Howe v. United Parcel Service, Inc., Civ. No. 74-15-D.

• Decision Date: 12 August 1974
• Docket Number: Civ. No. 74-15-D.
• Citation: 379 F. Supp. 667
• Parties: Robert HOWE et al., Plaintiffs, v. UNITED PARCEL SERVICE, INC., Defendant.
• Court: U.S. District Court — Southern District of Iowa

379 F. Supp. 667

Robert HOWE et al., Plaintiffs, v. UNITED PARCEL SERVICE, INC., Defendant.

Civ. No. 74-15-D.

United States District Court, S. D. Iowa, Davenport Division.

August 12, 1974.

Yale H. Iverson, West Des Moines, Iowa, for plaintiffs.

Kimber E. Vought, Schnader, Harrison, Segal & Lewis, Philadelphia, Pa., Albert L. Harvey, Stewart, Heartney, Jones, Brodsky & Thornton, Des Moines, Iowa, for defendant.

ORDER

STUART, District Judge.

I. The Case

This action was originally instituted in the State Court of Iowa. It was removed to this Court by the defendant, United Parcel Service, Inc. (UPS), pursuant to the provisions of 28 U.S.C. § 1441. The Court has original jurisdiction pursuant to 28 U.S.C. § 1343 and 42 U.S.C. § 1983 to redress the alleged deprivation of civil rights.

In their complaint plaintiffs allege that UPS has deprived them of their rights under the First and Ninth Amendments to the Constitution of the United States as made applicable to the states through the Due Process Clause of the Fourteenth Amendment. Plaintiffs contend that their rights were violated when UPS warned them that they could not continue in their present jobs as parcel delivery drivers because they were not in compliance with UPS grooming standards relating to hair length.

UPS has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56 on the ground that the threshold requirement of state action prescribed by the Fourteenth Amendment has not been met where, as here, a private delivery service requires employee compliance with its hair grooming standards. Plaintiffs have resisted the motion on the ground that defendant has a sufficient nexus with or dependence on the state to make some of its actions under color of state law. The parties have filed briefs in support of their positions and a hearing on the motion was held July 1, 1974.

II. State action

The sanctions of 42 U.S.C. § 1983 apply to "every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory" deprives another individual of rights secured by the Constitution. The threshold requirement is the satisfaction of the "color of State law" test. This test has generally been held to be the equivalent of the Fourteenth Amendment prohibition that "No State shall * * *", known as the "state action" requirement. United States v. Price (1966), 383 U.S. 787, 794 n. 7, 86 S.Ct. 1152, 16 L.Ed.2d 267. However, "at least one court has indicated its belief that the `color of state law' test may be more demanding". Jackson v. Metropolitan Edison Co. (3rd Cir., 1973), 483 F. 2d 754, 757 n. 4, citing Lavoie v. Bigwood (1st Cir., 1972), 457 F.2d 7, 15. See Adickes v. Kress (1970), 398 U.S. 144, 171 and 210, 90 S.Ct. 1598, 26 L. Ed.2d 142. The distinction, if it is, in fact, a substantial one, has not been borne out by the case law. For example, Moose Lodge No. 107 v. Irvis (1972), 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627, involved a § 1983 claim, yet the Court spoke of state action throughout the opinion. For the purpose of this opinion "under color of law" and "state action" will be treated as synonomous.

A review of the case law on state action reveals a great diversity of factual situations. For this reason, no clear-cut tests have been developed to determine the presence or absence of the required state involvement. The Supreme Court recognized this problem and developed what will probably be as close to a definitive state action test as can be expected in Burton v. Wilmington Parking Authority (1961), 365 U.S. 715, 81 S.Ct. 856, 6 L.Ed.2d 45. Justice Clark speaking for the Court in Burton stated:

It is clear, as it always has been since the Civil Rights Cases 109 U.S. 3, 3 S.Ct. 18, 27 L.Ed. 835 (1883) that `Individual invasion of individual rights is not the subject matter of the Fourteenth amendment.' Id. at 11, 3 S.Ct. at page 21, and that private conduct abridging individual rights does no violence to the Equal Protection Clause unless to some significant extent the State in any of its manifestations has been found to become involved in it. * * * To fashion and apply a precise formula for recognition of state responsibility under the Equal Protection Clause is an `impossible task' which `This Court has never attempted.' Citation omitted Only by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance. 365 U.S. at 722, 81 S.Ct. at 860.

This "sifting and weighing" test has been consistently utilized by the courts since its statement in 1961. While this is probably the only possible test, it is really no test at all. Consequently, the primary tool to be used in the analysis of a state action problem is the tool of analogy. By a careful analysis of the state-UPS relationship, and a comparison with the "sifting and weighing" done by the courts in the past, the presence or absence of the requisite state action may be determined.

III. Five generic patterns in the case law concerning state action.

As the law of state action has developed, five distinguishable patterns have emerged. See Jackson v. Metropolitan Edison Co. (3rd Cir., 1973), 483 F. 2d 754, 757; Bond v. Dentzer (N.D.N. Y., 1973), 362 F.Supp. 1373, 1377. These patterns are as follows:

(1) State Officer or Agent — Where the State acts through its own designated officers or agents. This pattern is inapplicable to the case at bar and will not be pursued further.

(2) Joint Venturer — When a private party's action occurred in conjunction with a business in which the state may be considered a partner or joint venturer in a profit making field. See Burton, supra.

(3) Encouragement — Where the state authorizes, encourages or creates an atmosphere where private interests deprive individuals of their constitutional rights. This may take the form of state inaction, whereby private individuals acting with the blessing of the state can accomplish what the state could not do directly. Reitman v. Mulkey (1967), 387 U.S. 369, 87 S.Ct. 1627, 18 L.Ed.2d 830; Adickes v. Kress (1970), 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142.

(4) Affirmative Approval — When a state agency affirmatively orders or specifically approves the challenged activity in the course of its regulatory rule making. Public Utilities Commission v. Pollak (1952), 343 U.S. 451, 72 S.Ct. 813, 96 L.Ed. 1068.

(5) Traditional State Function — Where functions normally or traditionally performed by the state are delegated to or performed by private interest. Marsh v. Alabama (1946), 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265.

These five patterns provide a useful structure within which to analyze and apply the law of state action to the facts of the present case.

A. Joint Venturer.

The leading case in this area is Burton, supra. The case was explained in Moose Lodge, supra 407 U.S. at 172, 92 S.Ct. at 1971 as follows:

The Court held * * * that a private restaurant owner who refused service because of a customer's race violated the Fourteenth Amendment, where the restaurant was located in a building owned by a state-created parking authority and leased from the authority. The Court, after a comprehensive review of the relationship between the lessee and the parking authority concluded that the latter had `so far insinuated itself into a position of interdependence with Eagle the restaurant owner that it must be recognized as a joint participant in the challenged activity, which, on that account, cannot be considered to have been so "purely private" as to fall without the scope of the Fourteenth Amendment.'

In addition to the symbiotic partnership arrangement, the Court in Burton "could point to a specific state statute which was said to permit the offending conduct" as a further ground for finding state action. Jackson, supra 483 F. 2d at 757; Burton, supra 365 U.S. at 726, 81 S.Ct. 856 concurring opinion, Stewart, J.. The statute's existence strengthens the finding of a close relationship between the state and the restaurant. This aspect of Burton is analogous to the "encouragement" pattern hereinafter discussed.

Ihrke v. Northern States Power Co. (8th Cir., 1972), 459 F.2d 566, reversed due to mootness (1972), 409 U.S. 815, 93 S.Ct. 66, 34 L.Ed.2d 72, also involved state action of the joint venture variety. Jackson, supra 483 F.2d at 759. In Ihrke the Court held that the action of the defendant utility in threatening to terminate service to customers was under color of state law. In reaching this result the Court noted that the city which regulated the utility also received 5% of the company's gross earnings. Thus, the city and the utility benefited mutually from the payment of bills resulting from the company's threat to terminate service. 459 F.2d at 568. Two other factors contributed to the finding of state action: (1) The utility had what amounted to an exclusive franchise to furnish utility services, and as a practical matter the plaintiffs could not buy service from any other source. 459 F.2d at 569-570. (2) Although the utility prepared its own regulations, the city council had the right to review, and revise or reject the regulations including those relating to the termination of service. 459 F.2d at 568-570. These two additional factors further "insinuated" the state into a position of interdependence with the utility and strengthened the finding of state action.

The Court in Ihrke adopted the formulation proposed by Judge Kerner in his concurring opinion in Kadlec v. Illinois Bell Telephone Co. (7th Cir., 1969), 407 F.2d 624, 627, cert. denied, 396 U.S. 846, 90 S.Ct. 90, 24 L.Ed.2d 95. This formulation was to be used to determine if a sufficient nexus or dependence on the state existed to make some of the actions of a privately-owned, publicly-regulated utility under color of state law. 407 F.2d at 628. In Kadlec the only state connection with the activity complained of was that the "defe...