdiocese, asked the pastors of the SCC parishes to take the lead in designing a process that will call for an open and honest dialogue about the sin of racism. (Plaint.'s 56.1(a)(3) Statement ¶ 80). On July 16, 2001, Cardinal George sent a letter to the pastors in the SCC instructing them to check with him as "pastor of the Archdiocese of Chicago" before making or announcing to the press any decision to withdraw from a game with St. Sabina. (Id., ¶ 82). On August 5, 2001, Cardinal George stated that no one could act unilaterally as to the SCC/St. Sabina controversy without consultation with him and other parishes. (Id., ¶ 85). Prior to the basketball season beginning, members of some parishes continued to publicly state that they would not travel to St. Sabina for basketball games. (Def.'s 56.1(a)(3) Statement ¶ A76). In July, Father Dowling suggested that the SCC schedule teams to play at St. Sabina that were willing to travel to St. Sabina. (Id., ¶ A77). Lenzen forwarded the suggestion to Phelan. (Id., ¶ A78). Lenzen acknowledged problems inherent in arranging the schedule and the possible problems that may arise as a result of scheduling teams at St. Sabina that were willing to play at St. Sabina. (Id., ¶ A79). Lenzen's advice, however, was not to just schedule teams that were willing to go to St. Sabina but to just schedule games the way the SCC ordinarily would and "let the chips fall where they may." (Id., ¶ A80). According to Lenzen, "the integrity of the SCC is clear, and it will be up to each parish to face the music." (Id., ¶ A81).

  During the 2001-2202 season, eighteen teams participated in seventh grade boys' basketball, and nineteen teams participated in eighth grade boys' basketball. (Def.'s 56.1(a)(3) Statement ¶¶ A107-108).

  Unlike St. Sabina, not all SCC member teams' schools have basketball courts located on the premises. (Def.'s 56.1(a)(3) Statement ¶ A104). The SCC classifies games as either "home," "away," or "neutral site" games. The term "neutral-site" games refers to games hosted by teams whose schools do not have a gym or an appropriate facility to host SCC basketball games. These schools "host" what would otherwise be their "home" games at other available neighborhood facilities. (Id., ¶ A105). Neutral-site games can also refer to games that are hosted by teams whose schools do have a gym, but whose gym is being utilized for other purposes on the date the team is scheduled to host a game. In such instances, the team "hosts" the game at another neighborhood facility, and the game is characterized as a neutral-site game. (Id., ¶ A106).

  Of the teams that participated in seventh or eighth grade basketball, only fourteen of them had basketball courts at their schools. (Def.'s 56.1(a)(3) Statement ¶ A109). The remaining six teams did not have adequate facilities or basketball courts at their respective schools. (Id., ¶ A110). These six teams host games at other parish gyms, local grammar and high schools, and local Chicago parks. (Id., ¶ A111). Annunciata hosts all of its games at Rowan Park, a facility of the Chicago Park District. (Id., ¶ A112). St. Albert hosts games at St. Laurence High School and other parish gyms. (Id., ¶ A113). St. Christina hosts games at Mount Greenwood, a facility of the Chicago Park District. (Id., ¶ A114). St. Denis hosts games at Scottsdale Park, a facility of the Chicago Park District. (Id., ¶ A115). St. Gerald hosts games at Covington School and other parish gyms. (Id., ¶ A116). St. Louis hosts games at Simmons Junior High School. (Id., ¶ A117).

  The majority of parish gyms do not have locker room facilities. (Def.'s 56.1(a)(3) Statement ¶ A126). St. Barnabas, St. Germaine, and St. Bede do not have locker room facilities to offer either home or away teams. (Id., ¶¶ A120-122). St. Sabina players changed in hallways and in a kitchen at schools that did not have locker rooms. (Plaint.'s 56.1(a)(3) Statement ¶¶ 136-140).

  Mehalek, a SCC commissioner, was responsible for scheduling all boys' basketball games. (Def.'s 56.1(a)(3) Statement ¶ A83). Mehalek originally scheduled St. Sabina's seventh grade team to play nine home games, four away games, and two neutral-site games. (Id., ¶ A87). The schedule changed after Eileen O'Connell, the SCC's volleyball commissioner, informed Mehalek that she needed some of the dates that St. Sabina had allotted for SCC so that St. Sabina's girls' volleyball team could host some home games. (Id., ¶ A88). As a result, Mehalek rescheduled two of St. Sabina's seventh grade home games to other locations — St. Sabina's seventh grade game against St. Catherine to Marist High School and St. Sabina's game against St. Linus to St. Rita High School. (Id., ¶¶ ...

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