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., ¶¶ ...