Appendix — Maddox v. Capitol Bankers Life Insurance

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FILED.

| ~j y, 8% 909 DEC = 1 1997

OFFICE OF THE CLERK

in the Supreme Court of the United States

October Term, 1997

Linda Maddox

Petitioner

Capitol Bankers Life Insurance Company, et al.

On Petition for Writ of Certiorari

To The United States Court of Appeals for the Seventh Circuit

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

Linda Maddox,

Pro se

Post Office Box 5662

Evanston, IL 60204

847-674-5337.

847-361-4188

TABLE OF CONTENTS

U.S. Court of Appeals for the Seventh Circuit Order, dated

September 2, 1997, affirming the U.S. District Court

For the Northern District of Illinois ............0.ccccccccccsescesseseesceeees l

Modified Memorandum and Order (“MM&O”) of the U.S. District

Court for the Northern District of Illinois. dated

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Memorandum and Order (“M&O”) of the U.S. District Court for the

Northern District of Illinois,, dated December 16, 1996........... 18

[Magistrate’s] Report and Recommendation (“Report”), dated

5 PRIOR EA at UR gs 8» eGR oh STOO Ea 19

UNITED STATES COURT OF APPEALS

For the Seventh Circuit

Chicago, Illinois 60604

September 2, 1997

By the Court:

LINDA MADDOX, ] Appeal from the United

Plaintiff-Appellant, ] States District Court for

] the Northern District of

No. 97-1320 v. ] Illinois, Eastern

] Division.

CAPITOL BANKERS LIFE INSUR- ]

ANCE COMPANY, BRUCE ] No. 94 C 5207

NICKERSON, FRANCES ]

NICKERSON, et al., ] Blanche M. Manning,

Defendants-Appellees. ] Judge.

The following are before the court:

l. MOTION FOR PROCEEDING IN FORMA PAUPERIS,

filed on March 1, 1997, by the pro se appellant.

AFFIDAVIT IN SUPPORT OF MOTION TO

PROCEED ON APPEAL IN FORMA PAUPERIS, filed

on March 14, 1997, by the pro se appellant.

3. MOTION FOR LEAVE TO FILE APPELLANT’S

BRIEF IN EXCESS OF LENGTH SET BY RULE, filed

on August 7, 1997, by the pro se appellant.

IT IS ORDERED that #1 is DENIED.

This court has carefully reviewed the final order of the district

court, the record on appeal and the appellant’s motion. Based on this

review, the court has determined that any issues which could be raised

are insubstantial and the filing of briefs would not be helpful to the

court’s consideration of the issues. See Mather v. Village of Mundelein,

869 F.2d 356, 357 (7th Cir. 1989) (per curiam) (court can decide case on

motions papers and record where briefing would be a waste of time and

no member of the panel desires briefing or argument).

Accordingly, IT IS ORDERED that the appellant’s motion for

leave to proceed in forma pauperis is DENIED and the district court is

summarily AFFIRMED. Taylor vy. City of New Albany, 979 F.2d 87

(7th Cir. 1992) cert.denied, 506 U.S. 1085 (1993).

In light of the disposition of this appeal, #3 is DENIED as

MOOT.

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LINDA MADDOX, )

Plaintiff, )

)

v. ) No. 94 C 5207

) Judge Blanche Manning

CAPITOL BANKERS LIFE )

INSURANCE COMPANY, et al., )

)

Defendants. )

MODIFIED MEMORANDUM AND ORDER

This matter is before the court on objections of Linda Maddox,

plaintiff herein, to Magistrate Judge Edward A. Bobrick’s report and

recommendation proposing that this court grant the respective motions

of the following defendants in this action: Dominick’s Finer Foods

(Dominick’s); the Chicago Tribune (Tribune); the Chicago Sun-Times

(Sun-Times); the Chicago Transit Authority (CTA); Capitol Bankers

Life Insurance Company (Capitol); Lord Bissell and Brook (LB&B); the

Reverend Al Nichols (Nichols); Richard Chaivetz (Chaivetz); J. Daniel

and Y. Judd Azulay (Azulays); and Frances and Bruce Nickerson

(Nickersons) to dismiss plaintiff's second amended complaint. This

court has conducted a de novo review of Magistrate Judge Bobrick’s

report and recommendation. Fed. R. Civ. P. 72(b); Goffman v. Gross, 59

F.3d 668, 670 (7th Cir. 1995). For the following reasons, this court

rejects plaintiff s objections and hereby adopts the report and

recommendation. As a result, the defendants’ respective motions to

dismiss plaintiff's second amended complaint are granted pursuant to

Fed. R. Civ. P. 12(b)(6) and plaintiff's second amended complaint is

dismissed with prejudice.

BACKGROUND

This court adopts the facts and history of this case as provided by

Magistrate Judge Bobrick in his report and recommendation. In this pro

se lawsuit, plaintiff seeks recovery for an alleged conspiracy involving

the approximately fifty defendants named in her second amended

complaint. In particular, plaintiff's second amended complaint asserts

that, since approximately 1980 there has been in effect a widespread

conspiracy among the defendants to: prevent her from working in the

insurance business, prevent her from continuing her education, demean

the education she has already received, interfere with the upbringing of

her children and her parental rights, invade her privacy, stalk her, plan

various “hits” upon her life, and intimidate her through “theatrical

imaging.” Plaintiff's second amended complaint also seeks recovery for

sex discrimination, mail and wire fraud, and illegal eavesdropping and

wiretapping.

Plaintiff brings her seventy-two page second amended twelve

count complaint plus an additional twenty-five pages of notations,

wherein she cites to several provisions of the United States Code which

she alleges have been violated by the conspiracy. Plaintiff alleges

violations of: 18 U.S.C. § 241 (conspiracy against rights of citizens); 18

U.S.C. § 245(b)(1 (E) and § 245(b)(4) (federally protected activities); 18

U.S.C. § 16 (definition of violent crime); 18 U.S.C. §§ 1341 (mail and

wire fraud); 18 U.S.C. § 2511 (illegal wiretapping); 42 U.S.C. § 1985(2)

(obstructing justice, intimidating party, witness or juror); 42 U.S.C.

§1985(3) (depriving persons of rights and privileges); 42 U.S.C. §1986

(action for neglect to prevent wrongs conspired to under §1985; and 42

U.S.C. §2000e-2 (unlawful employment practices).

In essence, the factual allegations in plaintiff's second amended

complaint focus upon plaintiff's work history, academic pursuits, and

homelife. Plaintiff avers that since about 1980, all of the defendants

have engaged in a conspiracy against her that has adversely affected

these facets of her life. Plaintiff claims that defendants engaged in

activity -- ranging from lewd comments and unwarranted criticisms to

constructive firings, stalkings, home invasion, discrimination against her

based on her gender and/or religion, and acts of violence.

The chronological history of plaintiff's allegations begins in

12980 when plaintiff was, at that time working at Mutual Benefit Life

Insurance Company, and has since worked for Capitol, LB&B, Azulay &

Azulay, Dardick & Denlow, and B. Angell & Associates. Throughout

this period, which spans from approximately 1980 through 1992,

plaintiff was subjected to work environments replete with lewd

comments and unprofessional treatment. As noted in the report and

recommendation, plaintiff's second amended complaint alleges that she

was subjected to, among other acts, the following conduct or comments:

she has, from 1983 to present, been demeaningly referred

to as a “car” (117);

her husband called her “intrepid” while they were

married (n.8);

that a “golden rule essay” which plaintiff was asked to

write was in fact a “filling station” which would constitute a

sexual invitation (n.1);

when people talk about money, they are talking about sex

(113);

one of plaintiff's employers stated that “eggs were

getting laid and shipped to the city” which plaintiff took as a

reference to “out-of-wedlock behavior in Milwaukee” (920);

plaintiff was exposed to “black symbolism” implying

resentment of plaintiff by blacks who claim to “service” men to

whom plaintiff has refused sexual advances (n.9);

plaintiff has been subjected to racist attacks which relate

to the fact that there are both black and white Jews and that

plaintiff has been accused of being “black” or Egyptian” (7134,

36);

a Jewish woman’s comment that she had learned when to

stay home (n.21);

repeated use of the innuendoes “second” and “two

symbolism” (82, n.31-32);

the word “vucko” on the back of a business card which

plaintiff understood to mean that she was “some easy, hot

number” ({] 143);

public harassment by the use of the “see” and “C” puns

(940, n.45).

Plaintiff alleges that these incidents recurred throughout her various

employment changes by way of the conspiracy among the defendants.

Plaintiff also asserts that, as part of defendants’ conspiracy, defendants

populated plaintiff's respective workplaces with “mirror images” or

“copies” of people resembling plaintiff's previous employers, their

relatives, or other people with whom plaintiff had been acquainted in the

past. (7127 and 42).

Plaintiff also avers that the alleged conspiracy extended beyond

her working conditions when, on November 24, 1992, plaintiff gave a

speech while in a class at Northwestern University. According to

plaintiff, those listening to her misunderstood her use of the phrase “do

it” as advocating sexual promiscuity, but, in fact, plaintiff was merely

referring to performing one’s regular job duties. (152). Plaintiff claims

that the professor’s remarks at the end of the class (went down, went

down; I don’t want to get mare-eed, that doesn’t sound very U-4-ic”)

confused people as to the point of plaintiff's remarks and, as a result of

plaintiff's speech and the remarks made by the professor following the

speech, plaintiff was struck by a car the next day which was driven by

Leo Vakser (also known as Leon Vakseri). (1153, 55, 59) In addition,

plaintiff asserts that she was subjected to the following:

men on the CTA displaying lewd body language

including holding their legs apart in the shape of the Greek letter

“lambda” which plaintiff claims is an improvement over blacks

screaming “I told her I was going to ‘f__” her butt” (n.28);

a professor’s writing of the letter “V” on an envelope in

connection with plaintiff's fellowship application which

suggested a connection between the professor and the individual

who was driving the car that hit plaintiff ({] 142);

rumor and character defamation perpetrated by, among

other things, lewd el-stop graffiti, including an upside-down “A”

in the word “base” (J 144);

other lewd el-stop graffiti relating to plaintiff's last

speech at Northwestern which “terrorized” plaintiff and

communicated that plaintiff had to be reduced to some ““B” status

if she remained at Northwestern and that an “A” grade plaintiff

would receive would be balanced by a “C” grade in order to

prevent her from obtaining top grades (161);

the Sun-Times headline of “perfect 10” on November 10,

1985, implying some peep show or nudity which is totally untrue

of plaintiff although plaintiff did visit the Chicago mikvah on

that day (189, n.8);

the Tribune’s headlines about sticking to some “hot

topic” during the few days preceding plaintiff's speech which

prejudiced people to believe that plaintiff's speech was about

some hot topic or attempted to discourage plaintiff from giving

the speech ({] 142, n.8);

a dentist telling plaintiff that she would not “have to do

it” in reference to root canal surgery ({] 121).

Plaintiff's second amended complaint further asserts that the

alleged conspiracy extended to blacking plaintiff, not only among

potential employers, but also among academic institutions. In addition,

plaintiff claims that the conspiracy has reached or affected plaintiff's

person life regarding her own psychological well-being and has

interfered with the custody of her children (4166-70, 74, 76) and her

ability to attract an appropriate suitor (136-37). Plaintiff's second

amended complaint seeks damages for lost wagers, rent overpayment,

and compensatory damages in the amount of approximately $277,000,

punitive damages in the amount of $2,500,000 and various types of

injunctive relief. (See second amended complaint at 71-72.)

Dominick’s, the Tribune, the Sun-Times, the CTA, Capitol,

LB&B, Nichols, Chaivetz, the Azulays, and the Nickersons moved to

dismiss plaintiff s second amended complaint on a variety of grounds.

The matter was referred to Magistrate Judge Bobrick who issued a report

and recommendation suggesting that this court dismiss plaintiff's second

amended complaint as to those defendants with prejudice. This

memorandum and order addresses plaintiff's objections directed at

Magistrate Judge Bobrick’s report and recommendation and the

propriety of the report and recommendation’s conclusions.

ANALYSIS

Srandard f tismi

Before addressing plaintiff's objections, this court observes the

standard to be applied to a motion to dismiss. A motion to dismiss

pursuant to Fed. R. Civ. P. 12(b)(6) does not test whether plaintiff will

prevail on the merits, but instead whether the claimant has properly

stated a claim. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct.

1683, 1686 (1974). This court may dismiss a complaint for failure to

state a claim only “if it is clear that no relief could be granted under any

set of facts that could be proved consistent with the allegations.” (Hishon

vl King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232 (1984). In

this regard, this court must accept as true all well-pled allegations and

draw all reasonable inferences in favor of plaintiff. Perkins v.

Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). However, this court need

not strain to find favorable inferences which are not apparent on the face

of the complaint. Coates v. Illinois St. Bd. of Educ., 559 F.2d 445, 447

(7th Cir. 1977). Similarly, this court is not required to accept legal

conclusions either alleged or inferred from pleaded facts. Nelson v.

Monroe Regional Medical Ctr., 925 F.2d 1555, 1559 (7th Cir. 1991).

The complaint ened not specify the correct legal theory or point to the

right statute to survive a motion to dismiss, provided that “relief is

possible under any set of facts that could be established consistent with

the allegations.” Bartholet v. Reishauer A.G., 953 F.2d 1073, 1078 (7th

Cir. 1992). However, the complaint must state either direct or inferential

allegations concerning ail material elements necessary under the chosen

legal recovery. See Glatt v. Chicago Park District, 847 F.Supp. 101, 103

(N.D.IIl. 1994). For the reasons that follow, this court finds that the

report and recommendation correctly proposes dismissal of plaintiff's

second amended complaint.

Plaintiff specifically objects to Magistrate Judge Bobrick’s

findings that: (i) plaintiff has attempted to raise claims under federal

statutes that do not provide for a private right of action; (ii) plaintiff has

failed to satisfy the necessary pleading requirements under 18 U.S.C.

§2511, 42 U.S.C. §1985(2) and (3), and 42 U.S.C. §1986; (iii) plaintiff

has failed to file a discrimination claim with the Equal Employment

Opportunity Commission (EEOC) prior to filing her claim under Title

VII; (iv) plaintiff's allegations otherwise fail to raise a claim under Title

VII. In addition, plaintiff objects on the ground that Magistrate Judge

Bobrick’s report and recommendation failed to review the pleadings in

the light most favorable to the plaintiff. This court will discuss each of

these objection in turn.

Plaintiff's claims based ‘minal

As previously noted, plaintiff attempts to bring a portion of her

second amended complaint under federal criminal statutes. The report

and recommendation proposes dismissal of those portions of plaintiff's

action which are based on criminal statutory provisions, finding that 18

U.S.C. §§241 and 245, 18 U.S.C. §1341, and 18 U.S.C. §16, do not

provide for a private cause of action and that, although there is a

statutorily based civil cause of action for wiretap violations under 18

U.S.C. §2520, plaintiff failed to adequately state such a claim. Plaintiff,

however, objects to these findings and argues that there are exceptions to

the general rule that there is not a private right of action available under

the federal criminal statutes. In this regard, plaintiff points out that there

are private rights of action that are avai.able under the Securities

Exchange Act of 1934 (SEC Act of 1934). 15 U.S.C. §78a et seq.

This court finds that the SEC Act of 1934 is wholly inapplicable

to the provisions at issue and that the magistrate judge correctly proposes

dismissal of plaintiff's claims based on criminal statutes. With respect to

18 U.S.C. §§ 241 and 245, which criminalize conspiracies against civil

rights, it is well settled that no private right of action for damages is

available under these criminal conspiracy statutes. See Lovelace v.

Whitney, 684 F.Supp. 1438, 1441 (N.D.IIL. 1988), aff'd sub nom,

Lovelace v. Hall, 886 F.2d 332 (7th Cir. 1989); see also Cok v.

Cosentino, 876 F.2d 1,2 (1st Cir. 1989) (§ 241); John’s Insulation, Inc. v.

Siska Constr. Co., 774 F.Supp. 156, 163 (S.D.N.Y. 1991) (§245).

Nevertheless, plaintiff maintains that 18 U.S.C. §241 permits a private

cause of action because it has been held to encompass “wholly private

conspiracies.” Plaintiff's argument in this respect is misplaced.

Although a private conspiracy may be proscribed under this criminal

statute, this fact alone does not translate into an implied private right of

action for damages. Compare id. Regardless of the nature of the

conspiracy, a cause of action for a violation of this provision may only

be brought under this statutory provision by the United States

Government as prosecutor. See Cok, 876 F.2d at 2. Consequently,

plaintiff's criminal conspiracy claims must be dismissed.

Plaintiff's attempt to raise a claim under 18 U.S.C. § 16 must

also fail. This section, which merely provides a definition of a violent

crime, states:

The term “crime of violence” means --

(a) an offense that has an element: the use, attempted

use, or threatened use of physical force against the person

or property of another, or

(b) any other offense that is a felony and that, by its

nature, involves a substantial risk that physical force

against the person or pr »perty of another may be used in

the course of committing the offense.

It is clear hat this provision is definitional in nature and does not create a

cause of action. Compare 18 U.S.C. § 2520. Therefore, plaintiff's

claims under this provision must also be dismissed.

Similarly, plaintiff's claim under 18 U.S.C. § 1341 for mail and

wire fraud must be dismissed. She asserts that the nature of her claim is

such that a lawsuit is the only means by which she can obtain relief for

alleged violations of this provision. Contrary to plaintiff's claim, it is

well-established that no private action can arise from this statutory

provision. Ryan v, Ohio Edison Co., 611 F.2d 1170, 1178-79 (6th Cir.

1979); Wenzoski v, Citicorp, 480 F.Supp. 1056, 1062 (N.D.Cal. 1979).

Since no private right of action exists under 18 U.S.C. § 1341, plaintiff's

mail fraud claims must also be dismissed.

Plaintiff also attempts to raise a claim under 18 U.S.C. § 2511,

the illegal wiretapping provision. Although no private cause of action

exists under this provision, a private right of action does exist for a

wiretapping violation under 18 U.S.C. § 2520. However, plaintiff's

allegations fall short of stating a claim under 18 U.S.C. § 2520. In

plaintiff's objections, she argues that the necessary elements were

adequately set forth in her second amended complaint. While it is true

that circumstantial evidence may provide a sufficient basis for

allegations under this provision, Cross v. State of Alabama, 49 F.3d

1490, 1509 (11th Cir. 1995), (citing Walker v. Davis, 911 F.2d 1573,

1578 (1st Cir. 12990), upon review of plaintiff's allegations, this court

fails to find even an iota of circumstantial evidence within the pleadings

to support and illegal wiretapping claim.

In order to set forth a civil claim for illegal wiretapping, plaintiff

must allege: (1) the interception of her oral communications; (2) an

expectation that her oral communications were not subject to

interception; and (3) that her expectation was justified under the

circumstances. Cross, 49 F.3d at 12508-9, (citing Walker, 911 F.2d at

1577). Although plaintiff may have satisfied the second and third prongs

of this test because the communications allegedly intercepted took place

within plaintiff's apartment where an expectation of privacy is

undoubtedly justified, there are no allegations within plaintiff's second

amended complaint which could be read to consist of circumstantial

evidence of the interception of plaintiff's private communications

required to satisfy the first prong of the test.

In particular, even though plaintiff is apparently of the view that

her oral communications were intercepted, she fails to identify the

responsible party in her second amended complaint. In her objections,

plaintiff asserts that the responsible parties are “unnamed tenants of her

apartment building, in the second floor beneath her, through cooperation

with the government (CTA), the Jewish community, plaintiff's

employers and with the management and/or owner of the building.”

Even considering these additional assertions put forth in plaintiff s

ee ea ee ee ee anti neni aad

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objection, plaintiff still falls short of pleading the necessary elements.

Not only are the parties whom plaintiff claims are responsible for the

illegal wiretapping speculative and imprecise, plaintiff neglects to

indicate what conversations or other communications she believes to

have been intercepted, the possible means employed, or event he bias by

which she claims she has been a victim of illegal wiretapping. In other

words, plaintiff does no more than state her conclusion that illegal

wiretapping has occurred, yet fails to support her position.

The only occurrences plaintiff attempts to cite as a means of

supporting her claim are references in her objection to “verboten quotes

of those anonymous actors stalking plaintiff to and from her residence

and various destinations,” without any reference to the content of these

quotes, the content of the conversations which were the alleged source of

the verbatim quotes, or the individuals who allegedly reiterated these

quotes. In addition, plaintiff's objection also refer to “copying,

mirror-imaging, wiretapping and eavesdropping for a part of ‘conversion

practices’ administered by the Jewish community,” as circumstantial

evidence of her claim. Once again, these allegations doe not rise to the

level of circumstantial evidence sufficient to support her claim for relief

for illegal wiretapping. There is absolutely no direct or circumstantial

evidence alleged which links any of the conduct alleged with plaintiff s

private communications. As such, plaintiff's claims under 18 U.S.C. §

2511 must also be dismissed.

Additionally, within plaintiff's objections, plaintiff ahs requested

leave of the court to address any deficiencies within her complaint under

the illegal wiretapping claim. This request is inappropriate as it is raised

within her objections. Nevertheless, even if plaintiff's request were

properly before the court, it would be denied. While it is true that under

Fed. R. Civ. P. 15(a), leave to amend a complaint “shall be freely given

when justice so requires,” the decision of whether to grant leave to

amend a complaint is a matter within the discretion of the trial court.

See Sanders v. Venture Stores, Inc., 56 F.3d 771, 773 (7th Cir_1995). In

considering this issue, plaintiff has failed to elaborate in any way how

the fatal flaws within her wiretapping allegations can be cured by

amendment. Therefore, plaintiff's request for leave to amend is hereby

denied.

C : Chai fer 42 U.S.C. § 1985(2), § 1985(3) and

42 U.S.C. § 1986

Plaintiff raises many of her claims concerning allegations of a conspiracy

among a myriad of defendants with the intent to deprive plaintiff of her

civil rights in violation of 42 U.S.C. §§ 1985(2) and (3) and 42 U.S.C.

§1986. Magistrate Judge Bobrick’s report and recommendation found

that plaintiff failed to state a claim for conspiracy under these provisions.

In plaintiff's objections, however, plaintiff argues that she has adequately

pled the required elements of a conspiracy claim. This court will

reexamine plaintiff's allegations for their sufficiency.

This court finds that even upon the most generous reading of

plaintiff's allegations, plaintiff's second amended complaint does not

support a conspiracy among the defendants. The Seventh Circuit has

explained that in order for a complaint to adequately aver a civil

conspiracy claim, a plaintiff must put forth factual allegations

demonstrating a mutual understanding between two or more individuals

suggesting a “meeting of the minds” relative to the alleged conspiracy.

Kunik v. Racine County Wisconsin, 946 F.2d 1574, 1580 (7th Cir.

1991). Although allegations supporting an agreement between the

parties need not be an overt agreement, if the alleged conspiracy is not

based on an overt agreement, the factual allegations in support of the

conspiracy must be sufficient to raise the inference of a mutual

understanding. Id.

In plaintiff s second amended complaint, plaintiff asserts that a

conspiracy exists between a diverse group of defendants, including,

among others, the ones presently before the court, L.e., Dominick’s (a

grocery store), the Tribune and Sun-Times (newspapers), the CTA, and

several of her former employers. Plaintiff also alleges that this

conspiracy has been ongoing over a course of at least fifteen years.

However, plaintiff has provided no allegations that these defendants even

knew, or came into contact with each other much less conspired together

to deprive plaintiff of her civil rights. Plaintiff alleges no nexus between

the defendants, beyond her perception that there must be a conspiracy

against her. The Seventh Circuit has explained that “a complaint

inadequately alleges conspiracy when the facts it alleges are vague,

conclusory an include no overt acts reasonably related to the promotion

of the alleged conspiracy.” Id. (citing Hansen v. Ahlgrimm, 520 F.2d

768, 770 (7th Cir. 1975). At best, plaintiff's allegations are no more

than conclusions and, as such, plaintiff's second amended complaint fails

to allege the necessary requirement of a meeting of the minds among the

alleged conspirators.

Plaintiff argues that her complaint is adequate in that it provides

circumstantial evidence which could support the existence of a

conspiracy and realleges numerous allegations in her objections to the

report and recommendation which she believes supports this position.

While it is true that “a plaintiff is not required to provide direct evidence

of the agreement between the conspirators, “circumstantial evidence may

provide adequate proof of the conspiracy.” Hampton v. Hanrahan, 600

F.2d 600, 621 (7th Cir. 1979). However,, as discussed above, plaintiff's

complaint alleges not even a trace of circumstantial evidence which

could lead a reasonable person to infer that a “meeting of the minds” has

in fact taken place. Therefore, plaintiff's claims under 42 U.S.C.

§§1985(2) and (3) and 42 U.S.C. § 1986 must be dismissed. Plaintiff has

simply not provided factual allegations concerning the formation of the

conspiracy.

Moreover, even if plaintiff's conspiracy claims were not

deficient, her claims under §§1985(2) and (3) are inappropriate. Under

§§1985(2), plaintiff may establish a claim upon a showing of four

elements: (1) a conspiracy by the defendants; (2) to injure a party or

witness in his or her person or property; (3) because he or she attended

federal court or testified in any matter pending in federal court; (4)

resulting in injury or damages to plaintiff. Wright v. Illinois Dept. of

40 F.3d 1492, 1507 (7th Cir. 1994). Since

plaintiff's allegations do not involve a federal court proceeding, this

statute is inapplicable. Likewise, §1985(3) is also inapplicable to the

claims set forth by plaintiff. The United States Supreme Court has

indicated that in order to state a claim under §1985(3), a plaintiff must

establish “some racial, or perhaps otherwise class-based invidiously

discriminatory animus.” Griffin, 403 U.S. at 102, 91 S.Ct. at 1798.

Although plaintiff states that she is a victim of sex, gender, religious and

racial discrimination, the factual allegations in her second amended

complaint do not support such contentions. Therefore, in addition to the

inadequacy of plaintiff's conspiracy claims, plaintiff's claims brought

under §§1985(2) and (3) are also dismissed.

Plaintiff s Failure to File a Discrimination Claim With the EEOC Prior

to Suit

Plaintiff's second amended complaint also attempts to raise a

Title VI claim for discrimination pursuant to 42 U.S.C. § 2000e-2.

LK SSS

Magistrate Judge Bobrick’s report and recommendation proposes

dismissal of plaintiff's claims based on Title VII, finding, inter alia, that

plaintiff failed to file administrative charges with the EEOC before filing

her complaint. Prior to filing suit under Title VII, a plaintiff must first

file a claim with the EEOC and receive a right to sue letter. See United

Air Lines, Inc, v. Evans, 431 U.S. 553, 555, 97 S.Ct., 1885, 1887-88, 52

L.Ed.2d 571 (1977); Alexander v, Gardner-Denver Co., 415 U.S. 36, 44,

94 S.Ct. 1011, 1017-18 (1974); Chambers v. American Trans Air, Inc.,

17 F.3d 998, 1003 (7th Cir. 1994). In plaintiff's second amended

complaint, plaintiff fails to mention a timely filing with the EEOC.

However, in her objections, plaintiff asserts that she did in fact file a

discrimination claim against one of her former employers, New Trier

High School (New Trier) (defendant in this action not presently before

the court), in the summer of 1994 and received a right to sue letter in

September of 1994. Even though plaintiff alleges that she has received a

right to sue letter as to New Trier, plaintiff does not aver that she has

received such a letter with respect to the defendants whose motions to

dismiss this court now considers. As a result, plaintiff has not

sufficiently pled that she may maintain an action against the defendants

presently before the court.)

In addition, plaintiff also asserts that her Title VII action against

the remaining defendants should survive based upon the doctrines of

waiver and equitable tolling. While it is true that “[f]iling a timely

disharge of discrimination with the EEOC is not a jurisdictional

prerequisite to suit in federal court, but a requirement like a statute of

limitations, is subject to waiver, estoppel, and equitable tolling,” Zipes v.

Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 1132, 71

L.Ed.2d 234 (1982), the burden still falls upon plaintiff to establish that

any of the above exceptions are appropriate in this case. Plaintiff argues

in her objections that the period should be tolled to include incidents

which occurred as far back as 1980 at positions she held far prior to the

one she held at New Trier. Plaintiff also apparently includes defendants

who were at no time her employers, or potential employers, within this

claim as well. However, according to the allegations set forth inthe

second amended complaint, plaintiff was seemingly aware of the facts

long before the filing in 1994. Additionally, plaintiff would be

compelled to establish a connection between her former employers for

tolling to be applied to this case. It is well established that the

limitations period is tolled until facts that would support a charge of

EO OOO

}

discrimination are apparent to persons with a reasonably prudent regard

for his rights similarly situated to plaintiff. Mull v. ARCO Durethene

Plastics, Inc., 784 F.2d 284, 291 (7th Cir. 1986). As discussed above,

plaintiff has failed to allege any facts supporting a conspiracy or other

connection between the defendants in this case. It is therefore unlikely

that the facts of this case would support the use of tolling. However, the

court need not reach this issue at this time, for as discussed below,

plaintiff has failed to allege facts sufficient to support a Title VII claim

for discrimination.

a cide ier Tele Vl

The type of conduct which is actionable under a Title VII hostile

environment sex discrimination claim must be such that it is

“sufficiently severe or pervasive to alter the conditions of employment

and create an abusive environment.” Koelsch v. Beltone Ele. Corp., 46

F.3d 705, 708 (1995), (quoting Meritor Sav. Bank, FSB v. Vinson, 477

U.S. 57, 67, 106 S.Ct. 2399, 2405, 91 L.Ed.2d 49 (1986). Isolated and

‘nnocuous incidents do not support a finding of sexual harassment. Id.

In Harris v. Forklift Systems, Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 371,

126 L.Ed.2d 295 (1993), the United States Supreme Court indicated that

factors relevant to determining whether an environment is “hostile” or

“abusive” include: the frequency of the discriminatory conduct; its

severity; whether the conduct is physically threatening or humiliating, or

a mere offensive utterance; and whether the conduct unreasonably

interferes with an employee’s work performance. Although a plaintiff 's

subjective perceptions of the alleged abuse environment is relevant, the

Supreme Court in Harris also indicated that the inquiry into whether an

environment is hostile and abusive requires an evaluation from not only

a subjective, but also an objective, perspective. Harris, 510 U.S. at oy

114 S.Ct. at 370. The Court stated that “[c]onduct that is not severe or

pervasive enough to create an objectively hostile or abusive work

environment -- an environment that a reasonable person would find

hostile or abusive -- is beyond Title VII's purview.” Id.

The conduct alleged by plaintiff in her second amended

complaint is a far cry from the severe or pervasive conduct that is within

the scope of Title VII. Plaintiff's allegations include instances such as

referring to plaintiff as a “car,” connotations that plaintiff was “black” or

“Egyptian,” remarks that plaintiff should “stay home,” as well as the use

of metaphors, “mirror-imaging,” and “theatricals.” Plaintiff argues in

her objections that this behavior was constant and ongoing. However,

despite plaintiff's arguments to the contrary, this conduct is not severe

and does not rise to the threshold level of sexually discriminatory or

harassing conduct. Aithough such comments and perceived behavior

may have been upsetting to plaintiff, “[t]he fact is , ‘Title VIII is not

directed against unpleasantness, per se, but only against discrimination

in the conditions of employment.” Koelsch, 46 F.3d at 708, (quoting

Carr v. Allison Gas Turbine Div., Gen Motors Corp., 32 F.3d 1007, 1009

(7th Cir. 1994)). “’[The] mere utterance of an epithet which engenders

offensive feelings in an employee, does not sufficiently affect the

conditions of employment to implicate Title VII.’” Harris, 510 U.S.., at

114 S.Ct. 367, 370 (1993), (quoting Meritor, 477 U.S. at 67).

This court must also examine the situation to objectively

determine if a reasonable person, in plaintiff's position, would have been

similarly affected by the alleged discriminatory and harassing conduct.

In so doing, this court considers not only the actual effect of the

harasser’s conduct on his victim, but also the effect similar conduct

would have had on a reasonable person in the plaintiff's position. Dey v.

Colt Constr. & Dev. Co., 28 F.3d 1446, 1454 (7th Cir. 1994). This

assessment, however, only weakens plaintiff's position. This court is of

the view that a reasonable person would not have been adversely

affected by the conduct alleged in the plaintiff's second amended

complaint and the objections. In fact, as indicated by Magistrate Judge

Bobrick in this Report and Recommendation, it is highly unlikely that a

reasonable person would have been offended by the alleged conduct and

it is also unlikely that a reasonable person would have made the

connections between common work place banter and the complex

metaphors and biblical references that were so perceived by plaintiff.

No matter how liberally construed, it is clear that plaintiff's allegations

do not create a claim which is within the purview of Title VII.

Therefore, these claims must be dismissed.

The Magi ludge’s Review of Plaintiff's Clai

Throughout plaintiff's objections, plaintiff argues that Magistrate

Judge Bovrick’s report and recommendation failed to review the facts in

a manner most favorable to the plaintiff, particularly considering the fact

that plaintiff appears pro se. This court, however, finds that Magistrate

Judge Bobrick has steadfastly adhered to this standard and has

considered plaintiffs second amended compliant fairly and generously.

The report and recommendation observed, and this court agrees, that

allegations of a pro se plaintiff are held to less stringent standards than

formal pleadings drafted by lawyers and, as such, allegations in the

complaint of a pro se plaintiff are to be liberally construed. Antonelli v.

Sheahan, $1 F.3d 1422, 1427 (7th Cir. 1996). Ina situation involving a

pro se plaintiff, this court must “read the pro se party’s supporting papers

liberally and will interpret them to raise the strongest arguments that

they suggest.” Haines v. Kemer, 404 U.S. 519, 520, 92 S.Ct. 594, 595,

30 L.Ed.2d 652 (1972) (per curiam). Nonetheless, a pro se complaint,

like any other, must present a claim upon which relief may-be granted.

See Sheahan, 81 F.3d at 1427-28. Even when dealing with pro se

litigants, this court need not accept inferences drawn by plaintiff if such

references are unsupported by the facts set forth in the complaint and

need not accept legal conclusions cast in the form of factual allegations.

Henthorn v. Dept. of Navy, 29 F.3d 682, 684 (D.C.Cir. 1994), (quoting

Kowal v. MCI Communications Corp., 16 F.3d 1271, 1276 (D.C.Cir.

1994). The fact remains, however, that in this case plaintiff's second

amended complaint, even when liberally construed, cannot meet the

requirements of Fed.R.Civ.P. 8(a) and therefore, Magistrate Judge

Bobrick’s review was proper.

Lastly, in a similar argument, plaintiff argues that the court has

also failed to consider other possible cause s of action which may be

applicable under the facts, yet not apparent to plaintiff. This court,

however, finds no cause of action which may be pursued under

plaintiff's second amended complaint. As a result, this objection to the

report and recommendation is also rejected.

CONCLUSION

For the foregoing reasons, this court adopts the Magistrate J udge

Bobrick’s report and recommendation. Pursuant to Fed.R.Civ.P.

12(b((6), all counts of plaintiff's second amended complaint are

dismissed with prejudice.

ENTER: s/ Blanche M. Manning _

United States District Judge

DATED: January 28, 1997

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LINDA MADDOX, )

Plaintiff, )

)

v. ) No. 94 C 5207

) Judge Blanche Manning

CAPITOL BANKERS LIFE )

INSURANCE COMPANY, et al., )

)

Defendants. )

MEMORANDUM AND ORDER

[The text of this opinion is identical to the MODIFIED

MEMORANDUM AND ORDER, supra, with the exception of the

conclusion, infra. |

CONCLUSION

For the foregoing reasons, this court adopts the Magistrate Judge

Bobrick’s report and recommendation. The above named defendants’

motions to dismiss are therefore granted and plaintiff's second amended

complaint is dismissed as to those defendants with prejudice, pursuant to

Fed.R.Civ.P. 12(b)(6) as to all counts of plaintiff's second amended

complaint which pertain to the referenced defendants.

ENTER: s/ Blanche M. Manning

United States District Judge

DATED: December 16, 1996

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

LINDA MADDOX, )

)

Plaintiff, )

)

V. ) No. 94 C 5207

)

CAPITOL BANKERS LIFE )

INSURANCE CO., et al., )

Defendants. )

HONORABLE BLANCHE M. MANNING, JUDGE

UNITED STATES DISTRICT COURT

HONORABLE JUDGE:

REPORT AND RECOMMENDATION

Of Magistrate Judge Edward A. Bobrick

Before the court are the motions of the following defendants to

dismiss the Second Amended Complaint of plaintiff Linda Maddox:

Dominick’s Finer Foods (“Dominick’s”); the Chicago Tribune

(“Tribune”); the Chicago Sun-Times (“Sun-Times”); the Chicago Transit

Authority (“CTA”); Capitol Bankers Life Insurance Company (“CBL”);

Lord Bissell & Brook (“LBB”); the Reverend Al Nichols; Richard

Chaivetz; J. Daniel and Y. Judd Azulay; and Frances and Bruce

Nickerson.

1. BACKGROUND

A. Plaintiff's Allegations

Plaintiff, proceeding pro se’, brings her second amended

complaint (“2AC”) under 18 U.S.C. §§ 241, 245(b)(1)(E) and

' The court has made five successive appointments of counsel for plaintiff.

245(b)(4)’; 42 U.S.C. §§ 1985(2), 1985(3), and 1986’; 42 U.S.C. §2000e-

2 (“Title VII”); 18 U.S.C. § 16°; 18 U.S.C. ; 18 U.S.C. § 1341 et seq.°;

and 18 U.S.C. § 2511.’ Her 2AC comprises twelve counts spread over

seventy-two pages, with an additional twenty-five pages of notations.

She names some fifty defendants, which include former employers and

co-workers, a university, a high school, the City of Chicago, the Chicago

Transit Authority (“CTA”), the Chicago Police Department, religious

and civic organizations, religious counselors, health-care providers,

newspapers, grocery stores, drug stores, a printing and copying shop, a

dating service, groups of tenants at two apartment buildings, and her ex-

husband. Plaintiff charges these defendants with engaging in a

conspiracy against her, from approximately 1980 to date, that adversely

affected her employment, academic pursuits, and family life. She claims

the defendants engaged in activity — ranging from lewd comments and

unwarranted criticisms to constructive firings, stalking, home invasion,

and acts of violence — that discriminated against her because she was a

Jewish woman. The aforementioned defendants now move to dismiss

plaintiff's 2AC in its entirety pursuant to Fed.R.Civ.P. 12(b)(6).

Plaintiff's 2AC essentially focuses on her work history, her academic

* These provisions are criminal statutes prohibiting conspiracy against civil

rights; §§ 245(b)(1)(E) and 245(b)(4) specifically refer to intimidation of

persons participating in or enjoying the benefits of any program

receiving federal aid, and of persons so doing without discrimination on

the basis of race, color, religion, or national origin.

> These provisions allow an action for damages incurred by a conspiracy that

obstructs justice or intimidates a party from enforcing its rights in court or a

conspiracy that deprives a person of rights or privileges of a United States

citizen.

* This provision creates a cause of action to redress discriminatory employment

practices.

* This provision of the federal criminal statute defines a crime of violence.

* This provision is the federal mail and wire fraud statute.

” Plaintiff actually cites a non-existent statute, 42 U.S.C. § 2511, in her second

amended complaint.

pursuits, and her homelife. She claims these facets of her life have all

been adversely affected by a far-reaching and long-standing conspiracy

among the defendants. We begin our summary of plaintiff's complaint

with her work history, which for the purposes of this case, begins in

1980. Plaintiff was, at that time, working at Mutual Benefit Life

Insurance Company, and has since worked for CBL, LB&B, Azulay &

Azulay, Dardick & Denlow, and B. Angell & Associates. Throughout

this period, running from 1980 until 1992°, plaintiff was subjected to

work environments replete with lewd comments and unprofessional

treatment. For example, she alleges that she was subjected to the

following conduct or comments:

she has, from 1983 to present, been demeaningly referred to

as a “car” (2AC at 7 7) — her husband called her “intrepid”

while they were married (2AC, note 8);

that a “golden rule essay” was a “filling station” which would

constitute a sexual invitation (2AC, note 1);

that when people talk about money, they are talking about

sex (2AC at J 13);

that “eggs were getting laid and shipped to the city,” which

plaintiff took as reference to “out-of-wedlock behavior in

Milwaukee” 4] 20);

“black symbolism” implying resentment of plaintiff by

blacks who claim to service men whom plaintiff has refused

(2AC, note 9);

that plaintiff was “black” or “Egyptian” (2AC at 11 34,

36);

a Jewish woman’s comment that she had learned when to

stay home (2AC, note 21),

repeated use of the innuendo, “second,” and “two

symbolism” (2AC at 7 82, notes 31 -32, 34):

the word “vucko” on a business card, meaning plaintiff was

“some easy, hot number” (2AC at {] 143);

the use of the “see” and “C” pun (2AC at 7] 40; note 45);

According to plaintiff, these incidents recurred throughout her various

> Sometime after her last work experience, plaitniff was found disabled -

unable to engage in substantial gainful activity, 42 U.S.C. § 423 — and receives

Social Security Disability Insurance Benefits. (2AC at 1996-97)

employment changes by way of the conspiracy among the defendants.

Indeed, through the defendants’ technique of “copying,” each workplace

was populated with “copies” of people plaintiff had previously

encountered. (2AC at 71] 27, 42,43). The defendants also repeatedly

employed the techniques of “mirror imaging” (2AC at 1] 27, 32, 47,

68, 79) and “theatricals” (2AC at 7] 31, 47, 65, 68).

The alleged conspiracy extended beyond plaintiffs working

conditions when, on November 24, 1992, plaintiff gave a speech about

Charles Dickens’ Little Dorritt in her Northwestern University class.

According to plaintiff, those listening misunderstood her use of the

phrase “do it” as advocating sexual promiscuity; in fact, plaintiff was

referring to “doing one’s job.” (2AC at | 52). Because her professor’s

comments after the speech (“went down; I don’t want to get mare-eed;

that doesn’t sound u-4-ic”) confused people, as to the point of plaintiff's

remarks, plaintiff was struck by car the next day, driven by Leo Vasker

(Leon Vaskeri [sic]). (2AC at 1] 53,55, 59). She was also subjected to

the following:

men on the CTA holding their legs in the shape of the Greek

letter “lambda” (2AC, note 28);

the letter “V” on an envelope, which suggested a connection

between a professor and an individual who “attacked plaintiff by

car” (2AC at J 142);

lewd el-stop graffiti, including an upside-down “A” in the

word “base” (2AC at J 144);

CTA graffiti employing the letter “B” thereby suggesting that

plaintiff should did [sic] not deserve a top grade (2AC, J] 61);

the Chicago Sun-Times headline of “Perfect 10” on

November 10, 1985, which implied some peep show or nudity

which is totally untrue of plaintiff although she visited the

Chicago Mikvah on that day (2AC at 4 89; note 8);

the Chicago Tribune headline of“ _ Sticks to Hot Topic”

in the days before the speech (2AC at 7 142; note 8);

a dentist telling plaintiff she might not “have to do it” in

reference to root canal surgery (2AC at J 121)

The conspiracy has extended to a blacklisting of plaintiff, not

only among potential employers, but among academic institutions as

well. It has also reached or affected plaintiff's personal life regarding

custody of her children (2AC at 1] 66-70, 74, 76, Count IV), and her

a tb is kta

e Levey eee

ability to attract an appropriate suitor (2AC at 4% 36-37). Asa result,

plaintiff seeks damages for lost wages, rent overpayment, and

compensatory damages in the amount of approximately $277,000,

punitive damages in the amount of $2.5 million, and various types of

injunctive relief.

B. Defendant’s Arguments

Many of the defendants have now moved for dismissal of

plaintiff's complaint, advancing various arguments. First, they point out

that plaintiff brings claims under several federal criminal statutes which

do not provide for civil causes of action. Next, they argue that plaintiff

has not complied with Title VII’s statutory requirements in her attempt

to bring claims under that provision. Finally, they contend that plaintiff

has failed to adequately state a cause of action for conspiracy under the

various civil rights statutes upon which she relies. We assess plaintiff s

allegations in light of these arguments.

I. ANALYSIS

A. Motion to Dismiss

The Seventh Circuit has recently reiterated the principles that

guide evaluation of plaintiff's pro se complaint:

We accept all the factual allegations in the complaint and

draw all reasonable inferences from these facts in favor

of the plaintiff. A claim may be dismissed only if it

appears beyond a doubt that the plaintiff can prove no set

of facts in support of [her] claim which would entitle

[her] to relief. Allegations of a pro se complaint are held

to less stringent standards than formal pleadings drafted

by lawyers. Accordingly, po se complaints are to be

liberally construed.

Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7" Cir. 1996). We have taken

pains to follow these precepts in our attempt to understand and assess

plaintiff's allegations. Many of plaintiff's charges seemed to have

escaped the defendants and, indeed, they can be said to be obscure. With

the principles regarding pro se pleadings in mind, however, we evaluate

plaintiffs complaint in this case.

B. Allegations of Criminal Conspiracies, Mail and Wire

Fraud, Acts of Violence and Eavesdropping

As a preliminary matter, we note that plaintiff attempts to bring a

portion of the 2AC under federal criminal statutes, which generally will

not be construed as providing for private causes of action. Central Bank

v. First Interstaie Bank, -- U.S. --, --, 114 S.Ct. 1439, 1455 (1994). More

specifically, plaintiff cannot bring private claims for damages under 18

U.S.C. §§ 241 and 245, which criminalize conspiracies against civil

rights. Cok v. Cosentino, 876 F.2d 1, 2 (1* Cir. 1989) (Section 241);

Risley v. Hawk, 918 F.Supp. 18, 21 (D.D.C. 1996) (Section 241); John’s

Insulation v. Siska Const. Co., 774 F.Supp. 156, 163 (S.D.N.Y. 1991)

(Section 245). Similarly, she cannot bring a claim under the mail and

wire fraud statutes, 18 U.S.C. §1341 et seq. Ferch v. Butterworth, No.

94 C 2580 (N.D.II. Aug. 9, 1994): Abbott Group Ltd. v. Amoco Venture

Capital Co., No. 86 C. 2145 (N.D.IIL. Sept. 29, 1986). Another statute

plaintiff cites, 18 U.S.C. § 16, is merely a definition of a violent crime,

and provides neither a cause of action nor a criminal prohibition. Insofar

as any of plaintiff's claims are based on these criminal statutes, they

must be dismissed.

Plaintiff brings Count XII of her complaint under yet another

criminal provision, 18 U.S.C. § 2511, which covers illegal wiretapping.

Unlike plaintiff's other claims, there is a civil cause of action for a

wiretap violation under 18 U.S.C. § 2520. Section 2520 provides that

“any person whose wire, oral, or electronic communication is intercepted

. .. May in a civil action recover from the person or entity which engaged

in that violation such relief as may be appropriate.” 18 U.S.C.

§ 2520(a). The elements of such a claim are that: (1) the defendants

intercepted plaintiff's oral communication: (2) plaintiff had an

expectation that her oral communications were not subject to

interception; ;and (3) her expectation was justified under the

circumstances. Cross v. State of Ala., 49 F.3d 1490, 1508 (11 Cir.

1995). Review of plaintiff's Count XII allegations demonstrates that she

has failed to adequately state a claim.

Plaintiff conclusorily alleges that she has been victimized by

wiretapping. She makes no mention of a responsible entity, but merely

alleges that her landlord should have known about it.” Furthermore, she

also alleges that the phone company had to repair her phone because it

did not work do [sic] to vandalism — an allegation that somewhat

undermines her wiretapping claims. In short, we must find that plaintiff

has failed to adequately allege a wiretapping claim under 18 U.S.C.

§2520.

C. Allegations Under Title VI

Plaintiff brings a portion of her claims — specifically Counts III,

VIII and IX — under Title VII, 42 U.S.C. § 2000e-2, alleging not only

employment discrimination in the nature of hostile working

environments, but that the alleged conspiracy among the defendants

resulted in her being “blacklisted” from employment in the insurance

industry and in Ph.D. programs. These claims suffer from one obvious

fatal flaw and a less apparent defect as well.

First, it is apparent from plaintiff's 2AC and accompanying

submissions that she has never filed administrative charges with the

Equal Employment Opportunities Commission (“EEOC”) against any of

the defendants. Filing an EEOC charge is a prerequisite for 2 ‘-wsuit

under Title VII. Chambers v. American Trans Air, Inc., 17 F.5u 998,

1003 (7" Cir. 1994). Of course, a timely filing of a charge is not a

jurisdictional prerequisite — it is subject to equitable tolling Zipes v.

Trans World airlines, Inc., 455 U.S. 385, 394, 102 S.Ct. 1127, 1133

(1990). This would excuse tardiness in situations where a plaintiff filed

a defective pleading during the applicable period, or where the plaintiff's

adversary has deceived the plaintiff into allowing the time-period to pass.

Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 457-58

(1990); Ballard v. Sercon, 846 F.2d 463, 468 b(7" Cir. 1987). Plaintiff

makes no such allegations here, and even if she did, they would be

unavailing. Equitable tolling is simply inapplicable here because

plaintiff has never filed an EEOC charge. Ballard, 846 F.2d at 468.

Accordingly, her Title VII claims must be dismissed."

* To the extent plaintiff's allegations could be interpreted as blaming the alleged

conspiracy for the purported wiretapping,, such allegations are addressed infra

at XX.

‘© In response to some of the defendants’ motions to dismiss, plaintiff raises the

“continuing violation doctrine.” This doctrine allows a plaintiff to get relief for

a time-barred act by linking it with an act within the limitations period. Koelsch

Even if this fatal deficiency to her complaint were ignored, however,

plaintiff's Title VII allegations would have to be dismissed. It is clear

from her 2AC that plaintiff considers herself a highly moral individual

(2AC at 23, 34, 52, 55, 64, 82, 89, 101, 113, 132, 134) who, as a result,

might have a lower tolerance for conduct that has become accepted, or at

least commonplace, in our society and workplaces. Title VII is not

violated by unpleasantness in the workplace. Koelsch, 46 F.3d at 708.

Title VII is violated when the workplace is permeated with

discriminatory intimidation, ridicule or insult that is sufficiently severe

or pervasive to alter the conditions of employment and create an abusive

work environment. Harris v. Forklift Sys., Inc., -- U.S. --, --, 114 S.Ct.

367, 370 (1993). The Harris court stated that factors relevant to

evaluation of the alleged conduct include frequency of conduct, severity,

whether it is physically threatening or humiliating, or merely an

offensive utterance, and whether it unreasonably interferes with an

employee’s work performance. /d. At --, 114 S.Ct. at 371. Harris also

requires evaluation from not only a subjective, but an objective

viewpoint:

Conduct that is not severe or pervasive enough to create

an objectively hostile or abusive work environment — an

environment that a reasonable person would find hostile or

abusive — is beyond Title VII’s purview.

Id. at -- , 114, S.Ct. at 371. Accordingly, we must consider not only the

actua! effect of the alleged conduct on the plaintiff, but the effect similar

conduct would have on a reasonable person in plaintiff's position. Dey

v. Colt Const. & Development Co., 28 F.3d 1446, 1454 (7™ Cir. 1994).

While we will not question whether the ten years of employment-related

conduct of which plaintiff complains has had an adverse effect on her,

v. Beltone Electronics Corp., 46 F.3d 705, 707 (7" Cir. 12995). Once again,

application of the doctrine requires that a plaintiff actually file an EEOC charge.

Id Even if we extrapolate on plaintiff's situation, however, the doctrine would

not help her. The 2AC indicates that plaintiff last worked in March of 1992.

(2AC at ¥ 87. The most recent allegation of employment discrimination

plaintiff makes, then, would have occurred at that time. In Illinois, a plaintiff

must file an EEOC charge within 300 days of the alleged discrimination.

Koelsch, 46 F.3d at 707. Here, plaintiff did not file her lawsuit until more than

two years had passed, in August of 1994, well after the time-period had run.

Even the most generous consideration of plaintiff's circumstances, then, would

nevertheless dictate dismissal of her Title VII claims.

we cannot find that it was sufficiently severe or pervasive to create an

environment that a reasonable person would find hostile or abusive.

Simply put, plaintiff's list of symbols, puns, and metaphors, be

they letters of the alphabet, numbers or other references would not

offend a reasonable person to the extent that they would find their work

environment hostile or abusive. We suggest that many reasonable

persons would not even understand the comments or, for example, take

offense at being called a car, make the connections that plaintiff is able

to make between essays, filling stations, and sexual invitations, or

comprehend “two” or black” symbolism. Courts have ruled that conduct

far more objectively crude that this did not create a hostile workplace.

Koelsch, 46 F.3d at 708 (sexual advances along with sexually suggestive

jokes and pranks); Saxton v. American Telephone and Telegraph Co., 10

F.3d 526, 533-34 (7" Cir. 1993) (two incidents of inappropriate remarks

and uninvited touching); Weiss v. Coca-Cola Bottling Co., 990 F.2d 333,

337 (7" Cir. 1993) (several incidents of unwanted touching and

unwelcome advances). The Seventh Circuit has even called into

question whether the repeated use of the word “bitch” — which, at first

blush, would seem to be objectively offensive — would constitute sexual

harassment , or a gender slur. Galloway v. General Motors Service Parts

Oper., 78 F.3d 1164, 1167-1 168 (7" Cir. 1996). The comments of which

plaintiff complains simply fall short of being sufficiently hostile from an

objective standpoint.

One can sense that the gravamen of plaintiff's employment

claims is not only that she was repeatedly offended, but that she was

treated in a less than professional manner. There is the intimation that

plaintiff's employers — and, indeed, organizations espousing her religion

~ held an attitude that a woman’s place was in the home. Allegations of

“hostile, inferior, unprofessional” treatment or being subjected to

repeated comments regarding the availability of a husband “to fall back

on” do not rise to the level or sexual harassment. Cheek v. Western and

Southern Life Ins. Co., 31 F.3d 497, 504-505 (7" Cir. 1994). Thus, no

matter how plaintiffs allegations are interpreted, or what degree of

liberal consideration is applied to her complaint, she has fallen far short

of adequately stating a claim under Title VII. Her claim must be

dismissed even if her failure to comply with filing requirements were

ignored.

D. Conspiracy Allegations

The balance of plaintiff's claims are based on the alleged

conspiracy among the defendants to violate her civil rights under 42

U.S.C. §§ 1985(2); 1985(3); and 1986. All three sections are dependent

upon the allegation of a conspiracy. The Seventh Circuit has stated that,

in order for a complaint to adequately state a civil conspiracy claim:

[t]here must be allegations that the defendants directed

themselves toward an unconstitutional action by virtue of

a mutual understanding. Even were such allegations to

be made, they must be further supported by some factual

allegations suggesting a “meeting of the minds.”

Kunik v. Racine County, Wis., 946 F.2d 1574, 1580 (7* Cir. 1991). The

court explained “meeting of the minds” as requiring “an agreement . . .

[which] need not be overt, but if not, the alleged facts must be sufficient

to raise the inference of mutual understanding. Jd. “Acts performed

together by members of the conspiracy are adequate when they are

unlikely to have been undertaken without an agreement.” Jd. “F inally, a

whiff of the alleged conspirators’ assent cannot await discovery but must

be apparent in the complaint.” In this case, we must find that plaintiff

has failed to adequately allege a conspiracy, or the facts from which one

could be inferred.

Plaintiff's complaint is devoid of even a conclusory allegation

that the defendants agreed to undertake, in concert, the actions of which

she complains. The only allegations that can be stretched to allow the

speculation — not even interpretation — of concerted action among

defendants are those dealing with the “copying” of persons, “imaging

techniques,” and “theatricals.” We must find such claims to be

inadequate to allege a conspiracy.

Furthermore, there does not appear to have been an opportunity

among the defendants to have reached such an agreement — at least not

among those defendants that did not work together for the same

employer. To the extent that plaintiff attempts to allege that co-

employees at her various workplaces conspired together, such claims are

inadequate. Wright v. Ill. Dept. of Children & F amily Services, 40 F.3d

1492, 1506 (7 Cir. 1994). Simply put, none of plaintiff's allegations,

however, liberally construed, allow for the inference of a 15-year

conspiracy among her employers, the City, the CTA, a university, the

press, grocery stores, her ex-husband, and others in violation of 42

U.S.C. §§ 1985(2), 1985(3) or 1986.

Even if plaintiff had adequately alleged a conspiracy, there are

other flaws in her complaint that require dismissal of her conspiracy-

based claims. Section 1985(2) deals with conspiracies to deny a plaintiff

access to federal court. In order to state a claim under § 1985(2), the

plaintiff must aliege:

1) a conspiracy by the defendants;

2) to injure a party or witness in her person or property;

3) because she attended federal court or testified in any

matter pending in federal court,

4) resulting in injury or damages to the plaintiff.

Wright v. Ill. Dept. of children & Family Services, 40 F.3d 1492, 1507

(7™ Cir. 1994). Section 1985(2) also provides a cause of action for

denial of access to state courts. Id. A state-court claim requires an

allegation of class-based animus; a federal-court claim does not. Id.

Plaintiff's § 1985(2) fails on various grounds.

The only allegation in plaintiff's complaint touching on any court

proceeding involves a 1987 Massachusetts state court case. That case

was not a federal proceeding, so it is not covered by that aspect of

§ 1985(2). Id. She makes no allegation regarding the prevention of her

attendance or testimony at that proceeding which is required to state a

claim under either aspect of § 1985(2). Id. Furthermore, the applicable

statute of limitations on such a claim is two years, Wilson v. Giesen, 956

F.2d 738, 741 (7 Cir. 1992); Horton v. Marovich, 925 F.Supp. 540, 544

(N.D.IIl. 1996), which had long since passed by the time plaintiff filed

her 2AC in 1994.

Turning to plaintiff's § 1985(3) claim, plaintiff must plead some

type of “racial, or perhaps otherwise class-based invidiously

discriminatory animus [lay] [sic] behind the conspirators’ action.” Bray

y. Alexandria Women’s Health Clinic, 506 U.S. 263, --, 113 S.Ct. 753,

758 (1993) (quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct.

17990, 1798 (1971)). While plaintiff claims to be a victim of

discrimination because she is a woman and Jewish, her factual

allegations tend to undermine such a claim. As noted in our discussion

regarding plaintiff [sic] Title VII claims, plaintiff's victimization appears

due to her moral sensitivity rather than religion or gender. Her repeated

moral outrage at the conduct of the various defendants is well delineated

in the 2AC. (2AC 77 19, 23, 34, 52, 55, 64, 82, 89, 101, 113, 132,

134). She has no tolerance for adultery, promiscuity, or comments

regarding same. While admirable, this does not define class-based

discrimination.

This flaw in plaintiff's allegations is yet another reason for

dismissal of her conspiracy claims.

Il. CONCLUSION

It is clear from the most generous reading of plaintiff's complaint

that she has failed to state any claim against the defendants, moving or

otherwise, under federal law. It is apparent that plaintiff would not be

able to state a claim to redress the wrongs she has allegedly suffered

under federal law. The law is simply not designed to protect the

sensibilities of individuals such as the plaintiff — it cannot be taken that

far. Accordingly, plaintiff's federal claims should be dismissed as to all

defendants with prejudice. To the extent that the 2AC includes

allegations regarding state law claims, those claims should be dismissed

as to all defendants pursuant to 28 U.S.C. § 1367(c ).

For the foregoing reasons, it is her3eby recommended that

plaintiff's Second Amended complaint be dismissed with prejudice as to

all defendants.

Respectfully submitted,

S/ Edward A. Bobrick

United States Magistrate Judge

DATE: July 17, 1996

Any objections to this Report and Recommendation must be filed with

the Clerk of the Court within ten (10) days of receipt of this notice.

Failure to file objections within the specified time waives the right to

appeal the District Court’s order. Thomas v. Arn, 474 U.S. 140 (1985);

The Provident Bank v. Manor Steel Corp., 882 F.2d 258 (7" Cir. 1989).

TEXT OF CITED AUTHORITIES

Constitutional Amendment I (BILL OF RIGHTS):

"Congress shall make no law respecting any

establishment of religion, or prohibiting the free exercise

thereof, abridging the freedom of speech, or of the press,

or the right of the people peaceably to assemble, and to

petition the government for a redress of grievances."

Constitutional Amendment IV (BILL OF RIGHTS):

"The Right of the People to be secure in their persons,

houses, papers and effects, against unreasonable searches

and seizures, shall not be violated, and no warrants shall

issue, but upon probable cause, supported by oath or

affirmation, and particularly describing the place to be

searched, and the persons or things to be seized."

Constitutional Amendment V (BILL. OF RIGHTS):

"No person shall be . . . deprived of life, liberty or

property, without the due process of law; .. ."

Constitutional Amendment XIII:

"Neither slavery nor involuntary servitude, except as a

punishment for crime whereof the party shall have been

duiy convicted, shall exist within the United States, or

any place subject to their jurisdiction."

Constitutional Amendment XIV:

"Section 1: [No State] shall . . . deprive any person of

life, liberty or property without due process of law, nor

deny to any person within its jurisdiction the equal

protection of the law."

Federal Criminal Code:

18 USC § 241: "If two or more persons conspire to injure, oppress,

threaten or intimidate any inhabitant of any state, territory, or District

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 having so exercised the same; or

"If two or more persons go in disguise on the highway, or on the

premises of another, with intent to prevent or hinder his free

exercise or enjoyment of any right or privilege so secured -- . . ."

18 USC § 245(b): "Whoever, whether or not acting under color of law,

by force or threat of force willfully injures, intimidates or interferes

with, or attempts to injure, intimidate or interfere with --

(1) any person because he is or has been, or in order to

intimidate such person or any other person or any class of

persons from (E) participating in or enjoying the

benefits of any program or activity receiving Federal

financial assistance; or

(2) any person because of his race, color, religion or

national origin and because he is or has been -- (C)

applying for or enjoying employment, or any

perquisite thereof, by any private employer or any

agency of any State or subdivision thereof, or joining or

using the services or advantages of any labor

organization, hiring hall or employment agency; . . . or

(E) traveling in or using any facility of iuterstate

commerce (CTA) or using any vehicle, terminal, or

facility of any common carrier by motor, rail, water or

Miss.

Civil Rights Act of 1866, codified as 42 USC § 1981; Ku Klux Act of

1871, codified as 42 USC §§ 1983, 1985(2) and (3):

42 USC § 1981: (a) "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.

(b) The term "make and enforce contracts” includes the

making, performance, modification, and termination of contracts and the

enjoyment of all benefits, privileges, terms and conditions of the

contractual relationship.

impairment by nongovernment discrimination and impairment under

color of state law. [The CRA was enacted to support citizens of the

United States entitled to the rights and privileges enumerated, and that to

deny to any such citizen equality in these rights and privileges with

others was, to the extent of the denial, subjecting him to an involuntary

servitude. Case law has since established "vace" rather than "color" as

the criterion, and "slavery" or "servitude" is the condition to be

prevented, no matter what the color of one's skin. (USCA, note 1, p.618)]

42 USC § 1983: Every erson, who under color of any statute,

ordinance, regulation. custom or usage, of any State or Territory or the

District of Columbia, subjects or causes to be subjected, any citizen of

the United States or other person within the jurisdiction thereof to the

deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party injured in an

action at law, suit in equity or other proper proceeding for redress.

For the purposes of this section, any Act of Congress applicable

exclusively to the District of Columbia shall be considered to be a statute

of the District of Columbia.

42 USC § 1985:

(2) If... two or more persons conspire for the purpose

of impeding, hindering, obstructing, or defeating, in any

manner, the due course of justice in any State or

Territory, with intent to deny to any citizen the equal

protection of the laws, or to injure him or his property

for lawfully enforcing, or attempting to enforce, the

right of any person, or class of persons, to the equal

protection of the laws,

ees ease Se ee

(3) 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, or for the purpose of

preventing or hindering the constituted authorities of

any State or Territory from giving or securing to all

persons within such State or Territory the equal

protection of the law, or if two or more persons conspire

to... injure any citizen in person or property on account

of [lawful political] support or advocacy; .. .

[and any such conspiracy causes another to be] injured

in his person or property, or deprived of having and

exercising any right or privilege of a citizen of the

United Sates, the party so injured or deprived may have

an action for the recovery of damages, occasioned by

such injury or deprivation, against any one or more of the

conspirators."

Hampton v. Hanrahan, 600 F.2d 600, 620-21 (7th Cir. 1979):

Conspiracy means "a combination of two or more persons acting in

concert to commit an unlawful act, or to commit a lawful act by unlawful

means, the principle element of which is agreement between the parties."

Civil Rights Act of 1964, Title VII, codified as 42 USC § 2000e:

42 USC § 2000e-2(a)(1): “It is an unlawful employment

practice for an employer to discriminate against any

individual with respect to his compensation, terms,

conditions, or privileges of employment because of

such individual's race, color, religion, sex or national

origin."

42 USC § 2000e(b): An employer is any "person

engaged in an industry affecting commerce and any agent

of such person."

42 USC § 2000e(j): Religion means "all aspects of

religious observance and practice, as well as belief"

Code of Federal Regulations, Chapter 29:

29 CFR § 1604.11(a): Sexual harassment means

"unwelcome sexual advances, requests for sexual favors,

and other verbal or physical conduct of a sexual nature . .

. [when] such conduct has the purpose or effect of

unreasonable interference with an individual's work

performance or creating an intimidating, hostile or

offensive working environment.

Meritor v. Vinson, 477 U.S. 57, 67 (1985) Title VII is violated ‘when

(the environment] is permeated by discrimination, ridicule and insult that

is sufficiently severe or pervasive as to alter the condition of the victim’s

employment and to create an abusive working environment’

Harris v. Forklift, 114 S.Ct. 367, 371 (1993) Conduct that "detracts

| from job performance, discourages remaining on the job, keeps

employees from advancing in their career," . . . "without regard to

tangible effects, . .. conduct so severe that it creates a work environment

abusive to employees because of race, gender, religion or national origin,

offends Title VII's broad rule of workplace equality"

Age Discrimination in Employment Act of 1967, codified as

29 USC §623

29 USC § 623: "It shall be unlawful for an employer --

1) to fail or refuse to hire or to discharge any individual

or otherwise discriminate against any individual with

respect to his compensation, terms, conditions or

privileges of employment, because of such individual's

age; -- 2) to limit, segregate or classify his employees in

any way which would deprive or tend to deprive any

individual of employment opportunity or otherwise

adversely affect his status as an employee because of

such individual's age; or 3) to reduce the wage rate of

any employee in order to comply with this Act. .. ."

Educational Amendments of 1972, Title IX, codified as

20 USC § 1681, et seq

20 USC § 1681, et seq: (a) "No person in the United

States shall, on the basis of sex, be excluded from

participation in, denied the benefits of, or be

subjected to discrimination under any educational

program or activity receiving Federal financial

assistance." (excepting private religious schools, etc.)

Women's Educational Opportunities Act of 1988, codified as 20 USC §

3041, et seq

20 USC § 3041, et seg: (b)(2) "The purpose of this part

is to provide educational equity for women in the

United States and to provide financial assistance to

enable educational agencies and institutions to meet the

requirements of Title LX of the Educational Amendments

of 1972 (20 USCA § 1681 et seqg.). Also, the purpose of

this part is to provide educational equity for women

and girls who suffer multiple discrimination, bias or

stereotyping based on sex and on race, ethnic origin,

disability or age."

and

42 USC § 2000d, as amended: "No person in the United States shall, on

the ground of race, color or national origin, be excluded from

participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal

financial assistance." [(2)(A): [Program includes] "a college, university

or other postsecondary institution, or a public system of higher

education; or (B) a local educational agency, system of vocational

education or other school system."]

Fair Housing Acts of 1968 and 1988, 42 USC § 3601, et seq.

42 USC § 3604: "... [I]t shall be unlawful . . . (a) to

refuse to sell or rent after the making of a bonafide

offer, or to refuse to negotiate for the sale or rental of

or otherwise make unavailable or deny, a dwelling to

any person because of race, color, religion, sex, familial

status, or national origin.

"(b) to discriminate against any person in the

terms, conditions or privileges of sale or rental of a

dwelling, or in the provision of services or facilities in

concert therewith, because of race, color, religion, sex

familial status or national origin. . . ."

CASES

Adickes v. Kress & Co., 398 U.S. 144, 1589-59 (1970) (circumstantial

evidence sufficient to establish conspiracy; inferred meeting of the minds

regarding accomplishment of conspiratorial objectives)

Albemarle Paper Co. v. Moody, 422 U.S. 405, 418 (1975)

(Congressional intent: “filing charges with the EEOC should not be

construed to erect a jurisdictional prerequisite to suit”; Title VII has

“broad goal of elimination of discrimination,” intent “to provide all

necessary relief and to ensure complete justice’)

Antonelli v. Sheahan, 81 F.3d 1422, 1427 (7™ Cir. 1996) (duty to view

the complaint in the light most favorable to plaintiff, and to draw all

reasonable inferences from the facts in favor of plaintiff)

Boben v. City of East Chicago, IN, 799 F.2d 1180, 1185-86 (7 Cir.

1986) (“discrimination and harassment of an individual woman because

of her sex is a violation of the equal protection clause” (1187)

Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 79 (3d Cir. 1989) (42 USC

§§ 1983 and 1985(3) Illinois cases are governed by a two-year statute of

limitations on personal injury claims)

Box v. A&P Tea Co., 772 F.2d 1372 (7 Cir. 1985) (“handwritten

addendum to typed charge of race discrimination, also suggesting sex

discrimination, sufficient to permit judicial claim”)

Brainerd v. Potratz, 421 F.Supp. 836, 840 (N.D.Ill. 1976) (citing Turner

v. Baxley, 354 F.Supp. 963, 974 (D.Vt. 1972) (requires statement of

class-based animus; leave to amend complaint granted)

Bray v. Alexandria Women’s Health Clinic, 506 U.S. 263, 274 (1993)

(“Invidious” means tending to excite odium, ill will or envy”; “likely to

give offense, especially unjustly and irrationally, discriminating”)

Bugg v. Allied Industrial Workers Local 507, 674 F.2d 595 (7™ Cir.)

(doctrine of continuing wrongs applies waiver and estoppel of statute of

limitations bar regarding actions related to Title VII discrimination cases;

inapplicable when there is immediate and direct injury with

consequential effects (American Law of Torts, § not on point because of

long-term continuing nature of the defamatory and slanderous events and

deeds, fo which the cause(s) (often concealed) and damaging

consequences were not immediately apparent [no trouble finding a job

before; time needed to prove (or believe) black-listing] or victim relies

on misleading legal advice constituting malpractice [Azulay’s saying

nothing could be done about it].

Byrd v. Clark, 783 F.2d 1002 (6" Cir. 1986) (distinguished from instant

case because of multiple conspirators; see also, Gilmere, Volk, e.g.,

where no dispute of fact, burden of the defendant to prove truth or

falsehood; where plaintiff’ s evidence contains question as to material

facts, to dismiss the case would be to err; non-supervisory officers or

employees of a single entity employer are responsible to stop the

wrongful acts of supervisory officers (“otherwise, . . . [they would be

insulated] from liability for reasonably foreseeable consequences or

neglect of their duty to enforce the laws and preserve the peace”) (1007),

although no proper §1985 claim under single entity — no conspiracy

theory, and no racial issue, a causal link existed between official (county)

policy and the injury plaintiff sustained under §1983 (1007-08).)

Cada v. Baxter Healthcare Corp. 920 F.2d 446, 450-51 (7™ Cir. 1990)

(equitable tolling avoids the bar of statute of limitations if despite due

diligence, vital information bearing on existence of claim is unable to be

obtained).

Caplan v. Internat’l Fidelity Ins. Co., 885 F.Supp. 175 (N.D.IIL. 1995)

(leave to file amended complaint granted to show sufficiency of

emotional distress and fraud (179)).

Carpenters v. Scott, 463 U.S. 825, 847 n.10 (class-based animus aimed at

deprivation of constitutional right secured not only against official

infringement but against private action as well; “fundamental rights

supercede narrow specific views” and “the Novotny Court’s statements

should not be given independent significance” [relied upon in subsequent

cases] without real analysis of the issues).

Carr v. Allison Gas, 32 F.3d 1007, 1009 (7 Cir. 1994) (plaintiff need

show only that conditions of employment were adversely affected in

order to state a claim under Title VII).

Central Bank v. First Interstate Bank, -- U.S. --, --, 114 S.Ct. 1439, 1455

(1994) (anachronistic error not to accord private right of action when

common law presumption implies such right to the class for whom such

statute(s) was/were enacted; retention of private right of action to sue

those primarily liable for fraud while dissenting opinions (four in

number) urge right of action against aiders and abettors because aider

and abettor liability was/is an important part of SEC enforcement. By

analogy, the ruling extends to EEOC enforcement against discrimination

by employers — in the instant case, by employers in collaboration with

plaintiff-appellant’s landlords, religious advisers, newspapers and local

merchants aiding and abetting the discrimination).

Chambers v. American Trans Air, Inc., 17 F.3d 998, 1003 (7" Cir. 1994)

(proper to subvert the statute of limitations if a pattern of discrimination

extends into the limitations period)

Chapman v. Musich, 726 F.2d 405, 408 (8 Cir. 1984) (“a complaint is

not to be dismissed ‘merely because a Plaintiff's allegations do not

_ support the particular legal theory he advances,” for a court is under a

duty to examine the complaint to determine if the allegations provide for

relief on any possible theory”).

Chappell v. Emco Machine Works Co., 601 F.2d 1295 (1979 CAS Tex)

(cases with similar combinations of statutes, facts, potentially applicable

civil rights violations and resultant injuries continue to be decided on a

case-by-case basis in the most equitable and just manner in the

premises).

Chapski v. Copley Press, 442 N.E.2d 195, 65 Ill.Dec. at 889) (under

Illinois law, a “statement that logically refers to a particular person may

be the subject of a defamation action, even though the statement does not

refer to such person by name”)

Cheek v. Western and Southern Life Ins. Co., 31 F.3d 497, 504-505 (7"

Cir. 1994) (married woman discriminated against by insurance industry;

court too narrow in its ruling)

Christian Populist Party of Arkansas v. Secretary of State of State of

Arkansas, 650 F.Supp. 1205, 1214 (E.D.Ark. 1986) (not on point; claims

did not fail because of Sec. 241)

City of Greenwood, Mississippi v. Peacock, 384 U.S. 808 (1966) (where

no citizen has a right to commit offense complained of, remand to federal

court is not proper).

Cok v. Cosentino, 876 F.2d 1 (1* Cir. 1989) (Section 241) (although

state actor defendants had absolute immunity under a court order, pro se

plaintiff should have been advised how to redress grievances

appropriately; judicial authority might be exceeded, rendering deeds

actionable under 42 USC § 1983 or state tor: law. Judicial immunity

only extends to acts which do not exceed judicial jurisdiction.)

Colaizzi v. Walker, 542 F.2d at 972-74 (“plaintiff need only allege the

denial of a property or liberty interest that is arguable or putatively

plausible under state law or the Bill of Rights, in order to allege .. . a

federal claim for stigmatization of reputation, good name or integrity”).

Conley v. Gibson, 355 U.S. 41, 47 (1957) (“pleading is not a skill in

which one misstep dooms the suit”; rather, “the purpose of pleading is to

facilitate proper decision on the merits,” in accord with the “substantial

justice” contemplated by Fed.R.Civ.P. 8(f)”).

Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690

(1962) (when different inferences can be drawn from the facts alleged,

rather than judicial interpretation, a jury is to weigh the contradictory

evidence and inferences (621)).

Corcoran v. Chicago Park Dist., 875 F.2d 609 (7 Cir., 1989) (latitude

appropriately extended to pro se plaintiffs)

Creech v. Federal Land Bank of Wichita, 647 F.supp. 1097, 1099

(D.Colo. 1986) (encouraged pursuit of claims in state court, dismissed

RICO claims without prejudice, and upheld the latitude [extended] to pro

se plaintiffs).

Cross v. State of Ala., 49 F.3d 1490, 1507-09 (11™ Cir. 1995)

(“circumstantial evidence may establish a § 2520 claim”; and a jury

may determine a violation of plaintiff's rights under the statute; waiver is

available when notice has been given to the employer in other way than

through the EEOC — employer had knowledge of the harassment by

complaint to higher management of the problem or by pervasive nature

of the harassment so that the inference of constructive knowledge

arises”).

Culp v. U.S., 131 F.2d 93 (CCA Ark. 1942) (statute of limitations does

not run until the last overt act leading to accomplishment of the

conspiracy has been committed)

Daniels v. Essex Group, Inc., 937 F.2d 1264, 1274-75 (7™ Cir. 1991)

(“later acts of [racial, religious or sexual] harassment must be considered

in the context of ten years of verbal taunting”; pervasive pattern of racial

[sexual] jokes sufficient to sustain a hostile environment claim)

DeShaney v. Winnebago DSS, 489 U.S. 189 (1989) (failure to provide

police protection is abuse of power).

Dey v. Colt Const. & Devpt. Co., 28 F.3d 1446, 1454-55, 1458-60 (7"

Cir. 1994), citing 58 Fed.Reg. 51266, 51269, Prop. 29 CFR .

§ 1609.1(d)) Holding:

1. Discriminatory alteration of working conditions is test of

discrimination, not whether or not work is imparied (114 S.Ct., at 372);

daily comments (sex banter) which prevented plaintiff from completing

work in a timely fashion was discriminatory alteration);

2. Criterion of hostile environment is “not what a reasonable

female employee is capable of enduring, but whether the offensive acts

alter the conditions of employment”;

3. Absence of noticeable decline in job productivity not

emphasized where ample evidence shows that the campaign of

harassment had an impact on its target and made it more difficult for her

to perform her job;

4. Statements considered objectively isolated, innocuous and not

actionable become actionable when part of a series [a regular or daily

occurrence is sufficiently severe and pervasive to create a hostile

environment];

5. “Pervasive pattern of racial [sexual] jokes sufficient to sustain

a hostile environment claim;

6. In retaliatory discharge, circumstantial evidence sufficient to

establish inference of employer awareness of harassment complaint;

7. Summary judgment improper where employee with

discriminatory animus provided information that may have effected the

adverse employment;

8..Summary judgment improper where supervisor who made

age-related remarks (Judd and Nickerson) participated in ranking the

performance of employees and in the eventual decision to terminate the

plaintiff s employment);

9. Reasonable jurors could conclude that supervisor intent upon

purging the workforce of older employees [women] lied to his

supervisors about the quality of plaintiffs job skills.

10. Employers cannot escape responsibility for sex

discrimination ‘when facts on which the reviewers rely have been

filtered by a manger determined to purge the labor force women’;

11. Evidence is sufficient to support sex discrimination case

where supervisor’s discriminatory animus was reflected in the

information he provided to the ultimate decisionmakers;

12. Plaintiff may create an issue of fact regarding employer

credibility by refuting an employer’s claim of performance deficiencies,

showing animus of employer exaggeration and pretext for

discrimination.

Doe v. R.R. Donnelly & Sons Co., 42 F.3d 439 (7" Cir. 1994)(relief from

a time-barred act obtainable by linking it with an act within the

limitations period)

Eggleston v. Chicago Journeymen Plumbers’ Local Union No. 130 U.A.,

657 F.2d 890, 907 (7™ Cir. 1981) (conciliation is not an inalienable right

of Title VII defendants; the courts must give way to Plaintiffs right to

sue appropriate parties).

Fannie v. Chamberlain, 445 F.Supp. 65 (W.D. Pa. 1977) (§ 1985(3)

provides remedy for . . . and reaches discrimination on the basis of sex,

with females members of a class protected by (§ 1985(3))

Franks v. Bowman Transportation Co., 427 U.S. 747 (1976)

(Congressional intent: “filing charges with the EEOC should not be

construed to erect a jurisdictional prerequisite to suit”: “emphatic

confirmation that the federal courts are empowered to fashion such relief

as the particular circumstances of a case may require to effect restitution,

making whole in so far as possible the victims of . . . discrimination”).

Galloway v. Gen’! Motors Service Parts Oper., 78 F.3d 1164, 1167 Pr

Cir. 1996) (although “merely vulgar, sporadic and annoying comments

or conduct are not actionable, when the same conduct or comments are

repeated constantly, they become seriously harassing through dint of

repetition and are therefore actionable”).

Georgia v. Rachel, 384 U.S. 780 (1966) (“formal expression of state law

violates right to ber protected by Constitution, removal to federal court is

proper’’)

Gilmore v. City of Atlanta, 774 F.2d 1495 (11™ Cir. 1985) (parallel tort

remedy does not preclude a plaitniff from asserting substantive due

process violations in the federal courts under 42 USC § 1983 (1006)).

Gooden v. Neal, 17 F.3d 925, 929 (7™ Cir. 1994), citing 20 ILCSA,

415/19c.1) (state law claim of wrongful retaliation and federal claim of

first amendment violation raise distinct legal theories)

Great Am. Fed. Sav. & Loan Ass’n. v. Novotny, 442 U.S. 366 (1979)

(more than one act of an employer by agreement of two or more officers

of the company constitutes intracorporate conspiracy (bypassing no-

conspiracy theory); Title VII can be the basis of a § 1985(3) claim

(366). [Although] Title VII administrative provisions {are] bypassed by

§ 1985(3) claims, Title VII can be the source of a rigi.* asserted in a

§ 1985(3) action” (366).

Griffin v. Breckenridge, 403 U.S. 88, at 104 (extends Section 241 to

private conspiracies, and private rights of action)

Gusman vy. Unisys, 986 F.2d 1146, 1147 (7 Cir. 1993) (reasonable

jurors could conclude that supervisor intent upon purging the workforce

of older employees lied to his supervisors about the quality of plaintiffs’

job skills).

Hack v. Oxford Health Care, Inc., 562 F.Supp. 295, 296 (N.D. Ind.

1983) (“on motion to dismiss, all allegations of plaintiff's complaint

must be construed in the light most favorable to plaitniff (allegations

taken as true)” (296, quoting Scheuer v. Rhodes, 416 U.S. 232).

Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 595, 30 L.Ed.2d 652

(1972) (per curiam) (“read the pro se party’s supporting papers liberally

and interpret them to raise the strongest arguments that they suggest”)

Hampton v. Hanrahan, 600 F.2d 600, 620-21 (7" Cir. 1979) (the nature

of conspiracy is that it is “unlikely that [non-circumstantial] evidence

will exist"” all that is necessary is that there is a "“possibility that a jury

can infer from the circumstances that alleged conspirators have/had a

meeting of the minds and reached an understanding to achieve

conspiratorial objectives”; no liability under conspiracy claims is

necessary for liability under § 1986 — join as defendants those who fail

to stop conspiracy even if not active co-conspirators.

Harris v. Forklift, 114 S.Ct., 367 (1993), 126 L.Ed.2d 295 93 CDOS

8330, 93 Daily Journal DAR 14212, 63 BNA FEP CAS 225, 62 CCH

EPD Para. 42623 (discriminatory intimidation, ridicule or insult

sufficiently severe or pervasive to alter the conditions of employment

and create an abusive work environment violates Title VII; harassment

violates Title VII when “hostile conduct, the purpose or effect of which

is unreasonable interference with an individual’s work performance,”

alters the terms, conditions or privileges of the victim’s employment;

Title VII extends to conduct that “detracts from job performance,

discourages remaining on the job, and keeps from advancing in career”).

Harris v. Johnson, 731 F.Supp. 846 (N.D.Ill. 1989) (“stigma plus” test

for deprivation of liberty interest protected by the 14” Amendment — met

by both defamation “plus” foreclosure from employment)

Harrison v. Springdale Water & Sewer Co., 780 F.2d 1422 (ae Cir.

1986) (court to infer whatever grounds the facts imply to counseled

litigants and to attorneys whose knowledge of the laws and available

causes of action is obviously greater than that of a non-attorney pro se

plaintiff; court under duty to examine facts for grounds for relief on any

possible theory no matter what particular legal theory is asserted by the

plaintiff (1426, quoting Chapman v. Musich, 726 F.2d 405, 408 (8™ Cir.

1984) Emphasis added.

Heidelberg v. Hammer, 577 F.2d 429 (7" Cir. 1978) (pro se litigant must

be given leave to amend when advised of specific defects in pleading)

Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) (dismissal improper

unless clear that no relief could be granted under any set of facts)

Huddleston v. Roger Dean Chevrolet, Inc., 845 F.2d 900, 904 (1 1" Cir.

1988) (waiver is available when notice has been given to the employer in

other ways than through the EEOC — employer had knowledge of the

harassment by complaint to higher management of the problem or by

pervasive nature of the harassment so that the inference of constructive

knowledge arises).

Irwin v. Dept. of Veterans’ Affairs, 498 U.S. 89 (1990) (equitable tolling

proper where claimant has pursued judicial remedies by filing defective

pleadings during the statutory period and where plaintiff induced or

tricked by adversary misconduct into allowing filing deadline to pass)

Jenkins v. Blue Cross Mut. Hosp. Ins. Inc., 538 F.2d 164 (7 Cir. 1976)

(“claims are cognizable that are ‘like or reasonably related to’ the

allegations of the charge and growing out of such allegations”).

Jeridien v. Winston Network, Inc., 888 F.2d 1151 (7" Cir. 1989) (where

decisionmaker accepted input from supervisor with discriminatory

motive, age discrimination a question for jury determination).

John's Insulation, Inc. v. Siska Const. Co., 774 F.Supp. 156 (S.D.N.Y.

1991) (Section 245 case dismissed only because lack of companion tort

claim with discriminatory conspiracy claim — New York law question.

Tort claims of libel and slander were remanded and recovery allowed

thereupon. — “factual allegations of non-moving party’s pleadings [must

be taken] as true and construed in the light most favorable to that party”).

Although no filing with the EEOC, principles against discrimination in

employment remain within the broad scope and purpose of the federal

civil rights laws, especially when pleaded in conjunction with

interference with basic fundamental rights and liberties guaranteed by the

Constitutional amendments; under such circumstances, filing with the

EEOC is not prerequisite to suit.

Johnson v. Railway Express Agency, 421 U.S. 434, 95 S.Ct. 1716, 44

L.Ed. 2s 295 (1975) (in borrowing the state statute of limitations

period[s], the federal courts do not need to borrow the state tolling

statutes as well because of available federal rules (840-841)).

Jones v. Commander, Kan. Army Communications Plant, Department of

the Army, (1993, D.C. Kan.), 147 FRD 248 (when “determining whether

or not a hostile environment of sexual harassment has taken place, focus

on the perspective of the victim”).

Jones v. City of Chicago, 356 F.2d 985 (7" Cir. 1988) (supervisors

responsible for actions of subordinates when aware of their misconduct

and fail to take action to correct the misconduct).

Jordan v. City of Chicago, Department of Police, 505 F.Supp. 1 (N.D.IIl.

1980) (City accountable under respondeat superior for acts of City

police; express or implied authorization or approval of police misconduct

by the City (policy express or implied) or its supervisors constitutes a

civil rights cause of action) (Emphasis added).

Kadlec v. Illinois Bell Telephone Co., 407 F.2d 624, 627 (7" Cir. 1969)

(not on point because filing phone co. regulations with the state for state

approval was insufficient to bring the action under the jurisdiction of 42

USC § 1983).

Kaliman v. IDOC, 879 F.2d 276, 277 (7™ Cir. 1989). (42 USC §§ 1983

and 1985(3) Illinois cases are governed by a two-year statute of

limitations on personal injury claims).

Kientzy v. McDonnell Douglas Corp., 990 F.2d 1051, 1057-60 (8" Cir.

1993) (evidence is sufficient to support sex discrimination case where

supervisor’s discriminatory animus was reflected in the information he

provided to the ultimate decisionmakers).

King v. Hillen, 21 F.3d 1572, 1581 (Fed.Cir. 1994) (“realistic picture of

work environment is not obtained by viewing each incident in isolation”;

criterion of hostile environment is “not what a reasonable female

employee is capable of enduring, but whether the offensive acts alter the

conditions of employment” (1583)).

Koelsch v. Beltone Electronics Corp., 46 F.3d 705, 707 (7™ Cir. 1995)

(under the continuing violations theory, relief from the time-barred act

obtainable by linking it with an act within the limitations period; when a

later act duplicates or repeats previous act(s), the combination is treated

as “one continuous act that ends within the limitations period.”)

Komel v. Jewel Cos., 874 F.2d 472, 474-75 (7" Cir. 1989) (Plaintiff may

create an issue of fact by specifically refuting facts that allegedly support

an employer’s claim of performance deficiencies).

Koski v. Gainer, 63 FEP Cas BNA 939 (N.D.III. 1993), No. 92 C3293.

(reverse discrimination under § 1981 is specifically actionable where

“injury in fact is denial of equal treatment resulting from imposition of a

barrier” based on race or color, including white.)

Kunik v. Racine County, Wis., 946 F.2d 1574, 1580-1582 (7™ Cir. 1991)

(remanded for trial because not clear that “no relief could be granted

under any set of facts that could be proved consistent with the

allegations”).

Larry v. Lawler, 605 F.2d 958, 959 (7™ Cir. 1978) (length of wrongful

deprivation is an important factor in assessing th4 impact of “official”

action on private interests, including extent of injury and damages

therefrom).

Lessman v. McCormick, 591 F.2d 605 (10" Cir. 1979) (discovery proper

to establish facts and inferred linkage in conspiracy cases rather than

dismissal).

Magnussen v. Peak Technical Services, 808 F.Supp. 500 (E.D.Va. 1992)

(Title VII employer and §1985(3) individual liability determined by

reference to “extent of the employer’s right to control the means and

manner of the worker’s performance,” citing 42 USC §§ 2000e(b) and

2000e-2(a)(1), by degree of control over terms and conditions of

employment; unconventional employer (deal of outsider to hire or fire)

control of conditions of employment; prima facie case of sex

discrimination where evidence reflects sexist attitudes; and employer is

liable for sexual harassment by non-employee (“agent”) where the

employer does not correct the situation within its control and when the

employer knows or “has reason to know” of the non-employee’s conduct

(EEOC Dec. 84-3, 34 Fair Empl. Prac.Cas. (BNA) 1887 (1984), 29 CFR

§1604.11(e) (501,512)).

Manny v. Department of Transportation, 664 F.Supp. 1210 (N.D.IIL.

1987) (where defect[s] in complaint are curable, district court retains

EEE

jurisdiction over the action, dismissal of complaint not resulting in

dismissal of the action (28 USC § 1332(a,c)).

McCottrell v. EEOC, 726 F.2d 350, 351 (7" Cir. 1984) (“inappropriate to

hold pro se litigants to same standard set for counseled litigants”)

Meadows v. Ford Motor Co., 510 F.2d 939 (6" Cir. 1974) (courts to

focus on sex discrimination with equal force as race discrimination)

Medina v. Spotnail, Inc., 591 F.Supp. 190, (s.D.II. 1984)

(administrative remedies of Title VII do not estend to retaliatory

discharge, Illinois’ public policy against involuntary employment (48

Ill.Rev.Stat. § 300), loss of immunity [as conspirators] by personally

interested corporate officers who act outside the scope of their corporate

authority, and allowance of pendant jurisdiction of state claims for

thesake of judicial economy (196-198). Medina found in plaintiff's

favor on defamation claims).

Meritor v. Vinson, 477 U.S. 57 (1986) (a regular or daily occurrence is

sufficiently severe and pervasive to create a hostile environment).

Merrill, Lynch v. Curran, 456 U.S. 353, 394 (1982) (“common law

presumption . . . that a statute enacted for the benefit of a particular class

confer[s] on members of that class the right to sue violators of that

statute”).

Milburn v. Blackfrica Promotions, Inc., 392 F.Supp. 434 (S.D.N.Y.,

1974) (intracorporate no conspiracy theory overturned by Volk, et al.,

infra (1988).)

Munson v Friske, 754 F.2d 683, 695 (7™ Cir. 1985) (§1985(3) liability

for damages extends to discrimination on the basis of sex, religion,

ethnicity or political loyalty).

Owens v. Okura, 488 U.S. 235, 250, 109 S.Ct. 573, 102 L.Ed.2d 594

(1989) (“where state law provides multiple statutes of limitations for

personal injury actions, the courts considering §1983 claims should

borrow the general or residual rule/statute for personal injury actions”).

Palmer v. General Mills, Inc., 513 F.2d 1040 (intention of 42 USC

§2000e-2 I on the consequences, the damages to the worker, of

employment practices (defamation and impaired working conditions), to

eradicate discrimination and continuing effects of past discrimination

which inhere in present practices and continue past injustices).

Paul v. Davis, 424 U.S. 693 (“stigma plus test”)

Pendrell v. Chatham College, 386 F.Supp. 541 (W.D.Pa. 1974)

(§1985(3) reaches discrimination on the basis of sex, with females

members of a class protected by §1985(3)).

Raskin v. U. of Pa., 386 F.Supp. 992, 1005-06 (E.D.Pa., 1974) (where

“two or more corporate officers by agreement commit different

discriminatory acts against a plaintiff, . . . a §1985(3) violation has taken

place” (see also, Volk v. Coler, 845 F.2d 1422, 1434 (7™ Cir. 1988).)

Reese v. City Police Dept., 602 F.Supp. 441, 443 (N.D.Ill. 1984) (police

department no “separate legal existence from the city” (441); suprression

of evidence violates due process, a constitutionally protected right to

defense materials (443); suit for damages against the City under 42 USC

§1983 was proper).

Robinson v. PPG Indus. Inc., 23 F.3d 1159, 1165-66 (7" Cir. 1994)

(summary judgment improper where supervisor who made age-related

remarks participated in ranking the performance of employees and in the

eventual decision to terminate the plaintiff's employment.

Rodgers v. Western-Southern Life Ins. Co., 12 F.3d 668, 674 (7 Cir.

1993) (“court must consider the cumulative weight of several “isolated . .

. comments”).

Scherer v. Balkema, 840 F.2d 437, 400 (7" Cir., 1988) (claim accrues

when injured becomes aware he is suffering from wrong for which

damages may be recovered in a civil action).

Scheuer v. Rhodes, 416 U.S. 232 (“factual allegations of non-moving

party’s pleadings [must be taken] as true and construed in the light most

favorable to that party”).

Schnellenbaecher v. Baskin Clothing Co., 887 F.2d 124 (7" Cir. 1989)

(caims under Title VII upheld because of EEOC’s prior error either in

not investigating the claim or not giving sufficient notice to the

defendant(s); upheld principle that proper claim should not be masked or

refused by the EEOC nor the plaintiff penalized for an EEOC error or

failure to issue a “right to sue” letter; exception to the rule of filing with

the EEOC exists where “unnamed parties have been provided with

adequate notice of the charge [through any other circumstances] . . .

where the party has been given the opportunity to participate in

conciliation proceedings aimed at voluntary compliance” (126).)

Selan v. Kiley, 969 F.2d 560 (7" Cir. 1992) (when a later act duplicates

or repeats previous act(s), the combination is treated as “one continuous

act that ends within the limitations period).

Shager v. Upjohn Co., 913 F.2d 398, 405 (7™ Cir. 1990) (dismissal

improper where plaintiff's supervisor ‘s discriminatory animus tainted

his assessment of plaintiff's performance on which decisionmaker

relied).

Singleton v. City of New York, 632 F.2d 185, 192 (2d Cir. 1988) (claim

accrues when injured becomes aware he is suffering from wrong for

which damages may be recovered in a civil action).

Smith v. City of Chicago Heights, 951 F.2d 834, 839 (7™ Cir. 1992) (five-

year statute of limitations applies in instances of fraudulent concealment;

statute of limitations begins when concealed cause of action discovered,

whether or not the identity of the wrongdoer is known.)

Sparkman v. McFarland, 601 F.2d 261 (7" Cir. 1979) (not on point as to

immunity of police actions: police officers’ actions not necessarily

immune; particularity in pleading exceeds Fed.R.Civ.P.8(a)(2) especially

without motion for more definite statement; ;since conspiracy involves

clandestine plans and deeds, inference of meeting of minds based on

facts pled is sufficient.)

Stacks v. SW Bell Yellow Pages, Inc., 27 F.3d 1316 (8" Cir. 1994)

(employers cannot escape responsibility for sex discrimination “when

facts on which the reviewers rely have been filtered by a manager

determined to purge the labor force of women”)

Staelens v. Yake, 432 F.Supp. 834, 838 (N.D.IIl. 1977) (religious rights

do not give “liberty to expose . . . [anyone]. . . to ill health or death”

(Prince v. Mass., 3221 U.S. 158, 166).

—Stevens v. Tillman, 855 F.2d 394, 404 (7" Cir. 1988) (Novotny is not the

“last word” or “final conclusion” regarding §1985(3) — understanding

thereof includes “constantly changing interpretation”; cases with similar

combinations of statutes, facts, potentially applicable civil rights

violations and resultant injuries decided on a case-by-case basis in the

most equitable and just manner in the premises; under Illinois law, a

“statement that logically refers to a particular person may be the subject

of a defamation action, even though the statement does not refer to such

person by name” (Chapski v. Copley Press, 442 N.E.2d 195, 65 Ill.Dec.

at 889); and there is no direct reference requirement under USC

Constitutional Amendment | (Saenz v. Playboy Enterprises Inc., 841

F.2d 1309, 1313-17 (7™ Cir. 1988).

Strzelicki v. Schwarz Paper Co., 824 F.Supp. 821 (N.D.Ill. 1993) (Title

VII has broad remedial purpose: “if people who make discriminatory

decisions don’t have to pay for them, they may never alter their behavior

and the wrongdoers may elude punishment entirely, while the victim

may receive no compensation whatsoever”; “broad goal of elimination of

discrimination,” its intent to provide all necessary relief and to ensure

complete justice.)

Tarkowski v. Robert Bartlett Realty Co., 644 F.2d 1204 (7" Cir. 1980)

(facts necessary to infer meeting of minds insufficient; in conspiracy,

discovery proper to establish facts and suspected or inferred “linkage”

rather than dismissal (1208); pro se litigants allowed to replead when

made aware of specific deficiencies in pleading (1207).)

U.S. v. Guest, 383 U.S. 745 (1966) (equal protection clause rights created

by call of state police and use of judicial action by private party to carry

out racial discrimination (756); allegations of cooperative action without

proof are enough to prevent dismissal (757); Justice Clark’s opinion

stated that “the specific language of Section 5 of the 14 Amendment

empowers Congress to enact laws punishing all conspiracies with or

without state action which interfere with 14" Amendment rights” (762);

and Justice Brennan’s dissenting opinion included the observation that

§241 “prohibits all conspiracies which interfere with a right secured by

the Constitution”).

Vakharia v. Swedish Covenant Hospital, 824 F.Supp. 7669 (N.D.III.

1993) (“if people who make discriminatory decisions don’t have to pay

for them, they may never alter their behavior and the wrongdoers may

elude punishment entirely, while the victim may receive no

compensation whatsoever. That outcome is incompatible with the broad

remedial purposes of Title VII” (786), its “broad goal of elimination fo

discrimination,” its intent to provide all necessary relief and to ensure

complete justice”(786). Holding:

1. Unnamed defendants whose acts were described in the

complaint could be included as named defendants (769);

p Defendants may be liable under Title VII even if not the

employer(s) (42 USC §1983) (771);

3 If discrimination impedes a person’s access to

employment opportunities with third parties, defendant is

liable under Title VII, §1981 or ADEA (29 USC §621 er

seq.) (771);

4. Conciliation is not an inalienable right of Title VII

defendants; the courts must give way to plaintiff's right

to sue appropriate parties (774);

5. Decision-making employees are liable in an individual

capacity under ADEA, Title VII and 42 USC §1981 for

discriminatory acts (785);

6. Title VII has two purposes: a) to compensate the victims

of discrimination; and b) to deter discrimination in the

future (785).

Volk v. Coler, 845 F.2d 1422, 14343 (7 Cir. 1988) (“discrimination and

harassment of an individual woman because of her sex is a violation of

the equal protection clause” (1433); §1985(3) liability for damages

extends to discrimination on the basis of sex, religion, ethnicity or

political loyalty and does not require class-wide discrimination; not

necessary to prove class-based animus for §§ 1983 and 1985(3) claims

(1434) and §1985(3) does extend to intra-entity conspiracies.

Walker v. Carter, 820 F.Supp. 1095, 1097 (C.D.IIl. 1993) (“when

determining genuine issue(s) of material fact, the evidence [must be

construed] in the light most favorable to the non-moving party”).

Walker v. Georgia, 417 F.2d 1 (1969) (removal to District Court proper

if state prosecution is for the purpose of punishing the exercise of rights

secured by the Civil Rights Act).

Weiland v. Byrne, 392 F.Supp. 21 (N.D.IIl. 1975) (not on point: single

incident rather than repeated stalking and pattern of discrimination rising

to constitutional deprivation of rights).

Wheeler v. Southland Corp., 875 F.2d 1246 (CA6 Ohio, 1989) (no need

to mention harassment conditions in resignation letter); Hunter v.

Countryside Assoc. for Handicapped, Inc., 710 F.Supp. 233 (N.D.IIL.

1989); Levendos v. Stern Entertainment, Inc. 860 F.2d 1227 (CA3 Pa

1988)).

Williams v. Banning, 72 F.3d 552 (7™ Cir. 1995) (individual employer

liable under Title VII if serves in supervisory position and exercises

sufficient control over hiring, firing or conditions of employment of

plaintiff, citing Paroline v. Unisys Corp., 879 F.2d 100, 104.)

Wilson v. Giesen, 956 F.2ed 736 (7" Cir. 1992) (claim accrues when the

victim knows or has reason to know of injury giving rise to cause of

action; when injured becomes aware he is suffering from wrong for

which damages may be recovered in a civil action).

Wright v. Dept. of Children and Family Services, 40 F.3d 1492 (7" Cir.

1994) (intra-corporate conspiracy doctrine bars construction of

conspiracy between officers and/or employees of the same entity unless

the doctrine must be set aside and overruled when egregious and

pervasive circumstances so indicate).

Yick Wo v. Hopkins, 118 U.S. 356 (1886) (government may not

“selectively deny its protective services to certain disfavored minorities

without violating the equal protection clause”; failure to protect is an

abuse of power).

Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 (1990)

(compliance with the filing period is not a jurisdictional prerequisite to

filing a Title VII suit, but a requirement subject to waiver as well as

tolling when equity so requires; waiver or tolling is consistent with the

remedial purpose of the legislature without negating the purpose of the

filing requirement, to give prompt notice to the employer, who has

access to notice in other ways).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.