# Appendix — Maddox v. Capitol Bankers Life Insurance

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1825%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1998
- **Citation:** 522 U.S. 1091

## Text

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
7

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
NE Fas HPT ictal tinsalcchsccnicshbiestbckciiiieietaishasse daphne sani 2

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.

N

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,

l

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

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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

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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

5

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).

6

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

7

a

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

9

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

10

ee ea ee ee ee anti neni aad

Adah aah iN Bi

ad te ee er Oe ee nt

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

11

I

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.

12

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.

13

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

14

EO OOO

i
5
}
5
3
4
4
-

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

15

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

16

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

17

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

18

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.

19

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.

20

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)

21

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

22

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.

23

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
25

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.

26

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.

27

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

28

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,

29

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).

30

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."

31

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.

32

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.

(c) The rights protected by this section are protected against
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.

33

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."

34

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"

35

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,

36

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’)

37

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

38

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

39

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

40

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)

4]

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

42

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”).

43

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

44

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

45

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

46

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.”)

47

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

48

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”).

49

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”).

50

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

51

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

52

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.

53

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

54

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).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386013_1825%3A2. Public record. Not legal advice.