United States District Court, N.D. Illinois, Eastern Division
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
MEMORANDUM OPINION AND ORDER
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 ¶¶
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.,
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., ¶¶ A89-91). Mehalek also rescheduled
St. Sabina's seventh grade game against St. Mary to St. Mary when
St. Sabina requested the change because St. Sabina needed the gym
for another event. (Id., ¶ A92).
The seventh grade teams of St. Alexander, St. Christina, St.
Michael, Holy Redeemer, St. Albert, St. Cajetan, St. John, St.
Linus, Annunciata, St. Catherine, St. Mary, Queen of Martyr's,
Christ the King, and St. Denis had the same number of or fewer
home games than St. Sabina's seventh grade team. (Def.'d
56.1(a)(3) Statement ¶ A94). The seventh grade teams at St.
Alexander and St. Linus had the same number of neutral-site games
as St. Sabina's seventh grade teams. (Id., ¶ A95).
Mehalek originally scheduled St. Sabina's eighth grade team to
play eight home games, four away games, and three neutral-site
games. (Def.'s 56.1(a)(3) Statement ¶ A96). To accommodate St.
Sabina's volleyball team, Mehalek rescheduled three of St.
Sabina's eighth grade home games to other locations. (Id., ¶
A97). St. Sabina's eighth grade game against St. Louis was
rescheduled to Marist High School; the game against St. Linus was
rescheduled to St. Rita High School, and the game against St.
Gerald was rescheduled to St. Barnabas. (Id., ¶¶ A98-100).
Accordingly, St. Sabina's eighth grade schedule, with
adjustments, included five home games, seven away games, and
three games at neutral sites. (Def.'s 56.1(a)(3) Statement ¶
B44). The eighth grade teams of St. Catherine, St. Michael, Holy
Redeemer, St. John, St. Linus, and St. Alexander each had the
same number of or fewer home games than St. Sabina's eighth grade
team. (Def.'s 56.1(a)(3) Statement ¶ A101). The eighth grade
teams of St. Alexander, St. Christina, St. Gerald, Holy Redeemer,
St. Albert, St. Louis, St. Michael, Annunciata, St. Cajetan, St.
John, St. Linus, Queen of Martyrs, St. Catherine, St. Mary, and
St. Denis each had the same number of or more away games than St.
Sabina's eighth grade team. (Id., ¶ A102). The eighth grade team
of St. Linus had the same number of neutral-site games as St.
Sabina's eighth grade team. (Id., ¶ A103).
Mehalek scheduled games based upon gym time and availability.
(Def.'s 56.1(a)(3) Statement ¶ A118). Mehalek's method of
scheduling had nothing to do with race. (Id., ¶ A119).
During the regular season, the SCC permitted seventh graders to
"play up," which meant that these players could play on their
school's seventh and eighth grade teams, for a total of four
quarters a day. (Def.'s 56.1(a)(3) Statement ¶ B39). St. Sabina
had two seventh grade students, neither of whom are plaintiffs in
this case, who regularly played up pursuant to this rule. (Id., ¶
B40). The SCC had an unwritten rule that never allowed teams to
use one player on both the seventh and eighth grade teams during
the playoffs. (Def.'s 56.1(a)(3) Statement ¶ A127). This rule has
been in effect for at least twelve years. (Id., ¶ A128). Mallette
had understood from the beginning of the regular season that
seventh grade players could play up during both the regular
season and the playoffs. (Def.'s 56.1(a)(3) Statement ¶ B72).
Mehalek and Phelan also thought this and so advised Mallette when
he questioned them about the unwritten rule. (Id., ¶ B73). Contey
informed Mallette, Mehalek, and Phelan of the unwritten rule for
the playoffs and informed them that it had been applied in prior
playoffs in other SCC sports. (Id., ¶ 74). During the 2001-2002 season, this rule adversely affected St. Sabina,
Annunciata, St. Denis, and St. Mary, all of whom had players that
played on both the seventh and eighth grade teams during the
regular season. (Def.'s 56.1(a)(3) Statement ¶ A130).
At the basketball games, seats are not assigned. (Def.'s
56.1(a)(3) Statement ¶ A131). Seating is a matter of "first come,
first serve." (Id., ¶ A132). Father Pfleger attended every St.
Sabina game and never witnessed Plaintiffs or their parents being
forced to sit in racially segregated areas. (Id., ¶¶ 135-136).
During the summer of 2001, Mallette refused to shake hands of
the St. Linus coach at an event involving the efforts to reach
agreement regarding St. Sabina's participation in the SCC and the
conditions that St. Sabina insisted upon. (Def.'s 56.1(a)(3)
Statement ¶ B90). On January 10, 2002, the St. Linus coach
refused to shake Mallette's hand at the game between St. Linus
and St. Sabina. (Id., ¶ B91).
At the January 20, 2002 game between St. Sabina and St. Bede, a
St. Bede player said to Boy Y, a St. Sabina player, "Go home,
nigger." (Def.'s 56.1(a)(3) Statement ¶ A139). St. Sabina filed a
complaint with the SCC about the racial slur and St. Sabina's
belief that the St. Bede teams played in an unduly rough and
unfair manner and that the officiating was poor and favored St.
Bede. St. Bede filed a complaint alleging that St. Sabina's
coaches and parents displayed a lack of sportsmanship. (Def.'s
56.1(a)(3) Statement ¶¶ B49-50). The Executive Committee
investigated St. Sabina's complaint regarding the incidents and
conducted a hearing about the racial slur. (Id., ¶ B54). On
February 21, 2002, the Executive Committee issued its decision,
determining that Boy Y had been called a racial slur by one of
St. Bede's players. The Executive Committee concluded that a
member of each school's eighth grade boys' basketball team would be required to participate in peer mediation. If St.
Sabina refused to participate, the SCC would consider the matter
closed. If St. Bede refused to participate, the eighth grade team
would not be allowed to participate in the playoffs. (Id., ¶
B56). St. Sabina agreed to participate in the peer mediation.
(Id., ¶ B57). St. Bede did not agree to the peer mediation. (Id.,
After receiving word that St. Bede had not agreed to peer
mediation, Phelan informed Mallette on March 1, 2002, that St.
Bede's eighth grade boys' basketball team would not be in the
playoffs. (Def.'s 56.1(a)(3) Statement ¶ B59). At the urging of
St. Bede parents and St. Bede's pastor, the Executive Committee
held a meeting on March 5, 2002, to reconsider its decision.
(Id., ¶ A 143). Upon reconsideration, the Executive Committee
determined that the previously selected punishment was too severe
in that it punished all St. Bede players for the misconduct of
one. The Executive Committee reversed its decision and allowed
St. Bede to participate in the playoffs. (Id., ¶ A144). St.
Sabina became aware of the decision to allow St. Bede into the
playoffs at the playoff seating party held on March 6, 2002.
(Id., ¶ A145). The SCC announced its decision to permit St. Bede
to participate in the playoffs in a letter dated March 15, 2002.
(Id., ¶ A 146).
On March 7, 2002, Mallette and Father Pfleger called a meeting
of the parents of the students participating in St. Sabina's
teams to discuss the issues. The players themselves did not
participate in the meeting. (Def.'s 56.1(a)(3) Statement ¶ B77).
Following a discussion of the issues, the parents voted to
withdraw from the SCC. (Id., ¶ B78). Mallette informed the SCC of
the parents' decision to withdraw from all SCC activities and
events, including the playoffs, by a letter dated March 7, 2002.
On March 8, 2002, Mallette faxed this letter to Cardinal George.
(Id., ¶ B 81). Mehalek was responsible for recording the scores from every
basketball game during the 2001-2002 season. (Def.'s 56.1(a)(3)
Statement ¶ A147). If a forfeiture had occurred during the
2001-2002 season, Mehalek would have been notified as Boys'
Basketball Commissioner. (Id., ¶ A149). During the 2001-2002
season, no team forfeited a game against St. Sabina. (Id., ¶
A150). The only team to forfeit a game during the 2001-2002 was
St. Sabina, which forfeited its playoff game against St. Gerald.
(Id., ¶¶ A151-152).
The SCC does not recognize or provide for "home court
advantage" during post-season play. (Def.'s 56.1(a)(3) Statement
¶ A 153). The SCC asks local catholic high schools for gym time
and schedules for playoff games at the local high schools, if
possible. (Id., ¶ A154). The SCC uses high schools for playoff
games to expose the players to the atmosphere of high school
sports, including the larger crowd and court size. (Id., ¶ A
155). Only if the SCC cannot get enough gym time at high schools
to accommodate all playoff games does the SCC schedule playoff
games at member schools. (Id., ¶ A158).
The basketball playoffs for the 2001-2002 season began on March
6, 2002. (Def.'s 56.1(a)(3) Statement ¶ A159). The last date that
St. Sabina made its gym available for SCC use was March 2, 2002.
(Id., ¶ A160). St. Sabina's seventh and eighth grade teams were
scheduled to play their first playoff game on March 9, 2002 at
Brothers Rice and Marist High Schools, respectively. (Def.'s
56.1(a)(3) Statement ¶ B68). Mallette had been advised earlier in
the season that seventh and eighth grade playoffs are generally
scheduled simultaneously and at different locations; Mallette had asked Mehalek to try to
schedule the playoff games for St. Sabina's teams for consecutive
times at the same location. (Id., ¶ B 69). The playoff schedule
showed that St. Sabina's seventh and eighth grade teams, like
most of the other teams in the league, would be playing their
playoff games simultaneously at different sites. St. Sabina
objected to this rule. (Id., ¶ B70).
During the St. Sabina/SCC controversy, Cardinal George met with
Phelan, Lenzen, and Mallette several times regarding the
controversy and communicated with them by telephone on a regular
basis. (Plaint.'s 56.1(a)(3) Statement ¶ 20). Cardinal George
exercises managerial control over parish priests and intervenes
in matters where parish priests fail to conform to the faith,
unity of worship, unity of mission or the cannons of the church.
(Id., ¶ 66).
Summary judgment is proper if "the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
affidavits, if any, show that there is no genuine issue as to any
material fact." Fed.R.Civ.P. 56(c); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986) (Celotex). All the
evidence and the reasonable inferences that may be drawn from the
evidence are viewed in the light most favorable to the nonmovant.
Miller v. American Family Mutual Ins. Co., 203 F.3d 997, 1003
(7th Cir. 2000). Summary judgment may be granted when no
"reasonable jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(Anderson). However, a party cannot defeat summary judgment by
relying on unsubstantiated facts. See Greer v. Board of Educ. of
the City of Chicago, 267 F.3d 723, 729 (7th Cir. 2001)
A party opposing a motion for summary judgment must file a
concise response to the movant's statements of material fact including a response to each
numbered statement, including, in the case of any disagreement,
specific references to the affidavits, parts of the record, and
other supporting materials relied upon by the opposing party. The
opposing party may also include statements of additional material
facts that rebut the moving party's motion. These additional
facts must also include references to affidavits, parts of the
record, and other supporting materials that support such
additional material facts. L.R. 56.1(b)(3).
Section 1981 Claim
The Defendants argue that Plaintiffs' Section 1981 claim fails
because the Plaintiffs were not deprived of their rights under
the SCC/St. Sabina contract.
To establish a claim under Section 1981, a plaintiff must show
that: (1) he is a member of a racial minority; (2) the defendant
had an intent to discriminate on the basis of race; and (3) the
discrimination deprived the plaintiff of one or more of the
rights enumerated in Section 1981, i.e., the making and
enforcement of a contract. See Morris v. Office Max,
89 F.3d 411, 413 (7th Cir. 1996). Under Section 1981, "making or
enforcing" a contract includes the "making, performance,
modification, and termination of contracts, and the enjoyment of
all benefits, privileges, terms, and conditions of the
contractual relationship." 42 U.S.C. § 1981(b). The making and
enforcement of a contract right under Section 1981 also includes
third-party beneficiaries of a contract. See Jones v. Local 520,
Int'l Union of Operating Eng., 603 F.2d 664, 665 (7th Cir.
To avoid summary judgment on their race discrimination claim,
the Plaintiffs must present facts from which a reasonable juror
could find that the Defendants interfered with their contractual rights because of their race. See Steinhauer v.
Degolier, 359 F.3d 481, 483 (7th Cir. 2004) (Steinhauer). A
prima facie case under Section 1981 includes evidence that (1)
the plaintiffs are members of a racial minority, (2) the
defendant had an intent to discriminate on the basis of race, and
(3) the discrimination concerned one or more of the activities
enumerated in the statute. See Morris v. Office Max, Inc.,
89 F.3d 411, 413 (7th Cir. 1996). There are two methods of proof
available to the Plaintiffs the indirect method and the direct
method. See Steinhauer, 359 F.3d at 484.
Under the McDonnell Douglas indirect method, the plaintiff
must establish a prima facie case of discrimination. The burden
then shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for its actions. The defendant is
entitled to summary judgment at this point unless the plaintiff
can present sufficient evidence that the defendant's proffered
reason for its actions is a pretext for discrimination. See
Steinhauer, 359 F.3d at 484. For summary judgment purposes, the
plaintiff must only produce evidence from which a rational
factfinder could infer that the defendant lied about its
proffered reasons for its actions. See Anderson v. Baxter
Healthcare Corp., 13 F.3d 1120, 1124 (7th Cir. 1994).
The parties do not dispute that the Plaintiffs are a member of
a racial minority and are third-party beneficiaries of the St.
Sabina/SCC contract. In addition, Plaintiffs have identified
several actions by the Defendants that were allegedly motivated
by the Plaintiffs' race that interfered with their right to make
and enforce the contract. These actions include the initial
denial of St. Sabina's application in March 2001, the scheduling
of games, unequal and unsafe accommodations, the imposition of
the unwritten playoff rule, and segregated seating at the games.
Material issues of fact exist as to whether these actions were
racial motivated. Defendants argue that Plaintiffs' claim based on the March 2001
denial of St. Sabina into the SCC cannot support their Section
1981 claim because Plaintiffs have failed to demonstrate that the
proffered reason for the denial was a pretext for discrimination
and because St. Sabina's ultimate admission into the SCC moots
Defendants' proffered nondiscriminatory reason for denying St.
Sabina's membership in the SCC was the safety of the players in
light of St. Sabina's neighborhood. However, Plaintiffs have
produced sufficient evidence from which a rational factfinder
could infer that the Defendants lied about this proffered reason
for its actions, including: the leadership of the Archdiocese's
issuing a statement rejecting the SCC's reported safety concerns
as a justifiable reason to not accept St. Sabina; the SCC's
rejection of St. Sabina's proposal to supply buses for SCC teams
competing against St. Sabina; and, in light of his involvement in
the controversy, Cardinal George's statement that safety and fear
of violence were often code words for racism which was made the
same day that the SCC re-voted to let St. Sabina join the SCC.
In addition, Defendants' mootness argument is without merit
because the Plaintiffs have suffered an injury the initial
denial of their membership application which could be addressed
by a favorable decision in this Court, including compensatory and
punitive damages as sought by the Plaintiffs.
The Archdiocese and Cardinal George also argue that Plaintiffs'
Section 1981 claim against them fails because they are not
subject to liability for the actions of others and no agency
relationship existed to impose such liability. Plaintiffs argue
that an agency relationship existed between the Archdiocese and
Cardinal George and the other Defendants.
"`Agency is the fiduciary relation which results from the
manifestation of consent by one person to another that the other person shall act on his behalf
and subject to his control, and consent by the other so to act.'"
General Building Contractors Ass'n, Inc. v. Pennsylvania,
458 U.S. 375, 392 (1982) (General Building), quoting Restatement
(Second) of Agency § 1. The power of a party to oppose the
actions of another does not establish the "right to control"
element. See General Building, 458 U.S. at 395.
Plaintiffs contend that the Archdiocese and Cardinal George had
an agency relationship with the other Defendants, basing their
argument on the actions by the Archdiocese and Cardinal George
during the SCC/St. Sabina controversy. However, the actions of
the Archdiocese and Cardinal George, while demonstrating concern
about the treatment of St. Sabina by the other Defendants, do not
support the existence of an agency relationship between the
Archdiocese and Cardinal George and the other Defendants.
Plaintiffs have failed to provide facts that manifest consent by
the other Defendants to act on behalf of either the Archdiocese
or Cardinal George and subject to their control. See General
Building, 458 U.S. at 392.
Plaintiffs also argue that liability attaches to the
Archdiocese and Cardinal George through "control person
liability." Control person liability is a means to hold one
defendant vicariously liable for the securities violations
committed by another, Donohoe v. Consolidated Operating & Prod.
Corp., 30 F.3d 907, 911 (7th Cir. 1994). Plaintiffs fail to
provide any support to find Section 1981 liability based on a
theory of control person liability. Accordingly, Section 1981
liability cannot be imposed on the Archdiocese and/or Cardinal
George based on control person liability.
Based on the above, the Archdiocese and Cardinal George's
Motion for Summary Judgment as to Plaintiffs' Section 1981 claim
is granted. The remaining Defendants' and Plaintiffs' motions for summary judgment as to the Section 1981
claim are denied.
All parties move for summary judgment on Plaintiffs' negligence
claim. To survive summary judgment on a negligence claim, the
plaintiff must establish that the defendant owed the plaintiff a
legal duty and a breach of that duty that proximately caused the
plaintiff's injuries. See Ward v. K Mart Corp.,
136 Ill.2d 132, 140 (1990).
As to all Defendants, Plaintiffs allege that all of the
Defendants owed Plaintiffs a duty of reasonable care and that
they breached that duty. Plaintiffs argue that the Defendants had
a duty under Article I of the SCC Bylaws to foster an organized
athletic competition between and among Plaintiffs and other SCC
members free from racial considerations.
Generally, a duty of ordinary care arises from the performance
of a contract. See Lerner v. Ravenswood Hosp. Med. Cent., 1999
WL 1267710 (N.D. Ill. Nov. 10, 1999). Here, the contract consists
of the bylaws of the SCC, which include the purpose of the
conference to foster organized athletic competition between and
among the schools and to help youth "attain a balance between and
integration of family, religious, academic and athletic life."
Genuine issues of material fact exist as to whether the conduct
of those Defendants who were parties to the contract Lenzen,
Phelan, Mehalek, and the SCC constituted a breach of their duty
of ordinary care in performing the contract. Accordingly, summary
judgment on this claim in favor of these Defendants is denied.
As to the Archdiocese and Cardinal George, they were not part
of the SCC/St. Sabina contract and owe no duty to Plaintiffs
thereon. Nor have Plaintiffs established the existence of any
other contractual relationship among Plaintiffs and the
Archdiocese and Cardinal George. Plaintiffs argue that the Archdiocese and Cardinal George were
negligent by multiple acts including: failing to intervene after
the Plaintiffs were admitted to the SCC when they knew or should
have known that they were being discriminated against, failing to
attend any of Plaintiffs' home games, failing to take the lead in
developing a process for open dialogue about racism, failing to
recognize the gravity of the situation, and improperly delegating
managerial control of the SCC to those who were incapable of
making decisions free from racial motivation. All of these
allegations as to the Archdiocese and Cardinal George constitute
an alleged duty to protect the Plaintiffs from harm. However, the
Plaintiffs cannot claim negligence for another's failure to
protect them unless they and the Defendants have a "special
relationship," such as that between common carrier and passenger,
innkeeper and guest, business owner and invitee, or voluntary
custodian and protectee. See Geimer v. Chicago Park Dist.,
272 Ill. App.3d 629, 632 (1995). Plaintiffs have failed to establish
that any of these "special relationships" exist between them and
the Defendants. Furthermore, as discussed above, Plaintiffs have
failed to establish an agency relationship to impose negligence
liability on the Archdiocese or Cardinal George for the other
Based on the above, the Archdiocese and Cardinal George's
Motion for Summary Judgment as to Plaintiffs' negligence claim is
granted. The Plaintiffs' and remaining Defendants' motions for
summary judgment as to Plaintiffs' negligence claim are denied.
Breach of Contract Claim
All parties move for summary judgment on Plaintiffs' breach of
contract claim. Plaintiffs again argue that the Defendants
breached the bylaws of the contract by injecting race into the
parties' dealings. Genuine issues of material fact exist as to
whether the conduct of the Defendants' who were parties to the contract Lenzen, Phelan,
Mehalek, and the SCC constituted a breach of the bylaws.
Accordingly, summary judgment on this claim for those parties is
As discussed above, as to the Archdiocese and Cardinal George,
Plaintiffs have failed to establish any contract, written or
oral, between the Plaintiffs and the Archdiocese or Cardinal
Based on the above, the Archdiocese and Cardinal George's
Motion for Summary Judgment as to Plaintiffs' breach of contract
claim is granted. The Plaintiffs' and the remaining Defendants'
motions for summary judgment as to Plaintiffs' breach of contract
claim are denied.
The SCC, Phelan, Lenzen, and Mehalek and the Plaintiffs move
for summary judgment on Plaintiffs' fraud claim. To withstand or
be granted summary judgment on their fraud claims, the Plaintiffs
must establish: (1) a false misrepresentation of a material fact,
(2) by a party who knows or believes it to be false, (3) with the
intent to induce the Plaintiffs to act, (4) reliance on the
statement by the Plaintiffs, and (5) damages to Plaintiffs.
Plaintiffs allege that these Defendants falsely represented
that security would be provided at St. Sabina's games, that St.
Bede would not participate in the playoffs, that teams would not
forfeit games, and that the SCC would enforce its rules against
racial taunting. Plaintiffs also allege that they relied upon
these representations in joining the SCC. A material issue of
fact exists as to Plaintiffs' allegation that the SCC and St.
Sabina agreed that security would be present at St. Sabina games
as neither party has demonstrated that security was or was not
provided at St. Sabina's games. Furthermore, genuine issues of
material fact exist whether this assurance was material and whether it caused any damages to
Plaintiffs. However, Plaintiffs have failed to show that Phelan,
Lenzen, or Mehalek made any of the allegedly false statements.
Based on the above, summary judgment is granted on Plaintiffs'
fraud claim as to Defendants Phelan, Lenzen, and Mehalek and is
denied as to the SCC.
Intentional Infliction of Emotional Distress
The SCC, Phelan, Lenzen, and Mehalek and the Plaintiffs move
for summary judgment on Plaintiffs' intentional infliction of
emotional distress claim. To withstand summary judgment on their
intentional infliction of emotional distress claim, a plaintiff
must establish that, (1) the defendant's conduct was extreme and
outrageous, (2) the defendant intended that their conduct would
cause severe emotional distress, and (3) the defendant's conduct
did in fact cause severe emotional distress. See Doe v. Calumet
City, 161 Ill.2d 374, 392 (1994).
Plaintiffs have failed to establish that any of the alleged
conduct caused any of the Plaintiffs severe emotional distress.
Instead, Plaintiffs improperly rely upon unsubstantiated facts
alleged in their Amended Complaint. See Greer, 267 F.3d at 729.
Based on the above, the Defendants' Motion for Summary Judgment
as to Plaintiffs' intentional infliction of emotion distress
claim is granted; and Plaintiffs' Motion for Summary Judgment as
to Plaintiffs' intentional infliction of emotional distress is
For the foregoing reasons, Plaintiffs' Motion for Summary
Judgment is denied. The Archdiocese and Cardinal George's Motion
for Summary Judgment is granted. The SCC, Phelan, Lenzen, and
Mehalek's Motion for Summary Judgment as to Plaintiffs'
intentional infliction of emotional distress claim and as to
Plaintiffs' fraud claim against Phelan, Lenzen, and Mehalek is
granted, and is denied as to Plaintiffs' remaining claims.