Guesby v. Kennedy

• Decision Date: 21 February 1984
• Docket Number: Civ. A. No. 81-4172.
• Citation: 580 F. Supp. 1280
• Parties: Rosa M. GUESBY, Plaintiff, v. Arthur KENNEDY and The Topeka Club, Inc., Defendants.
• Court: U.S. District Court — District of Kansas

580 F. Supp. 1280

Rosa M. GUESBY, Plaintiff, v.Arthur KENNEDY and The Topeka Club, Inc., Defendants.

Civ. A. No. 81-4172.

United States District Court, D. Kansas.

February 21, 1984.

Fred W. Phelps, Jr., Phelps-Chartered, Topeka, Kan., for plaintiff.

Ann L. Hoover, Charles S. Fisher, Jr., Fisher, Ochs & Heck, Topeka, Kan., for defendants.

MEMORANDUM AND ORDER

O'CONNOR, Chief Judge.

This matter is presently before the court on the defendants' motion for summary judgment.In support of their motion, the defendants contend that the defendant, The Topeka Club, Inc., is "a bona fide private club" within the meaning of 42 U.S.C. § 2000e(b)(2), and, therefore, that the defendants are excluded from the scope of 42 U.S.C. § 1981.A hearing was held on this matter on January 6, 1984.After considering the briefs and the arguments of counsel, the court is prepared to rule on the pending motion.

The plaintiff, a black female, was employed as a cook by the defendant, The Topeka Club, Inc.Defendant Kennedy was employed as a manager of defendant The Topeka Club.On or about June 11, 1981, plaintiff's employment was terminated by the defendants, and she subsequently brought this action under 42 U.S.C. §§ 1981and1988, alleging racial discrimination in employment.The defendants have moved for summary judgment on the ground that The Topeka Club is a bona fide private club exempt from jurisdiction under 42 U.S.C. § 1981.

The defendants' motion for summary judgment raises two issues: one factual and one legal.First, the court must determine whether The Topeka Club is a bona fide private club within the meaning of 42 U.S.C. § 2000e(b)(2).Second, the court must determine whether the bona fide private club exemption of § 2000e(b)(2) applies to an action under 42 U.S.C. § 1981.If either of these questions is answered in the negative, defendants' motion for summary judgment must be denied.

The court is, of course, well acquainted with the standards governing consideration of a motion for summary judgment under Fed.R.Civ.P. 56.A summary judgment motion is not a substitute for trial and should not be lightly granted.Redhouse v. Quality Ford Sales, Inc.,511 F.2d 230, 234(10th Cir.1975).The movant must demonstrate his right to prevail beyond a reasonable doubt.Madison v. Deseret Livestock Co.,574 F.2d 1027, 1037(10th Cir.1978).The court must examine all the evidence in a light most favorable to the party opposing the motion.Baum v. Gillman,648 F.2d 1292(10th Cir.1981).Summary judgment is appropriate only when it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law."Fed.R.Civ.P. 56(c).A party opposing a properly supported summary judgment motion cannot rest on allegations contained in the complaint.Baum v. Gillman, supra.Instead, the opposing party must respond with specific facts showing a genuine issue for trial.General assertions and conclusory statements are not enough to defeat a properly supported summary judgment motion.Whitfield v. Gangas,507 F.2d 880, 882(10th Cir.1974).

I.The Topeka Club is a bona fide private membership club under 42 U.S.C. § 2000e(b).

Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment on the basis of race.The provision describing the class of "employers" to whom the act applies, however, expressly excludes "a bona fide private membership club ... which is exempt from taxation under § 501(c) of the Internal Revenue Code of 1954."42 U.S.C. § 2000e(b)(2).Defendants contend that The Topeka Club falls within the scope of this express exemption.

In support of their contention, defendants have filed an affidavit by the president of the board of directors of The Topeka Club, copies of the articles of incorporation and by-laws of The Topeka Club, excerpts from minutes of meetings of the board of directors of The Topeka Club, and a letter of tax exemption from the Internal Revenue Service.These documents and their contents have not been controverted by plaintiff.The following facts are, therefore, uncontroverted.The defendant, The Topeka Club, Inc., is a corporation organized not for profit and is organized and operated as a private club exclusively for pleasure, recreation and other non-profitable purposes.The Topeka Club, Inc., is a licensed Class A club established under the laws of the State of Kansas.The Topeka Club is exempt from the payment of taxes under § 501(c)(7) of the Internal Revenue Code.The Topeka Club is managed and controlled by its board of directors, who are selected by the membership.In order to become a member of The Topeka Club, one must submit a written signed application together with an admission fee; be screened by the entire membership and the board of directors; and be approved by a majority vote of the board of directors, provided there are less than two negative votes from the board.Members of The Topeka Club are required to pay monthly dues.No part of the income or net earnings of The Topeka Club inures to the benefit of any private member or individual.The Topeka Club does not advertise that it is open to the public.The Topeka Club does not engage in any mass mailing or advertising to the public.All "publicity" is directed solely to its members for their information.

Although plaintiff does not specifically controvert the facts set out above, as is required under LocalRule 15(c), plaintiff does dispute the proposition that The Topeka Club is a bona fide private club.In conclusory fashion, plaintiff alleges that defendant, The Topeka Club, lacks machinery and criteria for selection of new members, or that, if such machinery and criteria exist, they are not enforced.As support for this factual allegation, plaintiff cites defendants' answers to two interrogatories, wherein defendants stated that "members and putative members can be expelled or denied admission for cause," and declined to identify any person actually denied admission or actually suspended.We note that these interrogatories were propounded after the deadline for discovery had expired, and that the defendants objected to them.

Even after considering all the facts and the inferences from those facts in favor of the plaintiff, we are not persuaded that a triable issue of material fact exists.When confronted with a properly supported motion for summary judgment, as is the defendants' motion in this case, the plaintiff has the burden of responding with specific facts showing a genuine issue for trial.Plaintiff's conclusory statements and assertions, coupled with two inconclusive responses to interrogatories, are simply not enough to defeat the motion for summary judgment.The evidence presented by the defendants and not controverted by the plaintiff requires us to conclude that, at least for purposes of this motion for summary judgment, defendant The Topeka Club is "a bona fide private membership club" within the meaning of 42 U.S.C. § 2000e(b)(2).Having resolved the factual question, we now proceed to address the more difficult legal issue.

II.The private club exemption of Title VII does not apply to an employment discrimination action under § 1981.

We now turn to the question whether the bona fide private membership club exemption to Title VII of the Civil Rights Act of 1964 applies to actions brought under § 1981, which was originally part of the Civil Rights Act of 1866.Defendants argue that Title VII impliedly supercedes and limits § 1981 so as to bar the present action.In support of this proposition, defendants have cited a total of eight cases.Tillman v. Wheaton-Haven Recreational Association, Inc.,451 F.2d 1211(4th Cir.1971), rev'd on other grounds,410 U.S. 431, 93 S.Ct. 1090, 35 L.Ed.2d 403(1973);Hudson v. Charlotte Country Club, Inc.,535 F.Supp. 313(W.D.N.Car.1982);Kemerer v. Davis,520 F.Supp. 256(E.D.Mich.1981);Wright v. Salisbury Club, Ltd.,479 F.Supp. 378(E.D.Va.1979), rev'd on other grounds,632 F.2d 309(4th Cir.1980);Perkins v. New Orleans Athletic Club,429 F.Supp. 661(E.D.La.1976);Cornelius v. Benevolent Protective Order of Elks,382 F.Supp. 1182(D.Conn.1974);Solomon v. Miami Woman's Club,359 F.Supp. 41(S.D.Fla.1973);Sims v. Order of United Commercial Travelers of America,343 F.Supp. 112(D.Mass.1972).

Although each of the cited cases arguably supports defendants' position here, these cases may be easily divided into two distinct lines, only one of which is directly applicable in this case.Of the cited cases, only two, Hudson v. Charlotte Country Club, Inc., and Kemerer v. Davis, involved the question whether the bona fide private club exemption of Title VII is applicable to an employment discrimination action under § 1981.In these two cases, the courts held that the exemption applied.The remaining cases involved a different question, namely the applicability of a bona fide private club exemption to an action under § 1981¹ to obtain membership in an association.As will be seen, this line of six membership cases is distinguishable from the case at bar.

A.The Membership Cases.

First, the membership cases involved a different bona fide private club exemption from the one involved in this case.With the exception of Sims v. Commercial Travelers, supra,²the courts in each of the membership cases applied the bona fide private club exemption from Title II of the Civil Rights Act of 1964, specifically42 U.S.C. § 2000a.Title II was designed to guarantee equal access to places of public accommodation, seeSullivan v. Little Hunting Park, Inc.,396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386(1969), whereas Title VII was intended to achieve equality of employment opportunities, seeGriggs v. Duke Power Co.,401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158(1971).Thus, the membership cases involved a different bona fide private club exemption contained in a completely different statute(Title II) from that involved...