Petition — Great American Federal Savings & Loan Ass'n v. Novotny
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upreme Court, U.
FILED
NOV 6 1978
In THE MIGUAEL BODAK, JR., CLERK
Supreme Court of the United States
OCTOBER TERM, 1978
No. TR =7 53
GREAT AMERICAN FEDERAL SAVINGS & LOAN
ASSOCIATION, JOHN A. VIROSTEK, JOSEPH E.
BUGEL, JOHN J. DRAVECKY, DANIEL T. KUBA-
SAK, EDWARD J. LESKO, JAMES E. ORRIS, JOSEPH
A. PROKOPOVITSH, JOHN G. MICENKO,
and FRANK J. VANEK,
Petitioners,
Vv.
JOHN R. NOVOTWY,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT
JOHN G. WAYMAN
EUGENE K. CONNORS
WALTER G. BLEIL
REED SMITH SHAW & MCCLAY
747 Union Trust Building
Pittsburgh, Pennsylvania 15219
Counsel for Petitioner
November 6, 1978
SMITH BROS., LAW PRINTERS, 620 SECOND AVENUE, PITTSBURGH, PA. 15219
—_—— PAGE
I aun vasnsscdcionenonsaiembanen 2
ie cits dlenndpnonsis Sanintisoemangibis 2
I iarccinsscnnsssnssceinsscniacenrveninsrecenacciviecess 2
Statutory Provisions Involved .....................0..0ccceeees 3
Nee. ssemasiesnnenetiauadnsinds 4
Reasons for Granting the Writ ...............0.0.......ee. 6
1. The Decision Below Conflicts With The De-
cisions Of Other Courts of Appeals As To
The Existence Of A Conspiracy For Pur-
poses of 42 U.S.C. §1985(3) 0.0, 6
2. The Decision Below Conflicts With The De-
cision Of Another Court Of Appeals As To
The Use Of An Alleged Violation Of Title
VII To Support A Cause Of Action Under
III | Sitihinaristinciectianssniniosetcecdnewesse 9
3. The Decision Below Conflicts With The
Statutory Analysis Previously Developed
By This Court And Sanctions An Unconsti-
tutional Application Of 42 U.S.C. §1985(3).. 11
ERE IN RCE, ee a a, ee
Appendix A (Opinion of the Court of Appeals) ........ la
Appendix B (Opinion of the District Court) ............ 67a
Appendix C (Complaint) 0.0.0.0... ccccecceteeeeeees 77a
CITATIONS
CASES
Alexander v. Gardner-Denver Co., 415 U.S. 36
TE RREREE St Seree A RACES Ra te Oe RO Cee a 9
Baker v. Stuart Broadcasting Co., 505 F.2d 181 (8th
cg og ANOS Sn ae lle eee ret a 7
Bellamy v. Mason’s Stores, Inc., 508 F.2d 504 (4th
EGRESS LES PSSA TREN ne 7
Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973)........ 10
Davis v. United States Steel Supply, 581 F.2d 335,
I i i tn 10
ii
Citations.
CASES PAGE
Dombrowski v. Dowling, 459 F.2d 190 (7th Cir.
li hin teca pia ec cect ageaitidic task AAs dnilay baie wbouande 7,8
Don v. Okmulgee Memorial Hospital, 443 F.2d 234
NE MEI i dcacsasvvediiigessviak beleabovikiesipiesdsissycot es 10
Doski v. Goldseker Co., 539 F.2d 1326 (4th Cir.
I Sabie cae d agtissetlcatishnsansiscanicuabicaustpan’ woos cacecusese 11
Evans v. United Air Lines, Inc., 431 U.S. 553 (1977) 10
Girard v. 94th St. & Fifth Ave. Corp., 530 F.2d 66
(2d Cir. 1976), cert. denied, 425 U.S. 974
i EMEA SEER A RE Re PIO a 7
Goldlawr, Inc. v. Shubert, 276 F.2d 614 (3d Cir.
RN ta ee Een a Eola ene 7
Griffin v. Breckenridge, 403 U.S. 88 (1971) ............ 11,13
Heart of Atlanta Motel, Inc. v. United States, 379
eT SRA RRS RE ee 12
Herrmann v. Moore, 576 F.2d 453 (2d Cir. 1978)... 7
Johnson v. Georgia Highway Express, 417 F.2d
I IG ME occa ral vusancesagégeiiatessoserecassness 10
Johnson v. Railway Express Agency, 421 U.S. 464
I BC ened rte te shite de LL aes ectenads 9
Lochner v. New York, 198 U.S. 45 (1905) o......0000.... 12
McDonnell Douglas Corp. v. Green, 411 U.S. 792
BEI gE SAR SACL STS oral AE a rah a 9
McLellan v. a Power & Light Co., 545 F.2d
I eas cssccearsesssecsssessusi vtvenee 7
Murphy v. Local Union No. 18, ...... F’, Supp. ........ , 99
LRRM 2074 (N.D.Ohi0 1978) ooo cccccccececeeeees 10
Nelson Radio & Supply Co. v. Motorola, Inc., 200
F.2d 911 (5th Vir. 1952), cert. denied, 345 U.S.
a To 7
Occidental Life Insurance Co. v. Equal Employment
Opportunity Commission, 432 U.S. 355 (1977) 9
Richerson v. Jones, 551 F.2d 918 (3d Cir. 1977) ...... 10
Slack v. Havens, 522 F.2d 1091 (9th Cir. 1975).......... 10
United States v. Harris, 106 U.S. 629 (1883)........... 11
IN THE
Supreme Court of the United States
OCTOBER TERM, 1978
EAT AMERICAN FEDERAL SAVINGS & LOAN
ASSOCIATION, JOHN A. VIROSTEK, JOSEPH E.
BUGEL, JOHN J. DRAVECKY, DANIEL T. KUBA-
SAK, EDWARD J. LESKO, JAMES E. ORRIS, J OSEPH
A. PROKOPOVITSH, JOHN G. MICENKO,
FRANK J. VANEK,
ane Petitioners,
Vv
R. NOVOTNY,
cast Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
THIRD CIRCUIT
The Petitioners, Great American Federal Savings &
Loan Association, John A. Virostek, Joseph E. Bugel,
John J. Dravecky, Daniel T. Kubasak, Edward J. Lesko,
James E. Orris, Joseph A. Prokopovitsh, John G. Micen-
ko, and Frank J. Vanek, respectfully pray that a writ of
certiorari issue to review the judgment and opinion of
the United States Court of Appeals for the Third Circuit
en banc entered in this proceeding on August 7, 1978.
Questions Presented.
OPINION BELOW
The opinion of the Court of Appeals is unofficially
reported at 17 BNA FEP Cases 1252 (3rd Cr. 1978), and
appears as Appendix A hereto. The opinion of the United
States District Court for the Western District of Penn-
sylvania is reported at 430 F. Supp. 227 (W.D.Pa. 1977),
and appears as Appendix B hereto.
JURISDICTION
The judgment of the Court of Appeals for the Third
Circuit en banc was entered on August 7, 1978. This
petition for certiorari was filed within 90 days of that
date. This Court’s jurisdiction is invoked pursuant to 28
U.S.C. §1254(1).
QUESTIONS PRESENTED
1. Whether the officers and directors of a corpora-
tion, admittedly acting only on behalf of that corpora-
tion at all relevant times, can form a conspiracy for
purposes of 42 U.S.C. §1985(3) ?
2. Whether an alleged violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §2000e, is a depriva-
tion of “equal privileges and immunities” for purposes
of 42 U.S.C. §1985(3) ?
3. Whether the commerce clause of the Constitu-
tion of the United States provides a “source of congres-
sional power” which makes an alleged conspiracy by a
private employer to deny women their Title VII rights
actionable under 42 U.S.C. §1985(3) ?
Statutory Provisions Involved.
STATUTORY PROVISIONS INVOLVED
UNITED STATES CODE, TITLE 42
§1985. Conspiracy to interfere with civil rights
(3) Depriving persons of rights or privileges. If
two or more persons in any State or Territory con-
spire, or go in disguise on the highway or on the
premises of another, for the purpose of depriving,
either directly or indirectly, any person or class of
persons of the equal protection of the laws, or of
equal privileges and immunities under the laws, or
for the purpose of preventing or hindering the con-
stituted authorities of any State or Territory from
giving or securing to all persons within such State
or Territory the equal protection of the laws; or if
two or more persons conspire to prevent by force,
intimidation, or threat, any citizen who is lawfully
entitled to vote, from giving his support or advocacy
in a legal manner, toward or in favor of the election
of any lawfully qualified person as an elector for
President or Vice-President, or as a member of
Congress of the United States; or to injure any
citizen in person or property on account of such
support or advocacy; in any case of conspiracy set
forth in this section, if one or more persons engaged
therein do, or cause to be done, any act in further-
ance of the object of such conspiracy, whereby ex-
ercising any right or privilege of a citizen of the
United States, the party so injured or deprived may
have an action for the recovery of damages, occa-
sioned by such injury or deprivation, against any
one or more of the conspirators.
Statement of the Case.
STATEMENT OF THE CASE
Respondent John R. Novotny (“Novotny”), a for-
mer employee and director of corporate Petitioner,
Great American Federal Savings and Loan Association
(“Association”), instituted this suit in the United States
District Court for the Western District of Pennsylvania
on December 17, 1976.
In essence, Novotny alleges that the Association
and the individual Petitioners, its directors and/or of-
ficers, violated Title VII of the Civil Rights Act of 1964
(“Title VII"), 42 U.S.C. §2000e, by discriminating
against the Association’s female employees in promotion
opportunities and related aspects of employment (App.
C at 79a).1
At an unspecified meeting of the Association’s
Board of Directors, Novotny allegedly protested on be-
half of the Association’s female employees. At the Asso-
ciation’s annual meeting, on or about January 22, 1975,
the Association and its directors and officers failed to
reelect Novotny as an officer and terminated his employ-
ment. According to Novotny, the Association and its
officers and directors took this action because of his
equal employment protest. He alleges that this was in
violation of 42 U.S.C. §1985(3) and Section 704(a) of
Title VII, 42 U.S.C. §2000e-3 (a).
The Association moved to dismiss Novotny’s com-
plaint and, on April 22, 1977, the district court granted
the Association’s motion and entered an order dismiss-
ing the complaint (App. B at 76a).
1. References to the Appendix hereto will be des-
ignated as “(App. ...... ae )”, with appropriate ap-
pendix and page notations.
Statement of the Case.
In an opinion accompanying its April 22 order, the
district court held that the only alleged act of discrimi-
nation which had affected Novotny was his termination
by the directors and officers. In the district court’s view,
this action was not attributable to a conspiracy because
the complaint alleged that “at all times relevant hereto,
the individual defendants were and are acting on behalf
of GAF” (App. C at 83a, 33). The Section 1985(3)
cause of action was, therefore, dismissed.
The district court also dismissed Novotny’s Title
VII cause of action grounded upon the retaliation lan-
guage of 42 U.S.C. §2000e-3(a). In the district court’s
view, this provision applied only to discrimination suf-
fered by an individual because he or she “made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding or hearing” brought under
Title VII. Novotny had never alleged that his termina-
tion was connected in any way with such enforcement
proceedings. Novotny therefore was not a “person ag-
grieved” and not entitled to relief under Title VII ( App.
B at 74a).
An appeal followed the judgment of the district
court and was argued before a three-judge panel of the
United States Court of Appeals for the Third Circuit on
February 16, 1978. It was later ordered that the parties
file supplemental briefs and the case was reargued be-
fore the circuit court en banc on May 11, 1978.
In an opinion and judgment issued on August 7,
1978, the Third Circuit reversed and remanded the judg-
ment of the district court regarding both the causes of
action under Section 1985(3) and Title VII.
In reversing the dismissal of the cause of action
under Section 1985(3), the Third Circuit held, among
“ Reasons for Granting the Writ.
other things, that the directors and officers could form a
conspiracy despite the allegations in the complaint; a
violation of the substantive rights conferred by Title VII
may be remedied under Section 1985(3) ; and the com-
merce clause of the United States Constitution is the
congressional source of power which makes a private
conspi~acy to deny women their right to equal employ-
ment opportunity actionable under Section 1985( 3).
REASONS FOR GRANTING THE WRIT
1. The Decision Below Conflicts With The Decisions Of
Other Courts Of Appeals As To The Existence Of A
Conspiracy For Purposes of 42 U.S.C. §1985(3).
The language of 42 U.S.C. §1985(3) is quite specific
in its requirement that “two or more persons” must con-
spire to deprive an individual of the equal protection of
the laws or of equal privileges and immunities under the
laws in order to establish a cause of action under that
statute.
Despite its acknowledgement that such a conspiracy
“requires a plurality of legal personalities as one of its
elements” (App. A at 51a), the Third Circuit held that
concerted action by a corporation’s officers and direc-
tors, working in their official capacities, can form the
requisite conspiracy.
In reaching this conclusion, the Third Circuit spe-
cifically declined to “follow the line of cases adopting
the rule that concerted action among corporate officers
and directors cannot constitute a conspiracy under
§1985(3)” (App. A at 55a). This “rule” has been adopt-
ed, and the Third Circuit’s position has been rejected,
Reasons for Granting the Writ.
by every other court of appeals to consider the question.
Herrmann v. Moore, 576 F.2d 453 (2d Cir. 1978) ; Girard
v. 94th St. & Fifth Ave. Corp., 530 F.2d 66 (2d Cir.
1976), cert. denied, 425 U.S. 974 (1976); Bellamy v.
Mason’s Stores, Inc., 508 F.2d 504 (4th Cir. 1974) ; Dom-
browski v. Dowling, 459 F.2d 190 (7th Cir. 1972) (Ste-
vens, J.); Baker v. Stuart Broadcasting Co., 505 F.2d
181 (8th Cir. 1974). See also McLellan v. Mississippi
Power & Light Co., 545 F.2d 919 (5th Cir. 1977) (dis-
senting opinion).
The decisions of the Second, Fourth, Seventh and
Eighth Circuits have their origin in the holding of Nel-
son Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911,
914 (5th Cir. 1952), cert. denied, 345 U.S. 925 (1953),
that a “corporation cannot conspire with itself” and the
acts of agents of the corporation are the acts of the cor-
poration itself unless personally motivated. These fun-
damental principles have been previously recognized by
the Third Circuit in other contexts. See, e.g., Goldlawr,
Inc. v. Shubert, 276 F.2d 614 (3d Cir. 1960).
Officers and directors of a corporation cannot form
a conspiracy, unless their actions are personally moti-
vated, because their concerted activities constitute the
actions of only one legal entity—the corporation. As
recognized by Judge (now Mr. Justice) Stevens in Dom-
browski, supra at 196, the substantive law allegedly vio-
lated by the conspiracy does not alter the applicability
of this combination of fundamental conspiracy and cor-
porate principles in any way.
The officers and directors in the instant case were
not acting in their individual capacities because the com-
plaint specifically alleged that they were working on
behalf of the Association at all times. (App. C at 83a,
Reasons for Granting the Writ.
133). The Third Circuit, however, chose to ignore the
significance of this fact and the reasoning and holdings
of four other federal courts of appeals which have dis-
missed alleged causes of action under Section 1985(3)
in identical situations.
Few corporate decisions are made by one individual.
The interpretation of the Third Circuit, therefore, makes
virtually every such decision the product of a conspir-
acy, nullifies the conspiracy requirement of Section
1985(3) and a multitude of other statutes, and inappro-
priately exposes corporations to increased liability.
These ramifications, together with the conflict among
the circuits created by the Third Circuit’s unsupported
decision justify the grant of certiorari to review the
judgment below.
ovens ° 9
Reasons for Granting the Writ.
2. The Decision Below Conflicts With The Decision of
Another Court Of Appeals As To The Use Of An
Alleged Violation Of Title VII To Support A Cause
Of Action Under 42 U.S.C. §1985(3).
The Third Circuit noted that 42 U.S.C. §1985(3) is
remedial in nature (App. A at 29a), and the statute was
intended to provide a federal remedy for conspiracies to
deprive persons of equal protection and equal privileges
and immunities under the law. The decision below also
held, however, that a violation of a federal statute, and
Title VII in particular, is such a deprivation (App. A at
36a).
Although the passage of Title VII did not nullify
any previously enjoyed substantive rights in the civil
rights area, Johnson v. Railway Express Agency, 421
U.S. 464 (1975), Congress clearly intended the adminis-
trative/judicial procedure outlined in Title VII to be
the exclusive mechanism for enforcing the substantive
rights granted by Title VII. See McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) and Alexander v.
Gardner-Denver Co., 415 U.S. 36 (1974).
The Third Circuit’s decision, however, would allow
the right conferred by Title VII and Title VII alone—
equal employment opportunity for women in the private
sector—to be enforced under 42 U.S.C. §1985(3). This
result would doubtlessly undermine Title VII’s emphasis
on conciliation and administrative resolution of such dis-
putes. See Occidental Life Insurance Co. v. Equal Em-
ployment Opportunity Commission, 432 U.S. 355, 359-
360 (1977).
This conclusion is not based on mere supposition
because enforcing a Title VII right under 42 U.S.C.
10
Reasons for Granting the Writ.
$1985(3) is much more attractive to a plaintiff, Under
Section 1985(3), a plaintiff can avoid administrative
compliance and obtain a longer statute of limitations,’
the right to a jury trial,’ no limitation on back pay,‘
and punitive damages.
Thus, the effect of allowing Title VII rights to be
enforced under Section 1985(3) will be a needless flood
of federal court employment discrimination cases which
could have been resolved through the administrative
2. The Third Circuit has recently held that the
statute of limitations for alleged violations of the Civil
Rights Acts of 1866 and 1870 occurring in the Common-
wealth of Pennsylvania is six years. Davis V. United
States Steel Supply, 581 F.2d 335 (3d Cir. 1978). This
limitation period should be compared to the much
shorter period (180 days, or 300 days in a deferral
state) established by Congress for the filing of a charge
with the Equal Employment os yaa Commission
to enforce Title VII rights. 42 U.S.C. §2 -5(c). This
Court has recently emphasized the importance of such a
timely filing with the Commission. Evans v. United Air
Lines, Inc., 431 U.S. 553 (1977).
3. See, e.g., Cameron v. Brock, 473 F.2d 608 (6th
Cir. 1973); Don v. Okmulgee Memorial Hospital, 443
F.2d 234 (10th Cir. 1971). There is no right to a jury
trial under Title VII. Johnson v. Georgia Highway Ex-
press, 417 F.2d 1122 (5th Cir. 1969); Slack v. Havens,
522 F.2d 1091 (9th Cir. 1975).
4. Title VII contains a two-year statutory limita-
tion on back pay. 42 U.S.C. §2000e-5(g).
5. Unlike Section 1985(3), punitive damages are
not available under Title VII. Compare ht ge A Local
Union No. 18, ........ F. Supp. ........ , 99 LRRM 2074 (N.D.
Ohio 1978) (Punitive damages awarded under Section
1985(3)) to Richerson v. Jones, 551 F.2d 918 (3d Cir.
1977) (Punitive damages may not be awarded in Title
VII suit).
11
Reasons for Granting the Writ.
and conciliatory processes of Title VII as intended by
Congress.
The Fourth Circuit, in Doski v. Goldseker Co., 539
F.2d 1326 (4th Cir. 1976), recognized that an interpre-
tation such as the Third Circuit’s would significantly
undermine the Title VII enforcement scheme. Conse-
quently, that court refused to allow an alleged violation
of Title VII to establish a cause of action under 42 U.S.C.
§1985(3). The reasoning of the Fourth Circuit, however,
was totally rejected in the decision below (App. A at
38a).
This conflict provides yet another reason for the
grant of certiorari to review the decision below.
3. The Decision Below Conflicts With The Statutory
Analysis Previously Developed By This Court And
Sanctions An Unconstitutional Application Of 42
U.S.C. §1985(3).
In Griffin v. Breckenridge, 403 U.S. 88, 104 (1971),
this Court held that the analysis of the existence of a
cause of action under 42 U.S.C. §1985(3) requires the
identification of “a source of congressional power to
reach the private conspiracy alleged by the complaint.’
In Griffin the Thirteenth Amendment was identified as a
constitutional source of congressional power, and the
Court declined to discuss the applicability of the Four-
teenth Amendment, /d.
The decision below, however, did not rely on any
of the enabling clauses of the Civil War constitutional
6. This portion of the analysis is to pre-
vent the type of unconstitutional applications of Section
1985(3) which voided its crim counte RS.
$5519. United States v. Harris, 106 U.S. 629 (1883).
12 ‘
Reasons for Granting the Writ.
amendments. Rather, the Third Circuit held that the
private conspiracy in this case could be reached under
the commerce clause of the Constitution of the United
States (App. A at 49a). This conclusion was based on
the assumption that if Congress could constitutionally
enact Title VII pursuant to the commerce clause, it could
likewise prohibit, under Section 1985 (3), conspiracies to
violate Title VII pursuant to the commerce clause.
The Third Circuit, however, never examined Sec-
tion 1985(3) to determine whether Congress intended it
to be such a statute. To the contrary, the legislative his-
tory indicates that the Civil War constitutional amend-
ments are the source of Section 1985 (3) ;7 the legislative
history is devoid of any mention of the commerce clause;
and the commerce clause was interpreted as an extreme-
ly narrow source of power for the enactment of legis-
lation at that time.§
Moreover, unlike other legislation passed pursuant
to the commerce clause, Section 1985(3) contains none
of the constitutionally mandated jurisdictional require-
ments which determine whether a defendant sufficiently
affects interstate commerce to fall within the scope of
this congressional source of power. Compare, e.g., the
Fair Labor Standards Act, 29 U.S.C. $213, and Title VII,
42 U.S.C. §2000e(b), with 42 U.S.C. § 1985(3). See also
Heart of Atlanta Motel, Inc. v. United States, 379 U.S.
241, 253-262 (1964).
7. Section 1985(3) originated as Section 2 of the
Enforcement Act of 1871 (Act of April 20, 1871, Ch. 22,
17 Stat. 13). This Act was entitled, “An Act to Enforce
the Provisions of the Fourteenth Amendment to the
United States Constitution and For Other Purposes.”
8. See, e.g., Lochner v. New York, 198 U.S. 45
(1905).
13
Reasons for Granting the Writ.
The commerce clause was therefore, never intended
to be a source of power which determines the reach of
Section 1985(3) and, without jurisdictional limitations,
it cannot be used in that fashion now. Under the deci-
sion of the Third Circuit, however, a plaintiff can state
a Title VII-based cause of action under Section 1985 (3)
against a corporate employer even though that employer
fails to meet the jurisdictional standards of Title VII
because it does not sufficiently affect interstate com-
merce.”
This unconstitutional, irrational result occurs be-
cause the Third Circuit’s analysis incorrectly focused
on the constitutionality of the right allegedly violated by
the conspiracy—i.e. Title VII—without considering the
constitutional power to protect that right from the ac-
tivities of private conspiracies under Section 1985(3).
The commerce clause may serve as the source of power
for Title VII itself, but, as explained above, it cannot be
a source of power to reach private conspiracies under
Section 1985(3).
Thus, this distortion of the analysis developed
in Griffin allows unconstitutional applications of Sec-
tion 1985(3) and greatly expands the scope of that
statute despite the concerns of this Court. Griffin supra,
at 101. The grant of the petition to review the decision
below is, therefore, justified and necessitated by this
conflict with the principles enunciated in Griffin v. Breck-
enridge.
9. For example, Title VII assumes that corporate
employers with fewer than fifteen (15) employees do
not sufficiently affect interstate commerce, and they are
therefore not subject to Title VII. 42 U.S.C. §2000e(b).
Under the Third Circuit’s decision, however, these cor-
porations are liable under Section 1985(3) if two or
more —_— of the corporation deprive an employee of
Title rights.
14
Conclusion.
CONCLUSION
For these reasons, a writ of certiorari should issue
to review the judgment and opinion of the Third Circuit.
Respectfully submitted,
JOHN G. WAYMAN
EUGENE EK, CONNORS
WALTER G. BLEIL
REED SMITH SHAW & MCCLAY
747 Union Trust Building
Pittsburgh, Pennsylvania 15219
Counsel for Petitioners
APPENDIX A
United States Court of Appeals
For Tue THIRD CIRCUIT
NO. 77-1756
JOHN R. NOVOTNY,
Appellant
Vv
GREAT AMERICAN FEDERAL SAVINGS & LOAN
ASSOCIATION, JOHN A. VIROSTEK, JOSEPH E.
BUGEL, JOHN J. DRAVECKY, DANIEL T. KUBASAK,
EDWARD J. LESKO, JAMES E. ORRIS, JOSEPH A.
PROKOPOVITSH, JOHN G, MICENKO and
FRANK J. VANEK
On APPEAL FROM THE UNITED STATES DISTRICT COURT
For THE WESTERN DISTRICT OF PENNSYLVANIA
C.A. No. 76-1580
Argued February 16, 1978
(Opinion filed August 7, 1978)
Before: SEITz, Chief Judge, ROSENN and GARTH,
Circuit Judges
Reargued May 11, 1978 En Banc
Before: SEITz, Chief Judge, ALDISERT, ADAMS, GIBBONS,
ROSENN, HUNTER, WEIS, GARTH and HiGGINBOTHAM,
Circuit Judges
STANLEY M. STEIN, Esq.
FELDSTEIN, GRINBERG, STEIN &
McKEE
Pittsburgh, Penna. 15219
Attorneys for Appellant
2a
Appendix A—Opinion of the Court.
EUGENE K. ConNors, Esq.
WALTER G. BLEIL, Esq.
REED SMITH SHAW & McCCLAY
Pittsburgh, Penna, 15219
Attorneys for Appellees
ABNER W. SIBAL,
General Counsel
JOSEPH T’. EDDINS,
Assoc. General Counsel
CHARLES L. REISCHEL,
Asst. General Counsel
LuTz ALEXANDER PRAGER
Gary T. BROWN
Attorneys
Equal Employment
Opportunity Comm.
Washington, D.C.
Amicus Curiae
OPINION OF THE COURT
ApAMs, Circuit Judge
Advocacy of equal rights has seldom been a com-
pletely secure vocation. Whether out of fear or for less
attractive motives, certain individuals view the advance
of equality as a threat to be opposed. Those who take
up the cause of equal rights run the risk that their
persors and property will suffer the consequences of
their opponents’ hostility. In days past, this risk ex-
posed individuals to serious harm. Harassment was
routine; more serious threats and physical injury were
not uncommon. Fortunately, however, such flagrant re-
taliation has largely subsided. In this case we are called
upon to determine whether statutory provisions which
3a
Appendix A—Opinion of the Court.
did service against the violent assaults on equal rights
advocates in earlier times or other, comparable, leg-
islative enactments can guard against less dramatic
retribution.
The precise issue here is whether 42 U.S.C.
§ 1985(3) and 42 U.S.C. §2000(e) (Title VII) protect an
employee who claims to have been discharged because
his actions and advocacy stood in the path of a plan to
deprive women of their equal employment rights.
I. Facts
John R. Novotny, the plaintiff, began work with
Great American Federal Savings and Loan Association
(GAF) in 1950. During subsequent years he rose
through the ranks to become the Secretary of the com-
pany and a member of its board of directors. In the
course of his employment, Novotny alleges that he dis-
covered that the individual defendants in this action,
officers and board members, “intentionally and delib-
erately embarked upon and pursued a course of conduct
the effect of which was to deny female employees equal
employment opportunity.’’!
1. According to the complaint:
Said course of conduct was characterized by some
or all of the following actions, inter alia:
(a) Promoting male employees with less experi-
ence, fewer years of service and less qualifica-
tion over more qualified female employees;
(b) Providing education and training to male em-
ployees which was not provided to female em-
ployees;
(c) Making known to male employees job vacancies
were not made known to female employees;
(d) Evaluating male employees in accordance with
different and subjective criteria than those ap-
plied to female employees;
Appendix A—Opinion of the Court.
During the summer of 1974, the GAF board of di-
rectors became engaged in a dispute with one Betty
Batis, a female employee, who claimed to have been
the victim of sex discrimination. According to No-
votny’s complaint, he took up Batis’ cause at a subse-
quent board meeting and expressed the view that GAF
had not met its legal obligations with regard to equal
employment opportunity.
The other members of the board voted in January
1975 to terminate Novotny’s employment with GAF. On
the basis of that termination, Novotny promptly filed an
unlawful employment practice charge with the EEOC,
and was granted a right to sue letter in December of
1976. Claiming that his dismissal was a reprisal for his
advocacy of the cause of equal rights for women in the
corporation, Novotny then brought the present action
against GAF, officers of the company and individual
members of the board of directors.2 Novotny alleged
(e) Categorizing certain jobs as “male” or “female”
and promoting in accordance with these cate-
gories;
(f) ribose an atmosphere inimical to the aspera-
tions of female employees than to male em-
ployees;
(g) By providing different and lesser degrees of
fringe benefits to female employees than to
male employees;
(h) By demoting qualified female employees and
replacing them with less qualified male em-
ployees.
2. The complaint named John A. Virostek, Chair-
man of the Board, Joseph E. Bugel, Vice Chairman of
the Board, John J. Dravecky, Vice President of GAF,
Daniel Kubasak, President of GAF, John Micenko,
Treasurer of GAF, Frank Vanek, Controller of GAF,
James Orris, former President of GAF, and Joseph Pro-
5a
Appendix A—Opinion of the Court.
that the retaliatory discharge imposed upon him con-
stituted an infraction of Section 2 of the Ku Klux Klan
Act of 1871,3 and Title VII of the Civil Rights Act of
1964.4
Pursuant to a motion filed under Rule 12(b) (6),
the district court dismissed both of Novotny’s claims.
Because the individual defendants were employees of a
single corporation, the trial judge held that they were
legally incapable of conspiring in violation of § 1958(3).
And, in the court’s view, Title VII offered the plaintiff
no protection because Novotny had not been discharged
as a result of any involvement in a formal EEOC pro-
ceeding.
Novotny’s timely appeal brought the case before us.
kopovitsh, a member of the Board of Directors. We were
informed at oral argument that a similar sex-discrimina-
tion suit is currently pending in the district court on be-
half of Ms. Batis.
3. 42U.S.C. § 1985(3) (1970) reads:
If two or more persons in any State or Territory
conspire or go in disguise on the highway or on the
premises of another, for the purpose of depriving,
either directly or indirectly, any person or class of
persons of the equal protection of the laws, or of
equal privileges and immunities under the laws; ...
if one or more persons engaged therein do, or cause
to be done, any act in furtherance of the object of
such conspiracy, whereby another is injured in his
person or property, or deprived of having and exer-
cising any right or privilege of a citizen of the
United States, the party so injured or deprived may
have an action for the recovery of damages, occa-
sioned by such injury or deprivation, against any
one or more of the conspirators.
4. 42U.S.C. § 2000e et seq. (1970).
Appendix A—Opinion of the Court.
Ul. THe Conspmacy Counts: § 1985(3)
Defendants challenge the plaintiff's § 1985(3) claim
on three grounds. They allege that: (1) as a matter of
statutory construction, § 1985(3) confers no redress
for grievances such as the one in this case; (2) as a
matter of constitutional law, if such redress is provided
then § 1985(3) would exceed the powers of Congress;
(3) as a matter of definition, officers and directors of a
single corporate entity are legally incapable of forming
a “conspiracy.”
Both in briefs and at oral argument, the parties
have occasionally combined discussion of the first and
second grounds of objection, However, Congress’ inten-
tion with respect to the coverage of § 1985(3) is a dis-
tinct issue from Congressional power under the Consti-
tution to pass such legislation. Clear analysis therefore
requires that the issue of the intended scope of the
legislation and its proper construction be examined
separately from the question whether such scope is
constitutionally authorized. Since defendants’ success
on the statutory construction issue would obviate the
need to explore an unsettled area of constitutional law,
we turn first to an examination of the statutory
structure.
A. Background: An Overview of the History of
§ 1985(3)
The statute now codified as 42 U.S.C. § 1985(3)
began its existence as a part of Section 2 of the Act of
April 20, 1871 (the Ku Klux Klan Act.5 The 1871 Act
5. Section 2 as quoted in Brawer v. Horowitz, 535
F.2d 830, 837-38 n.15 (3d Cir. 1976) in its entirety is re-
produced as appendix I to this opinion.
7a
Appendix A—Opinion of the Court.
was one of several Congressional reactions to the con-
tinued violent resistence to Reconstruction in the
South.® Consideration of the Act was triggered by a
message sent to Congress by President Grant on
March 23, 1871, warning that “[a] condition of affairs
now exists in some States of the Union rendering life
and property insecure and the carrying of the mails and
the collection of the revenue dangerous,” and calling
for legislation to remedy this situation.7 The (Congres-
sional response embodied in the 1871 Ku Klux Klan Act
included the grant of a civil cause of action against
those who deprived persons of constitutional rights
under color of state law (later codified as 42 U.S.C.
§ 1983), the authorization of deployment of federal
troops and suspension of habeas corpus in certain situ-
ations, and the establishment of criminal penalties for
conspiracies to obstruct justice and to interfere with
“equal protection” or “equal privileges and immunities.”
In section 2 of the legislation, the predecessor of
§ 1985(3), Congress also created a cause of action for
persons injured by acts done in furtherance of such
conspiracies.
With the cooling of Reconstructionist ardor, the re-
ception accorded to the Ku Klux Klan Act in the courts
was not a hospitable one. In United States v. Harris,8
the Supreme Court sustained a demurrer to an indict-
ment, under the Act’s conspiracy provisions, of 20
southern whites charged with lynching a black, and de-
clared such criminal penalties unconstitutional as a
6. See Monroe v. Pape, 365 U.S. 167, 177-180
(1961).
7. Id, 172-73
8. 106 U.S. 629 (1882). See also United States v.
Cruikshank, 92 U.S. 542 (1875).
8a
Appendix A—Opinion of the Court.
usurpation of the states’ role in protecting liberty and
property.
This holding was reaffirmed by Baldwin v. Franks,°
which granted habeas corpus to a member of a group
of Californians who had driven resident Chinese aliens
out of town in violation of the treaty rights of the
Chinese citizens, While conceding that the federal gov-
ernment might have the power to protect treaty rights
through criminal sanctions, the Supreme Court held that
since the criminal provisions protected all privileges and
immunities they were invalid.
Following Harris and’Baldwin, Section 2 of the
1871 Act languished largely unused for seventy years.!°
9. 120 U.S. 678 (1887).
10. See e.g. Gressman, The Unhappy greet of
Civil Rights Legislation, 50 Mich, L. Rev. 1323 (1952) ;
Note, Federal Power to Regulate Private Discrimina-
tion; The Revival of the Enforcement Clauses of the Re-
construction Era Amendments, 74 Col. L. Rev. 449, 451-
54 (1974); Note, The Proper Scope of the Civil Rights
Acts, 66 Harv. L. Rev. 1285, 1286-87 (1953) ; Develop-
ments in the Law—Section 1988 and Federalism, 90
Harv. L. Rev. 1133, 1153-1161 (1977).
A sign of possible resurrection appeared in Hague
v. CIO, 307 U.S. 496 (1939), where a divided Supreme
Court, relying on the predecessors to § 1983 and § 1985
(3), granted relief against discriminatory action by a
city to harass political meetings, The Court acted either
on the ground that the right to assemble and discuss
matters relating to national issues (here the NLRA)
was a privilege and immunity of national citizenship
(opinion of Justice Roberts) or on the ground that the
action denied equal poring (opinion of Justice
Stone). The promise of Hague remained largely unful-
filled, however. Moreover, Snowden v. Hughes, 321
U.S. 1, 8-12 (1944), tne Supreme Court held that § 1985
(3) reached only “intentional or purposeful discrimina-
tions between persons or classes;” rather than simply
denials of right.
9a
Appendix A—Opinion of the Court.
And in 1952, the Supreme Court further cut back on the
statute’s apparently broad scope in Collins v. Hardy-
man.11 In response to a claim under the civil conspiracy
provisions originally contained in the Act, the Court
held that the 1871 Act protected only against depriva-
tions of rights brought about by state action.12 There
the matter rested until 1971, when the Supreme Court
gave new life to the civil conspiracy provisions of the
Ku Klux Klan Act [now recodified as 42 U.S.C. § 1985
(3) ] in Griffin v. Breckenridge.13
In Griffin, the three black plaintiffs were attacked
and beaten on a highway in Mississippi by whites who
were under the mistaken impression that their victims
were associates of a civil rights worker. The blacks
brought suit against their assailants under § 1985(3),
claiming to have been deprived of various privileges and
immunities under the laws of the United States and the
State of Mississippi, including the rights of free speech,
assembly, association, movement, liberty and security
of their persons. The suit was dismissed in the district
court, and on the basis of Collins the Court of Appeals
reluctantly sustained the dismissal. The Supreme Court,
however, reversed.
First the Court explained that the constitutional
difficulties which shaped the result in Collins twenty
years earlier had been dissipated by intervening cases,
It then held that, at least in a situation where the right
to interstate travel is implicated or where a federal
power to abolish the badges and incidents of slavery
11. 341 U.S. 651 (1951). ‘j
12. Id. at 659, 661-62.
13. 403 U.S. 88 (1971).
10a
Appendix A—Opinion of the Court.
under the Thirteenth Amendment can be invoked, no
state action is required to establish the constitutional
power to regulate private activity.14 The Court pro-
ceeded to examine the legislative history of § 1985(3),
and, finding no reason to decline to accord the terms of
the statute their full sweep, sustained the plaintiffs’
claim.
Nonetheless, Griffin expressed sensitivity to the
potential that the expansive syntax of § 1985(3) would
give rise to a “general federal tort law.” To guard
against this possibility, the Court looked to the legis-
lative history, which had stressed the adoption of lan-
guage regarding “equal protection of equal privileges |
and immunities” as a limitation on the reach of
§ 1985(3).15 Read in light of this history, a»cause of
action based on a conspiracy to deprive one of equal pro-
tection or equal privileges and immunities requires that
there must be some racial, or otherwise class based,
14. The Court stated that “many of the constitu-
tional problems perceived [in Collins] simply do not
exist.’”’ 403 U.S. at 96-97. Later in the opinion, the Court
undertook an sey oy of the basis for Congressional
power to regulate the conduct at issue. It concluded that
Congress was authorized to deal with private conspira-
cies to assault blacks on the highways both under the
enforcement clause of the 13th Amendment, and under
the pe of the national government to protect the
right of interstate travel. Jd. 104-106.
The defendants contend that both of these bases
were necessary to the outcome of Griffin. Our reading of
the case is that the 13th Amendment and the right to
travel were alternative rationales. See id. at 107. (‘In
identifying these two constitutional sources of congres-
— power, we do not imply the absence of any
other.’’)
15. Id. at 102 (emphasis in original).
lla
Appendix A—Opinion of the Court.
invidiously discriminatory animus underlying the con-
spirators’ action. The conspiracy, in other words, must
aim at a deprivation of the equal enjoyment of rights
secured by law to all.16
B. The Reach of § 1985(3)
(1) Class Based Animus
, Despite the broad wording of the statute, the Su-
preme Court avoided interpreting § 1985(3) as a “gen-
eral federal tort law . . . by requiring, as an element
of the cause of action, the kind of invidiously discrim-
inatory motivation stressed by the sponsors of the limit-
ing amendment.”17 And in § 1985(3) litigation subse-
quent to Griffin, the element of class-based invidiously
discriminatory animus has, in the words of one com-
mentator, acted as a “threshold requirement,’’18 screen-
ing out a variety of § 1985(3) claims at an early
stage.19
16. See id.
17. Id.
18. Note, Civil Rights—State Action is a Require-
ment for the Application of § 1985(83) to First Amend-
ment Rights, 54 N.C. L. Rev. 677, 683 (1977).
19. H.g. Dacey v. Dorsey, 568 F.2d 275 (2d ,
1978) (individual who sued bar association slnetered
failure of members of bar association to recuse them-
selves from his case; no class based discrimination al-
leged); Jennings v. Shuman, 567 F.2d 1213 (3d Cir.
1977) (no class base alleged for malicious prosecution) ;
Meiners v. Moriarity, 563 F.2d 343 (7th Cir. 1977) (false
arrest suit alleged no class-based animus); Regan v.
Sullivan, 557 F.2d 300 (2d Cir. 1977) (false arrest suit
alleged no class-based animus); Atkins v, Tanning, 556
F.2d 485 (10th Cir. 1972) (no class-based animus al-
leged in false arrest suit); Phillips v. Intl. Assn. of
Bridge Workers, 556 F.2d 939 (9th Cir. 1977) (dissident
Appendix A-—-Opinion of the Court.
In determining the applicability of § 1985(3) to the
case before us, therefore, an initial inquiry must be
whether the actions which form the basis for this case
are the off-spring of a “class-based invidiously discrim-
inatory animus” within the meaning of the Griffin test.
(a) Women as a class
(i) Women Were Not Excluded from
§ 1985(3)
As an opening thrust, defendants urge that, when
read in its historical context, § 1985(3) could not have
union members not a class) ; Morgan v. Odem, 552 F.2d
147 (5th Cir. 1977) (“newcomers” not a class) ; Askew
v. Bloemker, 548 F.2d 673 (7th Cir. 1976) (suit for il-
legal search of home alleged no class-based animus) ;
McLellan v. Mississippi Power & Light Co., 545 F.2d 919
(5th Cir. 1977) (en banc) (bankrupts not a class) ;
Brawer v. Horowitz, 535 F.2d 830 (3d Cir. 1976) (no
allegation of class-based conspiracy) ; Hahn v, Sargent,
523 F.2d 461 (1st Cir. 1975) cert. denied 425 U.S. 904
(1976) (no class-based animus alleged in attempt to
damage political career); Harris v. Brooks, 519 F.2d
1358 (1st Cir. 1975) (homeowners affected by zonin
changes not a class); Arnold v. Tiffany, 487 F.2d 21
(9th Cir. 1973) cert. denied 415 U.S. 984 (1974) (news-
paper dealers desiring to form a trade association not a
class); Hughes v. Ranger Fuel Corp., 467 F.2d 6, 8-10
(4th Cir. 1972) (company’s action against environmen-
talists held a response to individual’s actions, not class-
based) ; Jacobson v. Industrial Foundation, 456 F.2d 258
(5th Cir. 1972) (applicants for workman’s compensa-
tion are not a dealt: Cf. Downs v. Sawtelle, 77-1260
(1st Cir. March 30, 1978) slip op. (deaf may not be a
class) ; See generally Note, The Scope of Section 1985 (3)
Since Griffin v. Breckenridge, 45 Geo. Wash. L. Rev.
239, 252-58 (1976) (discussing cases); Note, Private
Conspiracies to Violate Civil Rights, 90 Harv. L. Rev.
1721, 1727-29 (1977) (discussing cases).
13a
Appendix A—Opinion of the Court.
contemplated punishing conspiracies against women.
Therefore, they suggest, sex-based conspiracies cannot
form the predicate for a cause of action under
§ 1985 (3).
While some of the individuals who voted for
§ 1985(3) may not have been sympathetic to equal
rights for women,2° the interpretation of statutes is
not, in the face of contrary language, tied to the subjec-
tive expectations of particular legislators. The fact is
that the wording of § 1985(3) gives no basis for exclud-
ing women from its protection—rather, the phrases of
the statute are attuned to the evolving idea of equality.
Section 2 of the Act was cast in general terms; it
proscribed conspiracies aimed at depriving “any person
or any class of persons” of equal protection and equal
privileges. The breadth of such language was not ad-
ventitious. While the impetus toward enactment of the
* lineal ancestor of § 1985(3) was supplied by concern
regarding violence directed at blacks and Union sym-
pathizers,?! the bill subsequently enacted contained no
20. Of. Bradwell v. Illinois, 83 U.S. (16 Wall.) 130
(1873). Concurring in the decision to uphold the refusal
of the Illinois Supreme Court to admit women to its bar,
Justice Bradley, joined by Justices Swayne and Field
— other two dissenters in the Slaughterhouse Cases)
wrote:
[T]he civil law, as well as nature herself has always
recognized a wide difference in the respective
spheres and destinies of man and woman. Man is,
or should be, woman’s protector and defender.
21. Monroe v. Pape, 365 U.S. 167, 178 (1961).
14a
Appendix A—Opinion of the Court.
such limitations.22 As Judge Aldisert noted in Brawer
v. Horowitz,23 Senator Edmunds, in reporting the
amendments of the Ku Klux Klan Act to the Senate,
interpreted the Act to command that:
If...it should appear that this conspiracy was
formed against a man because he was a Democrat,
if you please, or because he was a Catholic, or
because he was a Methodist, or because he was a
Vermonter...this section could reach it.24
Consequently, we find it difficult to conclude that
Congress affirmatively intended to exclude women from
protection. Indeed, the sole specific reference to women
22. Congressional Globe, 42d Cong., 1st Sess.
(1871) [hereinafter, Cong. Globe] at 484. Indeed, in op-
position to the Act, Representative Harris admitted that
‘There is one good feature in this bill; that is, it applies
to all.” eae tte Shellabarger, the Chairman of
the House Select Committee which drafted the Ku Klux
Klan Act and a prime spokesman for the Bill’s propo-
nents in the House, first made this point with relation to
its first section, later to become § 1983. Cong. Globe at
App. 68. He reiterated, however, that “The provisions of
the 14th Amendment are wholly devoted to securing the
equality and safety of all the people, as is this section,
and indeed the entire bill... .” Jd.
23. 535 F.2d 830, 839 (3d Cir. 1976).
24. Cong. Globe at 567. See also Griffin, 403 U.S.
at 102 n.9; Representative Kelley at Cong. Globe 339
(“A government that cannot protect the humblest man
within its limits, that cannot snatch from oppression
the feeblest woman or child is not a government.”’) ;
Representative Sumner id. at 651 (“Let the humblest
citizen in the remotest village be assailed in the enjoy- _
ment of equal rights, and the nation must do for that
humblest citizen what it would do for itself... Equality
aes universality, and what is universal must be na-
tional.”’).
15a
Appendix A—Opinion of the Court.
\
that we have been able to discover in the legislative
history implies to the contrary. In the debate on the
scope of the term “privileges and immunities,” in the
proposed § 2 of the 1871 Act, Senator Trumbull sought
to prove that the right to vote was not a “privilege
or immunity” because women could not exercise the
franchise.25 The burden of his argument seems to have
been that women were protected in the enjoyment of
rights which could properly be classified as “privileges
and immunities” and therefore rights from which wom-
en were admittedly excluded could not be “privileges
and immunities.” The underlying premise of this rea-
soning was that women are within the reach of § 2.76
25. Cong. Globe at 576. A similar theory was
adopted in Minor v. Happersett, 88 U.S. (21 Wall) 162,
169-70 (1874) upholding a denial of female suffrage, The
plaintiff, said the Court
has always been a citizen from her birth, and en-
titled to all the privileges and i amunities of citzen-
ship. .. .“If the right of suffrage is one of the nec-
essary privileges of a citizen of the United States,
then the Constitution and laws of Missouri, confin-
ing it to men are... void. |
The Court concluded that voting was not such a privilege
or immunity.
26. Our conclusion that women were not excluded
from § 1985(3) is buttressed by the interpretation
which courts have accorded § 1983. As has been often
noted, § 1983 constituted the first section of the Ku Klux
Klan Act, which also included the ancestor of § 1985(3).
E.g. Monroe v. Pape, 365 U.S. 167, 180-81 (1961), id. at
199-202 (Harlan, J. gree ; id, at 229,234 (Frank-
furter, J. dissenting); Monell v. Denartment of Social
Services, 46 U.S.L.W. 4569, 4572-73 (1978). Cf. Cary v.
Piphus, 46 U.S.L.W. 4224, 4226 n.10 (1978) (construing
$ 1985(3) and § 1983 in a materia). The fact that the
Supreme Court has had no difficulty in entertaining
claims of sex discrimination under $ 1983 makes it diffi-
16a
Appendix A—Opinion of the Court.
The history of the statute thus leads us to determine
that the language of § 1985(3) should not be unnatur-
ally cropped to exclude women from its protection.
Chief Justice Warren wrote in a comparable con-
text :27
Throughout our history differences in race and
color have defined easily identifiable groups which
have at times required the aid of the courts in
securing equal treatment under the laws. But com-
munity prejudices are not static, and from time
to time other differences from the community norm
may define other groups which need the same pro-
tection.
(ii) Discrimination against women is “in-
vidious class-based” discrimination
Although we can ascertain that § 1985(3) was in-
tended to have a rather broad sweep, it is nonetheless
difficult to parse the precise dimensions of the “classes”
cult to conclude that Congress intended to exclude
women from protection under § 2 of the 1871 Act. F.g.
Monell v. Department of Social Services, 46 U.S.L.W.
4569 (1978); Craig v. Boren, 429 U.S. 190 (1976) re-
versing Walker v. Hall, 399 F. Supp. 1304, 1306 (W.D.
Okla. 1975) (relief sought under § 1983).
27. Hernandez v. Texas, 347 U.S. 475, 478 (1954)
(holding that jury discrimination against Mexican-
Americans was equal protection violation). The Con-
gressmen who enacted § 1985(3) were not oblivious to
the possibility that altered social circumstances could
bring oppression upon new classes in society. See Sena-
tor Ames, Cong. Globe 570: (“Man changes so little in
centuries even that political creeds are visited by the
same punishments that Christianity received at pagan
hands in ages past.’’).
an
Appendix A—Opinion of the Court. =
which the Congress sought to protect, for, as the Su-
preme Court noted in Tenney v. Brandhove, “The limits
of §§ 1 and 2 of the 1871 statute
out in debate,’’28 +. Were not spelled
In interpreting the lan
guage of the stat
Supreme Court in Griffin said: ee
The language requiring intent to deprive of equal
protection, or equal privileges and immunities
means that there must be some racial, or perhaps
otherwise class-based, invidiously discriminatory
animus behind the conspirators’ action.29
We need not determine here what classes other
than those distinguished by race or gender may be
within the ambit of § 1985(3). The Court in Frontiero
v. Richardson39 remarked: “Congress itself has
cluded that classifications based upon sex are sietaatie
invidious.” And in discussing discrimination, the wa
pointed out that sex, like race and national origin, is
an immutable characteristic determined by the aa.
dent of birth and that the sex characteristic frequent]
bears no relation to ability to perform or B nteibvuts
to society.31 Thus, to deprive members of a class found-
peclag gender of equal protection or equal privileges
- _iImmunities without any justification is to act in
irrational and odious manner—hence, with an i
vidiously discriminatory animus.32 a
28. 341 U.S. 367, 376 (1951
29. 403 U.S. at 109. .
30. 411 U.S. 667, 687 (1973) (plurality opinion).
31. See e.g., Kah :
Reed v. Reed, 404 U.S. 71 (1971) 416 US. 851 (1974) ;
32. E.g. Arnold v, Tiffany, 359 F
(C.D. Cal.), aff’d on other grounde, is7 Fog mg (9th
18
Appendix A—Opinion of the Court.
The principle that individuals should not be dis-
criminated against on the basis of traits for which they
bear no responsibility makes discrimination against
individuals on the basis of immutable characteristics
repugnant to our system.33 The fact that a person
bears no responsibility for gender, combined with the
pervasive discrimination practiced against women, 4
and the emerging rejection of sexual stereotyping as
incompatible with our ideals of equality?5 convince us
that whatever the outer boundaries of the concept, an
animus directed against women includes the elements
of a “class-based invidiously discriminatory” motivation.
We therefore join the two circuits that have in-
cluded sex discrimination within the categories of ani-
mus condemned by § 1985(3) .36
Cir. 1973), cert. denied 415 U.S. 984 (1974) ( class of
newsdealers who wished to form trade association held
not to be a “class” within the meaning of § 1985(3) ) ;
Harrison v. Brooks, 519 F.2d 1358 (1st Cir. 1975) (class
of homeowners adversely affected by zoning change held
not to be a “class” within the meaning of § 1985(3) ).
33. See e.g., Weber v. Aetna Casualty & Surety
Co., 406 U.S. 164, 175 (1972). Cf. Murphy v. Mt. Carmel
H.S., 543 F.2d 1189 (7th Cir. 1976) (suggests that non-
union members subject to discrimination cannot consti-
tute a class under Griffin because constituency of a union
is dependent on circumstances).
34. See e.g. Frontiero v. Richardsoi, 411 U.S. 677,
684-87 (1973).
35. See e.g. Craig v. Boren, 429 U.S. 190, 198-99
(1977).
36. Conroy v. Conroy, No, 77-1343 (8th Cir. 1978),
slip op. at 3 (explicitly recognized a sex discrimination
claim under § 1985(3)). And while in Cohen v. Illinois
Inst. of Technology, 524 F.2d 818 (7th Cir. 1975), cert.
denied 425 U.S. 943 (1976) (Stevens, J.), the Seventh
19a
Appendix A—Opinion of the Court.
(b) Novotny’s Standing
Even if sex discrimination is an “invidious clasc-
based animus” within the intendment of Griffin, the
defendants argue, Novotny has no standing to raise
a § 1985(3) claim, since as a male, the animus toward
females was not directed at him. We believe, however,
that this claim is at odds with the statutory language,
purpose and legislative history.
Section 1985(3) provides for a cause of action in
any instance where “in furtherance of the object of”
a proscribed conspiracy an act is done “whereby an-
other is injured in his person or property.” By its
terms, the statute gives no hint of any requirement
that the “other” must have any relationship to the
Circuit rejected a sex discrimination claim grounded
directly on a violation of the Fourteenth Amendment
because of a lack of what it regarded as the requisite
state action, dicta in subsequent cases consistently list
“sex” as a “class” cognizable under Griffin, Meiners v.
Moriarity, 563 F.2d 343, 348 (7th Cir. 1977) ; Murphy v.
Mt. Carmel High School, 543 F.2d 1189, 1192 n.1 (7th
Cir. 1976) ; Askew v. Bloemker, 548 F.2d 673, 678 (7th
Cir. 1976). Cf. Girard v. 95th St. & Fifth Ave. Corp., 530
F.2d 66 (2d Cir.), cert. denied 425 U.S. 974 (1976) (dis-
missing sex discrimination claim on the ground that no
conspiracy was present) ; Weise v. Syracuse University,
522 F.2d 397 (2d Cir. 1975) (reversing dismissal of
§ 1985(3) sex discrimination suit for want of state
action, but reserving question of whether sex discrimi-
nation comes within statute); Canavan v. Beneficial
Finance Corp., 553 F.2d 860 (3d Cir. 1977) (reversing
on procedural grounds dismissal of sex discrimination
suit under § 1985(3)); Doski v. M. Goldseker Co., 539
F.2d 1326, 1334 (4th Cir, 1976) (dismissing complaint
on statutory preemption grounds); Baker v. Stuart
Broadcasting Co., 505 F.2d 181 (9th Cir. 1974) (dismiss-
ing sex discrimination claim on the ground that no con-
spiracy present).
20a
Appendix A—Opinion of the Court.
“person or class of persons” which the conspiracy
seeks to deprive of equal protection, privileges or im-
munities. .
Nor does the legislative history betray any in-
timation that a cause of action under § 1985(3) pre-
supposes membership in the class against which the
conspiracy is directed. As Senator Edmunds stated:
“This section gives a civil action to anybody who may
be injured by the conspiracy.”37 Likewise, the testi-
mony regarding the problems which the Act attempted
to solve is replete with references to individuals in
situations analogous to that of Novotny. Representa-
tive Buckley adverted to the fate of “William C. Luke,
an educated man from the North who spoke several
languages, and who was an enthusiast on the subject
of educating and elevating the colored race.”38 Mr.
Luke, apparently a white man, was hanged at midnight
by the Ku Klux Klan for his activities. Representative
Shellabarger referred to one Mr. Allen, by all indica-
tions a white man, who was “shot at and banished for
teaching colored children to read,”3® and to Reverend
Corless, likewise apparently not a black man, a min-
ister sent from Philadelphia to “preach to the colored
men,” who was “scourged near unto death.”49 Jd, Sum-
marizing the activities of the Ku Klux Klan, Repre-
sentative Perry declared:
Their operations are...directed chiefly against
blacks and against white people who by any means
attract attention as earnest friends of the blacks.*!
37. Cong. Globe, 568 (emphasis added).
38. Cong. Globe, App. 192-93.
39. Cong. Globe, 517.
40. Id.
41. Cong. Globe, App. 78.
21a
Appendix A—Opinion of the Court.
In light of this history, we do not believe that Congress
intended to immunize Klansmen when their vict'ms
happened to be white. By analogy, members of a con-
spiracy to deprive women of equal rights are liable
under § 1985(3) to persons who are injured in further-
ance of the object of the conspiracy, whether male or
female.
This determination draws further sustenance from
the Supreme Court’s holding in Sullivan v. Little Hunt-
ing Park.42 There the Court summarily determined that
a white person expelled from membership in an all-
white swimming club for advocating the membership
of a black person could maintain an action under § 1982.
Despite the fact that § 1982 gave no explicit cause of
action to those injured in the course of conduct which
it prohibited, the Court said:
We turn to Sullivan’s expulsion for the advocacy
of Freeman’s cause. If that sanction, backed by a
state court judgment can be imposed, then Sullivan
is punished for trying to vindicate the rights of
minorities protected by § 1982. Such a sanction
would give impetus to the perpetuation of racial
restrictions on property. ... Under the terms of our
decision in Barrows, there can be no question but
that Sullivan has standing to maintain this action.43
42. 396 U.S. 229 (1970).
43. Id. at 327. See Tillman v. Wheaton-Haven Rec.
Assn., 410 U.S. 431 (1973).
The suggestion that to allow non-members of the
class standing would set loose a deluge of § 1985(3)
claims of the “general tort law’ variety is undercut by
the experience of this Circuit. In Richardson v. Miller,
446 F.2d 1247 (3d Cir. 1971), we reversed the dismissal
of a claim by a white employee who allegedly had been
22a
Appendix A—-Opinion of the Court.
Given the wording of the statute and the history can-
vassed above, as well as the Court’s pronouncement in
Little Hunting Park, a similar conclusion follows a
fortiori in the case before us.
Finally, a close reading of Griffin itself compels
the conclusion that an action under § 1985(3) need
not be predicated on a conspiracy involving invidious
animus directed against the plaintiff personally. In
Griffin the three plaintiffs had ridden to the place where
they were attacked in a car owned by R. G. Grady, who
was not involved in the suit. The complaint alleged
that the assailants were under the mistaken impression
that Grady was a civil rights worker. In determining
that a cause of action had been made out under § 1985
(3), the Supreme Court stated:
Finally, the petitioners—whether or not the non-
party Grady was the main or only target of the
conspiracy—allege personal injury resulting from
those [conspiratorial] acts.44
There is no intimation that, had one of the plaintiffs
in Griffin been a white civil rights worker, he would
have been denied the cause of action which his black
compatriots were granted.
fired because of his advocacy of racial equality by his
employer. In the seven years since Richardson no tide of
spurious § 1985(3) litigation has yet engulfed our
courts.
44. 403 U.S. at 103; cf. Herrman v. Moore, 77-6184
(2d Cir. May 10, 1978) (Black plaintiff who alleged he
had been fired for advocating hiring of blacks brought a
§ 1985(3) suit. Summary judgement for the defendants
was affirmed because insufficient evidence was presented
that plaintiff had been discharged because of such
advocacy ).
23a
Appendix A—Opinion of the Court.
Novotny asserts in his complaint that his employ-
ment was terminated as a result of his support of
equal opportunity claims of the female employees of
GAF, “because of his known support for equal em-
ployment opportunity for women within the GAF or-
ganization”, and because he was “in a position to affect
(sic) actions and procedures to implement equal em-
ployment opportunities for women.’’45 Such allegations
constitute a sufficient pleading of acts “in furtherance
of the object of’ a conspiracy to deprive women in
GAF of equal employment opportunity so as to entitle
Novotny to maintain an action for damages to his
person or property resulting from such acts.4®
45. Complaint {|| 24-27.
46. It has been suggested that Cameron v. Brock,
473 F.2d 608, 610 (6th Cir. 1973) runs counter to the
position that we adopt. There the Court recognized a
class composed of “supporters of political candidates”
for Griffin purposes, and stated that “if a plaintiff can
show that he was denied the protection of the law be-
cause of the class of which he was a member” an action
lay under § 1985(3). We understand the Sixth Circuit
to have defined a sufficient rather than a necessary con-
dition for a § 1985(3) action. Any other declaration
would, of course, have been dictum. Likewise, the com-
ment of the Seventh Circuit in Meiners v. Moriarity, 563
F.2d 343, 348 (7th Cir. 1977) that plaintiff did not allege
“that he belongs to the kind of class . . . that could sup-
port a claim under § 1985(3) “seems best interpreted as
a definition of the type of class which can be the target
of a § 1985(3) conspiracy rather than a statement about
standing, particularly since that Circuit carefully re-
served the issue of how close a connection between the
plaintiff and the class of conspiracy victims was required
under § 1985(3) in Murphy v. Mt. Carmel H.S., 543 F.2d
1189, 1192 (7th Cir. 1976).
The “in furtherance of’ language of the statute
seems to require some degree of relationship between
24a
Appendix A—Opinion of the Court.
(2) Hqual Privileges and Immunities and Equal
Protection
(a) The Statutory Scheme
Once the existence of class-based invidious animus
is established, the boundaries of protection offered by
§ 1985(3) are traced by the scope of the words “equal
protection of the laws” and “equal privileges and im-
munities under the laws.”’ These are the two primary
interests which the statute purports to guard.47
the act done and the object of the conspiracy. We do not
determine, however, how close such nexus must be to
support a § 1985(3) claim.
47. it could be argued that because the phrases
track the 14th Amendment’s guarantees, the construc-
tion of the 14th Amendment's nenege should govern
the guarantees of § 1985(3). See Be ae v. Mason’s
Stores Inc., 508 F.2d 504, 507 (4th Cir. 1974). Such a
conclusion may be unwarranted. First, with respect to
the privileges and immunities clause, the language of
§ 1985(3) is broader than that contained in the 14th
Amendment, Because it shields against state abridge-
ment the “privileges and immunities of the citizens of
the United States” the 14th Amendment has been held
to secure only the privileges and immunities of national
citizenship as opposed to state citizenship. This inter-
pretation in turn has been construed to exclude “‘basic’”’
rights said to attach to state citizenship from protec-
tion of the 14th Amendment See e.g. Madden v. Ken-
tucky, 309 U.S. 83, 90-91 (1940) ; Hague v. CIO, 307 U.S.
496 (1939); Twining v. New ates 211 U.S. 78 (1908) ;
Hodges v. United States, 203 U.S. 1, 15-16 (1906) ;
United States v. Cruikshank, 92 U.S. 542 (1875);
Slaughterhouse Cases, 83 U.S. [16 Wall.] 36, 72-82
(1872). See generally United States v. Williams, 341
U.S. 70 (1951) (opinion of Frankfurter, J.). In contrast,
the language of § 1985(3) reads, “privileges and immu-
nities under law.”
25a
Appendix A—Opinion of the Court.
As a result, since the resuscitation of § 1985(3)
in Griffin, there has been considerable discussion by
jurists and scholars as to whether the statute is “sub-
stantive” or “remedial,” and if “remedial,” for which
rights it provides remedies.*8 While we have no occasion
Second, while the 14th Amendment is on its face
directed against state denials of equal re and
deprivations of liberty and property, the Supreme Court
has established that, in accordance with its language,
§ 1985(3) applies to private as well as public action.
Griffin, 403 U's. at 96-101. As a result, canons of con-
struction developed to delimit the reach of the 14th
Amendment prohibitions may not be appropriate guides
to ascertaining the range of § 1985(3).
Moreover, § 1985(3), enacted eight = after pas-
sage of the 14th Amendment, has a legislative history of
its own which may well cast different light on its mean-
ing than that surrounding the adoption of the 14th
Amendment, Cf Griffin, 403 U.S. at 104-05 (holding that
certain applications of § 1985(3) are authorized by the
13th Amendment).
48. H.g. compare Action v. Gannon, 450 F.2d 1227
(8th Cir. 1971) (en banc) (protecting freedom of reli-
gion); Means v. Wilson, 522 F.2d 838 (8th Cir, 1975)
cert. denied 424 U.S. 958 (1976) (protecting right to
vote) ; Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971)
(protecting free expression) with Cohen v. Illinois Inst.
of Technology, 524 F.2d 818 (7th Cir.) cert. denied 425
U.S. 943 (1976) (sex discrimination not actionable un-
der 14th Amendment and § 1985(3)); Bellamy v.
Mason’s Stores, Inc., 508 F.2d 504 (4th Cir. 1974) (free
association not protected); McLellan v. ayy,
Power & Light Co., 545 F.2d 919 (1977) (en banc) (only
independently illegal acts deprive of equal protection
not reaching scope of privileges and immunities). See
generally Lopez v. Arrowhead Ranches, 523 F.2d 924
(9th Cir. 1975). And compare e.g. Note, Private Con-
spiracies, supra note 19 (arguing that restriction to
remedying independently illegal actions is “formalistic
and over-restrictive” but suggesting that statute should
26a ~
Appendix A—-Opinion of the Court.
to undertake to review the entire debate, certain ob-
servations frame our discussion here.
It seems that § 1985(3) is not to be read as a
general charter to federal courts to set codes of conduct
wherever “equality” of any class is allegedly infringed.
The reluctance to trigger the development of such a
“general federal tort law” formed the backdrop of the
Supreme Court’s discussion in Griffin,t® and properly
so in light of the statutory language contained in
§ 1985(3) as well as its legislative history.
The passage, “deprive of ... equal protection of the
laws or equal privileges and immunities under the
laws,”59 connotes the existence of laws outside of
§ 1985(3) which define the “protection” and “privileges
and immunities” that are guaranteed against invasion."!
exempt “areas of private choice that should remain
autonomous”) ; Note, The Supreme Court 1970 Term, 85
Harv. L. Rev. 3, 99-101 (areas covered by § 1985(3) are
“uncertain,” suggesting limitation of protection to guar-
antees of Bill of Rights) with Note, The Scope of Sec-
tion 1985(3), supra note 19 at 242-251 (arguing that
§ 1985(3) should be limited to providing a remedy for
independent federal rights); Note, Federal Power to
Regulate, supra note 10 at 497-98 (suggesting statute
should be read as “remedial’’), see also n.62 roe Sy
49. 403 U.S. at 102. Cf. Paul v. Davis, 424 U.S. 693,
701 (1976); Senator Trumbull, Cong. Globe 580 (“quite
well satisfied” that intent of § 2 was not “to enter the
States to pass a general criminal code for the State, or
a general law for the redress of civil injuries’’).
50. 42 U.S.C. § 1985(3) (Emphasis added).
51. Cf. McLellan v. Mississippi Power & Light Co.,
545 F.2d 919, 924-28 (5th Cir. 1977) (en banc) (reach-
ing a conclusion that the object of conspiracy must be
independently illegal, on the basis of dicta in United
States v. Harris, 106 U.S. 629 (1882) ).
27a
Appendix A—Opinion of the Court.
This connotation is confirmed by our reading of the
debates surrounding the adoption of § 1985(3). Most
of the proponents of the Ku Klux Klan Act explicity
viewed it as protecting rights conferred by sources
other than the Act itself.52 Indeed, Senator Edmunds,
the floor manager of the bill in the Senate, explicitly
stated:
All civil suits which this Act authorizes, as every
lawyer understands, are not based on it, they are
based on the rights of the citizen. The Act only
gives a remedy.53
Similarily, in describing the conspiracies actionable
under § 1985(3), the Supreme Court in Griffin said:
The conspiracy, in other words, must aim at a de-
privation of the equal enjoyment of rights secured
by law to all.54
52. See e.g. Senator Edmunds, Cong. Globe, 567
(“Constitutional rights’) 568, (‘Constitution and Laws
of the United States”) 568, 581 (“equal protection of
the laws of the United States’) ; Representative Cook,
id, at 485 (“where Constitution of the United States
secures a right to a citizen’); Representative Shella-
barger, id. at 382 (“laws of the United States and con-
stitution thereof”) App. 113 (“constitutional or statu-
tory law’) ; Representative Hawley, id. at 383 (semble) ;
ef. Senator Thurman, id. App. 218 (arguing that “laws”
must be laws of the United States, since otherwise Con-
gress has no power to punish violations”). But cf. Rep-
resentative Shellabarger, Cong. Globe at App. 69 (sug-
gesting that § 2 protects “those privileges and immuni-
ties which are in their nature fundamental and which
inhere and belong of right to citizens of all free govern-
ments’); Representative Sumner, id. at 651 (“rights
national in character’).
53. Cong Globe at 568.
54. 403 U.S. at 102. See id. 103 (“animus to de-
prive the petitioners of equal enjoyment of legal rights”
Appendix A—Opinion of the Court.
Whatever else “equal privileges and immunities” or
“equal protection” may mean, in the context here, we
conclude that a deprivation of equal privileges and im-
munities under § 1985(3) includes the deprivation of
a right secured by a federal statute guaranteeing equal
employment opportunity.
This is not to say, however, that the object of the
conspiracy must necessarily be independently illegal, or
that the law conferring a right must by its own force
secure it against private action.55 For the statute pro-
scribes conspiracies to deprive persons or classes of
persons of legal rights ‘directly or indirectly.” And, as
Judge Learned Hand said of another section of the
Ku Klux Klan Act securing federal privileges, ‘it would
emasculate the Act either to deny protection against
reprisal to those whom threats did not deter, or to
leave recourse those who were later made victims of
reprisals of which they had not been warned.’’56
is requisite of a § 1985(3) claim) ; id. at 105 (“Congress
may protect blacks against conspiracies depriving them
of the basic rights that the law secures to all free men’’).
See The Supreme Court, 1970 Term, 85 Harv. L. Rev.
3, 99 (1971).
55. Our analysis thus diverges from that adopted
by the Fifth Circuit in McLellan v. Mississippi Power
= eas Co., 545 F.2d 919, 924-28 (5th Cir. 1977) (en
anc).
56. Bomar v. Keyes, 162 F.2d 136, 139 (2d Cir.)
cert. denied 332 U.S. 825 (1947) (L. Hand, J. for Swan
and Clark, JJ.) (holding that termination of probation-
ary teacher in retaliation for voluntary decision to serve
on a federal jury would “deprive” her of a “right or
privilege secured by a law of the United States” in vio-
lation of § 1983). See United States v. Waddell, 112 U.S.
76 (1884) (interference with privilege to establish
homestead on federal land actionable under § 241, de-
29a
Appendix A—Opinion of the Court.
Thus § 1985(3) may not be construed as a warrant
to impose wide-ranging new duties upon private in-
dividuals in the interests of abstract equality. Yet it
must be remembered that the Act was broad-gauged
legislation designed to provide additional remedies for
actions threatening the enjoyment of important rights.
As a draftsman of the Act expressed the intent:
This Act is remedial and in aid of the preservation
of human liberty and human rights. All statutes
and constitutional provisions authorizing such stat-
utes are liberally construed ... [and] the largest
latitude consistent with the words employed is uni-
formly given in construing such statutes... .57
(b) Equal Protection Privileges and Immuni-
ties in this case
Here, as noted above, the plaintiff alleged a con-
certed course of conduct on the part of individual de-
fendants of “intentionally and deliberately ... denying
to female employees equal employment opportunity,” in
various specified respects.58 Novotny further pleaded
spite the fact that statute granting privilege did not
explicitly protect the homesteader against private ac-
tion).
The position that rights created between the citizen
and the Federal Government entail a concomitant obli-
gation of private parties not to interfere with receipt of
benefits under or the exercise of such rights was ably
expounded by Professor Cox in Foreword: Constitu-
tional Adjudication and the Promotion of Human Rights,
80 Harv. L. Rev. 91, 110-115 (1966).
57. Representative Shellabarger, Cong. Globe App.
68 (introducing Ku Klux Klan Act.)
58. Complaint {|| 17-21. See n.1 supra.
30a
Appendix A—Opinion of the Court.
that in retribution for his support of equal employment
opportunities for women within the GAF organization,
the individual defendants, acting in concert, caused his
employment with GAF to be terminated. Taking his
averments as true—as on a rule 12(b) (6) motion we
must59—Novotny has made out a case that he has
been injured by acts done in furtherance of a con-
spiracy proscribed by § 1985(3).
The conspiracy alleged had as its goal the denial
of job equality for women, in direct violation of federal
law guaranteeing this basic and important right.69 And
at least a coadunation to deprive female employees of
the basic right of equal opportunity in contravention of
federal law would fall squarely within the statute’s
prohibition of conspiracies to abridge equal privileges
and immunities.®1
59. See e.g. Jenkins v. McKeithen, 395 U.S. 411,
416 (1969) ; Conley v. Gibson, 355 U.S. 41, 45-48 (1957).
60. 42 U.S.C. § 2000e-2(a) (1) makes it an unlaw-
ful employment practice for an employer to “discrimi-
nate against any individual with respect to his compen-
sation, terms, conditions, or privileges of employment
because of such individual’s ... sex.”
Similarly, 43 P.S. § 955(a) under Pennsylvania law
makes it unlawful for any employer “because of . . . sex
. . . to discriminate against [and] individual with re-
spect to compensation, hire, tenure, terms, conditions or
privileges of employment.” Moreover, the individual con-
duct which Novotny alleges might also violate 43 P.S.
§ 955(e) which prohibits “any person, whether or not
an employer ... or employee” to aid, abet, incite, com-
pel or coerce” a violation of § 955(a).
61. As noted above, n.47 swpra, unlike the 14th
Amendment, § 1985(3) does not appear to limit its pro-
tection to the privileges and immunities of United States
citizens. But the legislative history is not pellucid. Cf.
7 31a
Appendix A—Opinion of the Court.
While the Congress in 1871 could not have specifi-
cally contemplated a federal statute that was not en-
acted until almost a century later, as a matter of ordi-
nary language the words of § 1985(3) clearly embrace
a statutorily provided right of equal employment op-
portunity within the rubric “equal privileges and im-
munities under the laws.”’ As the Court said in United
e.g. Representative Cook, Cong. Globe 486 (suggesting
“force, fraud or intimidation” would violate statute) ;
Senator Edmunds, id. 580 (equal protection of “state
laws’); with e.g. Senator Thurman, id. App. 218 (only
national laws can be enforced by Congress); Senator
Sumner, id. 651 (rights protected should be national
ry so that protection will not be “acci-ent of local
w’’). ‘
In his complaint, Novotny claimed that the retalia-
tion for his support of women abridged his First Amend-
ment rights, in violation of § 1985(3). Cf. Richardson v.
Miller, 446 F.2d 1247 (3d Cir. 1971).
Sinee we find the requisite allegations of a conspir-
acy to deny equal privileges and immunities in the
pleading regarding sex discrimination, we need not re-
solve the question whether a class-based conspiracy to
injure an individual for the exercise of First Amend-
ment rights would state a cause of action under § 1985
(3). Compare Tyler v. “Ron”, No. 77-1885 (8th Cir. 18
April 1978) (interference with constitutional right
would state a §1985(3) cause of action) ; Action v. Gan-
non, 450 F.2d 1227, 1235 (8th Cir. 1971) (en banc) (pri-
vate interference with freedom of religion states a cause
of action); Westberry v. Gilman Paper Co., 507 F.2d
206 (5th Cir. 1975) withdrawn as moot 507 F.2d 216
(en banc) (firing employee for political activities made
out § 1985(3) claim); Means v. Wilson, 522 F.2d 833
(8th Cir. 1975) (conspiracy to deny right to vote in
tribal elections states a § 1985(3) claim) cert. denied
424 U.S. 958 (1976) with Murphy v. Mt. Carmel H.S.,
543 F.2d 118$ (7th Cir. 1976) (First Amendment right
to free speech not protected) ; Bellamy v. Mason’s Stores,
Inc., 508 F.2d 504 (4th Cir. 1974) (right of association
32a
Appendix A—Opinion of the Court.
States v. Price,°2 regarding 18 U.S.C. § 241, the “closest
remaining criminal analogue of § 1985(3)”:6%
The language ...is plain and unlimited. As we have
discussed, its language embraces all of the rights
and privileges secured to citizens by all of the Con-
stitution and all of the laws of the United States.
There is no indication in the language that the
sweep of che section is confined to rights that are
conferred by or “flow from” the Federal Govern-
not protected); McLellan v. Mississippi Power & Light
Co., 545 F.2d 919, 925-26 n.22 (5th Cir. 1977) (en banc)
(right to file bankruptcy petition not protected). See
also Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973)
(conspiracy by sheriff to harass political opponents
states § 1985(3) claim).
We note, however, that insofar as the reluctance to
recognize a cause of action for First Amendment rights
is based on a supposed want of Congressional power,
such reasoning is less forceful here. It has been held
that the right to speak on issues regarding the national
government is a right and privilege of national citizen-
ship protectable under the 14th Amendment and Con-
gress’ inherent powers. Hague v. CIO, 307 U.S. 496
(1939) (opinion of Roberts, J.) ; see United States v.
Cruikshank, 92 U.S. 542, 552 (1875). See also n.109 infra
(right to persuade others to comply with federal law
may be privilege of national citizenship) .
62. 383 U.S. 787, 800 (1966).
63. This characterization was contained in Griffin,
403 U.S. at 98.
Enacted a year before the Ku Klux Klan Act, § 241
makes it a federal crime to:
conspire to injure, oppress, threaten, or intimidate
any citizen in the free exercise or enjoyment of any
right or privilege secured to him by the constitution
or laws of the United States, or because of his hav-
ing so exercised the same....
33a
Appendix A—Opinion of the Court.
ment, as distinguished from those secured or con-
firmed or guaranteed by the Constitution.
Nor does the legislative history of the Ku Klux
Klan Act weaken the implication of the statutory lan-
guage that rights conferred by at least some federal
statutes fall within the definition of “equal privileges
and immunities.”64 Congressman Shellabarger, the Act's
prime legislative engineer, described § 2, from which
§ 1985(3) is derived, as “providing for the punishment
of any combination or conspiracy” impinging on basic
rights protected by law.65 And Senator Edmunds stated
that § 2 mandated punishment for acts done in pur-
suance of “a conspiracy to deprive the citizens of the
United States, in the various ways named, of the rights
which the Constitution and laws of the United States
made pursuant to it give them.’’66
64. Inasmuch as we are concerned here only with
a federal statute securing a right to equal employment
opportunity, which we hold to be within the ambit of
§ 1985(3)’s “equal privileges and immunities,” we have
no occasion to determine whether rights secured by all
federal statutes or by state law come within § 1985(3)’s
“privileges and immunities.”’
_. 65. Cong. Globe at 382 (conspiracy to “depriv
citizen of the United States of poten gerber and rat
ties as he has by virtue of the laws of the United States
and the Constitution thereof”). (emphasis added). See
the remarks of Congressman Shellabarger at id. 517
(the goal of the Ku Klux Klan “is to trample into the
dust the newly acquired political rights of the freeman
and the Constitution and laws which confer them) ;” id.
app. 113 (the gist of the offense under section 2 is “in
the conspiracy to defeat United States Law made in pro-
tection of the fundamental rights of national citizenship,
whether that law be Constitutional or statutory law”).
66. Cong. Globe 568. See e.g. id. at 383 (Rep. Haw-
ley) (law should reach those who “stand in the way of
34a
Appendix A—Opinion of the Court.
The conclusion that rights conferred by at least
some federal statutes fall within the ambit of “equal
privileges and immunities under the laws,” which
§ 1985(3) protects, is also amply supported by relevant
precedent. A number of courts of appeals have de-
termined that a deprivation of certain statutory rights
gives rise to a cause of action under § 1985(3).°7 More-
over, in cases regarding statutes cognate to § 1985(3),
the Supreme Court has held that “privileges and im-
munities” include federal statutory rights.®§
the exercise by this man of the rights and privileges to
which he is clearly entitled under the constitution and
laws of the United States’’) ; id. app. 188 (Rep. Willard)
(bill covers “rights, privileges and immunities of any
rson to which he is entitled under the Constitution and
ws of the United States’). Id. 579 (Sen. Trumbull)
(bill protects “persons in the rights which were guaran-
tied (sic) them by the Constitution and laws of the
United States... .’’) Quoted in Monroe v. Pape, 365 U.S.
167, 181 (1961).
67. Marlowe v. Fisher Body, 489 F.2d 1057 (6th
Cir. 1973) ; Lopez v. Arrowhead Ranches, 523 F.2d 924
(9th Cir. 1975) (by implication) ; Doski v. M. Goldseker
Co., 539 F.2d 1326 (4th Cir. 1976) (by implication) Tay-
lor v. Nichols, 558 F.2d 561, 571 (10th Cir. 1977) ; Local
No. 1 v. Intl. Brotherhood of Teamsters, etc., 419 F.
Supp. 263, 275-77 (E.D. Pa. 1976); Beamon v. Saunder
¢& Co. 423 F. — 1167, 1177 (E.D. Pa. 1976) ; Milner
v. Ntl. School of Health Tech., 409 F. Supp. 1389, 1395
(E.D. Pa. 1976). Cf. Cohen v. Ill. Inst. of ne
524 F.2d 818, 828 (7th Cir. 1975) cert. denied 425 U.S.
943 (1976) (“a federally protected right”).
68. While, for the reasons noted above, n.47 supra,
we are reluctant to reason closely from analogies to the
14th Amendment privileges and immunities clause, it is
to be observed that in the Slaughterhouse Cases, 83 U.S.’
(16 Wall) 36, 79 (1883), the Court said that national
privileges or immunities were those “which owe their
existence to the Federal government, its national char-
acter, its Constitution, or its laws.” (emphasis added).
35a
Appendix A—Opinion of the Court.
In United States v. Johnson,®® the Supreme Court
reviewed the application of § 241,79 which protects the
“free exercise or enjoyment of any right or privilege
secured by the Constitution and laws of the United
States,” to a “conspiracy by outside hoodlums to as-
sault Negroes for exercising their right to equality in
public accommodations under § 201 of the Civil Rights
Act.”71 The Court had little trouble in concluding that
“the right to service in a restaurant is such a ‘right’
{under § 241] at least by virtue of the 1964 Act’’.72
Similarly, almost a century earlier, in United States v.
Waddell,?3 the Supreme Court was faced with a com-
bination to drive a homesteader off federal land upon
which he was attempting to establish a claim pursuant
to statutory procedures. Such acts “to prevent or throw
obstruction in the way of exercising such statutory
rights” were held to constitute a conspiracy to impair
federal rights which could be attacked under § 241.
Similar light is cast by the interpretation of § 1983,
formerly § 1 of the Ku Klux Klan Act of 1871.74 In
City of Greenwood v. Peacock, the Supreme Court stated
that under § 1983 “officers may be made to respond in
damages ... for violations of rights conferred by federal
equal civil rights laws (sic),’ and a number of Circuits
69. 390 U.S. 563 (1968).
70. See note 63 supra.
71. 390 US. at 564.
72. Id. at 565-66.
73. 112 U.S. 76 41884).
_ %4. The legislative history reveals that the Con-
gress was also aay ee of the relationship between the
scope of § 1985(3) and § 241. Representative Willard,
A Globe 189 app.; Representative Shellabarger, id.
app.
36a
Appendix A—Opinion of the Court.
have acknowledged that suits for such statutory viola-
tions are proper.75
Having held that at least some federal statutory
rights can form the predicate for a suit under § 1985(3),
Novotny, in alleging the existence of a conspiracy to
violate the equal employment rights of female employees
in contravention of Title VII, has adequately pleaded
the existence of conspiracy to deprive a class of persons
of equal privileges or immunities under the laws.
(c) Conflict with Title VII
The defendants suggest that even if § 1985(3)
provides a remedy for conspiracies to impair statutorily-
conferred rights as a general matter, a § 1985(3) action
to redress conspiracies to violate Title VII rights would
be inconsistent with the administrative mechanism es-
75. 384 U.S. 808, 829. See, e.g. Chase v. McMasters,
No. 77-1317 (8th Cir. April 5, 1978) ; Sanders v. Conine,
506 F.2d 530 (10th Cir. 1974); Blue v. Craig, 505 F.2d
830 (4th Cir. 1974); Gomez v. Florida State Employ-
ment Service, 417 F.2d 569 (5th Cir. 1969); Bomar v.
Keyes, 162 F.2d 136 (2d Cir.), cert. denied, 332 U.S. 825
(1947) (L. Hand, J.); LaRaza Unida v. Volpe, 440 F.
Supp. 904 (N.D. Cal. 1977). Cf. e.g. Hisen v. Eastman,
421 F.2d 560 (2d Cir. 1969) overruled Lynch v. House-
hold Finance Corp., 405 U.S. 538, 542 (1975) (§ 1983
does not protect property rights); Andrews v. Maher,
525 F.2d 113 (2d Cir. 1975) (no jurisdiction under 28
U.S.C. § 1343(3) to hear § 1983 challenge to deprivation
based on welfare statute). Randall v. Goldmark, 495
F.2d 356 (1st Cir.), cert. denied 419 U.S. 879 (1974)
(semble).
The conclusion that § 1983 and § 1985(3) may both
provide causes of action for deprivation of statutory
rights is not undercut by the reasoning of Gonzalez v.
Young, 560 F.2d 160 (3d Cir. 1977), cert. granted 46
U.S.L.W, 3526, Feb. 21, 1978.
—
37a
Appendix A—Opinion of the Court.
tablished by the latter Act. In support of this proposi-
tion, they cite the Fourth Circuit’s holding in Doski
v. Goldseker.76
In Doski, a female employee brought suit alleging
sex discrimination violative of both Title VII and § 1985
(3). The court held the Title VII remedy to be the ex-
clusive means of vindicating statutory rights, since the
availability of § 1985(3) would allow a plaintiff to by-
pass the administrative procedures provided by Title
VII. Doski read those parts of the legislative history
of Title VII approving overlap between Title VII and
other Civil Rights Act remedies to refer only to vindica-
tion of “federal rights [which existed] prior to the
enactment of Title VII.”77
At least one court of appeals has apparently
reached a conclusion contrary to that of the Fourth
Circuit. In Marlowe v. Fischer Body,78 the Sixth Circuit
reversed the dismissal of a complaint which alleged
employment discrimination based on religion and na-
tional origin. Although the complaint contained counts
based on Title VII and the NLRA, in addition to § 1985
(3), the Sixth Circuit reversed the dismissal on all
counts,79
76. 539 F.2d 1326 (4th Cir. 1976). Cf. Schatte v.
International Alliance, 182 F.2d 158 (9th Cir. 1950) (no
§ 1983 suit for rights protected by NLRA; NLRA reme-
dies held exclusive).
77. 539 F.2d at 1334.
78. 489 F.2d 1057 (6th Cir. 1973).
79. See Milner v. Natl. School of Health Tech., 409
F. Supp. 1389 (E.D. Pa. 1976) (recognizing claim for
sex discrimination violating Title VII under § 1985(3) ).
Cf. Weise v. Syracuse University, 522 F.2d 397, 408-409
n.16 (2d Cir. 1975) (reserving issue of possible conflict
between Title VII and § 1985(3) ).
Appendix A—Opinion of the Court.
We find the result reached in Marlowe to be better
grounded in history and precedent than that in Doski.
On its face, § 1985(3) makes no distinction among
federal privileges and immunities depending on the
date of the enactment of laws securing them. As noted
above, the language seems to protect all such privileges
and immunities. Indeed, in describing the bill, Senator
Edmunds stated that it reached “conspiracies to de-
prive people of the equal protection of the laws, what-
ever those laws may be.”’8°
Thus, if rights protected by Title VII are to be
excluded from the scope of § 1985(3), such result must
flow from the fact that Title VII worked a partial repeal
of § 1985(3), although § 1985(3) was not mentioned
by the later legislation. Such repeals by implication are,
of course, not favored. In Runyon v. McCrary,81 the
Supreme Court recently reitcrated, in reference to § 1981,
the rule that implied repeals occur only if the two legis-
lative acts in question are in irreconcilable conflict.*
Given the legislative history of Title VII and its con-
struction by the Supreme Court, we discern no such
conflict here.
As the Supreme Court observed in Alexander v.
Gardner-Denver Co.,83 the Senate defeated an amend-
ment which would have made Title VII the exclusive
federal remedy for most unlawful employment practices,
80. Cong. Globe 568.
81. 427 U.S. 160, 173 n.10 (1976).
82. Cf. Sullivan v. Little Hunting Park, 396 U.S.
229, 237 (1969) (§ 1982 is not —— by 1964 Civil
Rights Act, because the later Act is “not at war” with
the principles embodied in § 1982).
83. 415 U.S. 36, 48 and n.9 (1974).
' 39a
Appendix A—Opinion of the Court.
and a similar amendment was rejected in connection
with the Equal Employment Opportunity Act of 1972.
Indeed, the Supreme Court noted in Runyon84 that
Senator Williams, floor manager of the 1972 Act, argued
in opposition to the amendment that “it is not our
purpose to repeal existing civil rights laws,” and spe-
cifically stated that:
The law against employment discrimination did not
begin with Title VII and the EEOC, nor is it in-
tended to end with it... the courts have specifically
held that Title VII and the Civil Rights Acts of
1866 and 1871 are not mutually exclusive, and must
be read together to provide alternative means to
redress individual grievances.85
Such statements are not isolated remarks. After
reviewing the legislative history of Title VII, the Su-
preme Court in Johnson v. REA concluded:
Despite Title VII’s range and its design as a com-
prehensive solution for the problem of invidious
discrimination in employment, the aggrieved in-
dividual is clearly not deprived of other remedies
he possesses and is not limited to Title VII in his
search for relief.86
84. 427 US. at 174 n.11.
85. 118 Cong. Rec. 3371 (1972).
86. 421 U.S. 454, 459 (1975). See Alexander v.
Gardner-Denver Co., 415 U.S. 36, 48 (1974). Johnson
also explicitly considered and rejected the contention
that litigants under § 1981 should be required to follow
Title VII's administrative procedures before being per-
mitted to litigate. 421 U.S. at 461.
The argument that § 1985(3) actions founded on
Title VII rights need not defer to the procedures specifi-
cally provided for the vindication of Title VII rights is
#08 Appendi A—Opinion of the Court.
In view of this holding, and of the generally favor-
able reception which the Supreme Court has extended
to Reconstruction Act litigation dealing with subjects
also covered by later civil rights enactments,87 we con-
clude that Novotny’s claim under § 1985(3) is not
precluded by Title VII.
C. The Constitutionality of § 1985(3)
(1) The Scope of the Inquiry
The defendants assert that if § 1985(3) purports
to reach confederations such as the one alleged by
Novotny, the statute is beyond the powers conferred
upon Congress, and therefore unconstitutional. Before
examining this contention, the question of the statute's
constitutionality must be set in perspective.
f
somewhat weaker than that for the independence o
§ 1981. Unlike § 1981, § 1985(3) is not specifically men-
tioned in the debates on Title VII, and § 1985(3) is more
intimately linked to Title VII. On the other hand, in this
case, the EEOC, which is entitled to some deference in
such matters, see e.g. Zuber v. Allen, 396 U.S. 168, 192-
94 (1969); Udall v. Tallman, 380 U.S. 1, 16 (1965) has
argued for the availability of a § 1985(3) action to vindi-
cate Title VII rights.
In any event, since the plaintiff here properly ex-
hausted his remedies under Title VII, we need not re-
solve the issue.
. See Sullivan v. Little Hunting Park, 396 US.
229, 387 (1969) (§ 1982 and Fair Housing Act) ; United
States v. Johnson, 390 U.S. 563 (1968) (§ 241 and 1964
Public Accommodations Act) ; cf. Adickes v. 8. H. Kress
& Co., 398 U.S. 144, 150 1.5 (1970) (No § 1983 recovery
for violation of Public Accommodations Act, in view of
manifest Congressional intent that damage actions not
be permitted. A 14th Amendment action under § 1983,
however, is not inconsistent with Public Accommoda-
tions Act).
4la
Appendix A—Opinion of the Court.
In the first case in which the Supreme Court faced
a challenge to the constitutionality of the Ku Klux Klan
Act of 1871, the Court set forth its analysis in these
terms:
Proper respect for a coordinate branch of the gov-
ernment requires the courts of the United States
to give effect to the presumption that Congress will
pass no Act not within its constitutional power. This
presumption should prevail unless the lack of con-
stitutional authority to pass an Act is clearly dem-
onstrated.88
Ninety years later, in construing § 1985(3), the Court
in Griffin was again met with the allegation that Con-
gress had exceeded its powers in the 1871 Act. It de-
termined the question in the negative, measuring the
Act against the following standard:
Our inquiry .. . need go only to identifying a source
of congressional power to reach the private con-
spiracy alleged by the complaint in this case.8?
Griffin gave no indication that Congress must spe-
cifically invoke a particular Constitutional authorization
to allow the Court to sustain an enactment. Instead,
since the presumption is in favor of constitutionality,
88. Uvited States v. Harris, 106 U.S. 629, 635-36
(1883). The Court went on to quote with approval the
comment of Mr. Justice Story:
Whenever, therefore, a question arises concerning
the constitutionality of a particular power, the first
question is whether the power be expressed in the
Constitution. If it be, the question is decided. If it
be not expressed, the next inquiry must be whether
it is properly an incident to an express power and
necessary to its execution. Jd. at 636.
89. Griffin, 403 U.S. at 104.
Appendia A—Opinion of the Court.
the government need only point to an applicable fount
of congressional authority.9°
Discussion must, therefore, be directed toward as-
certaining whether a source of Congressional power
exists which will justify giving relief to Novotny.
(2) The Power of Congress
is little question that the Congress which
slo ‘che 1871 Lak eae itself to be acting under
the Fourteenth Amendment. The legislation itself
formally entitled “An Act to Enforce the oe oa
the Fourteenth Amendment to the United States oe
stitution and For Other Purposes.” In defending
proposal against charges of unconstitutionality, ya
ponents of the Act found warrant in the text of the
Fourteenth Amendment.
reme Court recently noted in Monell v.
N Pi hicoy of Social Services,9! that age gg
Shellabarger opened his remarks introducing me "
by asserting that the Fourteenth Amendment 8 he n
guarantees of “equal protection” and the “privileges
and immunities of citizenship” should be read to ite
tect equality in the enjoyment of life, liberty, “i
property. He then invoked what he regarded —n
settled principle of law that “Congress has always
Nera 9
e.g. District of Columbia v. Carter, 40
U.S m8, veyes | (1973) (extension of § veer . —
against deprivation under color of territorial law ore
sumed to be an exercise of Article IV power y tony er
territories) ; Examining Board v. Flores de Otero,
U.S. 572, 582-83 (1976) (semble).
91. 46 U.S.L.W. 4753-54 (1978).
—EE
43a
Appendix A—Opinion of the Court.
sumed to enforce, as against the states and also persons,
every one of the provisions of the Constitution.’”’92
It was not without a certain sense of poetic justice
that Representative Shellabarger adduced support for
this proposition. For the cases sustaining the fugitive
slave laws enacted by Congress prior to the Civil War,
beginning with Prigg v. Pennsylvania, rested their hold-
ings on the proposition that the Fugitive Slave clause
of the Constitution,93 though on its face addressed to
“laws and regulations” of states, empowered the federal
government to adopt legislation binding on individ-
uals.94 Shellabarger declared that it could not “now be
endured” that
those decisions which were invoked and sustained
in favor of bondage shall be stricken down when first
called upon and invoked in behalf of human rights
and American citizenship.95
92. Id.
93. Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539
(1842); see e.g. Ableman v. Booth, 62 U.S. (21 How.)
506 (1859). See generally R. Cover, Justice Accused; .
Antislavery and the Judicial Process 159-191 (1975).
94. Art. IV § 2cl.3:
No Person held to Service or Labour in one State,
under the laws thereof, escaping into another, shall,
in Consequence of any Law or Regulation therein,
be discharged from such Service or Labour, but
shall be delivered up on Claim of the Party to whom
such Service or Labour may be due.
95. Cong. Globe App. 70. The refrain was taken up
by others in both the House and Senate: e.g. Representa-
tive Sumner, Cong. Globe 651 (“As in other days Slav-
ery gave its Character to the Constitution, filling it with
its own denial of Equal Rights and Compelling the Na-
tional government to be its instrument, so now do I in-
Appendix A—Opinion of the Court.
Although it appears that at the time he propounded
it, Shellabarger’s argument was supported by the weight
of legal precedent,?® subsequent litigation demonstrated
the Supreme Court’s reluctance to apply the principle
of Prigg to legislation enacted in reliance on the Four-
teenth Amendment. Without dealing squarely with the
sist that Liberty must give its Character to the Consti-
tution.” )
Representative Platt (App. 183-184) (“T presume
this power will not be questioned by gentlemen on the
other side representing the Democratic Party .... They
found enough teed in the Constitution to compel every
man in every state in the Union to assist in enforcing the
United States laws . . . compelling them by United
States law and in defiance of State Laws to assist in re-
turning fugitives to slavery. .. .”). Senator Lowe, 375
(“If such was the law announced by the tribunal of the
last resort in reference to the rendition of fugitive
slaves, shall a less liberal construction be allowed in
reference to a similar constitutional Provision in favor
of civil rights and es security?”). See generally,
Avins, supra note 33.
96. This conclusion was arrived at by commenta-
tors as divergent as Laurent Frantz, Congressional Pow-
er to Enforce the Fourteenth Amendment Against Pri-
vate Acts, 73 Yale L.J. 1353, 1357 (1964) and Prof. Raoul
Berger, Government By Judiciary, The Transformation
of The Fourteenth Amendment 225-27 (1977). But cf.
Bickel, The Original Understanding and the Segregation
Decision, 69 Harv. 1, 60 and n.115 (suggesting that, de-
tg statements to the contrary by the draftsman of
the 14th Amendment, the legislative history indicates
that Congress was not to have the latitude sed in
the Necessary and bag clause); Note, Theories of
Federalism & Civil Rights, 75 Yale L.J. 1007, 1045-46 and
n.200 (1966) (suggestion that § 5 is narrower than the
Necessary and Proper clause, and therefore Prigg may
be distinguished).
. CJ - 4
Appendix A—Opinion of the Court. i
fugitive slave law cases,97 the Supreme Court erected
a barrier preventing the application of legislation im-
plementing the Fourteenth Amendment to activities not
infused with “state action.’’98
The last two decades have brought a substantial
erosion of that barrier.99 And in United States v. Guest
a majority of the Court expressed the opinion that
the specific language of § 5 [of the 14th Amend-
ment] empowers the Congress to enact laws pun-
ishing all conspiracies—with or without state action
97. It is unclear whether the Court i
pe fugitive slave cases in Harris or ch aeoe-ag aah ho
aie case was argued to the Court in the Civil Rights
ases, 109 U.S. 3, 7 (1883); and Justice Harlan made
ae eg use of it in his dissent, id. 28-35, 50-54. The
ee a owever, declined to mention Prigg and its
98. E.g. United States v. Cruiksh
(1876) ; United States v. Harris, 106 US 629 (1883);
Civil Rights Cases, 109 U.S. 3 (1883); see generally,
yg gy of Pennsylvania v. Local Union No. 542,
3 7 F. Supp. 268, 201-94 ( E.D. Pa. 1972) (Higginbot-
J. es ci erein; Note,
to Regulate, supra note 10 at 452-460. sin unenebaad
99. See e.g. District of Columbia v. Ca
418, 424 n.8 (1973) ; United States v Guest, 0100 infra.
United States v. Price, 383 U.S. 787, 797-807 (1966) ;
Heart of Atlanta Motel, Inc. v. United States, 379 U.S.
7 279-286 ( 1964) Sy ore of Douglas, J. concurring)
- 291-93 (opinion of Goldberg, J. concurring) ; Action
“ Gannon, 450 F.2d 1227, 1233-37 (8th Cir. 1971) (en
anc) (and materials cited therein) ; Commonwealth of
hr get v. Local Union No. 542, 347 F. Supp. 268
-97 (E.D. Pa. 1972) (Higginbotham, J.) (and ma-
teri : aon
or aan. =" therein) ; see generally Coz, supra note 57
Appendix A—Opinion of the Court.
—that interfere with Fourteenth Amendment
rights.100
In Griffin, however, the Supreme Court declined to
rely on the Fourteenth Amendment in upholding the
power of Congress to enact § 1985(3), and no Supreme
Court case has attempted to chart the limits of § 5 since
that time. Inasmuch as we need not rest on the Four-
teenth Amendment to justify the application of § 1985
(3) to this case, it is not necessary at this time to resolve
the scope of its Fourteenth Amendment foundation.!°!
100. 383 U.S. 745, 762 (1966) (opinion of Clark, J.,
joined by Black and Fortas, JJ.) ; id. at 782 (opinion of
Brennan, J. joined by Warren, Ch. J. and Douglas, J.).
See e.g. Cox, supra note 57 at 108-20; Note, Theories of
Federalism, supra note 96, at 1043-49 (1966). ‘
101. Defendant asserts that the opinions of Judge
(now Justice) Stevens; for the Seventh Circuit in Dom-
browski v. —s 459 F.2d 190 (7th Cir. 1972) and
Cohen v. Ill. Ins. Tech., 524 F.2d 818 (7th Cir. 1975)
cert. denied 425 U.S. 943 (1926), are adverse to the as-
sertion of the 14th Amendment as a basis for § 1985(3)
as it applies to private action.
As we read those cases, however, they adopt the
position that § 1985(3) “requires consideration of the
state action issue in cases bottomed on an alleged viola-
tion of the Fourteenth Amendment,” 524 F.2d at 829.
That is, when the plaintiff asserts that the “right or
privilege” or “protection of the law” (see part II(B) (2)
(a) supra) impinged upon is the right to equal protec-
tion guaranteed by the bare terms of § 1 of the 14th
Amendment, state involvement must be present because
$ 1 ex proprio vigore is addressed to the states. Such a
statutory construction, even if accepted, however, does
not resolve the question or whether the enforcement
clause of the 14th Amendment authorizes the applica-
tion of § 1985(3) to invidious discrimination on the part
of private individuals which deprives persons of rights
or privileges secured by state or federal laws or constitu-
tional epee other than the 14th Amendment. Cf.
cases cited n.62 supra.
47a
Appendix A—Opinion of the Court.
The plaintiff alleges a conspiracy to deprive women
employed by GAF of their equal employment rights in
violation of Title VII. We do not understand the defend-
ants to challenge the power of Congress to prohibit em-
ployment discrimination by employers like GAF. Nor
could such a challenge be plausibly made, for prohibition
of such discrimination falls clearly within the range of
Congressional authority under the commerce clause.192
The same authority which warrants the provision of
such rights in the first place equally empowers Congress
to provide sanctions against conspiracies to interfere
with the equal enjoyment of rights under Title VII.193
102. See e.g. Daniel v. Paul, 395 U.S. 298 (1969) ;
(Title II of 1964 Civil Rights Act is sustainable under
Commerce Power) ; Heart of Atlanta Motel, Inc. v. United
States, 379 U.S. 241 (1964) (semble); Katzenbach v.
McClung, 379 U.S. 294 (1964) (semble); Wickard v.
Filburn, 317 U.S. 111 (1942) (upholding farm quota
legislation under Commerce Power) ; NLRB v. Fainblatt,
306 U.S. 601 (1939) (upholding NLRA under Commerce
Power) ; United States v. Darby, 312 U.S. 100 (1941)
ki — Fair Labor Standards Act under Commerce
ower).
Title VII 42 U.S.C. 2000e et seq. applies to “persons
engaged in an industry affecting commerce.” § 2000(e)
(b). And Section 701(b) of the 1964 Civil Rights Act
states Congress’ conclusion that Title VII is necessary to
remove obstructions to the free flow of interstate and
foreign commerce.
103. Indeed the original proponents of the Ku Klux
Klan Act did not base their claim of power entirely on
the Fourteenth Amendment. See e.g. Remarks of Rep.
Shellabarger, Cong. Globe 477-78 (referring to aiesa
ment to § 2 “so far as it is not confined to infractions of
rights which are clearly independent of the Fourteenth
Amendment, referable to and sustained by the old pro-
visions of the Constitution”); Remarks of Rep. Bing-
ham, id. at App. 81 (“It was always competent for the
Congress of the United States by law to enforce every
affirmative grant of power... .’’).
48
: Appendix A—Opinion of the Court.
Thus, as observed earlier, in 1885 the Court in United
States v. Waddell,194 upheld a prosecution under § 1985
(3)’s criminal counterpart, 18 U.S.C. § 241,195 for a
conspiracy to harass and attack a homesteader exercis-
ing rights conferred by Congress through legislation
authorized by Article IV Section 3.196 In rejecting the
argument that the legislation was unconstitutional, the
Court said:
Whenever the acts complained of are of a character
to prevent [exercise of a statutory right] or to
throw obstruction in the way of exercising this
right and for the purpose and with intent to pre-
vent it... because it is a right asserted under the
law of the United States and granted by that law,
those acts come within the purview of the statute
and of the constitutional power of Congress to make
such a statute.107
Eighty years later in United States v. Johnson,198
also discussed above, the Supreme Court reversed the
dismissal of an indictment under § 241 of “hoodlums’”’
who conspired to assail black persons for exercising
their right to equality of public accommodations under
the 1964 Civil Rights Act. In the interim, the Supreme
Court decided no case casting doubt on the constitu-
tional power of Congress to provide sanctions for the
interference by private parties with rights conferred by
104. 112 U.S. 76 (1884).
105. Supra note 63.
106. 112 US. at 79.
107. Id. at 80.
108. 390 U.S. 563 (1968).
a
49a
Appendix A—Opinion of the Court.
a validly enacted federal statute, and we are aware of
no recent decisions doing so,109
We therefore conclude that § 1985(3) may protect a
plaintiff injured by acts done in furtherance of a con-
spiracy to violate the rights of female employees under
Title VII without exceeding Congress’ powers under the
commerce clause.110
109. Between 1884 and 1968 prosecutions under
§ 241 were sustained in vindication of the right to vote,
United States v. Classic, 313 U.S. 299 (1941); the right
to travel, United States v. Guest, 383 U.S. 745 (1966) ;
the right to be free of violence while in the custody of a
federal marshal, Logan v. United States, 144 U.S. 263
(1892); the right to have one’s vote counted, United
States v. Mosely, 238 U.S. 383 (1915).
It should also be noted that litigation under § 241
establishes that the right of a citizen of the United
States to inform the government of violation of federal
l.ws can constitutionally be protected by federal legisla-
tion. Motes v. United States, 178 U.S. 458, 462 (1900)
(“It was the right and privilege of Thompson [who was
shot by the de badantel in return for the protection he
enjoyed under the Constitution and laws of the United
States to aid in the execution of the laws of his country
by giving information to the rip aed authorities of viola-
tions of those laws. That right and privilege may prop-
erly be said to be secured by the Constitution and laws
of the United States) see In re Quarles, 158 U.S. 532
(1895). The same principle may also extend to protect
the right to attempt to persuade others to comply with
the laws of the United States.
110. It has also been suggested that Congress may
reach private discrimination against women under its
Thirteenth Amendment enforcement power. Note, Fed-
eral Power to Reach Private Discrimination, swpra note
10 at 505. Cf. McDonald v. Santa Fe Rail Transp. Co.,
427 U.S. 273, 285-296 (42 U.S.C. § 1981, enacted under
the 13th Amendment protects whites against racial dis-
crimination) ; Graham v. Richardson, 403 U.S. 365, 377
(1971) (aliens protected by § 1981).
Appendix A—Opinion of the Court.
D. Conspiracy
The final salvo launched by the defendants against
Novotny’s § 1985(3) count, and the one that succeeded
in the district court, finds its basis in the theory that
the defendants are immune to suits under § 1985(3) be-
cause the alleged combination occurred among officers
and directors of a single corporation.
Defendants do not appear to challenge the fact that,
while not artfully pleaded, the complaint adequately sets
forth the claim that Novotny was victimized by a con-
spiracy.111 Rather, the defendants maintain that their
alleged concerted action was taken in their official ca-
pacities as offices and directors of GAF,1!12 and there-
fore cannot legally be deemed a combination within the
terms of § 1985(3).
Since the application of § 1985(3) to this case finds
ample support in the commerce clause, however, we need
not reach this argument.
111. The —— —— that the individual de-
fendants ‘embarked upon and pursued a course of con-
duct the effect of which was to deny” equal eraployment
rights, {| 16, and that the “course of conduct constitutes
an ongoing discrimination.” {| 18 Novotny further al-
leged that he was injured “as a result of the conspiracy
by the individual defendants,” and sets forth the man-
ner in which the joint action of the defendants allegedly
injured him. {| 30, 31, 32. Such a complaint adequately
alleges a conspiracy for purposes of a Rule 12b(6) mo-
tion. See Weise v. Syracuse University, 522 F.2d 397,
408 (2d Cir. 1975) (“Sketchy” conspiracy allegations
are sufficient where “action by the defendants collec-
tively, in concert, and with invidious intent” is al-
leged) ; Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir.
1973) (allegation of “collusion” adequately raises issue
of conspiracy).
112. Novotny indeed pleads that the individual de-
fendants acted on behalf of GAF. Complaint: 33.
5la
Appendix A—Opinion of the Court.
This contention finds no support in the language of
§ 1985(3). On its face, the statute requires simply that
“two or more persons” conspire in order to come within
its proscription.113 Similarly, we can discern no basis
for the defendants’ argument in the legislative history
of § 1985(3).
Nor does defendants’ suggestion have solid roots in
the general tenets of conspiracy theory. It is true that a
conspiracy requires a plurality of legal personalities as
one of its elements. For example, at common law a hus-
band and wife could not conspire, since they constituted
a single personality in the eyes of the law.114 But it is
well-settled that an employer can conspire with his em-
ployee,115 and the Supreme Court has held that a labor
union can conspire with its business agent.116 The as-
sertion of the defendants must therefore be that incor-
poration confers on corporate employees an immunity
from liability under § 1985(3).
We see nothing in the policies undergirding § 1985
(3) that would support such an argument. If, as seems
clear under § 1985(3), the agreement of three partners
to use their business to harass any blacks who register
to vote constitutes an actionable conspiracy, we can per-
113. And the Supreme Court noted in Griffin that
“The approval of this Court to other Reconstruction
Civil Rights statutes has been to accord [them] a sweep
as broad as their language.” 103 U.S. at 97.
114. 1 Hawkins, Pleas of the Crown 351 (6th Ed.
1788). Cf. United States v. Dodge, 364 U.S. 51 (1960)
(repudiating this principle).
115. See e.g. Hyde v. United States, 225 U.S. 347,
367-68 (1912).
116. See Duplex Printing Press Co. v. Deering, 254
U.S. 443, 465 (1921).
52a
Appendix A—Opinion of the Court.
ceive no function to be served by immunizing such ac-
tion once a business is incorporated.
The defendants place primary reliance on the legal
precept that a corporation cannot conspire with its offi-
cers because a person cannot conspire with himself.117
Under this precept, they argue, no conspiracy exists in
this case because the defendants were all officers and
directors of a single corporation, and the actions injur-
ing Novotny were taken in the course of their duties
as such.
As we read Novotny’s complaint, however, it does
not allege that the corporate entity, GAF, conspired
with its officers and directors to his detriment. In de-
fining his cause of action under § 1985(3), Novotny
alleges that his termination was accomplished “by the
individual defendants in violation of’ § 1985(3).118
There is thus no occasion to evaluate the force of the
proposition that a corporation cannot conspire with it-
self. Rather, the sole issue before us, so far as the con-
spiracy element is concerned, is whether concerted ac-
tion by officers and employees of a corporation, with the
117. The fountainhead of this precept is Nelson
Radio & Supply Co. v. Motorola Inc., 200 F.2d 911, 914-15
(5th Cir. 1982 . In Nelson, an antitrust action, the plain-
tiffs alleged a conspiracy between the defendant corpo-
ration and its employees, but named only the corporation
as a defendant. The Fifth Circuit dismissed the suit.
In Johnston v. Baker, 445 F.2d 424 (3d Cir. 1971), a
anel of this Court characterized our earlier approval of
elson in Goldlawr, Inc. v. Shubert, 276 F.2d 614 (3d
Cir. 1960) as dictum and declined “to pass on the viabil-
ity of” the Nelson doctrine,
118. { 28. Similarly, {| 30, 31 and 32 refer to a
conspiracy “by the individual defendants.”
53a
Appendix A—Opinion of the Court.
object of violating a federal statute, can be the basis of
a § 1985(3) complaint.
In Mininsohn v. United States,119 Jacob and Max
Mininsohn, the officers of Interstate Lumber Company,
a corporation, caused the company to deliver under-
weight bags of cement to a government construction
project. Jacob Mininsohn and Interstate were charged
with violation of legislation prohibiting conspiracies to
defraud the United States Government. On appeal, it
was alleged that the evidence was insufficient to convict
Jacob Mininsohn, Judge Biggs had no difficulty in con-
cluding that “the acts of the appellant and his brother
were such as indicated the existence of a conspiracy to
defraud the United States,.”120 This determination is in
accord with a well-established line of precedent holding
that, at least outside of the area of antitrust law,12!
119. 101 F.2d 477 (3d Cir. 1939).
120. Id. at 478. The only point deemed a of
legal analysis was whether the corporation could be
found guilty of conspiracy. Judge Biggs concluded that
+ a conviction was in accord with “well settled law.”
121. A distinct line of precedent has developed re-
garding “conspiracies or combinations in restraint of
trade” violating the Sherman Antitrust Act, 15 U.S.C.
§ 1, and the conditions under which a corporation can
be considered to have combined or conspired with its
officers or subsidiaries. See Columbia Metal Culvert Co.
v. Kaiser Aluminum & Chemical Corp., No. 77-1846 (3d
Cir, 1978) slip op. at 21-22, n.49 and cases and sources
cited therein.
The considerations which shape this antitrust doc-
trine, rooted in the tension between the policy of pre-
serving and fostering competition and the interest in not
intermeddling unnecessarily in the internal entrepreneu-
rial decisions of companies, do not lie paraliel to the
54a
Appendix A—Opinion of the Court.
where a corporation commits a substantive crime, the
officers and directors who cause it to so act may be
guilty of criminal conspiracy.122
Similarly, the sole Supreme Court decision to shed
direct light on the issue before us undercuts the defend-
ants’ position. In Pennsylvania RR. System & Allied
Lines Fed. No. 90 v. Pennsylvania RR. Co.123 a labor
union brought suit against an employer and its officers,
claiming that under the predecessor to 18 U.S.C. § 241,
the actions of the corporation and officers in resisting
balance of concerns embodied in § 1985(3). For example,
while almost any decision by a corporation may have
an effect on competitors, and thereby come within the
potential purview of the antitrust law, cf. Chicago Board
of Trade v. United States, 246 U.S. 231, 238 (1918), only
a limited number of decisions will impact on “equal pro-
tection” and “equal privileges and immunities,.’’ Con-
versely, while courts have interpreted economic efficien-
cies and pro-competitive effects to constitute justifica-
tions for certain restraints of trade we discern no indi-
cation that similar defenses would gaa a conjuration
to deprive a minority of equal rights.
122. See Egan v. United States, 137 F.2d 369 (8th
Cir.) cert. denied 320 U.S. 788 (1943) (conspiracy to
make illegal political contribution) Barron v. United
States, 5 F.2d 799, 799-801 (1st Cir. 1925) (conspiracy
to conceal assets of bankrupt corporation); United
States v. Kemmel, 160 F. yr 718, 720-21 (E.D. Pa.
1958) ( recy is to defraud United States; collect-
ing cases); W. LaFave & A. Scott, Handbook on Crimi-
nal Law 491 (1972); Sullivan, Antitrust Law 324
(1977); Developments in the Law—Criminal Conspir-
acy, 72 Harv. 920, 952-53 (1959) (approving this line of
cases. In the case of ae among corporate officers,
“conditions which constitute the essence of conspiracy
rationales are present to the same extent as if the same
or combined their resources without incorpora-
tion”).
123. 267 U.S. 203 (1925).
3 55a
Appendia A—Opinion of the Court.
the recommendations of an arbitration board under the
Railway Labor Act constituted a conspiracy to “injure,
oppress, threaten or intimidate any person in the enjoy-
ment of” a federal right or privilege. The Supreme
Court’s opinion expressed no doubts regarding the via-
bility of a conspiracy composed of corporate officers.
Rather it stated that ‘The whole issue .. . is whether
the provisions of Title ITI, in pointing out what Congress
wished the parties to the dispute to do, was intended by
Congress to be a positive, obligatory law... .’’124
Thus, since neither considerations of policy nor
force of precedent require adherence to the defendants’
stance, we do not follow the line of cases adopting the
rule that concerted action among corporate officers and
directors cannot constitute a conspiracy under § 1985
(3) 126
124, 267 US., at 210.
125. See Herrmann v. Moore, No. 77-6184 (2d Cir.
May 10, 1978); Girard v. 94th St. & Fifth Ave. Corp.,
530 F.2d 66 (2d Cir.) cert. denied 425 U.S. 974 (1976) ;
Bellamy v. Mason’s Stores, Inc., 508 F.2d 504 (4th Cir.
1974) (concurring opinion) ; McLellan v. Mississi pi
Power & aon 545 F.2d 919 (5th Cir. 1977) dissenting
opinion; Baker v. Stuart Broadcasting Co., 505 F.2d 181,
183 (8th Cir. 1974) ; Dombrowski v. Dowling, 459 F.2d
190 (7th Cir. 1972) (Stevens, J.). We note that both
Dombrowski and Baker limited their holdings to situa-
tions involving “a single act of discrimination by a single
business entity.” Cf. Cohen v. Ill. Inst. of Technology, 524
F.2d 818 (7th Cir. 1975) cert. denied 425 U.S. 943 (1976)
(Stevens, J.) (pretermitting question of whether an in-
stitutional policy would make out a conspiracy) ; Rackin
v. Univ. of Pennesloania, 386 F. a. 992 (E.D. Pa.
1974) (allegation of ongoing policy of harassment and
discrimination made Dombrowski inapposite). Thus,
even under Baker and Dombrowski a finding of conspir-
acy is not excluded in the case before us, since Novotny
a an eight year program of denial of equal oppor-
tunity.
Appendix A—Opinion of the Court.
Ill. TiTtLe VII
As an alternative to seeking relief under § 1985(3),
Novotny sets forth a claim under § 704(a) of Title
VII.126 That section provides:
It shall be an unlawful employment practice for an
employer to discriminate against any of his em-
ployees .. . because he has opposed any practice
made an unlawful employment practice by this sub-
chapter, or because he has made a charge, testified,
assisted, or participated in any manner in an in-
vestigation, proceeding or hearing under this sub-
chapter.
Plaintiff maintains that his discharge because of ex-
pressed hostility toward the denial of equal employment
opportunity to women in GAF, and his refusal to sup-
port the company in its allegedly discriminatory deal-
ings with Batis constitutes a discrimination against him
“because he has opposed [a] practice made an unlawful
employment practice,” in violation of § 704(a).
Defendants argue, however, that in order to consti-
tute protected opposition within the meaning of the
126. 42 U.S.C. 2000e-3(a). It may be that, in this
case, the cause of action under § 1985(3) contains the
same elements as a Title VII claim. However, depending
on particular factual settings, claims under the two stat-
utes arising out of the same act might involve varying
measures of damages, different statutes of limitations,
or other variations. Moreover, § 1985(3) would protect
against actions taken to coerce nonemployees (e.g. cus-
tomers) to the detriment of Title VII rights (e.g. of a
customer’s employees), where as Title VII gives no such
shield, Since, however, the extent of the over-lap be-
tween Title VII and § 1985(3) was not briefed or ex-
lored at oral argument, we do not address the matter
urther.
57a
Appendix A—Opinion of the Court.
statute, an employee’s antipathy to an unlawful employ-
ment practice must be manifested through involvement
with formal charges or litigation under Title VII. The
construction advocated by the defendants was adopted
by the district court in the course of its order dismissing
the complaint.
Such an interpretation, however, does not emerge
from the text of the statute. On its face, § 704(a) refers
to two distinct situations: first, those in which an em-
ployee has “opposed” any unlawful employment prac-
tice, and second, those in which he or she has “made a
charge, testified, assisted, or participated in any manner
in an investigation, proceeding or hearing” under Title
VII.127 The clauses referring to the two scenarios are
connected by a disjunctive “or,” and to construe the
statute as the defendants suggest would render the first
clause mere surplusage.
Nonetheless, the defendants claim that the legisla-
tive history negates what appears to be the clear mean-
ing of the section. In summarizing the import of § 704
(a), the Committee Reports in both House and Senate
referred only to discrimination in retaliation for par-
ticipation in Title VII proceedings.128 We find such leg-
islative history inconclusive on this point. While it does
not support the contention that the first clause of
§ 704(a) protects activities which the second does not,
127. See Hicks v. Abt Associates, Inc., 572 F.2d
960, 968-69 (3d Cir. 1978) (distinguishing ‘‘opposition”
and “participation” clauses).
128. H. Rep. No. 914, 88th Cong. 2d Sess. pt. 7 at
27-28 reprinted 1964 U.S. Code Cong. & Ad. News 2391,
2403 (referring to identically worded provision in House
Bill) ; S. Rep. ‘No. 867, 88th Cong. 1st Sess. 17 (1964)
(referring to § 4(c) of S. Bill 1937).
Appendix A—Opinion of the Court.
neither does it affirmatively state that such was not the
intent of Congress.
As Justice Frankfurter has observed, ‘The trouble-
some phase of construction is the determination of the
extent to which extraneous documentation and external
circumstances may be allowed to infiltrate the text on
the theory that they were part of it, written in ink visi-
ble to the judicial eye.”129 Here, the hues of the cited
history are not sufficiently bold as to overwhelm the
clear terms of § 704(a) itself. In view of the “high
priority” that Congress has given to the effort to elimi-
nate employment discrimination,139 we are unwilling
129. Frankfurther, Some Reflections on the Read-
ing of Statutes, 47 Colum. L. Rev. 527, 529 (1947).
130. Alexander v. Gardner-Denver Co., 415 US. 36,
47-48 (1974).
The defendants also point to the comparable anti-
retaliation provisions in the National Labor Relations
Act 29 U.S.C. § 158(a) (4) and Fair Labor Standards
Act 29 U.S.C. § 215(1) (3), which protect only com-
laints of statutory violations made through the admin-
trative channels established by the legislative scheme.
They suggest that any divergence from the approach
of the FLSA and NLRA would have evoked comment in
the legislative history, and that the lack of such com-
ment negatives the pene 4 of protection for self-help
remedies. We are not persuaded by this inference. As the
Fifth Circuit noted, the language of the Title VII pro-
vision is broader than that of the FLSA and NLRA, and
in general, “the difference between those Acts and Title
may well outnumber the similarities.” Pettway v.
American Cast Iron Pipe Co., 411 F.2d 998, 1006 (5th
Cir. 1969). For example, the structure of Title VII has
been held explicitly to contemplate multiple avenues for
relief, without either preemption or primary jurisdiction
vesting _ the EEOC. See Gardner Denver, supra 415
USS. at 48.
59a
Appendix A—Opinion of the Court.
to withdraw protection from oppohents of illegal dis-
crimination through a constricted statutory construc-
tion.
The Supreme Court has not yet delimited the scope
of the “opposition” that § 704(a) will be held to safe-
guard,131 and the bulk of cases under § 704(a) have
involved alleged retaliation for complaints or litigation
under Title VII.132 Nonetheless, several courts of ap-
peals have understood § 704(a) to reach beyond pro-
tecting participation in Title VII procedures.
In Hicks v. Abt Assoc.,133 this Court held a com-
plaint to the Department of Housing and Urban Devel-
opment regarding alleged employment discrimination in
a project which it funded to constitute “opposition”
within the terms of the statute. Likewise, in Green v.
McDonnell Dov (as Corp.,134 the Eighth Circuit, while
rejecting protection for unlawful activities, stated:
“Those who have the courage to challenge discrimina-
tory practices of an employer merit [statutory] protec-
tian. Without doubt, lawful protest also commands the
131. See Emporium Capwell Co. v. Community
Org., 420 U.S. 50, 71 n.25 (1975) (deéclining to resolve
issue) ; McDonnell Douglas woh v. Green, 411 U.S. 792,
797 n.6 (1973) (issue not appealed).
132. H.g. Rutherford v. American Bank of Com-
merce, 565 F.2d 1162 (10th Cir. 1977) ; Corley v. Jackson
Police Dept., 566 F.2d 94 (5th Cir. 1978); Adams v.
Reed, 567 F.2d 1283 (5th Cir. 1978); Brown v. Ralston
Purina Co., 557 F.2d 570 (6th Cir. 1977); Dawkins v.
Nabisco, Inc., 549 F.2d 396 (5th Cir.) cert. denied 433
U.S. 910 (1977); Smith v. Rexall Drugs, 548 F.2d 762
(8th Cir. 1977).
133. 572 F.2d 960 (3d Cir. 1978).
134. 463 F.2d 337, 341 (1972), not challenged or
appealed on this point, 411 U.S. 792, 797 n.6 (1973).
60a
Appendix A—Opinion of the Court.
same protection. .. .” And, while in Pettway, supra the
Fifth Circuit concentrated on the protection afforded to
- Title VII complainants, in Balderas v. LaCasita Farms,
Inc.,135 another panel of that Circuit declared that an
element of an action under § 704(a) is “discrimination
based upon the employee’s opposition to unlawful prac-
tices,” as manifested in “civil rights activities.”156
We recognize that to construe § 704(a) as protect-
ing “opposition” beyond that embodied in participation
in Title VII proceedings carries with it the prospect of
a greater burden of litigation for employers than the in-
terpretation urged by the defendants. Indeed, it may
present the danger of harassment by employees who
suffer some imagined slight based on a chance remark.
Yet these dangers are implicit in any decision to rec-
ognize legal rights; to decrease the pressure of litiga-
tion on employers by the simple expedient of refusing
to protect employees is always an option. Congress, how-
ever, has passed legislation extending the shield of Title
VII to “opposition,” and the possibility of abuse by liti-
gious plaintiffs cannot justify withdrawal of that bul-
wark.
Rather, the courts must rely upon the procedures
that are used to weed out frivolous claims under any
statute. If, on a motion for summary judgment, Novotny
cannot come forward with support for his contention
that he opposed the denial of equal employment oppor-
tunities by GAF, or that he was terminated as a result
of such opposition, of course his claim cannot be sus-
tained. Such a determination, however, is for the dis-
trict court after proper opportunity for discovery.
135. 500 F.2d 195 (1974).
136. Id. 198-99.
61a
Appendix A—Opinion of the Court.
Likewise, this opinion does not suggest that opposi-
tion to employer violations of Title VII confers an ir-
revocable tenure on the opponent. Clearly, illegal actions
would be grounds for discharge,137 as would activities
that unreasonably interfere with the employer’s legiti-
mate interests.138 As the First Circuit has stated, in
situations of “opposition” in the form of self-help
“courts have in each case to balance the purpose of the
Act to protect persons engaging reasonably in activities
opposing .. . discrimination against Congress’ equally
manifest desire not to tie the hands of employers in the
objective selection and control of personnel.’’139 But
such matters are issues for defense, and it is inappro-
priate to resolve them on a motion to dismiss.
IV. CONCLUSION
The questions with which we have dealt have been
in large measure matters of statutory construction, re-
plete with the ambiguities that legislative enactments
on occasion engender. The Ku Klux Klan Act of 1871
was adopted to deal with a pressing problem of Recon-
struction; yet its commands were couched in expan-
137. Green v. McDonnell-Douglas Corp., 463 F.2d
337, 341 (8th Cir. 1972) upheld on this point for lack of
a ae McDonnell-Douglas Corp. v. Green, 411 U.S. 792,
797 n.6 (1973) (“Nothing in Title VII compels an em-
a to absolve and rehire one who has engaged in such
deliberate unlawful activity against it.”) See id. at 803.
138. See Emporium Capwell Co. v. Communit
Org., 420 U.S. 50, 69 (1975) (rights under Title vit
“cannot be pursued at the expense of the orderly collec-
tive bargaining process contemplated by NLRA”)
139. Hochstadt v. Worcester Foundation Inc., 545
F.2d 222, 231 (1st Cir. 1976). See also Ammons v. Zia
Co., 448 F.2d 117 (10th Cir. 1971) (Aldisert, J.).
62a
Appendix A—Opinion of the Court.
sively drafted legislation, whose provisions are now, not
implausibly, called upon to traverse a century of social,
economic and political development to come to the aid
of human rights. The Civil Rights Act of 1964, though
more tightly and technically constructed, and more re-
cent in origin, confronts us with the duty of reconciling
an explicit statutory mandate with an opaque legislative
history.
There is material from which defendants can argue
the inapplicability of both statutes to this case. Nar-
rowly construed, either enactment could fall well short
of providing the plaintiff a cause of action. But the stat-
utory landscape is illuminated by the community’s goals
as well as the emanations of legislative history. To hob-
ble the legislation before us would, without justification,
set judicial authority against the effort to achieve equal-
ity of rights. We do not believe such was the intent of
the Congressmen who in the aftermath of the Civil War
began the task nor of their successors in 1964 who man-
dated its continuance. With this in mind, we have con-
cluded:
(1) That § 1985(3) protects against conspira-
cies motivated by discriminatory animus against
women.
(2) That a male injured in furtherance of such
a conspiracy has standing to bring an action under
§ 1985(3).
(3) That collusive action to deprive women of
equal employment opportunities in violation of Fed-
eral law would be conspiracy to deprive of “equal
privileges and immunities” in violation of § 1985(3).
(4) That a cause of action under § 1985(3)
grounded on such a conspiracy is not precluded by
Title VII.
Appendix A—Opinion of the Court. _
. (5) That as applied to such a conspiracy by
private employers § 1985(3) does not exceed Con-
ied constitutional authority under the commerce
clause.
(6) That individuals who are directors and offi-
cers of a corporation can form a conspiracy in vio-
lation of § 1985(3) ; and
(7) That § 704(a) of Title VII prohibits retal-
iation against employees for reasonable opposition
to unlawful employment discrimination even when
such opposition is not manifested through partici-
pation in Title VII proceedings.
The judgment of the district court will be reversed
and the case remanded for proceedin
8 consistent with
this opinion.
Appendix A—Opinion of the Court.
APPENDIX
SECTION 2 OF THE Ku KLux KLAN Act oF 1871
[PORTIONS LATER RECODIFIED AS § 1985(3)
ARE UNDERSCORED |
a
Sec. 2. That if two or more persons within any State or
Territory of the United States shall conspire together
to overthrow, or to put down, or to destroy by force the
government of the United States, or to levy war against
the United States, or to oppose by force the authority
of the government of the United States, or by force, in-
timidation, or threat to prevent, hinder, or delay the
execution of any law of the United States, or by force
to seize, take, or possess any property of the United
States contrary to the authority thereof, or by force,
intimidation, or threat to prevent any person from ac-
cepting or holding any office or trust or place of confi-
dence under the United States, or from discharging the
duties thereof, or by force, intimidation, or threat to
induce any officer of the United States to leave any
State, district, or place where his duties as such officer
might lawfully be performed, or to injure him in his
person or property on account of his lawful discharge
of the duties of his office, or to injure his person while
engaged in the lawful discharge of the duties of his
office, or to injure his property so as to molest, inter-
rupt, hinder, or impede him in the discharge of his offi-
cial duty, or by force, intimidation, or threat to deter
any party or witness in any court of the United States
from attending such court, or from testifying in any
matter pending in such court fully, freely, and truth-
fully, or to injure any such party or witness in his per-
son or property on account of his having so attended or
testified, or by force, intimidation, or threat to influence
65a
Appendix A—Opinion of the Court.
the verdict, presentment, or indictment, of any juror or
grand juror in any court of the United States, or to in-
jure such juror in his person or property on account of
any verdict, presentment, or indictment lawfully as-
sented to by him, or an account of his being or having
been such juror, or shall conspire together, or go in dis-
guise upon the public highway or upon the premises of
another for the purpose, either directly or indirectly, of
depriving any person or any class of persons of the
equal protection of the laws, or of equal privileges or
immunities under the laws, or for the purpose of pre-
venting or hindering the constituted authorities of any
State from giving or securing to all persons within such
State the equal protection of the laws, or shall conspire
together for the purpose of in any manner, impeding,
hindering, obstructing, or defeating the due course of
justice in any State or Territory, with intent to deny to
any citizen of the United States the due and equal pro-
tection of the laws, or to injure any person in his per-
son or his property for lawfully enforcing the right of
any person or class of persons to the equal protection
of the laws, or by force, intimidation, or threat to pre-
vent any citizen of the United States lawfully entitled
to vote from giving his support or advocacy in a lawful
manner towards or in favor of the election of any law-
fully qualified person as an elector of President or Vice-
President of the United States, or as a member of the
Congress of the United States, or to injure any such
citizen in his person or property on account of such
support or advocacy each and every person so offending
shall be deemed guilty of a high crime, and, upon con-
viction thereof in any district or circuit court of the
United States or district or supreme court of any Terri-
et Appendix A—Opinion of the Court.
tory of the United States having jurisdiction of similar
offences, shall be punished by a fine not less than five
hundred nor more than five thousand dollars, or by im-
prisonment, with or without hard labor, as the court
may determine, for a period of not less than six months
nor more than six years, as the court may determine,
or by both such fine and imprisonment as the court shall
determine. And if any one or more persons engaged in
any such conspiracy shall do, or cause to be done, any
act in furtherance of the object of such conspiracy,
whereby any person shall be injured in his person or
property, or deprived of having and exercising any right
or privilege of a citizen of the United States, the per-
sons so injured or deprived of such rights and privileges
may have and maintain an action for the recovery of
damages occasioned by such injury or deprivation of
rights and privileges against any one or more of the
persons engaged in such conspiracy, such action to be
prosecuted in the proper district or circuit court of the
United States, with and subject to the same rights of
appeal, review upon error, and other remedies provided
in like cases in such courts under the provisions of the
act of April ninth, eighteen hundred and sixty-six, en-
titled “An act to protect all persons in the United States
in their civil rights, and to furnish the means of their
vindication.”
(Emphasis added.)
A True Copy:
Teste:
Clerk of the "Jnited States Court of Appeals
for the Third Circuit
~~ or ee
67a
Appendiaz B.
APPENDIX B
IN THE UNITED STATES DISTRICT COURT
FoR THE WESTERN DISTRICT OF PENNSYLVANIA
Joun R. Novotny 4
Vv.
GREAT AMERICAN FEDERAL SAVINGS
& LOAN ASSOCIATION, JOHN A. VIROSTEK, ; Civil Action
JOSEPH E. BuUGEL, JOHN J. DRAVECKY, No. 76-1580
DANIEL T. KuBASAK, Epwarp J. Lesko,
JAMES E. OrRIS, JOSEPH A. PROKOPOVITSH,
JOHN G. MICENKO and FRANK J. VANEK q
Opinion
SNYDER, J.
John R. Novotny filed this Complaint against Great
American Federal Savings & Loan (GAF) under 42
U.S.C. § 1985(3), invoking jurisdiction under 28 U.S.C.
§ 1343 and Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq., alleging that GAF fired him from
his position because he charged them with discrimina-
tion against female employees. GAF has moved to dis-
miss the Complaint, and the Motion will be granted.
John Novotny was employed by GAF in 1950 and
at the time of his termination was an undesignated em-
ployee, having not been reelected as Secretary or as a
Member of the Board of Directors. He contends that
from January, 1966, the individual Defendants, on be-
half of GAF, “embarked upon a course of conduct the
effect of which was to deny the female employees equal
employment opportunity . . . for promotion and advance-
ment.” He listed the following types of actions:
68a
Appendix B.
“(a) Promoting male employees with less experi-
ence, fewer years of service and less qualification
over more qualified female employees;
(b) Providing education and training to male em-
ployees which was not provided to female em-
ployees;
(c) Making known to male employees job vacancies
which were not made known to female employees;
(d) Evaluating male employees in accordance with
different and subjective criteria than those applied
to female employees;
(e) Categorizing certain jobs as ‘male’ or ‘female’
and promoting in accordance with these categories;
(f) Creating an atmosphere inimical to the aspera-
tions [sic] of female employees by subjecting all
female employees to the supervision and control
[sic]
(g) By providing different and lesser degrees of
fringe benefits to female employees than to male
employees.
(h) By demoting qualified female employees and
replacing them with less qualified male employees.”
The female employees had expressed their dissatisfac-
tion with the company’s policy, and one of them was
fired. Novotny alleges that he supported the female em-
ployees before the Board and claims a conspiracy of the
individual Defendants to prevent his support of equal
employment rights for women. He demands money dam-
ages from the Defendants in his Complaint and asks
that they be enjoined from any further acts of discrimi-
69a
Appendix B.
nation and ordered to comply with applicable provisions
of the law dealing with equal employment opportunity. !
NovotTny’s STANDING
The Defendants assert Novotny’s lack of standing
since he is not being discriminated against. Novotny
counters that the Supreme Court in Griffin v. Brecken-
ridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971),
held that a plaintiff need not be a member of the class
toward which the invidiously discriminatory animus is
directed. The Defendants distinguish Richardson v. Mil-
ler, 446 F.2d 1247 (3d Cir. 1971) which allowed a non-
ember to recover, stating that decision was based on
che fact the plaintiff was proceeding pro se and that fact
‘persuaded the court to be more liberal in its applica-
tion of the § 1985(3) remedy. Also, the Defendants con-
tend that the Richardson case dealt with an issue of
race discrimination, and that discrimination on that
basis is per se invidious, whereas the discrimination
alleged to have occurred here is one based on sex, which
does not enjoy the same status in the courts.
This issue has been addressed by another member
of this Court in Pendrell v. Chatham College, 386 F.Supp.
341, 348 (W.D. Pa. 1974) ,2 where Judge Hubert I. Teitel-
baum said (at p. 348):
s
1. Novotny filed a charge with the Equal Employ-
ment Opportunity Commission and on December 9, 1976,
received a “right to sue” letter from the Commission.
He timely brought this suit complying with the require-
ments of 42 U.S.C. § 2000e-5.
2. Pendrell interprets Phillips v. Trello, 502 F.2d
ago BS ~ Cir. 1974) in which Judge Gibbons stated (at
p. :
70a
Appendix B.
“The first question here then is whether a
§ 1985(3) claim must be based upon an allegation
of conspiracy to discriminate because of member-
ship in a racial or perhaps otherwise class-based
group or whether an allegation of conspiracy to dis-
criminate because of one’s advocacy of the rights
of such a group is sufficient. Following what I be-
lieve to be the clear inference from Judge Gibbons’
expression in Phillips, I hold that discrimination
because of advocacy of the rights of a racial or
otherwise class-based group is sufficient. Nothing
less would appear to be compatible with making
‘... actionable private conspiracies to deprive a
citizen of the equal enjoyment of rights secured to
all.’ I do not mean by this to preclude an even
broader extension in an appropriate case. Whether
such application might be indicated under other
circumstances, I need not here consider because the
factual situation here presented does not necessi-
tate such decision.”
We realize that Pendrell, as a woman, was a mem-
ber of the protected class. (Deft’s Brief 11-12). In Judge
Teitelbaum’s earlier opinion in Pendrell (370 F.Supp.
494 (W.D. Pa. 1974) ), it was pointed out that she was
terminated from her employment for “academic and
extracurricular involvement in the struggle[s] of black
“Since the plaintiffs in Griffin v. Breckenridge were
Negro citizens of Mississippi and charged harrassment
on racial grounds, the Court expressly reserved the ques-
tion whether a conspiracy motivated by individiously
discriminatory intent other than racial bias would be ac-
tionable under § 1985(3) [Citation omitted] Since then
the task of defining the scope of the private conspiracy
cause of action under § 1985(3) has been going forward
in the lower federal courts.”
— ae
Tla
Appendiz B.
people [and women] for liberation, for basic equality,
and freedom of oppression.”
We believe that under the Pendrell decisions No-
votny is not barred from bringing this suit under § 1985
(3) simply because he is a male since he alleges suffer-
ing a sex-based discrimination.
Acts By A SINGLE ENTITY
The Defendants contend that any acts here were by
a single entity and thus no conspiracy is charged. They
point to Dombrowski v. Dowling, 459 F.2d 190 (7th Cir.
1972), in which the plaintiff, a white lawyer, allegedly
was denied the opportunity to rent office space from a
corporate landlord and its agents when the landlord
found that many of the plaintiff’s clients were black. In
deciding the adequacy of the allegations of the Com-
plaint to sustain a claim of § 1985(3) violation, the Sev-
enth Circuit stated: (at p. 196)
“... [i)f the challenged conduct is essentially a
single act of discrimination by a single business
entity, the fact that two or more agents partici-
pated in the decision or in the act itself will nor-
mally not constitute the conspiracy contemplated
by this statute. Cf. Morrison v. California, 291 U.S.
82, 92, 54 S.Ct. 281, 78 L.Ed. 664. In this case we
believe the evidence fails to establish this element
of a § 1985(3) violation.”
We note in Rackin v. University of Pennsylvania,
386 F.Supp. 992 (E.D. Pa. 1974), an English professor
claimed denial of tenure by the University, despite rec-
ommendations from the tenured members of her depart-
ment, because she was a woman. The Court denied ap-
72a
Appendix B.
plication of the Dombrowski characterization saying:
(at pp. 1005-06)
“(the plaintiff] has alleged many continuing in-
stances of discrimination and harassing treatment
by the alleged conspirators. Her allegations com-
prise much more than ‘essentially a single act of
discrimination by a single business entity’ and
therefore the Dombrowski decision is inapplicable.”
Novotny here claims that the Complaint has de-
scribed, with sufficient factual specificity, numerous acts
and patterns of discrimination practiced by the corpo-
ration against its female employees since 1966, and that
therefore an application of the Rackin analysis is ap-
propriate.
We believe that Novotny has overlooked an essen-
tial element here in that he has suffered only one act of
discrimination: his termination in January, 1975.3 The
Complaint does list many acts done by the corporation
for which female employees may possibly have a re-
course, but those acts were not directed to the Plaintiff
himself.
In Rackin the court rejected the defendant’s con-
tention that Rackin suffered but one act of discrimina-
tion (denial of tenure) because the facts alleged in the
complaint, if true, clearly showed that she was denied,
for a period of at least eight years, privileges enjoyed
by the other faculty members because of her sex.
3. On or about January 22, 1975, at the annual
meeting of the Association, Novotny was not re-elected
as the secretary or member of the Board of Directors
and further was terminated from his employment with
GAF. (Complaint, p. 4)
—— ——
73a
Appendix B.
Taking Novotny’s allegations in his Complaint as
true,t he has suffered but a single act of “business
entity” discrimination by his termination. More is
needed to sustain a claim under § 1985(3) and the De-
fendants’ Motion to Dismiss will be granted as to that
cause of action.®
THE ALLEGED § 2000e VIOLATION
In their brief, the Defendants contest Novotny’s use
of 42 U.S.C. § 2000e which provides (2000e-3) :
“Tt shall be an unlawful employment practice
for an employer to discriminate against any of his
employees .. . because he has opposed any practice
made an unlawful employment practice by this sub-
chapter, or because he has made a charge, testified,
assisted, or participated in any manner in an in-
vestigation, proceeding, or hearing under this sub-
chapter.”
And they cite in support of their position the Legisla-
tive History of the Section which reads (2 U.S. Code,
Cong. & Adm. News, 1964, p. 2403) :
“Section [2000e-3] makes it an unlawful employ-
ment practice for an employer to discriminate
against any of his employees or applicants for em-
ployment, for an employment agency to discrimi-
4. For purposes of this Motion, all well pleaded
material allegations of the Complaint must be taken as
true. See, Walker Process Equip. Inc. v. Food Mach. &
“i808 Corp., 382 U.S. 172, 86 S. Ct. 347, 15 L.Ed.2d 247
5. Because of this decision, we need not reach the
other issues raised by the Defendants in their challenge
to Novotny’s § 1985 claim.
T4a
Appendiz B.
nate against any individual, or for a labor organi-
zation to discriminate against any member or ap-
plicant for membership, because he has made a
charge, testified, assisted, or participated in any
manner in the enforcement of the title.”
Novotny’s Complaint does not allege that he “made
a charge, testified, assisted, or participated in any man-
ner in the enforcement of’’ Section 2000e. He only spoke
out against the company policy at a meeting of the
Board of Directors. The intent of the Congress was a
limited one relating to enforcement of the Title and was
not to involve the courts in every board meeting that
occurred across the land. It was to prevent acts of re-
taliation that an employer might otherwise be tempted
to perform against an employee because that employee
availed himself of his legal right to seek redress for
unlawful employment practices. Novotny, by his actions,
did not in that sense “oppose” a practice made unlawful
by Title VII.
Novotny thus has not provided this Court with any
factual basis on which to decide that the Defendants
practiced an unlawful employment discrimination in
their termination of Novotny which was in violation of
42 U.S.C. § 2000e. At most, the Complaint shows that
the female employees have been aggrieved by the ac-
tions of GAF but, Novotny has not shown a potential
prejudice which he has, or would suffer by the alleged
illegal discriminatory employment practices charged in
his Complaint for which the Civil Rights laws can give
him remedy. The Complaint does not raise “issues as to
which he is aggrieved,” Oatis v. Crown Zellerbach Corp.,
398 F.2d 496 (5th Cir. 1968), and this Court concludes
that the discrimination alleged by Novotny may not
75
Appendix B. :
properly be asserted in a civil action under Title VII.
Jones v. United Gas Improvement Corp., 68 F.R.D. 1, 10
(E.D. Pa. 1975) .6
Since Novotny has not stated a claim for which re-
lief can be granted under 42 U.S.C. § 1985(3) or under
42 U.S.C. § 2000e, the Defendants’ Motion to Dismiss the
Complaint will be granted.
An appropriate Order will be entered.
DANIEL J. SNYDER, JR.
United States District Judge
Dated: April 22, 1977
cc: Stanley Stein, Esq.
Law & Finance Building
Pittsburgh, Pa. 15219
Eugene Connors, Esq. and Walter Bleil, Esq.
747 Union Trust Building
Pittsburgh, Pa. 15219
6. Again, our disposition of this issue precludes our
consideration of the Defendants’ other conte -
garding Novotny’s Section. econ aria
76a
Appendix B.
IN THE UNITED STATES DISTRICT COURT
For THE WESTERN DISTRICT OF PENNSYLVANIA
Joun R. Novotny !
V.
GREAT AMERICAN FEDERAL SAVINGS
& LOAN ASSOCIATION, JOHN A. ViROSTEK, | Civil Action
Joserpu E. BuGEL, JOHN J. DRAVECKY, No. 76-1580
DANIEL T. KuUBASAK, EDWARD J. LESKO,
JAMES E. OrRIS, JOSEPH A. PROKOPOVITSH,
Joun G. MICENKO and FRANK J. VANEK |
Order of Court
AND Now, to-wit, this 22nd day of April, 1977, after
due consideration of the arguments and briefs of coun-
sel, and for the reasons set forth in the Opinion filed
herewith ’
Iv Is HEREBY ORDERED that the Defendants’ Motion
to Dismiss the Complaint be and the same is hereby
granted.
DANIEL J. SNYDER, JR.
United States District Judge
ec: Stanley Stein, Esq.
Eugene Connors, Esq. and Walter Bleil, Esq.
Appendix C. ue
APPENDIX C
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOHN R. Novotny, 7
Plaintiff
vs.
GREAT AMERICAN FEDERAL SAVINGS
& LOAN ASSOCIATION, JOHN A. VIROSTEK, rst 2
JOSEPH E. BUGEL, JoHN J. DRA
VECKY, | No. 76-1580
DANIEL T. KUBASAK, EDwarp J. LESKO,
JAMES E. OrrIs, JOSEPH A. PROKOPOVITSH,
JOHN G. MICENKO and FRANK J. VANEK,
Defendants
4
Complaint
I. JURISDICTION:
1. The jurisdiction of this Court is founded u
. —
Title 28 US.C. § 1343, relating to actions for deprivation
of civil rights, and Title 42 U.S.C. § 2000e( 5), relating
to discrimination in employment.
II. PARTIES:
: 2. John R. Novotny, plaintiff, hereinafter called
Novotny,” is an individual resident of Allegheny Coun-
ty, Pennsylvania.
3. Defendant, Great American Federal Savi
; vings and
Loan, hereinafter called “GAF,” known previvusly as
First Federal Savings & Loan, is a mutual Federal Sav-
ings & Loan Association, organized and existing under
78a
Appendiz C.
Federal law and charter, for the purpose of promoting
thrift and home ownership.
4. Defendant, John A. Virostek, is an individual who
is presently Director Emeritus of GAF, and at times
relevant hereto he was chairman of the Board of Direc-
tors of GAF and its Senior Solicitor.
5. Defendant, Joseph E. Bugel, is an individual who
is presently Chairman of the Board of GAF, and at times
relevant hereto was Vice-Chairman of the Board of
GAF.
6. Defendant John J. Dravecky, is an individual who
is and was at all times relevant hereto Vice-President of
GAF.
7. Defendant, Daniel T. Kubasak, is an individual
who is and was at all times relevant hereto President
of GAF.
8. Defendant, Edward J. Lesko, is an individual who
is a member of the GAF Board of Directors and at times
relevant hereto was the junior solicitor of GAF.
9. Defendant, James E. Orris, is an individual who
is a member of the Board of Directors of GAF, and was
at times relevant hereto President of GAF.
10. Defendant, Joseph A. Prokopovitsh, is an indi-
vidual who is presently and at all times relevant hereto,
was a member of the Board of Directors of GAF.
11. Defendant, John G. Micenko
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