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Novotny v. Great American Federal Savings & Loan Association

UNITED STATES COURT OF APPEALS, THIRD CIRCUIT


August 7, 1978

JOHN R. NOVOTNY, APPELLANT
v.
GREAT AMERICAN FEDERAL SAVINGS & LOAN ASSOCIATION, JOHN A. VIROSTEK, JOSEPH E. BUGEL, JOHN J. DRAVECKY, DANIEL T. KUBASAK, EDWARD J. LESKO, JAMES E. ORRIS, JOSEPH A. PROKOPOVITSH, JOHN G. MICENKO AND FRANK J. VANEK

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA C.A. No. 76-1580

Before Seitz, Chief Judge, and Rosenn and Garth, Circuit Judges. Argued Feb. 16, 1978 Reargued May 11, 1978 En Banc Before Seitz, Chief Judge, and Aldisert, Adams, Gibbons, Rosenn, Hunter, Weis, Garth and Higginbotham, Circuit Judges.

Author: Adams

Opinion OF THE COURT

Advocacy of equal rights has seldom been a completely secure vocation. Whether out of fear or for less attractive motives, certain individuals view the advance of equality as a threat to be opposed. Those who take up the cause of equal rights run the risk that their persons and property will suffer the consequences of their opponents' hostility. In days past, this risk exposed individuals to serious harm. Harassment was routine; more serious threats and physical injury were not uncommon. Fortunately, however, such flagrant retaliation has largely subsided. In this case we are called upon to determine whether statutory provisions which did service against the violent assaults on equal-rights advocates in earlier times or other, comparable, legislative enactments can guard against less dramatic retribution.

The precise issue here is whether 42 U.S.C. § 1985(3) and 42 U.S.C. § 2000e (Title VII) protect an employee who claims to have been discharged because his actions and advocacy stood in the path of a plan to deprive women of their equal employment rights.

I. FACTS

John R. Novotny, the plaintiff, began work with Great American Federal Savings and Loan Association (GAF) in 1950. During subsequent years he rose through the ranks to become the Secretary of the company and a member of its board of directors. In the course of his employment, Novotny alleges that he discovered that the individual defendants in this action, officers and board members, "intentionally and deliberately embarked upon and pursued a course of conduct the effect of which was to deny female employees equal employment opportunity."*fn1

During the summer of 1974, the GAF board of directors became engaged in a dispute with one Betty Batis, a female employee, who claimed to have been the victim of sex discrimination. According to Novotny's complaint, he took up Batis' cause at a subsequent board meeting and expressed the view that GAF had not met its legal obligations with regard to equal employment opportunity.

The other members of the board voted in January 1975 to terminate Novotny's employment with GAF. On the basis of that termination, Novotny promptly filed an unlawful employment practice charge with the EEOC, and was granted a right to sue letter in December of 1976. Claiming that his dismissal was a reprisal for his advocacy of the cause of equal rights for women in the corporation, Novotny then brought the present action against GAF, officers of the company and individual members of the board of directors.*fn2 Novotny alleged that the retaliatory discharge imposed upon him constituted an infraction of Section 2 of the Ku Klux Klan Act of 1871,*fn3 and Title VII of the Civil Rights Act of 1964.*fn4

Pursuant to a motion filed under Rule 12(b)(6), the district court dismissed both of Novotny's claims. Because the individual defendants were employees of a single corporation, the trial judge held that they were legally incapable of conspiring in violation of § 1985(3). And, in the court's view, Title VII offered the plaintiff no protection because Novotny had not been discharged as a result of any involvement in a formal EEOC proceeding.

Novotny's timely appeal brought the case before us.

II. THE CONSPIRACY COUNTS: § 1985(3)

Defendants challenge the plaintiffs' § 1985(3) claim on three grounds. They allege that: (1) as a matter of statutory construction, § 1985(3) confers no redress for grievances such as the one in this case; (2) as a matter of constitutional law, if such redress is provided then § 1985(3) would exceed the powers of Congress; (3) as a matter of definition, officers and directors of a single corporate entity are legally incapable of forming a "conspiracy."

Both in briefs and at oral argument, the parties have occasionally combined discussion of the first and second grounds of objection. However, Congress' intention with respect to the coverage of § 1985(3) is a distinct issue from Congressional power under the Constitution to pass such legislation. Clear analysis therefore requires that the issue of the intended scope of the legislation and its proper construction be examined separately from the question whether such scope is constitutionally authorized. Since defendants' success on the statutory construction issue would obviate the need to explore an unsettled area of constitutional law, we turn first to an examination of the statutory structure.

A. Background: An overview of the History of § 1985(3)

The statute now codified as 42 U.S.C. § 1985(3) began its existence as a part of Section 2 of the Act of April 20, 1871 (the Ku Klux Klan Act).*fn5 The 1871 Act was one of several Congressional reactions to the continued violent resistance to Reconstruction in the South.*fn6 Consideration of the Act was triggered by a message sent to Congress by President Grant on March 23, 1871, warning that "(a) condition of affairs now exits in some States of the Union rendering life and property insecure and the carrying of the mails and the collection of the revenue dangerous," and calling for legislation to remedy this situation.*fn7 The Congressional response embodied in the 1871 Ku Klux Klan Act included the grant of a civil cause of action against those who deprived persons of constitutional rights under color of state law (later codified as 42 U.S.C. § 1983), the authorization of deployment of federal troops and suspension of habeas corpus in certain situations, and the establishment of criminal penalties for conspiracies to obstruct justice and to interfere with "equal protection" or "equal privileges and immunities." In section 2 of the legislation, the predecessor of § 1985(3), Congress also created a cause of action for persons injured by acts done in furtherance of such conspiracies.

With the cooling of Reconstructionist ardor, the reception accorded to the Ku Klux Klan Act in the courts was not a hospitable one. In United States v. Harris,*fn8 the Supreme Court sustained a demurrer to an indictment, under the Act's conspiracy provisions, of 20 southern whites charged with lynching a black, and declared such criminal penalties unconstitutional as a usurpation of the states' role in protecting liberty and property.

This holding was reaffirmed by Baldwin v. Franks,*fn9 which granted habeas corpus to a member of a group of Californians who had driven resident Chinese aliens out of town in violation of the treaty rights of the Chinese citizens. While conceding that the federal government might have the power to protect treaty rights through criminal sanctions, the Supreme Court held that since the criminal provisions protected All privileges and immunities they were invalid.

Following Harris and Baldwin, Section 2 of the 1871 Act languished largely unused for seventy years.*fn10 And in 1952, the Supreme Court further cut back on the statute's apparently broad scope in Collins v. Hardyman.*fn11 In response to a claim under the civil conspiracy provisions originally contained in the Act, the Court held that the 1871 Act protected only against deprivations of rights brought about by state action.*fn12 There the matter rested until 1971, when the Supreme Court gave new life to the civil conspiracy provisions of the Ku Klux Klan Act (now recodified as 42 U.S.C. § 1985(3)) in Griffin v. Breckenridge.*fn13

In Griffin, the three black plaintiffs were attacked and beaten on a highway in Mississippi by whites who were under the mistaken impression that their victims were associates of a civil rights worker. The blacks brought suit against their assailants under § 1985(3), claiming to have been deprived of various privileges and immunities under the laws of the United States and the State of Mississippi, including the rights of free speech, assembly, association, movement, liberty and security of their persons. The suit was dismissed in the district court, and on the basis of Collins the Court of Appeals reluctantly sustained the dismissal. The Supreme Court, however, reversed.

First the Court explained that the constitutional difficulties which shaped the result in Collins twenty years earlier had been dissipated by intervening cases. It then held that, at least in a situation where the right to interstate travel is implicated or where a federal power to abolish the badges and incidents of slavery under the Thirteenth Amendment can be invoked, no state action is required to establish the constitutional power to regulate private activity.*fn14 The Court proceeded to examine the legislative history of § 1985(3), and, finding no reason to decline to accord the terms of the statute their full sweep, sustained the plaintiffs' claim.

Nonetheless, Griffin expressed sensitivity to the potential that the expansive syntax of § 1985(3) would give rise to a "general federal tort law." To guard against this possibility, the Court looked to the legislative history, which had stressed the adoption of language regarding "Equal Protection or Equal privileges and immunities" as a limitation on the reach of § 1985(3).*fn15 Read in light of this history, the Court suggested a cause of action based on a conspiracy to deprive one of equal protection or equal privileges and immunities requires that there must be some racial, or otherwise class based, invidiously discriminatory animus underlying the conspirators' action. The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by law to all.*fn16

B. The Reach of § 1985(3)

(1) Class Based Animus

Despite the broad wording of the statute, the Supreme Court avoided interpreting § 1985(3) as a "general federal tort law . . . by requiring, as an element of the cause of action, the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment."*fn17 And in § 1985(3) litigation subsequent to Griffin, the element of class-based invidiously discriminatory animus has, in the words of one commentator, acted as a "threshold requirement,"*fn18 screening out a variety of § 1985(3) claims at an early stage.*fn19

In determining the applicability of § 1985(3) to the case before us, therefore, an initial inquiry must be whether the actions which form the basis for this case are the offspring of a "class-based invidiously discriminatory animus" within the meaning of the Griffin test.

(a) Women as a class

(i) Women Were Not Excluded from § 1985(3)

As an opening thrust, defendants urge that, when read in its historical context, § 1985(3) could not have contemplated punishing conspiracies against women. Therefore, they suggest, sex-based conspiracies cannot form the predicate for a cause of action under § 1985(3).

While some of the individuals who voted for § 1985(3) may not have been sympathetic to equal rights for women,*fn20 the interpretation of statutes is not, in the face of contrary language, tied to the subjective expectations of particular legislators. The fact is that the wording of § 1985(3) gives no basis for excluding women from its protection rather, the phrases of the statute are attuned to the evolving ideal of equality.

Section 2 of the Act was cast in general terms; it proscribed conspiracies aimed at depriving "any person or class of persons" of equal protection and equal privileges. The breadth of such language was not adventitious. While the impetus toward enactment of the lineal ancestor of § 1985(3) was supplied by concern regarding violence directed at blacks and Union sympathizers,*fn21 the bill subsequently enacted contained no such limitations.*fn22 As Judge Aldisert noted in Brawer v. Horowitz,*fn23 Senator Edmunds, in reporting the amendments of the Ku Klux Klan Act to the Senate, interpreted the Act to command that:

If . . . it should appear that this conspiracy was formed against a man because he was a Democrat, if you please, or because he was a Catholic, or because he was a Methodist, or because he was a Vermonter . . . this section could reach it.*fn24

Consequently, we find it difficult to conclude that Congress affirmatively intended to exclude women from protection. Indeed, the sole specific reference to women that we have been able to discover in the legislative history implies to the contrary. In the debate on the scope of the term "privileges and immunities," in the proposed § 2 of the 1871 Act, Senator Trumbull sought to prove that the right to vote was not a "privilege or immunity" because women could not exercise the franchise.*fn25 The burden of his argument seems to have been that women were protected in the enjoyment of rights which could properly be classified as "privileges and immunities" and therefore rights from which women were admittedly excluded could not be "privileges and immunities." The underlying premise of this reasoning was that women are within the reach of § 2.*fn26 The history of the statute thus leads us to determine that the language of § 1985(3) should not be unnaturally cropped to exclude women from its protection.

Chief Justice Warren wrote in a comparable context:*fn27

Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection.

(ii) Discrimination against women is "invidious class-based" discrimination

Although we can ascertain that § 1985(3) was intended to have a rather broad sweep, it is nonetheless difficult to parse the precise dimensions of the "classes" which the Congress sought to protect, for, as the Supreme Court noted in Tenney v. Brandhove, "The limits of §§ 1 and 2 of the 1871 statute . . . were not spelled out in debate."*fn28

In interpreting the language of the statute, the Supreme Court in Griffin said:

The language requiring intent to deprive of Equal protection, or Equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.*fn29

We need not determine here what classes other than those distinguished by race or gender may be within the ambit of § 1985(3). The Court in Frontiero v. Richardson*fn30 remarked: "Congress itself has concluded that classifications based upon sex are inherently invidious." And in discussing discrimination, the Court pointed out that sex, like race and national origin, is an immutable characteristic determined by the accident of birth and that the sex characteristic frequently bears no relation to ability to perform or contribute to society.*fn31 Thus, to deprive members of a class founded on gender of equal protection or equal privileges and immunities without any justification is to act in an irrational and odious manner hence, with an invidiously discriminatory animus.*fn32

The principle that individuals should not be discriminated against on the basis of traits for which they bear no responsibility makes discrimination against individuals on the basis of immutable characteristics repugnant to our system.*fn33 The fact that a person bears no responsibility for gender, combined with the pervasive discrimination practiced against women,*fn34 and the emerging rejection of sexual stereotyping as incompatible with our ideals of equality*fn35 convince us that whatever the outer boundaries of the concept, an animus directed against women includes the elements of a "class-based invidiously discriminatory" motivation.

We therefore join the two circuits that have included sex discrimination within the categories of animus condemned by § 1985(3).*fn36

(b) Novotny's Standing

Even if sex discrimination is an "invidious class-based animus" within the intendment of Griffin the defendants argue, Novotny has no standing to raise a § 1985(3) claim, since as a male, the animus toward females was not directed at him. We believe, however, that this claim is at odds with the statutory language, purpose and legislative history.

Section 1985(3) provides for a cause of action in any instance where "in furtherance of the object of" a proscribed conspiracy an act is done "whereby another is injured in his person or property." By its terms, the statute gives no hint of any requirement that the "other" must have any relationship to the "person or class of persons" which the conspiracy seeks to deprive of equal protection, privileges or immunities.

Nor does the legislative history betray any intimation that a cause of action under § 1985(3) presupposes membership in the class against which the conspiracy is directed. As Senator Edmunds stated: "This section gives a civil action to Anybody who may be injured by the conspiracy."*fn37 Likewise, the testimony regarding the problems which the Act attempted to solve is replete with references to individuals in situations analogous to that of Novotny. Representative Buckley adverted to the fate of "William C. Luke, an educated man from the North who spoke several languages, and who was an enthusiast on the subject of educating and elevating the colored race."*fn38 Mr. Luke, apparently a white man, was hanged at midnight by the Ku Klux Klan for his activities. Representative Shellabarger referred to one Mr. Allen, by all indications a white man, who was "shot at and banished for teaching colored children to read,"*fn39 and to Reverend Corless, likewise apparently not a black man, a minister sent from Philadelphia to "preach to the colored men," who was "scourged near unto death."*fn40 Id. Summarizing the activities of the Ku Klux Klan, Representative Perry declared:

Their operations are . . . directed chiefly against blacks And against white people who by any means attract attention as earnest friends of the blacks.*fn41

In light of this history, we do not believe that Congress intended to immunize Klansmen when their victims happened to be white. By analogy, members of a conspiracy to deprive women of equal rights are liable under § 1985(3) to persons who are injured in furtherance of the object of the conspiracy, whether male or female.

This determination draws further sustenance from the Supreme Court's holding in Sullivan v. Little Hunting Park.*fn42 There the Court summarily determined that a white person expelled from membership in an all-white swimming club for advocating the membership of a black person could maintain an action under § 1982. Despite the fact that § 1982 gave no explicit cause of action to those injured in the course of conduct which it prohibited, the Court said:

We turn to Sullivan's expulsion for the advocacy of Freeman's cause. If that sanction, backed by a state court judgment, can be imposed, then Sullivan is punished for trying to vindicate the rights of minorities protected by § 1982. Such a sanction would give impetus to the perpetuation of racial restrictions on property. . . . Under the terms of our decision in Barrows, there can be no question but that Sullivan has standing to maintain this action.*fn43

Given the wording of the statute and the history canvassed above, as well as the Court's pronouncement in Little Hunting Park, a similar conclusion follows A fortiori in the case before us.

Finally, a close reading of Griffin itself compels the conclusion that an action under § 1985(3) need not be predicated on a conspiracy involving invidious animus directed against the plaintiff personally. In Griffin the three plaintiffs had ridden to the place where they were attacked in a car owned by R. G. Grady, who was not involved in the suit. The complaint alleged that the assailants were under the mistaken impression that Grady was a civil rights worker. In determining that a cause of action had been made out under § 1985(3), the Supreme Court stated:

Finally, the petitioners Whether or not the nonparty Grady was the main or only target of the conspiracy allege personal injury resulting from those (conspiratorial) acts.*fn44

There is no intimation that, had one of the plaintiffs in Griffin been a white civil rights worker, he would have been denied the cause of action which his black compatriots were granted.

Novotny asserts in his complaint that his employment was terminated as a result of his support of equal opportunity claims of the female employees of GAF, "because of his known support for equal employment opportunity for women within the GAF organization", and because he was "in a position to affect (sic) actions and procedures to implement equal employment opportunities for women."*fn45 Such allegations constitute a sufficient pleading of acts "in furtherance of the object of" a conspiracy to deprive women in GAF of equal employment opportunity so as to entitle Novotny to maintain an action for damages to his person or property resulting from such acts.*fn46

(2) Equal Privileges and Immunities and Equal Protection

(a) The Statutory Scheme

Once the existence of class-based invidious animus is established, the boundaries of protection offered by § 1985(3) are traced by the scope of the words, "equal protection of the laws" and "equal privileges and immunities under the laws." These are the two primary interests which the statute purports to guard.*fn47

As a result, since the resuscitation of § 1985(3) in Griffin, there has been considerable discussion by jurists and scholars as to whether the statute is "substantive" or "remedial," and if "remedial," for which rights it provides remedies.*fn48 While we have no occasion to undertake to review the entire debate, certain observations frame our discussion here.

It seems that § 1985(3) is not to be read as a general charter to federal courts to set codes of conduct wherever "equality" of any class is allegedly infringed. The reluctance to trigger the development of such a "general federal tort law" formed the backdrop of the Supreme Court's discussion in Griffin,*fn49 and properly so in light of the statutory language contained in § 1985(3) as well as its legislative history.

The passage, "of depriving . . . equal protection Of the laws, or of equal privileges and immunities Under the laws,"*fn50 connotes the existence of laws outside of § 1985(3) which define the "protection" and "privileges and immunities" that are guaranteed against invasion.*fn51 This connotation is confirmed by our reading of the debates surrounding the adoption of § 1985(3). Most of the proponents of the Ku Klux Klan Act explicitly viewed it as protecting rights conferred by sources other than the Act itself.*fn52 Indeed, Senator Edmunds, the floor manager of the bill in the Senate, explicitly stated:

All civil suits which this Act authorizes, as every lawyer understands, are not based on it, they are based on the rights of the citizen. The Act only gives a remedy.*fn53

Similarly, in describing the conspiracies actionable under § 1985(3), the Supreme Court in Griffin said:

The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights Secured by the law to all.*fn54

Whatever else "equal privileges and immunities" or "equal protection" may mean, in the context here, we conclude that a deprivation of equal privileges and immunities under § 1985(3) includes the deprivation of a right secured by a federal statute guaranteeing equal employment opportunity.

This is not to say, however, that the object of the conspiracy must necessarily be independently illegal, or that the law conferring a right must by its own force secure it against private action.*fn55 For the statute proscribes conspiracies to deprive persons or classes of persons of legal rights "directly or indirectly." And, as Judge Learned Hand said of another section of the Ku Klux Klan Act securing federal privileges, "it would emasculate the act either to deny protection against reprisal to those whom threats did not deter, or to leave without recourse those who were later made victims of reprisals of which they had not been warned."*fn56

Thus § 1985(3) may not be construed as a warrant to impose wide-ranging new duties upon private individuals in the interests of abstract equality. Yet it must be remembered that the Act was broad-gauged legislation designed to provide additional remedies for actions threatening the enjoyment of important rights. As a draftsman of the Act expressed the intent:

This Act is remedial and in aid of the preservation of human liberty and human rights. All statutes and constitutional provisions authorizing such statutes are liberally construed . . . (and) the largest latitude consistent with the words employed is uniformly given in construing such statutes. . . .*fn57

(b) Equal Protection Privileges and Immunities in this case

Here, as noted above, the plaintiff alleged a concerted course of conduct on the part of individual defendants of "intentionally and deliberately . . . denying to female employees equal employment opportunity," in various specified respects.*fn58 Novotny further pleaded that in retribution for his support of equal employment opportunities for women within the GAF organization, the individual defendants, acting in concert, caused his employment with GAF to be terminated. Taking his averments as true as on a Rule 12(b)(6) motion we must*fn59 Novotny has made out a case that he has been injured by acts done in furtherance of a conspiracy proscribed by § 1985(3).

The conspiracy alleged had as its goal the denial of job equality for women, in direct violation of federal law guaranteeing this basic and important right.*fn60 And at least a coadunation to deprive female employees of the basic right of equal opportunity in contravention of federal law would fall squarely within the statute's prohibition of conspiracies to abridge equal privileges and immunities.*fn61

While the Congress in 1871 could not have specifically contemplated a federal statute that was not enacted until almost a century later, as a matter of ordinary language the words of § 1985(3) clearly embrace a statutorily provided right of equal employment opportunity within the rubric "equal privileges and immunities under the laws." As the Court said in United States v. Price,*fn62 regarding 18 U.S.C. § 241, the "closest remaining criminal analogue to § 1985(3)":*fn63

The language . . . is plain and unlimited. As we have discussed, its language embraces all of the rights and privileges secured to citizens by All of the Constitution and All of the laws of the United States. There is no indication in the language that the sweep of the section is confined to rights that are conferred by or "flow from" the Federal Government, as distinguished from those secured or confirmed or guaranteed by the Constitution.

Nor does the legislative history of the Ku Klux Klan Act weaken the implication of the statutory language that rights conferred by at least some federal statutes fall within the definition of "equal privileges and immunities."*fn64 Congressman Shellabarger, the Act's prime legislative engineer, described § 2, from which § 1985(3) is derived as "providing for the punishment of any combination or conspiracy" impinging on basic rights protected by law.*fn65 And Senator Edmunds stated that § 2 mandated punishment for acts done in pursuance of "a conspiracy to deprive the citizens of the United States, in the various ways named, of the rights which the Constitution and laws of the United States made pursuant to it give them."*fn66

The conclusion that rights conferred by at least some federal statutes fall within the ambit of "equal privileges and immunities under the laws," which § 1985(3) protects, is also amply supported by relevant precedent. A number of courts of appeals have determined that a deprivation of certain statutory rights gives rise to a cause of action under § 1985(3).*fn67 Moreover, in cases regarding statutes cognate to § 1985(3), the Supreme Court has held that "privileges and immunities" include federal statutory rights.*fn68

In United States v. Johnson,*fn69 the Supreme Court reviewed the application of § 241,*fn70 which protects the "free exercise or enjoyment of any right or privilege secured by the Constitution and laws of the United States," to a "conspiracies by outside hoodlums to assault Negroes for exercising their right to equality in public accommodations under § 201 of the Civil Rights Act."*fn71 The Court had little trouble in concluding that "the right to service in a restaurant is such a "right', (under § 241) at least by virtue of the 1964 Act".*fn72 Similarly, almost a century earlier, in United States v. Waddell,*fn73 the Supreme Court was faced with a combination to drive a homesteader off federal land upon which he was attempting to establish a claim pursuant to statutory procedures. Such acts "to prevent or throw obstruction in the way of exercising such statutory rights" were held to constitute a conspiracy to impair federal rights which could be attacked under § 241.

Similar light is cast by the interpretation of § 1983, formerly § 1 of the Ku Klux Klan Act of 1871.*fn74 In City of Greenwood v. Peacock, the Supreme Court stated that under § 1983 "officers may be made to respond in damages . . . for violations of rights conferred by federal equal civil rights laws (sic)," and a number of Circuits have acknowledged that suits for such statutory violations are proper.*fn75

Having held that at least some federal statutory rights can form the predicate for a suit under § 1985(3), we conclude that Novotny, in alleging the existence of a conspiracy to violate the equal employment rights of female employees in contravention of Title VII, has adequately pleaded the existence of conspiracy to deprive a class of persons of equal privileges or immunities under the laws.

(c) Conflict with Title VII

The defendants suggest that even if § 1985(3) provides a remedy for conspiracies to impair statutorily-conferred rights as a general matter, a § 1985(3) action to redress conspiracies to violate Title VII rights would be inconsistent with the administrative mechanism established by the latter Act. In support of this proposition, they cite the Fourth Circuit's holding in Doski v. Goldseker.*fn76

In Doski, a female employee brought suit alleging sex discrimination violative of both Title VII and § 1985(3). The court held the Title VII remedy to be the exclusive means of vindicating statutory rights, since the availability of § 1985(3) would allow a plaintiff to by-pass the administrative procedures provided by Title VII. Doski read those parts of the legislative history of Title VII approving overlap between Title VII and other Civil Rights Act remedies to refer only to vindication of "federal right (which existed) prior to the enactment of Title VII."*fn77

At least one court of appeals has apparently reached a conclusion contrary to that of the Fourth Circuit. In Marlowe v. Fischer Body,*fn78 the Sixth Circuit reversed the dismissal of a complaint which alleged employment discrimination based on religion and national origin. Although the complaint contained counts based on Title VII and the NLRA, in addition to § 1985(3), the Sixth Circuit reversed the dismissal on all counts.*fn79

We find the result reached in Marlowe to be better grounded in history and precedent than that in Doski. On its face § 1985(3) makes no distinction among federal privileges and immunities depending on the date of the enactment of laws securing them. As noted above, the language seems to protect All such privileges and immunities. Indeed, in describing the bill, Senator Edmunds stated that it reached "conspiracies to deprive people of the equal protection of the laws, Whatever those laws may be."*fn80

Thus, if rights protected by Title VII are to be excluded from the scope of § 1985(3), such result must flow from the fact that Title VII worked a partial repeal of § 1985(3), although § 1985(3) was not mentioned by the later legislation. Such repeals by implication are, of course, not favored. In Runyon v. McCrary,*fn81 the Supreme Court recently reiterated, in reference to § 1981, the rule that implied repeals occur only if the two legislative acts in question are in irreconcilable conflict.*fn82 Given the legislative history of Title VII and its construction by the Supreme Court, we discern no such conflict here.

As the Supreme Court observed in Alexander v. Gardner-Denver Co.,*fn83 the Senate defeated an amendment which would have made Title VII the exclusive federal remedy for most unlawful employment practices, and a similar amendment was rejected in connection with the Equal Employment Opportunity Act of 1972. Indeed, the Supreme Court noted in Runyon*fn84 that Senator Williams, floor manager of the 1972 Act, argued in opposition to the amendment that "it is not our purpose to repeal existing civil rights laws," and specifically stated that:

The law against employment discrimination did not begin with Title VII and the EEOC, nor is it intended to end with it . . . the courts have specifically held that Title VII and the Civil Rights Acts of 1866 and 1871 are not mutually exclusive, and must be read together to provide alternative means to redress individual grievances.*fn85

Such statements are not isolated remarks. After reviewing the legislative history of Title VII, the Supreme Court in Johnson v. REA concluded:

Despite Title VII's range and its design as a comprehensive solution for the problem of invidious discrimination in employment, the aggrieved individual clearly is not deprived of other remedies he possesses and is not limited to Title VII in his search for relief.*fn86

In view of this holding, and of the generally favorable reception which the Supreme Court has extended to Reconstruction Act litigation dealing with subjects also covered by later civil rights enactments,*fn87 we conclude that Novotny's claim under § 1985(3) is not precluded by Title VII.

C. The Constitutionality of § 1985(3)

(1) The Scope of the Inquiry

The defendants assert that if § 1985(3) purports to reach confederations such as the one alleged by Novotny, the statute is beyond the powers conferred upon Congress, and therefore unconstitutional. Before examining this contention, the question of the statute's constitutionality must be set in perspective.

In the first case in which the Supreme Court faced a challenge to the constitutionality of the Ku Klux Klan Act of 1871, the Court set forth its analysis in these terms:

Proper respect for a co-ordinate branch of the government requires the courts of the United States to give effect to the presumption that congress will pass no act not within its constitutional power. This presumption should prevail unless the lack of constitutional authority to pass an act in question is clearly demonstrated.*fn88

Ninety years later, in construing § 1985(3), the Court in Griffin was again met with the allegation that Congress had exceeded its powers in the 1871 Act. It determined the question in the negative, measuring the Act against the following standard:

Our inquiry . . . need go only to identifying a source of congressional power to reach the private conspiracy alleged by the complaint in this case.*fn89

Griffin gave no indication that Congress must specifically invoke a particular Constitutional authorization to allow the Court to sustain an enactment. Instead, since the presumption is in favor of constitutionality, the government need only point to an applicable fount of congressional authority.*fn90

Discussion must, therefore, be directed toward ascertaining whether a source of Congressional power exists which will justify giving relief to Novotny.

(2) The Power of Congress

There is little question that the Congress which passed the 1871 Act believed itself to be acting under the Fourteenth Amendment. The legislation itself was formally entitled "An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes." In defending the proposal against charges of unconstitutionality, proponents of the Act found warrant in the text of the Fourteenth Amendment.

The Supreme Court recently noted in Monell v. N. Y. C. Dept. of Social Services,*fn91 that Representative Shellabarger opened his remarks introducing the Act by asserting that the Fourteenth Amendment's twin guarantees of "equal protection" and the "privileges and immunities of citizenship" should be read to protect equality in the enjoyment of life, liberty, and property. He then invoked what he regarded as a settled principle of law that "Congress has always assumed to enforce, as against the states and also persons, every one of the provisions of the Constitution."*fn92

It was not without a certain sense of poetic justice that Representative Shellabarger adduced support for this proposition. For the cases sustaining the fugitive slave laws enacted by Congress prior to the Civil War, beginning with Prigg v. Pennsylvania, rested their holdings on the proposition that the Fugitive Slave clause of the Constitution,*fn93 though on its face addressed to "laws and regulations" of states, empowered the federal government to adopt legislation binding on individuals.*fn94 Shellabarger declared that it could not "now be endured" that

those decisions which were invoked and sustained in favor of bondage shall be stricken down when first called upon and invoked in behalf of human rights and American citizenship.*fn95

Although it appears that at the time he propounded it, Shellabarger's argument was supported by the weight of legal precedent,*fn96 subsequent litigation demonstrated the Supreme Court's reluctance to apply the principle of Prigg to legislation enacted in reliance on the Fourteenth Amendment. Without dealing squarely with the fugitive slave law cases,*fn97 the Supreme Court erected a barrier preventing the application of legislation implementing the Fourteenth Amendment to activities not infused with "state action."*fn98

The last two decades have brought a substantial erosion of that barrier.*fn99 And in United States v. Guest a majority of the Court expressed the opinion that

the specific language of § 5 (of the 14th Amendment) empowers the Congress to enact laws punishing all conspiracies with or without state action that interfere with Fourteenth Amendment rights.*fn100

In Griffin, however, the Supreme Court declined to rely on the Fourteenth Amendment in upholding the power of Congress to enact § 1985(3), and no Supreme Court case has attempted to chart the limits of § 5 since that time. Inasmuch as we need not rest on the Fourteenth Amendment to justify the application of § 1985(3) to this case, it is not necessary at this time to resolve the scope of its Fourteenth Amendment foundation.*fn101

The plaintiff alleges a conspiracy to deprive women employed by GAF of their equal employment rights in violation of Title VII. We do not understand the defendants to challenge the power of Congress to prohibit employment discrimination by employers like GAF. Nor could such a challenge be plausibly made, for prohibition of such discrimination falls clearly within the range of Congressional authority under the commerce clause.*fn102 The same authority which warrants the provision of such rights in the first place equally empowers Congress to provide sanctions against conspiracies to interfere with the equal enjoyment of rights under Title VII.*fn103 Thus, as observed earlier, in 1885 the Court, in United States v. Waddell,*fn104 upheld a prosecution under § 1985(3)"s criminal counterpart, 18 U.S.C. § 241,*fn105 for a conspiracy to harass and attack a homesteader exercising rights conferred by Congress through legislation authorized by Article IV Section 3.*fn106 In rejecting the argument that the legislation was unconstitutional, the Court said:

Whenever the acts complained of are of a character to prevent (exercise of a statutory right) or throw obstruction in the way of exercising this right, and for the purpose and with intent to prevent it . . . because it is a right asserted under the law of the United States and granted by that law, those acts come within the purview of the statute and of the constitutional power of congress to make such statute.*fn107

Eighty years later in United States v. Johnson,*fn108 also discussed above, the Supreme Court reversed the dismissal of an indictment under § 241 of "hoodlums" who conspired to assail black persons for exercising their right to equality of public accommodations under the 1964 Civil Rights Act. In the interim, the Supreme Court decided no case casting doubt on the constitutional power of Congress to provide sanctions for the interference by private parties with rights conferred by a validly enacted federal statute, and we are aware of no recent decisions doing so.*fn109

We therefore conclude that § 1985(3) may protect a plaintiff injured by acts done in furtherance of a conspiracy to violate the rights of female employees under Title VII without exceeding Congress' powers under the commerce clause.*fn110

D. Conspiracy

The final salvo launched by the defendants against Novotny's § 1985(3) count, and the one that succeeded in the district court, finds its basis in the theory that the defendants are immune to suits under § 1985(3) because the alleged combination occurred among officers and directors of a single corporation.

Defendants do not appear to challenge the fact that, while not artfully pleaded, the complaint adequately sets forth the claim that Novotny was victimized by a conspiracy.*fn111 Rather, the defendants maintain that their alleged concerted action was taken in their official capacities as officers and directors of GAF,*fn112 and therefore cannot legally be deemed a combination within the terms of § 1985(3).

This contention finds no support in the language of § 1985(3). On its face, the statute requires simply that "two or more persons" conspire in order to come within its proscription.*fn113 Similarly, we can discern no basis for the defendants' argument in the legislative history of § 1985(3).

Nor does defendants' suggestion have solid roots in the general tenets of conspiracy theory. It is true that a conspiracy requires a plurality of legal personalities as one of its elements. For example, at common law a husband and wife could not conspire, since they constituted a single personality in the eyes of the law.*fn114 But it is well-settled that an employer can conspire with his employee,*fn115 and the Supreme Court has held that a labor union can conspire with its business agent.*fn116 The assertion of the defendants must therefore be that incorporation confers on corporate employees an immunity from liability under § 1985(3).

We see nothing in the policies undergirding § 1985(3) that would support such an argument. If, as seems clear under § 1985(3), the agreement of three partners to use their business to harass any blacks who register to vote constitutes an actionable conspiracy, we can perceive no function to be served by immunizing such action once a business is incorporated.

The defendants place primary reliance on the legal precept that a corporation cannot conspire with its officers because a person cannot conspire with himself.*fn117 Under this precept, they argue, no conspiracy exists in this case because the defendants were all officers and directors of a single corporation, and the actions injuring Novotny were taken in the course of their duties as such.

As we read Novotny's complaint, however, it does not allege that the corporate entity, GAF, conspired with its officers and directors to his detriment. In defining his cause of action under § 1985(3), Novotny alleges that his termination was accomplished "by the individual defendants in violation of" § 1985(3).*fn118 There is thus no occasion to evaluate the force of the proposition that a corporation cannot conspire with itself. Rather, the sole issue before us, so far as the conspiracy element is concerned, is whether concerted action by officers and employees of a corporation, with the object of violating a federal statute, can be the basis of a § 1985(3) complaint.

In Mininsohn v. United States,*fn119 Jacob and Max Mininsohn, the officers of Interstate Lumber Company, a corporation, caused the company to deliver underweight bags of cement to a government construction project. Jacob Mininsohn and Interstate were charged with violation of legislation prohibiting conspiracies to defraud the United State Government. On appeal, it was alleged that the evidence was insufficient to convict Jacob Mininsohn. Judge Biggs had no difficulty in concluding that "the acts of the appellant and his brother were such as indicated the existence of a conspiracy to defraud the United States."*fn120 This determination is in accord with a well-established line of precedent holding that, at least outside of the area of antitrust law,*fn121 where a corporation commits a substantive crime, the officers and directors who cause it to so act may be guilty of criminal conspiracy.*fn122

Similarly, the sole Supreme Court decision to shed direct light on the issue before us undercuts the defendants' position. In Pennsylvania RR. System & Allied Lines Fed. No. 90 v. Pennsylvania RR. Co.,*fn123 a labor union brought suit against an employer and its officers, claiming that under the predecessor to 18 U.S.C. § 241, the actions of the corporation and officers in resisting the recommendations of an arbitration board under the Railway Labor Act constituted a conspiracy to "injure, oppress, threaten, or intimidate any person in the free exercise or enjoyment of" a federal right or privilege. The Supreme Court's opinion expressed no doubts regarding the viability of a conspiracy composed of corporate officers. Rather it stated that "The whole issue . . . is whether the provisions of Title III, in pointing out what Congress wished the parties to the dispute to do, was intended by Congress to be a positive, obligatory law . . . ."*fn124

Thus, since neither considerations of policy nor force of precedent require adherence to the defendants' stance, we do not follow the line of cases adopting the rule that concerted action among corporate officers and directors cannot constitute a conspiracy under § 1985(3).*fn125

III. TITLE VII

As an alternative to seeking relief under § 1985(3), Novotny sets forth a claim under § 704(a) of Title VII.*fn126 That section provides:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.

Plaintiff maintains that his discharge because of expressed hostility toward the denial of equal employment opportunity to women in GAF, and his refusal to support the company in its allegedly discriminatory dealings with Batis constitutes a discrimination against him "because he has opposed (a) practice made an unlawful employment practice," in violation of § 704(a).

Defendants argue, however, that in order to constitute protected opposition within the meaning of the statute, an employee's antipathy to an unlawful employment practice must be manifested through involvement with formal charges or litigation under Title VII. The construction advocated by the defendants was adopted by the district court in the course of its order dismissing the complaint.

Such an interpretation, however, does not emerge from the text of the statute. On its face, § 704(a) refers to two distinct situations: first, those in which an employee has "opposed" any unlawful employment practice, and second, those in which he or she has "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing" under Title VII.*fn127 The clauses referring to the two scenarios are connected by a disjunctive "or," and to construe the statute as the defendants suggest would render the first clause mere surplusage.

Nonetheless, the defendants claim that the legislative history negates what appears to be the clear meaning of the section. In summarizing the import of § 704(a), the Committee Reports in both House and Senate referred only to discrimination in retaliation for participation in Title VII proceedings.*fn128 We find such legislative history inconclusive on this point. While it does not support the contention that the first clause of § 704(a) protects activities which the second does not, neither does it affirmatively state that such was not the intent of Congress.

As Justice Frankfurter has observed, "The troublesome phase of construction is the determination of the extent to which extraneous documentation and external circumstances may be allowed to infiltrate the text on the theory that they were part of it, written in ink visible to the judicial eye."*fn129 Here, the hues of the cited history are not sufficiently bold as to overwhelm the clear terms of § 704(a) itself. In view of the "high priority" that Congress has given to the effort to eliminate employment discrimination,*fn130 we are unwilling to withdraw protection from opponents of illegal discrimination through a constricted statutory construction.

The Supreme Court has not yet delimited the scope of the "opposition" that § 704(a) will be held to safeguard,*fn131 and the bulk of cases under § 704(a) have involved alleged retaliation for complaints or litigation under Title VII.*fn132 Nonetheless, several courts of appeals have understood § 704(a) to reach beyond protecting participation in Title VII procedures.

In Hicks v. Abt Assoc.,*fn133 this Court held a complaint to the Department of Housing and Urban Development regarding alleged employment discrimination in a project which it funded to constitute "opposition" within the terms of the statute. Likewise, in Green v. McDonnell Douglas Corp.,*fn134 the Eighth Circuit, while rejecting protection for unlawful activities, stated: "Those who have the courage to challenge discriminatory practices of an employer merit (statutory) protection. Without doubt, lawful protest also commands the same protection. . . ." And, while in Pettway, supra the Fifth Circuit concentrated on the protection afforded to Title VII complainants, in Balderas v. LaCasita Farms, Inc.,*fn135 another panel of that Circuit declared that an element of an action under § 704(a) is "discrimination based upon the employee's opposition to unlawful practices," as manifested in "civil rights activities."*fn136

We recognize that to construe § 704(a) as protecting "opposition" beyond that embodied in participation in Title VII proceedings carries with it the prospect of a greater burden of litigation for employers than the interpretation urged by the defendants. Indeed, it may present the danger of harassment by employees who suffer some imagined slight based on a chance remark. Yet these dangers are implicit in any decision to recognize legal rights; to decrease the pressure of litigation on employers by the simple expedient of refusing to protect employees is always an option. Congress, however, has passed legislation extending the shield of Title VII to "opposition," and the possibility of abuse by litigious plaintiffs cannot justify withdrawal of that bulwark.

Rather, the courts must rely upon the procedures that are used to weed out frivolous claims under any statute. If, on a motion for summary judgment, Novotny cannot come forward with support for his contention that he opposed the denial of equal employment opportunities by GAF, or that he was terminated as a result of such opposition, of course his claim cannot be sustained. Such a determination, however, is for the district court after proper opportunity for discovery.

Likewise, this opinion does not suggest that opposition to employer violations of Title VII confers an irrevocable tenure on the opponent. Clearly, illegal actions would be grounds for discharge,*fn137 as would activities that unreasonably interfere with the employer's legitimate interests.*fn138 As the First Circuit has stated, in situations of "opposition" in the form of self-help "courts have in each case to balance the purpose of the Act to protect persons engaging reasonably in activities opposing . . . discrimination, against Congress' equally manifest desire not to tie the hands of employers in the objective selection and control of personnel."*fn139 But such matters are issues for defense, and it is inappropriate to resolve them on a motion to dismiss.

IV. CONCLUSION

The questions with which we have dealt have been in large measure matters of statutory construction, replete with the ambiguities that legislative enactments on occasion engender. The Ku Klux Klan Act of 1871 was adopted to deal with a pressing problem of Reconstruction; yet its commands were couched in expansively drafted legislation, whose provisions are now, not implausibly, called upon to traverse a century of social, economic and political development to come to the aid of human rights. The Civil Rights Act of 1964, though more tightly and technically constructed, and more recent in origin, confronts us with the duty of reconciling an explicit statutory mandate with an opaque legislative history.

There is material from which defendants can argue the inapplicability of both statutes to this case. Narrowly construed, either enactment could fall well short of providing the plaintiff a cause of action. But the statutory landscape is illuminated by the community's goals as well as the emanations of legislative history. To hobble the legislation before us would without justification, set judicial authority against the effort to achieve equality of rights. We do not believe such was the intent of the Congressmen who in the aftermath of the Civil War began the task nor of their successors in 1964 who mandated its continuance. With this in mind, we have concluded:

(1) That § 1985(3) protects against conspiracies motivated by discriminatory animus against women.

(2) That a male injured in furtherance of such a conspiracy has standing to bring an action under § 1985(3).

(3) That collusive action to deprive women of equal employment opportunities in violation of Federal law would be conspiracy to deprive of "equal privileges and immunities" in violation of § 1985(3).

(4) That a cause of action under § 1985(3) grounded on such a conspiracy is not precluded by Title VII.

(5) That as applied to such a conspiracy by private employers § 1985(3) does not exceed Congress' constitutional authority under the commerce clause.

(6) That individuals who are directors and officers of a corporation can form a conspiracy in violation of § 1985(3); and

(7) That § 704(a) of Title VII prohibits retaliation against employees for reasonable opposition to unlawful employment discrimination even when such opposition is not manifested through participation in Title VII proceedings.

The judgment of the district court will be reversed and the case remanded for proceedings consistent with this opinion.

APPENDIX

SECTION 2 OF THE KU KLUX KLAN ACT OF 1871

(Portions Later Recodified as § 1985(3) are Underscored)

Sec. 2. That if two or more persons within any State or Territory of the United States shall conspire together to overthrow, or to put down, or to destroy by force the government of the United States, or to levy war against the United States, or to oppose by force the authority of the government of the United States, or by force, intimidation, or threat to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof, or by force, intimidation, or threat to prevent any person from accepting or holding any office or trust or place of confidence under the United States, or from discharging the duties thereof, or by force, intimidation, or threat to induce any officer of the United States to leave any State, district, or place where his duties as such officer might lawfully be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or to injure his person while engaged in the lawful discharge of the duties of his office, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duty, or By force, intimidation, or threat to deter any party or witness in any court of the United States from attending such court, or from testifying in any matter pending in such court fully, freely, and truthfully, or to injure any such party or witness in his person or property on account of his having so attended or testified, or by force, intimidation, or threat to influence the verdict, presentment, or indictment, of any juror or grand juror in any court of the United States, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or an account of his being or having been such juror, or shall conspire together, Or go in disguise upon the public highway or upon the premises of another for the purpose, either directly or indirectly, of depriving any person or any class of persons of the equal protection of the laws, or of equal privileges or immunities under the laws, or for the purpose of preventing or hindering the constituted authorities of any State from giving or securing to all persons within such State the equal protection of the laws, or Shall conspire together for the purpose of in any manner, impeding, hindering, obstructing, or defeating the due course of justice in any State or Territory, with intent to deny to any citizen of the United States the due and equal protection of the laws, or to injure any person in his person or his property for lawfully enforcing the right of any person or class of persons to the equal protection of the laws, Or by force, intimidation, or threat to prevent any citizen of the United States lawfully entitled to vote from giving his support or advocacy in a lawful manner towards or in favor of the election of any lawfully qualified person as an elector of President or Vice-President of the United States, or as a member of the Congress of the United States, or to injure any such citizen in his person or property on account of such support or advocacy each and every person so offending shall be deemed guilty of a high crime, and, upon conviction thereof in any district or circuit court of the United States or district or supreme court of any Territory of the United States having jurisdiction of similar offences, shall be punished by a fine not less than five hundred nor more than five thousand dollars, or by imprisonment, with or without hard labor, as the court may determine, for a period of not less than six months nor more than six years, as the court may determine, or by both such fine and imprisonment as the court shall determine. And If any one or more persons engaged in any such conspiracy shall do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby any person shall be injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the persons so injured or deprived of such rights and privileges may have and maintain an action for the recovery of damages occasioned by such injury or deprivation of rights and privileges against any one or more of the persons engaged in such conspiracy, such action to be prosecuted in the proper district or circuit court of the United States, with and subject to the same rights of appeal, review upon error, and other remedies provided in like cases in such courts under the provisions of the act of April ninth, eighteen hundred and sixty-six, entitled "An act to protect all persons in the United States in their civil rights, and to furnish the means of their vindication."

(Emphasis added.)


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