Petition for Writ of Certiorari — Perry v. Command Performance

Fo faprema Court, U.S.

Gi- 896 BIUED

— — REC 1 181

OrEKe OF THE CLERK

No.:

IN THE SUPREME COURT

OF THE UNITED STATES

October Term, 1991

EDITH PERRY,

Petitioner,

Vv.

COMMAND PERFORMANCE,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE

THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

DAVID R. CULP

COUNSEL FOR PETITIONER

7000 Crittenden Street

Philadelphia, PA 19119

(215) 248-9361

QUESTIONS PRESENTED FOR REVIEW

1. Whether the Patterson v. McLean

"“post-contract-formation" rationale should

be limited to Title VII cases, since to

extend it to an Edith Perry leaves a

victim with no federal civil rights remedy

and is inconsistent with the Supreme

Court's concern with eradicating racial

discrimination in our society.

2. Whether respondent hair salon is

responsible in a Section 1981 action under

the Doctrine of Respondeat Superior for

the racially-discriminatory actions of its

employee, who the district court found had

refused to serve Edith Perry because she

is black.

3. Even if Respondeat Superior is

not applicable in a Section 1981 case,

whether respondent hair salon is liable

under Section 1981 when the salon's owners

and supervisor are involved in the

discriminatory conduct, in that the

supervisor condones her employee's

discrimination by failing either to

require her to service Mrs. Perry or to

terminate her employment and the salon

owners knowingly create a situation that

promotes and encourages racial

discrimination.

ii

LIST OF OTHER INTERESTED PARTIES

None.

iii

TABLE OF CONTENTS

Title

QUESTIONS PRESENTED FOR REVIEW

LIST OF OTHER INTERESTED PARTIES .

TABLE OF AUTHORITIES .......-2ee0e-

ORDERS AND OPINIONS TO BE REVIEWED

JURISDICTION ...cccccccccccccccccces

STATUTORY PROVISION INVOLVED .......

STATEMENT OF THE CASE .....ccccccccs

ARGUMENT .cccccccccccccccccccccccccs

APPENDIX

U.S. Court of Appeals for the

Third Circuit, Order, dated

September 11, 1991 ......-.c.ee.

U.S. District Court, Opinion and

Order, dated November 26, 1989..

U.S. Court of Appeals for the

Third Circuit, Opinion and

Order, dated August 30, 1990

U.S. District Court, Opinion and

Order, dated March 27, 1991

iv

13

63

14-30

31-46

Cases

Berger v. Iron Workers

843 F.2d 1395, 1430 (D.C.

ge RC eee rrr

, 619 F.

Supp. 1228 (D.C. Ill. 1985)....

‘

Cc vania

_v. Local Union 542,

int ti 1 Uni ;

Operating Engineers, 469 F.

Supp. 29 (E.D. Pa. 1978).......

Croswe ¥. ‘Hara, 443 F.

Supp. 895 (E.D. Pa. 1978)......

Floyd-Ma sv meric Cab

Co., 732 F. Supp. 243

Ce ee) ere Bat oad

Ge ildin ontractors

sociati a.

Pennsylvania,

ro ee Pa

Gersman v. Group Health Assoc.,

Inc., 931 F.2d 1565

Wee er

Haugab Vv. ity of Chicago,

545 F. Supp. 276

a Gabe Mb aisd vads eeu aves

46-47

46

31

31

31,

34-36

24-27,

28

iS

31,32,

39,40

Cases Page

Huddleston v. Roger Dean

Chevrolet, Inc., 845 F.2d

900 (11th Cir. 1988)........... 45,

50-51

Hunter v is- 1 s

Corp., Engine Div., 797 F.2d

1417 (7th Cir. 1986) ~.. cc cccccece 43-44,

45,

50-51

Jett v. Dallas Independent

School District, 491 U.S.

701 (2969) . cvscee estes e# *eenete#ee#e#keesres# 22-23

Jones v fe)

International Union of

Operating Engineers, 524 F.

Supp. 487 (S.D. Ill. 1981).... 31-32

Lee v. Wyandotte County,

Kansas, 586 F. Supp. 236

Te ee eee 46

Levendos v. Stern

Entertainment, slip op., Civil

no. 87-3791 (3rd Cir. 1990)... 56-57

Longo v. nn vania Electric

Co., 618 F. Supp. 87

(WD. Pee TSBE) csedeccticcccecs 27

Malone v. Schenk, 638 F.

Supp. 423 (C.D. Ill. 1985).... 31,

33-34

vi

Cases Page

Matthews v. Freedman,

882 F.2d 83 (3d Cir. 1989).... 16

it j v. Vinson,

477 U.S. 57 (1986).......-.- eet 23-24,

57

ters Vv cLe Cc it

Union, 109 S. Ct. 2363

ESS A ee

&

14-19

Prather v. Dayton Power and Light

Co., 918 F.2d 1255 (6th oe we

PG Swe se uaa k Webs een ce cee 15

Springer v. Seamen, 821 F.2d

871 (lst CEP s BEST Pd iivostcccccce 30,

38-39

Watson v. Fraternal Order

of Eagles, 915 F.2d 235

(6th Cir. 1990)...... Dee gee ke 30

Zaklama v. Mt. Sinai Medical

Center, 842 F.2d 291

PREG CAE. RECEP Oo iivdc See cticee 30

Federal Statutes

62 B.iG.€. BSeStiam ISSR. <ccccess 2

vii

8) W V

The Order and Opinion of the U.S.

District Court for the Eastern District of

Pennsylvania, entered on November 26,

1989, set out in the Appendix at pages 3-13.

The Order and Opinion of the U.S. Court of

Appeals for the Third Circuit, dated

August 30, 1990, set out in the Appendix

at pages 14-30. The Opinion and Order of

the U.S. District Court for the Eastern

District of Pennsylvania dated March 27,

1991, set out in the Appendix at pages

31-46; and the Order of the Third Circuit

Court of Appeals dated September 11, 1991,

set out in the Appendix at pages 1-2.

JURISDICTION

The U.S. District Court for the

Eastern District of Pennsylvania had

jurisdiction, pursuant to 28 U.S.C.

Section 1331.

The U.S. Court of Appeals for the

Third Circuit had jurisdiction, pursuant

to 28 U.S.C. Section 1291.

The U.S. Supreme Court has

jurisdiction, pursuant to 28 U.S.C.

Section 1254(1), to review the judgment of

the Third Circuit Court of Appeals, dated

September 11, 1991.

FEDERAL STATUTES INVOLVED

42 U.S.C. Section 1981 reads as follows:

All persons within the

jurisdiction of the United

States shall have the same right

in every State and Territory to

make and enforce contracts, to

sue, be parties, give evidence,

and to the full and equal

benefit of all laws and

proceedings for the security of

persons and property as is

enjoyed by white citizens, and

shall be subject to like

punishment, pains, penalties,

taxes, licenses, and exactions

of every kind, and to no other.

STATEMENT OF THE CASE

Plaintiff Edith Perry, who is black,

brought this action in the federal

district court for the Eastern District of

Pennsylvania against defendant Command

Performance alleging it had violated 42

U.S.C. Section 1981 by denying her service

at its hair styling salon because of race

and color. Plaintiff Edith Perry also

invoked the pendent jurisdiction of the

district court for the intentional

infliction of emotional distress. The

District Court had jurisdiction pursuant

to 28 U.S.C. Section 1331.

Defendant filed a Motion for Summary

Judgment, requesting that the trial court

dismiss Edith Perry's 42 U.S.C. Section

1981 Claim. On November 22, 1989, the

district court granted defendant's Motion

for Summary Judgment, dismissing Edith

Perry's Section 1981 action, finding

controlling the Supreme Court decision of

Patterson v. McLean Credit Union, 190 S.

Ct. 2363 (1989). Plaintiff Edith Perry

appealed the district court's dismissal of

her 42 U.S.C. Section 1981 action to the

Third Circuit Court of Appeals, and on

August 30, 1990, a three-member panel of

the Third Circuit reversed the district

court and remanded the case for trial.

913 F. 2d 99 (3rd Cir. 1990).

Plaintiff Edith Perry, who is black,

brought this complaint against defendant

hair salon on the basis that it had

violated her civil rights under 42 U.S.C.

Section 1981 by denying her service at its

hair styling salon.

On October 12, 1987, Edith Perry's

husband, Chris Perry, called Defendant

hair salon and made a 12:00 p.m.

appointment with the salon to have Edith's

hair washed and set. After she arrived,

defendant's Assistant Manager and the only

supervisor on duty that day, Helene

Kugler, who is white, toid Edith Perry

that she was ill and asked Edith if she

would mind having another hair stylist

Beth Abbott (white) do her hair. Edith

Perry said it would be fine.

Defendant's Assistant Manager, Ms.

Kugler, orally requested that defendant's

employee Beth Abbott do her hair.

Defendant's employee refused to do so,

becoming loud and abusive, stating, "No,

no, no, no! I don't do black hair! No,

no, no, no! Not today!" When Edith Perry

told Ms. Abbott that she only wanted a

wash and set like every other patron in

the salon, Ms. Abbott responded

sarcastically and emphatically: "I just

don't do black people's hair! Oh, no, I'm

not going to do your hair! I'm from New

Hampshire and I don't deal with blacks!"

Defendant's employees could see that

Edith Perry was visibly upset. She

started to cry. She asked to call the

owner of Defendant Command Performance and

tried dialing the Security Department to

have them page her husband in the shopping

center to take her home. Edith Perry

asked defendant's employee, "How can you

say that to me? All I wanted was a wash

and set." Ms. Abbott replied: "I don't

do Black people's hair." Although Edith

was crying, another patron, a white woman,

told her, "Why don't you go to your own

place?"

At the time of the incident,

defendant's employee, Ms. Abbott, had over

nine years of experience as a hair

dresser, and she has provided services to

over 22,000 patrons, but has never once

provided services to a black person. She

testified at trial that she never intended

to provide hair dressing services for a

black person. In contrast, during the

eleven years she was a hair dresser, she

never once denied a white person services.

Ms. Abbott was an extremely experienced,

technically qualified hair dresser, who,

by her own admission, was certainly

capable of doing a wash and set on

anyone's hair. In addition, she had

performed services on all different types

of hair -- different textures, different

styles, and different thickness, and was

capable of performing work on all types of

hair.

On October 12, 1987, however, Ms.

Kugler, Defendant's assistant manager, who

was in charge of supervising the salon,

did not order or command Ms. Abbott to

service Edith, nor did she offer to help

Ms. Abbott service Edith.

Pennsylvania law requires that a hair

stylist in Pennsylvania perform services

on all different types of hair and

regardless of one's race and color.

Although defendant hair salon solicits

black patrons in its advertisements to

induce them to frequent their salons,

because its research showed that black

patrons spent more money than whites at

hair salons, the owners took no steps to

insure that their hair dressers would do

the hair of blacks and comply with the

Pennsylvania law. The owners did not tell

Ms. Abbott when she was hired that it

actively solicited blacks, that a

Significant portion of its business at the

salon was black, and that she would have

to do their hair. Instead of taking steps

to insure that all the hair dressers

understood they would have to do the hair

of blacks, defendant salon hired a black

stylist, Pam, whose job was primarily to

9

service the black clientele, and defendant

salon steered most of its black clientele

to Pam.

The District Court made a finding

that Ms. Abbott's refusal to perform a

wash and set for Edith Perry was racially

discriminatc ry. (District court opinion,

Finding of Fact #10, App. at 34). In

addition, Ms. Abbott had put the owners on

notice that she did not wish to service

blacks. The owners of defendant company

testified at trial that Ms. Abbott had a

racially-troubling incident with another

black patron previous to her

discrimination with Edith, but at no time

after the first incident did the owners or

a supervisor discipline or order Ms.

Abbott to serve all patrons regardless of

color, in compliance with Pennsylvania

law. In fact, the District Court made a

finding that after Ms. Abbott

10

discriminated against Edith Perry, the

owners of the salon did not terminate Ms.

Abbott nor did they reprimand her or take

any disciplinary action against her in any

way. District court opinion, Finding of

Fact #14, App. at 35. Ms. Abbott

testified that they told her not to worry,

that the incident with Edith Perry was no

reflection on her.

What the owners did do was to send a

gift certificate to Edith Perry, telling

her that the salon had made a mistake and

that it should have "made arrangements for

you to be served by Pam... ," the black

hair dresser. The owners, because it was

good business, also sent a gift

certificate to the white client who had

shouted at Edith, "Why don't you go to

your own place?!"

Immediately after the incident, Edith

Perry started to break out in hives. For

11

several months she had insomnia. She

underwent medical treatment for her

physical problems and in addition sought

therapy with a psychiatrist. As a result

of the incident, she had trouble working

and lost a major client for the Four

Seasons Travel Agency, Inc., of which she

is the President and owner.

After trial, the district court, on

March 27, 1991, found that Defendant hair

salon's employee had refused to service

plaintiff Edith Perry because of her race

but entered judgment for defendant hair

salon. Plaintiff Edith Perry appeaied the

District Court judgment to the Third

Circuit Court of Appeals and on September

11, 1991, a three-member panel, without an

opinion, affirmed the District Court's

decision that the Defendant hair salon had

not discriminated, despite a finding that

its employee had.

12

ARGUMENT

I. THE SUPREME COURT SHOULD GRANT

PETITIONER'S REQUEST FOR CERTIORARI TO

REVIEW THE LIMITS OF THE PATTERSON V.

MCLEAN DECISION, SINCE IF IT IS NOT

LIMITED, VICTIMS OF RACIAL DISCRIMINATION

SUCH AS EDITH PERRY WILL BE DENIED ANY

FEDERAL CIVIL RIGHTS REMEDY, AND SUCH A

RESULT IS INCONSISTENT WITH THIS HONORABLE

COURT'S CONCERN WITH ERADICATING RACIAL

DISCRIMINATION IN OUR SOCIETY.

In its March 28, 1991 decision after

trial, the federal district court for the

Eastern District of Pennsylvania made a

finding that defendant's employee, Beth

Abbott, had refused to perform a wash and

set on Plaintiff Edith Perry "because of

Plaintiff's race." D. Ct. opinion,

Finding of Fact #10, App. at page 34.

Nevertheless, the district court also

found that the defendant hair salon was

not liable for its employee's

discrimination, and in so doing relied

heavily on the Supreme Court's decision in

Patterson v. McLean Credit Union, 109 S.

13

Ct. 2363 (1989). For instance, at

Paragraphs 4, 5, and 6 of its Conclusion

of Law, App. at pages 36-38, the district

court noted that the race discrimination

against Edith Perry occurred after "a

race-neutral contract was established

between Plaintiff and Defendant for

hairstyling services." Conclusion of Law

#5, App. at pages 37-38. The Court found

that Edith Perry "thus cannot establish a

Section 1981 claim because the

discriminatory conduct here occurred after

formation of the contract between

Plaintiff and Defendant. Patterson, 491

U.S. 164." Conclusion of Law #6, App. at

page 38. The district court's opinion

stands logic on its head, since if only

certain hair dressers will service blacks,

then blacks are not allowed to make

contracts on the same basis as white

persons. White patrons, at defendant's

14

iil

salon can be and are serviced by any hair

dresser at the salon -- but that was not

true for Edith or for other Blacks. The

district court's misapplication of

Patterson shows the difficulty the lower

federal courts have had in applying the

reach of Patterson. (See, e.g., Gersman

v. Group Health Assoc., Inc., 931 F.2d

1565 (D.C. Cir. 1991); Prather v. Dayton

Power and Light Co., 918 F.2d 1255 (6th

Cir. 1990))

The reach of Patterson outside the

context of Title VII is an important

constitutional question that this

Honorable Court should examine, since if

Patterson is not limited, there will be a

raft of cases and situations where people

such as Edith Perry will have no effective

federal civil rights protection for the

discrimination that they, admittedly, have

suffered.

15

Patterson dealt with racial

harassment on the job and with the denial

of a promotion. In deciding that racial

harassment on the job was not within the

reach of Section 1981, the 5-4 majority in

this Honorable Court noted that such

conduct "is actionable . . . under the

more expansive reach of Title VII," 109 S.

Ct. at 2367, which prohibits

discrimination on the basis of race in

employment or the conditions of

employment. See also Matthews v.

Freedman, 882 F. 2d 83 (3rd Cir. 1989), in

which the Third Circuit cites Patterson

and notes the expansive reach of Title VII

to employment cases.

This Honorable Court should limit the

reach of Patterson since the Patterson

case is distinguishable from the present

one in that the Patterson case dealt with

an employment situation, where there was

16

iil

an alternate federal civil rights remedy

for one discriminated against in an

employment context. In an employment

Situation, the employee has an alternate

federal civil rights remedy pursuant to

Title VII, and the five-person majority in

Patterson made much of the fact that

employees discriminated against have such

a remedy, noting that the Court "may

preserve the integrity of Title VII's

procedures without sacrificing any

Significant coverage of the civil rights

laws." Id. at 2375. By contrast, in the

present case, Edith Perry and other blacks

like her have no federal civil rights

protection if the federal courts are to

extend Patterson as the Federal District

Court and Court of Appeals did in the

instant case. Under the district court's

reading of Patterson, a business

establishment could make an oral contract

17

with a black person and then subsequently

deny services to the patron on the basis

of race, and the patron discriminated

against would not have recourse under any

federal civil rights statute, since Title

VII deals only with employment situations,

and since under the district courts

interpretation of Patterson Section 1981

would not cover such action.

Such an interpretation of Patterson

would allow certain types of racial

discrimination to go unrectified and is

inconsistent with the Supreme Court's

opinion in Patterson: In Patterson the

Court notes "our society's deep commitment

to the eradication of discrimination based

on a person's race or the color of his or

her skin." i109 8. Ct. a¢ 2371. In

Patterson the Court emphasizes that

"commitment" again and again, stating that

"every pronouncement of this Court and

18

myriad acts of Congress and Executive

Orders attest a firm national policy to

prohibit racial segregation and

discrimination." Id. And again, the

Court states, "The law regards man as man,

and takes no account of his color when his

civil rights as guaranteed by the supreme

law of the land are involved." Id. The

district court's interpretation of

Patterson would eradicate the gains blacks

have made since the Civil War for equal

rights.

In further discussion the parameters

of Section 1981, the five person majority

stated that Section 1981 "prohibits, when

based on race, the refusal to enter into a

contract with someone ...." 109 S.

Ct. at 2372; see also 109 S. Ct. at 2376.

In the present case, defendant by and

through its employee, Beth Abbott, refused

to enter into a contract with Edith Perry

19

because of Edith's race and color when Ms.

Abbott flew into a racial tirade and

refused to give Edith Perry a wash and

set. Simply stated, Edith Perry has been

denied her right to make and enforce a

contract with defendant because of her

race and has been denied the equal benefit

of the laws as enjoyed by white citizens.

Petitioner Edith Perry respectfully

requests that this Honorable Court grant

her Writ of Certiorari to review the reach

of Patterson and to decide a vitally

important federal civil rights issue. If

Patterson is not limited, Petitioner fears

that for certain types of racial

discrimination, Blacks will have lost any

right to have redress under the federal

civil rights laws. That result could not

have been intended by this Honorable

Court, for to do so means that our nation

will once again have returned to a time

20

when Blacks rode in the back of the bus

and when "separate" meant "equal."

21

II. THE SUPREME COURT SHOULD GRANT

PETITIONER'S REQUEST FOR CERTIORARI IN

ORDER TO GIVE GUIDANCE TO THE FEDERAL

COURTS AS TO WHETHER THE RESPONDENT

SUPERIOR DOCTRINE IS APPLICABLE TO A

SECTION 1981 ACTION, AND IF SO, TO

DETERMINE THE PARAMETERS OF THAT DOCTRINE

AND THE CIRCUMSTANCES UNDER WHICH AN

EMPLOYER WILL BE HELD VICARIOUSLY LIABLE

FOR THE ACTIONS OF ITS EMPLOYEES.

The Supreme Court has not

definitively spoken as to whether the

respondent superior document is applicable

in a Section 1981 action to hold a

business vicariously liable for the

racially-discriminatory actions of its

employees. The Supreme Court's guidance

is needed to aid the federal court system

in construing Section 1981 actions

uniformly. Although the Supreme Court has

not definitely spoken, several Justices

have acknowledged their <« ceptance of the

respondent superior doctrine in Section

1981 actions. Thus, in Jett v. Dallas

Independent School District, 491 U.S. 701

22

(1989), the Honorable Justices Brennan,

Marshall, Blackmun, and Stevens, in a

dissenting opinion stated that ina

Section 1981 action a local governmental

body could be held liable under the

doctrine of respondent superior. Id. at

740. The five justices who comprised the

majority in Jett did not find respondent

Superior applicable to a governmental body

but did not express an opinion as to

whether the doctrine was applicable to a

private employer or business. Earlier

Supreme Court cases have flirted with

whether and to what extent the doctrine of

respondent superior is applicable to

certain types of civil rights cases.

Thus, in Meritor Savings Bank v. Vinson,

477 U.S. 57 (1986), the Honorable Justice

Rehnquist, writing for the majority, held

that in Title VII cases, where an

"employer" is defined to include any

23

"agent" of the employer, the employer may

be vicariously liable in some instances

but not in others. Section 1981, of

course, has no such limiting language as

does Title VII as to an "agent." Asa

result, if the respondent superior

doctrine is applied in a Section 1981

context, the question is raised as to how

broad "vicarious liability" should be.

And in General Building Contractors

Association, Inc. v. Pennsylvania, 458

U.S. 375 (1982), Justice Rehnquist,

writing for the majority, analyzes a

Section 1981 case under the doctrine of

respondeat superior, "On the assumption

that respondeat superior applies to suits

based on Section 1981 ee te a: 26. Ot

375. Concurring in that opinion, the

Honorable Justice O'Connor, with whom

Justice Blackmun joins, notes that after

the case has been remanded to the District

24

Court, “nothing in the Court's opinion

prevents the respondents from litigating

the question of the employers' liability

under Section 1981 by attempting to prove

the traditional elements of respondeat

superior." Id. at 404. Unfortunately, as

is shown in Edith Perry's case, the lower

federal courts have had difficulty

applying those "traditional elements of

respondeat superior" consistently.

Petitioner respectfully submits that they

have had trouble applying vicarious

liability concepts to a Section 1981 case

because they are not sure of the

parameters of that doctrine in a Section

1981 action. After all, since there is no

limiting language in Section 1981, Section

1981 could be read in such a way that an

employer would be held strictly liable for

the discriminatory actions of its

employees if said employees are acting

25

generally within the scope of their work

relationship. Support for this reading of

vicarious liability can be found in

Justice Rehnquist's opinion in the General

Building Contractors Association case,

where he states that the "doctrine of

respondeat superior, as traditionally

conceived and as understood by the

District Court . . . enables the

imposition of liability on a principal for

the tortious acts of his agent and, in the

more common case, on the master for the

wrongful acts of his servant." Id. at

392.

In the General Building Contractor's

Association case, both Justice Rehnquist

and Justice O'Connor stated that the

respondeat superior doctrine is applicable

when the employer or principal has some

degree of control over the activities of

another. Id. at 392, 403-04. Justice

26

Rehnquist further defined the doctrine:

Agency is the fiduciary relation

which results from the

manifestation of consent by one

person to another that the other

shall act on his behalf and

subject to his control, and

consent by the other so to act.

A master-servant relationship is

a form of agency in which the

master employs the servant as

"an agent to perform service in

his affairs" and "controls or

has the right to control the

physical conduct of the other in

the performance of the service."

Id. See also Longo v. Pennsylvania

Electric Co., 618 F. Supp. 87 (W.D. Pa.

1985), which notes that the hallmark of a

master-servant relationship is that the

master has the right to control the result

of the work and to direct the manner in

which the work shall be accomplished.

In Edith Perry's case there can be no

question but that Ms. Abbott was an agent

and servant of her employer, defendant

hair salon, and that said defendant

"controlled or had the right to control

27

the conduct" of Ms. Abbott, and also had

the right to control the conduct of its

Assistant Manager, Ms. Kugler. Yet not

once did the owners of defendant hair

salon ever direct that Ms. Abbott had to

service all patrons of the salon

regardless of their race or color, even

though such was a requirement of the

Pennsylvania state licensing laws, and

even though defendant salon actively

solicited black customers, because, as the

owner of the salon testified at trial,

their research indicated that blacks spent

more money at hair salons than whites.

In deciding Edith Perry's case,

however, the District Court and the Third

Circuit Court of Appeals did not follow

the principles enunciated by Justices

Rehnquist and O'Connor in General Building

Contractors Association, as the District

and Circuit courts misinterpreted the

28

"agency" relationship in that case and

totally ignored the employment

relationship. See District Court's -

Conclusion of Law #11, App. at 40-41,

wherein the district court held that

"there is no basis for .. . (respondeat

superior) liability without, at the least,

an agency relationship," citing a

different section of Justice Rehnquist's

opinion in the General Building

Contractors Association case, 458 U.S. at

395. Material in parenthesis added. The

Third Circuit affirmed without opinion.

Interestingly and inconsistently, the

District Court in its first opinion on

this case, dated November 22, 1989, found

that Beth Abbott was an “agent” of

Defendant hair salon. App. at 10.

The District Court's and the Third

Circuit's failure to address the vicarious

liability issue in Edith Perry's case is

29

inconsistent with how other federal courts

have handled similar situations, and thus

the Supreme Court should take certiorari

to provide uniform criteria to the federal

courts for construing Section 1981

actions. In Edith's case, the District

Court and Third Circuit simply failed to

apply a respondeat superior doctrine to

Edith Perry's situation.

Despite the District Court's and

Third Circuit's rulings in Edith's case,

several other jurisdictions and circuit

courts have held that the doctrine of

respondeat superior is applicabie to

Section 1981 cases to hold an employer

vicariously liable for the actions of its

employee. E.g., Watson v. Fraternal Order

of Eagles, 915 F. 2d 235 (6th Cir. 1990);

Zaklama v. Mt. Sinai Medical Center, 842

F.2d 291 (llth Cir. 1988); Springer v.

Seamen, 821 F.2d 871 (1st Cir. 1987);

30

SO

Floyd-Mayers v. American Cab Co., 732 F.

Supp. 243 (D.D.C. 1990); Malone v. Schenk,

638 F. Supp. 423 (C.D. Ill. 1985);

Haugabrook v. City of Chicago, 545 F.

Supp. 276 (N.D. Ill. 1982); Jones v. Local

520, International Union of Operating

Engineers, 524 F. Supp. 487 (S.D. Ill.

1981); Croswell v. O'Hara, 443 F. Supp.

895 (E.D. Pa. 1978); Commonwealth of

Pennsylvania v. Local Union 542,

International Union of Operating

Engineers, 469 F. Supp. 329 (E.D. Pa.

1978).

In Jones v. Local 520, International

Union of Operating Engineers, 524 F. Supp.

487 (S.D. Ill. 1981), for example, the

district court noted that, "There is

nothing in Section 1981 to lead a court to

believe that respondeat superior is

inapplicable to actions brought under the

statute, and every court which has engaged

31

a

in a meaningful analysis of the issue has

so held." Id. at 492. In fact, in

holding that the respondeat superior

doctrine is applicable to a Section 1981

action, a Illinois United States District

Court analyzed that the unequivocal

language of Section 1981, as well as its

legislative history, "manifests Congress'

purpose to enact sweeping legislation

implementing the thirteenth amendment to

abolish all the remaining badges and

vestiges of the slavery system."

Haugabrook v. City of Chicago, 545 F.

Supp. 276 (N.D. Ill. 1982).

If employers are not held liable for

the actions of their employees in carrying

out job-related functions, then those

badges and incidents of slavery will not

be fully abolished, and the vestiges of

that caste system will remain, forever a

part of the fabric of this country. It

32

means that Edith Perry and cther blacks |

can be forced to wait outside a restaurant

to be serviced by that restaurant or that

she can be forced in a hair salon to be

served only by a black hairdresser when

other hairdressers are available but who

refuse to serve her because she is black.

And yet those employees are all performing

functions or duties for their employer.

In factual situations similar to

Edith Perry's, courts in jurisdictions

other than the Third Circuit have held

employers liable under the doctrine of

respondeat superior for the actions of

their employees. In Malone v. Schenk, 638

F. Supp. 423 (C.D. Ill. 1985), the federal

district court held that an employer, who

owned a tavern, was vicariously liable

when his employee refused to sell a black

woman a lottery ticket because of her

race. The district court rejected

33

defendant's argument that if the employee

refused to sell the plaintiff lottery

tickets because of her race, such a

refusal was not within the scope of his

authority. In so holding, the court cited

to numerous other cases where a principal

was held liable in instances where an

agent refused to rent or sell because of

race. Id. at 425. Similarly, in Edith

Perry's case, Ms. Abbott refused to sell

hair dressing services to Edith because of

her race, and thus the doctrine of

respondeat superior should be held

applicable to defendant hair salon.

In another case, Floyd-Mayers v.

American Cab Co., 732 F. Supp. 243 (D.D.C.

1990), the District of Columbia District

Court also discussed the parameters of the

respondeat superior doctrine. [In that

case black prospective passengers had

brought a Section 1981 action against a

34

taxi cab company alleging that certain

drivers refused to pick up blacks and

transport them to their destination.

Despite defendant taxicab company's

argument that the drivers were outside the

scope of their employment, the court

refused to grant defendant taxicab

company's motion for summary judgment. In

discussing the respondeat superior

doctrine, the court noted that an

employee's act is within his or her

employment "if the purpose of the act is,

at least in part, to further the

employer's business and if the act is not

unexpected in view of the employee's

duties." Id. at 246. In further

discussing the "foreseeability" or

"expectation" prong of this test, the

court held that, for vicarious liability

to attach, the employee's tortious act

must be “at least incidental to the

35

ill

conduct authorized by the employer." Id.

Based on the legal criteria discussed

above, the Floyd-Mayers court held there

was sufficient evidence for reasonable

jurors to find that the drivers committed

the alleged acts of discrimination, at

least in part, for the purpose of

furthering the company's business -- that

those acts of discrimination were

incidental to their job functions as

drivers. The court noted that the company

had offered no evidence that the drivers

were acting as anything other than the

company's drivers when the discriminatory

acts occurred or that the drivers did not

intend to further the company's business

by hiring out their taxicabs. Id.

"Moreover," the court held, "a reasonable

factfinder could conclude that the

discriminatory acts were a foreseeable

aspect of the taxicab drivers' duties."

36

Id. at 247.

Similarly, in Edith Perry's case, Ms.

Abbott was employed by defendant hair

salon when she committed her

discriminatory acts. And these acts were

"incidental to the conduct authorized by

the employer," since the employer

authorized Ms. Abbott to perform hair

styling services, and the discrimination

was as to her refusing to provide such

services, just as in Floyd-Mayers, the

taxicab drivers were authorized to drive

cabs and the refusal to provide services

was therefore incidental to their job

functions. In both cases, the

discriminatory acts "were a foreseeable

aspect of the employees' duties." Just as

in Floyd-Mayers cab drivers picked who

would ride in their cabs on the basis of

race, in Perry, Ms. Abbott chose who she

would serve on the basis of race.

37

Similar to the District of Columbia

District Court's rationale in Floyd-Mayers

is the First Circuit Court of Appeal's

opinion in Springer v. Seamen, 821 F.2d

871 (lst Cir. 1987). In Springer the

First Circuit reversed a district court's

dismissal of a Section 1981 claim against

the Postal Service. Plaintiff, a black

postal clerk, alleged he had been

terminated from the Postal Service on the

basis of his race when two white employees

brought to the attention of the Postal

Service false charges against him. After

investigation by the Postal Service, the

plaintiff was discharged. Although the

plaintiff did "not allege racial animus on

the part of the Postal Service itself," he

asserted that the Postal Service was

liable for its employees' actions under

the respondeat superior doctrine, and that

the employees' racial animus was therefore

38

imputed to their employer. Id. at 880.

The First Circuit concurred, holding that

the district court's granting of a motion

for summary judgment was improper, since

the employees had "made their allegedly

false accusations of Springer (the

plaintiff) in their capacities as Postal

Service employees." Id. at 881. In Perry

Ms. Abbott was also operating in her

Capacity as a hair dresser employed by

defendant company when, on the basis of

racial animosity, she refused to perform a

wash and set on a black woman, Edith

Perry.

In yet another case, Haugabrook v.

City of Chicago, 545 F. Supp. 276 (N.D.

Ill. 1982), a district court held that a

corporate employer may be held liable on

the theory of respondeat superior under

Section 1981. In that case plaintiff, who

is black, alleged that he was wrongfully

39

arrested, searched, kidnapped and beaten

by Chicago police officers. On the basis

of the evidence, the court held that it

"cannot conclude that .. . the City knew

or should have known of any alleged

violent propensities of" the officers.

Nevertheless, the court held that the City

could be held strictly liable on

plaintiff's Section 1981 claim under the

doctrine of respondeat superior, the court

noting that there is "ample authority

for the proposition that private

corporate defendants may be held liable on

a respondeat superior basis under section

1981 for the racially discriminatory

conduct of their employees." Id. at 278,

279.

It would be a grave injustice if, on

the facts of the present case, Edith Perry

is denied a remedy under Section 1981, and

Petitioner respectfully requests that the

40

Supreme Court grant her Writ of

Certiorari. In addition, this Honorable

Court's granting certiorari and providing

the federal courts with guidance on the

applicability and scope of the respondeat

superior doctrine to Section 1981 cases

would provide a greater uniformity of

decisions than is presently the case.

41

III. EVEN IF THE RESPONDEAT SUPERIOR

DOCTRINE IS NOT APPLICABLE TO SECTION 1981

CASES, THE SUPREME COURT SHOULD DETERMINE

UNDER WHAT CIRCUMSTANCES A BUSINESS IS

LIABLE, SUCH AS IN THE PRESENT CASE WHERE

THE SALON'S OWNERS AND SUPERVISOR ARE

INVOLVED IN THE DISCRIMINATORY CONDUCT BY

NOT ORDERING THE EMPLOYEE TO WASH AND SET

EDITH'S HAIR AND WHERE THE SALON OWNERS

KNOWINGLY CREATE A SITUATION THAT PROMOTES

RACIAL DISCRIMINATION.

Even if this Honorable Court were to

find that Ms. Abbott's racially-

discriminatory actions were not imputable

to her employer-salon under the respondeat

superior doctrine in a Section 1981

action, defendant hair salon should

nevertheless be liable to Edith Perry on

her Section 1981 claim since the owners of

defendant salon and the Assistant Manager

on duty authorized and condoned Ms.

Abbott's racial discrimination against

Edith Perry: The supervisor, Ms. Kugler,

never ordered Ms. Abbott to wash and set

Mrs. Perry's hair, and the salon owners

knowingly created a situation that

42

promoted and encouraged racial

discrimination.

Universally, courts which have not

applied a respondeat superior doctrine to

a case, finding the doctrine inapplicable

on the law or the facts, have nevertheless

held that the employer may still be held

liable. For example, in Hunter v. Allis-

Chalmers Corp., Engine Div., 797 F.2d 1417

(7th Cir. 1986), the Seventh Circuit held

that in a Title VII and Section 1981

action, an employer could be held liable

on two bases: One, the employer would be

liable under the respondeat superior

doctrine for those intentional wrongs of

his employees that are in furtherance of

the employer's business. Two, the

employer is directly liable, independently

of respondeat superior, for an employee's

intentional acts, even if not in

furtherance of the employer's business,

43

that the employer could have prevented by

reasonable care in hiring, supervising, or

if necessary firing the tortfeasor. Id.

at 1422. Thus, the court held that an

employer who has reason to know of

discrimination is blameworthy if he

condones the activity and does nothing.

In this regard, the court held that

failure to take reasonable steps to

prevent discrimination can make the

employer liable if management-level

employees knew, or in the exercise of

reasonable care should have known, of the

discrimination. Id. at 1421, 1422. Under

the second basis of liability, the

"employer's liability thus is not strict,

as it would be under respondeat superior;

his only duty is to act reasonably in the

circumstances." Id. at 1422.

Other courts have applied an analysis

as to employer liability that is similar

44

to the Seventh Circuit's analysis in

Hunter. Thus, in a Title VII action,

Huddleston v. Roger Dean Chevrolet, Inc.,

845 F.2d 900 (11th Cir. 1988), in which a

female employee claimed she was

constructively discharged as a result of a

hostile work environment caused by sexual

harassment, the Eleventh Circuit held that

the employer would be liable if "the

employer knew or should have known of the

harassment and failed to take prompt

action to remedy the violation." Id. at

904.

Both the Hunter and Huddleston

courts, therefore, apply a similar

rationale, finding that the employer is

liable if management-level or supervisory

employees are aware of the discrimination,

or should be aware of said discrimination,

and condone, such actions by doing nothinc

about it or by failing to take prompt

45

remedial action. (Accord, Cain v. City of

Chicago, 619 F. Supp. 1228 (D.c. Ill.

1985), a Section 1981 case where a black

man was shot by Chicago police officers,

wherein the court held that the city was

subject to Section 1981 liability ona

respondeat superior basis and further held

that the police superintendent could also

be held liable if he "had direct knowledge

or had approved of the defendant police

officers' conduct." &. at 1233. ioe

also Lee v. Wyandotte County, Kansas, 586

F. Supp. 236 (D.C. Kan. 1984), which held

that former county jail inmates could

recover for Section 1981 violations

against the county if they could

demonstrate the existence of a requisite

“affirmative link" between the county and

at least one of the county employees

alleged to have violated the inmates'

rights; and Berger v. Iron Workers

46

Reinforced Rodmen Local 210, 843 F.2d

1395, 1430 (D.C. Cir. 1988), which held

that an international union may be held

liable if it knowingly authorizes or

approves of the local union's acts.)

What the above-cited cases show is

that supervisors and management cannot sit

idly by, with blinders on, while other

employees violate a person's civil rights.

Management and supervisory employees must

act reasonably under the circumstances,

and they cannot condone or foster racial

discrimination. To do so is the

“affirmative link" that makes the employer

liable for civil rights violations of its

employees.

Even if the Supreme Court does not

apply the respondeat superior doctrine to

Edith Perry's case, the Assistant Manager

and supervisor at defendant salon, Ms.

Kugler, and the owners of defendant salon,

47

'

»

3

\

-

the Glovers, have condoned and fostered

racial discrimination, and, therefore,

they are the affirmative link that make

defendant salon liable for the actions of

Ms. Abbott under Section 1981.

For example, the Assistant Manager

and only supervisor at defendant hair

salon, Ms. Kugler, asked Ms. Abbott to do

a wash and set on Edith Perry's hair,

Since Ms. Kugler wasn't feeling well. Ms.

Abbott's response was loud and swift:

"No, no, no, no! I don't do black hair.

No, no, no, no! Not today!" E. Perry,

Sone eee mee. 6773 Kugler, Cir. Ct. App.

240, 255; M. Glover, Cir Ct. App. 119-20;

R. Glover, Cir. Ct. 140. Ms. Abbott

further responded: "I just don't do black

people's hair! Oh, no, I'm not going to

do your hair! I'm from New Hampshire and

I don't deal with blacks!" Abbott, Cir.

Gee mus afa, 173, 174; E. Perry, Cir. Ct.

48

App. 67, 68, 97, 98, 99, 103, 104; D.

Certo, Cir. Ct. App. 106, 107, 109, 110.

The Assistant Manager's response to

her employee, Ms. Abbott, was to condone

and authorize Ms. Abbott's racial

discrimination against Edith Perry. For

example, the Assistant Manager admitted aft

trial that a wash and set is a routine

hair procedure and further admitted she

knew that Ms. Abbott was an experienced

hair dresser, and as a result assumed Ms.

Abbott had done all types of hair. The

Assistant Manager also acknowledged that

she certainly believed that Ms. Abbott wa:

capable of performing a wash and set on

Edith's hair, and she further acknowledge:

she knew that Pennsylvania law required a

hairdresser to service all patrons

regardless of whether they are white or

black.

Nevertheless, despite knowing all o

49

wetiiabe —

these facts, the Assistant Manager, after

Ms. Abbott's racial tirade, did not order

Ms. Abbott to do the wash and set on Edith

Perry's hair. E. Perry, Cir. Ct. App. 69;

Abbott, Cir. Ct. App. 174; Kugler, Cir.

Ct. App. 242-43. In failing to so order

and direct Ms. Abbott, the Assistant

Manger condoned and authorized Ms.

Abbott's racial discrimination against

Edith Perry. The fact is, the Assistant

Manager should have offered Ms. Abbott a

choice: either do a wash and set for

Edith Perry or be terminated. If she had

so ordered her employee and given her that

option, this suit would never have been

brought. Instead, she ratified Ms.

Abbott's racial discrimination and failed

to act “reasonably in the circumstances."

See Hunter v. Allis-Chalmers Corp., Engine

Div., 797 F.2d at 1422. As outlined in

Huddleston v. Roger Dean Chevrolet, Inc.,

50

845 F.2d 900 (11th Cir. 1988), the

Assistant Manager knew of the

discrimination "and failed to take prompt

action to remedy the violation." Id. at

904. Thus, defendant hair salon should be

held liable under Section 1981 for the

racially-discriminatory actions of its

agents, Ms. Abbott and the Assistant

Manager, and for the Assistant Manager's

condoning and authorizing Ms. Abbott's

discrimination against Edith Perry.

In addition, defendant hair salon is

liable to Edith Perry under Section 1981

for Ms. Abbott's refusal on the basis of

race to service Edith Perry, since the

salon owners and assistant manager

knowingly created a situation that

promoted and encouraged racial

discrimination.

Although defendant hair salon

actively solicits the business of blacks

51

Ww

through advertising to induce them to

frequent their salons, the owners took no

steps to insure that their hairdressers

would do the hair of blacks and comply

with the Pennsylvania law.

The owners solicit black patrons not

out of any kindness to blacks but because

it is "good business": The owners solicit

black patrons because their research

showed that black patrons spent more money

than whites at hair salons. An owner of

defendant salon, Mr. Glover, testified at

trial that they solicit black customers

"because it's good business. Black

clientele, and there are statistics, spend

disproportionate to their population

percentage, if you will, of the overall

population. They tend to have higher

average tickets ... and they tend to

return on a more frequent basis. It's

good business." R. Glover, Cir. Ct. App.

52

210.

Despite advertisements attempting tc

lure blacks to defendant salon, the owners

and Assistant Manager did not supervise

its personnel to make sure blacks were not

treated like second-class citizens once

they arrived at the salon. The owners and

assistant manager did not tell Ms. Abbott

when she was hired that defendant salon

actively solicited blacks, that a

Significant portion of its business was

black, and that she would have to comply

with the Pennsylvania law requiring her to

do their hair.

Instead of taking steps to insure

that all the hair dressers understood they

would have to do the hair of blacks,

defendant salon hired a black stylist,

Pam, whose job was primarily to service

the black clientele, and defendant salon

steered most of its black clientele to

53

aes Lee re eh

Pam. Abbott, Cir. Ct. App. 167; M.

Glover, Cir. Ct. App. 124-25. For

example, after Ms. Abbott refused to

perform a wash and set for Edith Perry, an

owner, Mrs.Glover, wrote a letter to Ms.

Kugler, the Assistant Manager, telling the

Assistant Manager that she should have

offered Edith "an appointment with Pam on

Tuesday ..." See also M. Glover letter to

Edith Perry, where Mrs. Glover steers

Edith to Pam. Cir. Ct. App. 256.

Thus, the pervasive atmosphere and

policy at defendant hair salon was that

not all hairdressers had to service black

customers, since hopefully the salon could

find one hairdresser who would be willing

to serve a black even though others would

not. Simply stated, the owners and the

assistant manager knowingly condoned and

created a situation that promoted and

encouraged racial discrimination and

54

allowed the seeds of discrimination to

prosper.

That the owners condoned and created

a situation that promoted racial

discrimination can also be seen in their

response to Ms. Abbott's refusal to serve

Edith Perry because Edith is black. As

the district court found, defendant hair

salon "did not admonish or otherwise

punish Ms. Abbott for her failure to wait

on Plaintiff." District court opinion,

Finding of Fact #14, App.42-43. Ms.

Abbott, for example, testified that after

her refusal to give Edith a wash and set,

the owners told her, "Don't worry. Don't

worry about anything," that the refusal to

serve Edith "would not reflect on you in

any way."

Not only did Ms. Abbott discriminate

against Edith Perry, but the actions of

the Assistant Manager and the owners have

55

4

;

8

“

;

AKL Steal cebacto Sear tlie Me ot: Uno? Fy

implicated defendant salon directly in the

discrimination. They have condoned,

tolerated, authorized, and been a part of

that discrimination, so that even if the

doctrine of respondeat superior is not

applied to Ms. Abbott's actions, the

actions of the Assistant Manager and the

owners are an “affirmative link" that

makes defendant salon liable for the

violation of Edith Perry's civil rights.

That the defendant salon should be

held liable on the facts of the instant

case is clearly implied by the rationale

of the above-cited cases, such as Hunter,

‘Huddleston, Cain, Lee and Berger. See

also Levendos v. Stern Entertainment, slip

op., Civil no. 89-3791 (3rd Cir. 1990), in

which in a Title VII action the Third

Circuit adopted a rationale similar to the

Hunter-Huddleston-Cain line of cases. In

Levendos, the court quoted with approval

56

from the Supreme court's decision in

Meritor Savings Bank v. Vinson, 477 U.S.

57 (1986), in which the Supreme Court held

that “the mere existence of a grievance

procedure and a policy against

discrimination ..." does not insulate the

employer from liability. Id. at 60-61,

discussed at p. 8-9 of Levendos slip op.

Thus, in Edith Perry's case, that

defendant advertises for and solicits

black customers should not insulate the

company from liability. A company cannot

solicit black customers and then treat

them as second-class citizens, effectively

seating them in the back of the bus.

Moreover, defendant owners and their

assistant manager had notice that Ms.

Abbott did not wish to serve black

customers, and yet they did nothing to

insure that Ms. Abbott would comply with

Pennsylvania law and serve all patrons,

57

het sisi sinvat oe aa

regardless of race or color.

The Assistant Manager, Ms. Kugler,

for example, testified that previous to

Ms. abbott's refusal to do a wash and set

for Edith, that she and Ms. Abbott had had

discussions about Ms. Abbott's reluctance

to do the hair of black clients. And yet

the Assistant Manager never informed Ms.

Abbott that Pennsylvania law required her

to do all hair, regardless of whether the

person was white or black, and that she

would have to comply with the law or be

terminated.

The owners also had notice: Ms.

Abbott, herself, testified that she

believes she told the owners at defendant

salon that she was reluctant to do the

hair of black patrons. In addition, the

owners of defendant company testified they

had knowledge that Ms. Abbott had a

racially-troubling incident with another

58

black patron previous to her

discrimination against Edith. But at no

time after the first incident did the

owners or a supervisor discipline or order

Ms. Abbott to serve all patrons regardless

of color, in compliance with Pennsylvania

law. Mr. Glover, the owner, for example,

Said he never ordered her to do the hair

of all patrons, and in fact did not even

talk to Ms. Abbott after the first

incident.

Although at trial defendant owners

argued that Ms. Abbott's refusal to serve

Edith was not because of race but because

she needed training in doing such

procedures as a simple wash and set, the

district court rejected the argument,

finding that Ms. Abbott had discriminated

against Edith Perry because of her race.

District Court Opinion, Finding of Fact

#10, App. 34. The ludicrousness of the

59

need-for-training argument can be seen in

the owner's handling of that issue.

Between the first racially-troubling

incident and the incident with Edith

Perry, they did not provide any training

to Ms. Abbott. Even after the incident

with Edith Perry, the owners did not

follow up to see if she received any

training. Mrs. Glover stated that they

may not have given Ms. Abbott any training

after her refusal to provide Edith Perry

with a wash and set "because we were very

short-handed and our first objective, of

ceeele. is to be able to service clients."

"Clients," apparently to Mrs. Glover, do

not include blacks. As the district court

found, in holding that Ms. Abbott had

racially discriminated against Edith

Perry, the need-for-training argument was

a sham.

What is shown, through the testimony

60

and transcript, is not only that Ms.

Abbott discriminated against Edith Perry,

but that the owners and assistant manager

at defendant salon had their imprint on

that October 12, 1987 incident as well;

they authorized, and condoned, and could

have prevented, and could have remedied.

They are just as responsible as if they

personally had refused to give Edith Perry

a wash and set on October 12, 1987 because

of her race, and as managers and owners

their actions and inactions are imputed to

defendant hair salon, making defendant

salon liable under Section 1981 for the

racial discrimination against Edith Perry.

Thus, the lower courts in Edith

Perry's case have stripped Section 1981 of

its effectiveness in remedying racial

discrimination. Petitioner respectfully

requests that this Honorable Court grant

Certiorari and send a clear message to the

61

lower courts that we can no longer condone

or tolerate racial discrimination, or sit

idly by while the seeds of discrimination

prosper.

BTA hh Lad WA WR le he ad HR Hl airtel ed oes heal ona

Ce ee ee eee &

62

CONCLUSION

For the foregoing reasons, in order

to secure uniformity in 42 U.S.C. Section

1981 cases and to secure justice for all

Blacks similarly situated to Edith Perry,

Petitioner respectfully requests that her

Petition for Writ of Certiorari be

granted.

This f1. day of December, 1991.

Respectfully submitted,

Vo sned Rk CHA

David R. Culp

Attorney for Petitioner

63

LS ae Labatt Alia Ge bday BIS. ta Oo wa al Nt!

:

?

5

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 91-1283

EDITH PERRY,

Appellant

7".

COMMAND PERFORMANCE

On Appeal from the United States

District Court for the Eastern

District of Pennsylvania

(D.C. Civil No. 89-2284)

District Judge:

Honorable James McGirr Kelly

Submitted under Third Circuit Rule 12(6)

September 4, 1991

BEFORE:

STAPLETON, GREENBERG, and ALDISERT,

Circuit Judges

JUDGMENT ORDER

After consideration of the

contentions raised by appellant, it is

App. l

ORDERED and ADJUDGED that the judgment of

the district court entered on March 28,

1991, be and is hereby affirmed.

Costs taxed against appellant.

BY THE COURT,

Circuit Judge

ATTEST:

Sally Mrvos, Clerk

DATED: September 11, 1991

App. 2

feaatbie S 0%,

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EDITH PERRY 4

CIVIL ACTION

Vv.

COMMAND PERFORMANCE >: NO. 89-2284

MEMORANDUM AND ORDER

J. M. KELLY,. J. NOVEMBER 22, 1989

BACKGROUND

Pursuant to Federal Rule of

Civil Procedure 56, Defendant, Command

Performance, has filed a motion for

summary judgment with respect to all

claims alleged in the complaint of

Plaintiff, Edith Perry. The complaint

alleges a federal claim arising under 42

U.S.C. Section 1981 and a pendent state

law claim of intentional infliction of

emotional distress. On November 8, 1989,

this court held a hearing on Defendant's

motion for summary judgment.

App. 3

FINDINGS OF FACT

1. Plaintiff's claim arises

from an incident which took place on

October 12, 1987 at the King of Prussia

Court location of the Defendant's hair-

styling salons.

re Plaintiff, a black woman,

arranged a 12:00 p.m. appointment for

October 12, 1987 to have her hair washed

and set by Defendant, Command Performance

at King of Prussia.

3a Shortly after Plaintiff

arrived at the salon for her appointment,

Helen Kugler, one of Defendant's hair-

stylists, asked the Plaintiff if the would

object to having one of the other hair-

stylists wash and set her hair as Ms.

Kugler was ill and did not want to spread

germs.

4. The Plaintiff did not

object.

App. 4

I RD ol SSA bly 25 ie ML Rs VARA AEE NE RM ES at arte aba att Sek it Clit t i aick

Pegs eer Re eee -

i

3

a

5. Plaintiff had been served

on other occasions at the hair salon by

Ms. Kugler.

6. Helen Kugler acted in the

position of assistant manager at the King

of Prussia salon.

y At that point, Ms. Kugler

approached Beth Abbott, the other hair-

stylist in the salon that afternoon, and

orally requested Ms. Abbott to wash and

set Plaintiff's hair.

8. Abbott responded, "I don't

do black hair! No, no, no, no! Not

today!" When the Plaintiff told Ms.

Abbott that she only wanted a wash and

set, Ms. Abbott responded with the

following statements: "No, no, no, no.

I'm from New Hampshire. I don't deal with

Blacks."

9. Ms. Kugler then offered to

set the Plaintiff's hair or have some

App. 5

other hairstylist do it but Plaintiff

refused Ms. Kugler's offer.

10. As a result of this

incident, Plaintiff claims she suffered an

episode of stress-relat-d hives,

depression, insomnia, underwent

psychiatric and medical treatment for her

injuries and suffered a work loss.

App. 6

0) ONS _O W

i. The Supreme Court has

_ recently spoken directly to the issue of

conduct actionable under 42 U.S.C. §1981

' in Patterson v. McLean Credit Union, 109

S.Ct. 2363 (1989).

Be Section 1981 reads as

a ee

follows:

All persons within the juris-

diction of the United States

shall have the same right in

every state and Territory to

make and enforce contracts, to

sue, be parties, give evidence,

and to the full and equal

benefit of all laws and

proceedings for the security of

persons and property as is

enjoyed by white citizens, and

shall be subject to like

punishment, pains, penalties,

taxes, licenses, and exactions

of every kind, and to no other.

: oe The underlying facts in

Patterson involved, inter alia, a claim

brought by an employee against her

‘employer, McLean Credit Union, for racial

harassment in the workplace and a state

App. 7

:

tort law claim of intentional infliction

of emotional distress. The Court held

that the conduct the employee labeled

actionable racial harassment was post-

formation

conduct by the employer relating

to the terms and conditions of employment.

The Court

109 S.Ct.

limit its

contracts.

reasoned:

stated:

This type of conduct, repre-

hensible though it be if true,

is not actionable under §1981,

which covers only conduct at the

initial formation of the con-

tract and conduct which impairs

the right to enforce contract

obligations through legal

process.

at 2374.

4. The Patterson Court did not

§1981 analysis to employment

As a general matter, the Court

interpreting §1981 to cover

racial harassment amounting to a

breach of contract would fed-

eralize all state-law claims for

breach of contract where racial

animus is alleged, since §1981

covers all types of contracts,

App. 8

not just employment contracts.

i Although we must do so when

i Congress plainly directs, as a

rule we should be and are

‘reluctant to federalize'

matters traditionally covered by -

state common law.

109 S.Ct. at 2376.

5. The Patterson majority's

reading of §1981 does not touch upon the

legislative history of the statute, but

instead gives a lengthy discussion of 42

U.S.C. §2000e, Title VII, a federal

statutory remedy apparently not raised by

the petitioner. Following the rationale

of Patterson to its logical conclusion,

§1981 would appear as legal grounds for a

Claim only if the defendant refused to

enter into a contract with the plaintiff

altogether or on terms different than

those offered white patrons (e.g., charged

black patrons more than white patrons for

identical services). This reading of

§1981 by the Supreme Court in Patterson

App. 9

narrows appreciably a plaintiff's right to

proceed in §1981.

6. The conduct complained of

by the Plaintiff involved racial

harassment by one of Defendant's agents

but this harassment occurred after the

Plaintiff and Defendant hair salon had

entered into a contract for hairstyling

services. |

: » At the time of the

formation of the contract, the Defendant

entered into a contract with the Plaintiff

on racially neutral terms. See 109 S.Ct.

at 2376-77.

8. The Defendant had a history

of providing services for the Plaintiff

and actively solicited black patronage.

9. The statements and conduct

of Defendant's agent, Ms. Abbott, could be

properly labeled racial harassment, but as

Patterson has enunciated, this conduct, by

App. 10

itself, is not actionable under section

1981 because if occurred after the

Plaintiff formed the contract with the

Defendant.

10. The Defendant hair salon

contracted business with the Plaintiff on

many occasions, including this one, on

terms not tainted by racial animus.

11. With regard to Plaintiff's

state law claim for intentional infliction

of emotional distress, I shall decline to

exercise pendent jurisdiction.

12. Although Plaintiff has

failed to establish the alleged federal

claim in this cause of action, the

Plaintiff may not be without a remedy as

the Plaintiff may pursue the intentional

infliction of emotional distress claim in

state court.

App. 11

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EDITH PERRY >: CIVIL ACTION

Vv.

COMMAND PERFORMANCE : NO. 89-2284

ORDER

AND NOW, this 22nd day of

November, 1989, upon consideration of the

motion of Defendant, Command Performance,

for summary judgment, the response of

Plaintiff, Edith Perry and argument

presented to the court on said motion at

the hearing on November 8, 1989, it is

ORDERED that:

i The motion of Defendant,

Command Performance, for summary judgment

5_—>S-GRANTED.

a. Judgment is entered in

favor of Defendant, Command Performance,

App. 12

sete e

and against the Plaintiff, Edith Perry.

BY THE COURT:

JAMES MCGIRR KELLY, J.

App. 13

Filed August 39, 1990

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 89-2062

PERRY, EDITH

Plaintiff-Appellant

vs.

COMMAND PERFORMANCE

Defendant-Appellee

Appeal from the United States District

Court for the Eastern District

of Pennsylvania

(D.C. Civil No. 89-2284)

Argued: June 27, 1990

Before: SLOVITER and MANSMANN,

Circuit Judges and

THOMPSON, District Judge.*

(Filed August 30, 1990)

R. Michael Carr, Esquire (ARGUED)

LaBrum and Doak

1700 Market Street - Suite 700

Philadelphia, PA 19103

Attorney for Appellee

* Honorable Anne E. Thompson of the

United States District Court for the

District of New Jersey, sitting by

designation.

App. 14

David R. Culp, Esquire (ARGUED)

1424 Chestnut Street, #500

Philadelphia, PA

Attorney for Appellant

OPINION OF THE COURT

THOMPSON, District Judge.

This is an appeal of the grant

of summary judgment to the Defendant,

Command Performance. Plaintiff, a biack

woman, brought this action against

Defendant beauty salon claiming a

violation of 42 U.S.C. §1981 and

Pennsylvania law of intentional infliction

of emotional distress. Plaintiff was

refused service by one of the operators

employed by Defendant beauty salon after

making an appointment by telephone to have

her hair done. The district court granted

summary judgment because it viewed the

hairdresser's conduct as racial harassment

occurring subsequent to contract formation

App. 15

and therefore not actionable under 42

U.S.C. §1981 under the interpretation of

that statute enunciated in Patterson v.

McLean Credit Union, 109 S.Ct. 2363

(1989). We conclude that the district

court erred when it entered summary

judgment on Defendant's behalf, because

there was an insufficient basis on the

record for the court to have concluded

that a contract had been formed before the

incident. As we have frequently stated,

we review the grant of summary judgment de

novo. See Goodman v. Mead Johnson & Co.,

534 F.2d 566, 573 (3d Cir. 1976); cert.

—

denied, 429 U.S. 1038 (1977).

App. 16

I. FACTS

On the morning of October 12,

1987, Plaintiff's husband telephoned to

the hair salon Command Performance in the

King of Prussia Mall, to set up an

appointment for his wife, Edith Perry.

The appointment for Ms. Perry's "wash and

set" was scheduled for noon on the same

date.

Ms. Perry had had her hair done

at this salon more than five times before

by a number of different operators. On

the date in question, Helene Kugler was

scheduled to wash and set Ms. Perry's

hair, as she had done previously. Not

long after Ms. Perry arrived at the salon,

Ms. Kugler explained to her that she had a

bad cold and was not feeling well. She

asked Ms. Perry is she would mind if

another hairdresser were to do her hair.

Ms. Perry consented. However, according

App. 17

to Plaintiff's complaint and her

deposition testinony. when Ms. Kugler

asked Be zh Abbott, another operator, to do

Plaintiff's hair, Ms. Abbott responded

loudly, "No, no, no, no! I don't do black

hair. No, no, no, no! Not today! Ms.

Abbott went on to exclaim, "I just don't

do black people's hair! Oh no, I'm not

going to do your hair. I'm from New

Hampshire and I don't deal with blacks!"

Throughout Ms. Abbott's protest,

Ms. Perry grew increasingly distraught and

started to cry. She called the security

police. Her husband was located within

the Mall to escort her from the salon.'

' There exists a factual dispute as to

whether Ms. Kugler offered to wash and set

Ms. Perry's hair after Ms. Abbott's

outburst. Command Performance set a letter

of apology, as well as an offer for a free

wash - and set to Ms. Perry after the

incident. As noted at oral argument, it is

unclear whether Command Performance or Ms.

Abbott would be the appropriate defendant in

this matter.

App. 18

Plaintiff claims that she was traumatized

by this incident and that as a result she

suffered from hives and insomnia. In

addition, she has pursued treatment with a

psychiatrist.

App. 19

Il. BACKGROUND

Section 1981 provides, in

relevant part, that "all persons ... shall

have the same right ... to make and

enforce contracts ... as is enjoyed by

so netic

white citizens." 42 U.S.C. §1981 (1982).

One year ago the Supreme Court decided the

case of Patterson v. McLean Credit Union,

109 S.Ct. 2363 (1989). While not

overruling the landmark case of Runyon v.

McCrary, 427 U.S. 160 (1976), the Court

limited the scope of conduct covered by 42

U.S.C. §1981. Patterson, 109 S.Ct. at

2372, 2373; McKnight v. General Motors

Corp. F.2d , 1990 WL 89739 (7th

Cir. 1990).

In Patterson the Plaintiff was a

black woman who was employed by the

defendant credit union as a teller and

file coordinator for ten years until she

was laid off. She subsequently brought an

App. 20

action in the U.S. District Court for the

Middle District of North Carolina,

alleging that her employer had harassed

her, failed to promote her, and discharged

her because of her race and in violation

of 42 U.S.C. §1981. Id. at 2368-69.

The Court held that §1981

"prohibits, when based on race, the

refusal to enter into a contract with

someone, as well as the offer to make a

contract only on discriminatory terms.’

Patterson, 109 S.Ct. at 2372. It does not

extend to "problems that may arise later

from the conditions of continuing

> The Court further explained that the

statutory protection against discrimination

in the enforcement of contracts refers only

to a prohibition of "discrimination that

infects the legal process in ways that

prevent one from enforcing contract rights,

by reason of .Bbie os - her race..."

Patterson, 109 S.Ct. at 2373 (emphasis

added). This part of the Court's holding is

not germane to the analysis of Ms. Perry's

claim.

App. 21

employment." Id. It followed that racial

harassment in an employment context "is

not actionable under §1981 ... Rather,

such conduct is actionable under ... Title

VII of the Civil Rights Act of 1964." Id.

at 2374.?

* Although appellant argues that the

Court's references to Title VII signify that

its opinion is limited to the employment

discrimination conduct,, the Court's

discussion is in terms of §1981 in general,

and we find no basis for such a distinction.

Plaintiff relies on a number of

service cases that arose prior to Patterson.

See _e.g., Wyatt v. Security Inn Food and

Beverage, Inc., 819 F.2d 69 (4th Cir. 1987)

(Plaintiffs were permitted to proceed to

trial and recover on claims filed pursuant

to 42 U.S.C. §§ 1981, 1985, 1986, and

2000(a). They alleged that defendant had

discriminated against black lounge patrons

by uneven enforcement of a policy which

limited lounge access to drinking patrons

only.); Olzman _v. Lake Hills Swim Club,

Inc., 495 F.2d 1333 (2d Cir. 1974) (Contract

between white resident and private swim

club, which prohibited members' bringing

black guests to the pool, but allowed

resident to bring other guests upon payment

of a fee, could be enforced by black guests

as third party beneficiaries, pursuant to 42

U.8-€. Opes .3 3 Hernandez v. Erienbusch,

368 F. Supp. 752 (D. Or. 1973) (Plaintiffs

App. 22

In dismissing Plaintiff's civil

rights claim in this case, the district

court found that Ms. Perry had contracted

with Command Performance at the time the

appointment was made and that the contract

was made "on racially neutral terms." The

court further stated that, in accord with

Patterson, § 1981 would appear as legal

were permitted to bring claims pursuant to

42 U.S.C. §§ 1981, 1982 when they were

served beer upon entering a bar, but were

asked to leave when they began speaking

Spanish.). We express no opinion on the

effect of Patterson on these cases.

The scope of Patterson in the

employment context is not before us. The

Supreme Court, in deciding Jett v. Dallas

Indep. School Dist., 109 S.Ct. 2702 (1989),

assumed without deciding that a petitioner's

rights under §1981 were violated by his

removal and reassignment from his coaching

position, which he alleged occurred because

he was white. See also Hicks v. Brown

Group, Inc., 902 F.2d 630, 638 (8th Cir.

1990) (Holding that discriminatory discharge

is actionable under §1981 after Patterson

decision because protection from racially

motivated deprivations of contracts is

essential to the full enjoyment of the right

to make contracts.) (emphasis in original).

App. 23

grounds for a claim only if the Defendant

refused to enter into a contract with the

Plaintiff altogether or on terms different

than those afforded white patrons ...."

App. at 101. The court found that neither

of these circumstances occurred. It

concluded therefore that although

Defendant's acts "could be properly

labeled racial harassment, [such conduct]

is not actionable under §1981 because it

occurred after the Plaintiff formed the

contract with the Defendant." App. at 102

(emphasis in original).

App. 24

Iil. DISCUSSION

The court on a motion for

summary judgment must view the facts

presented and inferences to be drawn in

the light most favorable to the party

opposing the motion for summary judgment.

ee Adickes v. S. H. Kress & Co., 398 U.S.

144, 158-59 (1970); Matthews v. Freedman,

882 F.2d 83, 84 (3d Cir. 1989). In this

case, the district court's dismissal was

based on its conclusion that the parties

had entered into a contract at the time

Ms. Perry's husband telephoned Command

Performance to set up an appointment for

his wife. However, the record is

inadequate to determine if the refusal to

serve Plaintiff occurred after the

contract was made or was concurrent with

the making of the contract. Arguably, an

appointment for hair salon services is

merely an invitation to negotiate, and

App. 25

that acceptance of the offer occurs

simultaneously to the performance of the

contract. If that were the fact, then

there would be no obligation to pay until,

at least, the hairdresser began to render

the services. Ms. Abbott's refusal to

wash and set Ms. Perry's hair could be

viewed as a declination to enter into a

contract for services with Ms. Perry.* It

is therefore necessary to remand this

matter to the district court to more fully

develop the record on the issue of whether

* See Roberts v. Walmart Stores, Inc.,

736 F. Supp. 1527, 1529 (E.D. Mo. 1990)

(Defendant wrote race of plaintiffs on

plaintiffs' check for payment of goods they

sought to purchase. "After Patterson the

resolution of this civil rights claim turns

on an interpretation of the Missouri

Commercial Code to determine whether the

contract was formed at the time the alleged

violation occurred. The court does not

possess enough information about the retail

transaction to ascertain whether a contract

was already formed at the time defendant

recorded the race of plaintiffs on the

check."™).

App. 26

a contract was made at the time of the

scheduling of the appointment, a fact the

district court assumed but as to which

there was no evidence. The court may wish

to consider such factors as industry

practice and the expectations of the

parties to the instant case. Only if the

district court determines as a matter of

fact that there was a contract in

existence at the time Plaintiff appeared

at the salon could it characterize the

hairdresser's conduct as post-contract

behavior.

In addition, even if the

district court concludes that Ms. Perry

entered a contract with Command

Performance at the time the appointment

was made, the court must give the parties

an opportunity to present evidence as to

whether that contract was grounded on

discriminatory terms, i.e., to provide

App. 27

services only if a hairdresser were

available who would be willing to wash and

set a black patron's hair. Because it is

possible to conclude from this record that

a white woman with an appointment to see

Ms. Kugler would have been provided

services by Ms. Abbott, or at the least,

would not have been denied services on the

basis of her race, the contract itself may

have been a violation of §1981. See

Patterson, 109 $.Ct. at 2372, 2377. In

that event, it would be consistent with

Patterson to allow Plaintiff to proceed

with her §1981 claim.

Because the court entered

judgment for the Defendant, it never

considered whether the conduct of the

employee at issue was either authorized or

a policy : Command Performance for which

it may be held liable. Nor did it decide

whether Defendant's acts were

App. 28

intentionally discriminatory, for only

intentional discrimination is actionable

under 42 U.S.C. § 1981. Patterson, 109 S.

Ct. at 2377 (citing General Bui

Contractors Assn., Inc. v. Pennsylvania,

458 U.S. 375, 391 (1982)]}. These matters

remain for consideration on remand.

App. 29

IV. CONCLUSION

For the reasons set forth, we

conclude that there was an inadequate

basis for the district court to have

concluded that Ms. Perry's §1981 claim is

barred by the Supreme Court's decision in

Patterson. We will vacate the order of

the district court and remand this matter

for further proceedings consistent with

this opinion. Costs are to be paid by the

appellee.

A True Copy:

Teste:

Clerk of the United States Court of

Appeals for the Third Circuit

App. 30

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EDITH PERRY : CIVIL ACTION

Vv.

COMMAND PERFORMANCE : NO. 89-2284

MEMORANDUM AND ORDER

J. M. KELLY, J. MARCH 27, 1991

This court how now considered

the testimony that has been presented in

this case and is prepared to make its

Findings of Fact and Conclusions of Law

and decision.

FINDINGS OF FACT

2% Defendant, Command

Performance, is a fictitious name used by

Richmere Ltd., a Pennsylvania corporation.

Defendant owned and operated a hair

styling salon at "The Court", a shopping

mall in King of Prussia, Pennsylvania.

2. Plaintiff, who is black,

App. 31

visited the salon on seven occasions prior

to October 12, 1987 and was served by both

black and white hair stylists without

incident.

a On the morning of October

12, 1987, Plaintiff's husband telephoned

the salon and made an appointment for

Plaintiff to have her hair done at 12:00

p.m. on that day. In accordance with

Plaintiff's usual practice, Plaintiff's

husband made no request for any particular

stylist at the salon and did not discuss

the price of the service.

4. Helene Kugler, a white

employee who was Assistant Manager of the

salon, was scheduled to do Plaintiff's

hair. Ms. Kugler had served Plaintiff on

two prior occasions when Plaintiff visited

the salon.

5. When Plaintiff arrived for

her 12:00 p.m. appointment, Ms. Kugler

App. 32

greeted the Plaintiff but explained that

she was feeling unwell and suggested to

Plaintiff that the other stylist on duty,

Elizabeth Abbott, do Plaintiff's hair.

6. Plaintiff agreed to Ms.

Kugler's suggestion that Ms. Abbott

perform the services.

Ps Ms. Abbott who was waiting

on another customer overheard the

conversation between the Plaintiff and Ms.

Kugler, stated "No. No. No. I don't do

black hair."

8. Ms. Abbott was an

experienced hair stylist but was only

recently employed by Defendant at the time

of this incident and exercised no

management or supervisory control of

Defendant's salon.

9. The procedure to be

performed on Plaintiff was a "wash & set"

which is a basic procedure that should be

App. 33

able to be performed by any experienced

hair stylist regardless of the type of

hair of the customer.

10. Ms. Abbott's declination to

wait on Plaintiff was because of

Plaintiff's race.

11. Ms. Kugler immediately

attempted to calm Plaintiff, who had

become upset, and offered to do her hair,

an offer which Plaintiff declined. Ms.

Kugler thereupon assisted Plaintiff in

having her husband paged in contacting

mall security and attempting to call

Defendant's president, Richard Glover.

12. Mr. Glover immediately

interviewed the employees involved and

sent a letter of apology to Plaintiff,

including a $50.00 gift certificate for

use at any of Defendant's three hair

salons. In part, Mr. Glover's letter

stated, "We value your patronage and good

App. 34

will and hope that we can continue to

serve you in the future."

13. Plaintiff acknowledged

receiving Mr. Glover's letter and admitted

she had no reason to think that it was not

sincere.

14. Defendant did not admonish

or otherwise punish Ms. Abbott for her

failure to wait on Plaintiff. .

15. Defendant actively sought

black customers prior to the above

incident and never had a problem with

servicing black customers prior to the

incident in this case.

16. There is no evidence of any

racial animus on the part of Defendant's

officers of managers.

17. There is no evidence that

Defendant intentionally inflicted

emotional stress on Plaintiff.

App. 35

CONC ONS O W

i. This court has jurisdiction

over the parties and subject matter of

this action pursuant to 28 U.S.C. §1331.

2. Plaintiff is a "person"

within the meaning of 42 U.S.C. §1981.

3. Section 1981 prohibits

discrimination on the basis of race in the

making and enforcement of private

contracts. Runyon v. McCrary, 427 U.S.

160 (1976).

4. Under §1981, a person's

right to make contracts does not extend to

conduct by a party after the contract

relation has been established, such as

breach of the terms of the contract.

Patterson v. McLean Credit Union, 491 U.S.

164 (1989). Section 1981 only prohibits,

"when based on race, the refusal to enter

into a contract with someone, as well as

the offer to make a contract only on

App. 36

discriminatory terms." Id. at 176-77.

5. An enforceable contract

exists where parties intend to conclude a

binding agreement, and the essential terms

are certain enough to provide basis for an

appropriate remedy. Lombardo v. Gasparini

Excavating Company, 123 A.2d 663 (Pa.

1956); Linnet v. Hitchcock, 471 A.2d 537

(Pa. Super. 1984). Upon Plaintiff's

arrival at Defendant salon for her pre-

arranged 12:CO p.m. appointment on October

12, 1987, Defendant's assistant manager

confirmed that the "wash and set" services

scheduled to be performed for Plaintiff by

the assistant manager would be rendered to

the Plaintiff, although by another

hairstylist, and Plaintiff agreed. The

services to be rendered were clearly

defined and Plaintiff had impliedly agreed

to pay the standard fee for that basic

service. At that point, a race-neutral

App. 37

contract was established between Plaintiff

and Defendant for hairstyling services.

The discriminatory conduct on the part of

Ms. Abbott occurred after Plaintiff and

Defendant had established a contract

relation.

6. Plaintiff thus cannot

establish a §1981 claim because the

discriminatory conduct here occurred after

formation of the contract between

Plaintiff and Defendant. Patterson, 491

U.S. 164.

7. Even if Ms. Abbott's

discriminatory conduct were part of the

formation of the contract for services

between Plaintiff and Defendant, Plaintiff

cannot meet the burden of proof under

§1981. A Plaintiff's burden of proof

under §1981 is similar to that of Title

VII, Lewis v. University of Pittsburgh,

725 F.2d 910 (3d Cir. 1983), except that

App. 38

Since §1981 can only be violated by

purposeful discrimination, Plaintiff must

prove actual discriminatory intent to

establish a prima facie discrimination

claim. General Building Contractors v.

Pennsylvania, et al., 458 U.S. 375 (1982);

8. Discriminatory intent need

not be proven directly, but may be

inferred from the totality of the

circumstances. Washington v. Davis, 426

U.S. 229 (1976).

9. Such factors as departure

from normal procedures, history of

discriminatory actions, and disparate

impact upon a racial minority may be

considered as evidence of discriminatory

intent. Village of Arlington Heights v.

Metropolitan Housing Development Corp.,

429 U.S. 252 (1977); Croker v. Boeing Co.,

662 F.2a 975 (3a Cir. 1981).

10. Here, no pattern or history

App. 39

of discriminatory actions by Defendant

exists. Other than the actions by Ms.

Abbott on October 12, 1987, no prior

incident of discrimination were

established to have taken place at

Defendant's salon, nor was any racial

animus on the part of any other employee

or officer of Defendant established with

respect to any prior patrons, or with

respect to Plaintiff. To the contrary,

Defendant actively sought black customers.

Plaintiff has thus failed to show

circumstances from which a discriminatory

motive could be inferred on the part of

Defendant.

11. The imposition of vicarious

liability for the acts of employees

through the doctrine of respondeat

superior is not permitted against a public

employer, Jett v. Dallas Independent

School Dist., 491 U.S. 701 (1989).

App. 40

Assuming that respondeat superior can

apply to hold private defendants liable

under §1981, there is no basis for such

liability without, at the least, an agency

relationship. See General Building

Contractors Association, 458 U.S. at 395.

12. The finding of intentional

discrimination necessary to a §1981 claim

based on agency principles requires more

than just a mere agency relationship.

Where a clear agency relationship exists

between the employer and a supervisory

employee with control over the operations

of the employer and the contractual status

of the Plaintiff, liability may

appropriately extend to the employer under

§1981 for the actions of the supervisory

employee. Flanagan v. Aaron E. Henry

Community Health Services Center, 876 F.2d

1231 (Sth Cir. 1989).

13. Ms. Abbott, a non-

App. 41

supervisory employee of Defendant who

exercised no management control of

Defendant's Salon, did not have a

relationship to Defendant such that the

deliberate acts of Ms. Abbott were the

deliberate acts of Defendant. Thus

liability for the acts of Ms. Abbott

should not extend to Defendant through

agency principles under §1981. See Id. at

1236.

14. An employer may be held

liable under §1981 for the discriminatory

acts of a non-management employee if "the

harassment was so pervasive that an

inference of constructive knowledge

arises." Huddleston v. Roger Dean

Chevrolet, Inc., 845 F.2d 900, 904 (11th

Cir. 1988). Ms. Abbott's discriminatory

actions comprised an isolated incident,

and did not approach the level of

pervasive discrimination such that

App. 42

Defendant should have known of Ms.

Abbott's discriminatory behavior and taken

steps to prevent it.

15. Plaintiff has not proved

intentional discrimination of the part of

Defendant by a preponderance of the

evidence. Thus even if, contrary to this

court's conclusion, Ms. Abbott's

discriminatory actions were considered to

be part of the formation of a contract

between Plaintiff and Defendant,

Plaintiff's cause of action under §1981

has not been sustained on the element of

intentional discrimination.

16. For intentional infliction

of emotional distress to occur, there must

be intentional, outrageous or wanton

conduct, peculiarly calculated to cause

serious emotional distress. Papieves v.

Lawrence, 263 A.2d 118 (Pa. 1970). See

also Restatement (2d) Torts, §46 (1965).

App. 43

Ms. Abbott's conduct, though

reprehensible, was not the extreme,

outrageous conduct that gives rise to a

cause of action for intentional infliction

of emotional distress. Thus Plaintiff has

not proved intentional infliction of

emotional distress by Defendant.

App. 44

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

EDITH PERRY, >: CIVIL ACTION

Plaintiff

COMMAND PERFORMANCE,

Defendant : NO. 89-2284

ORDER

AND NOW, this 27th day of March,

1991, in accordance with the foregoing

findings of fact and conclusion of law, it

is hereby ORDERED:

(1) As to Plaintiff's claim

that Defendant discriminated against

Plaintiff on the basis of her race in the

App. 45

making of a contract, in violation of 42

U.S.C. §1981, judgment is entered in favor

of the Defendant, Command Performance, and

against the Plaintiff, Edith Perry;

(2) As to Plaintiff's claim

that Defendant intentionally inflicted

emotional distress upon the Plaintiff,

judgment is entered in favor of the

Defendant, Command Performance, and

against the Plaintiff, Edith Perry.

BY THE COURT:

JAMES McCGIRR KELLY, J.

App. 46