Hunt v. Weatherbee

• Decision Date: 23 January 1986
• Docket Number: Civ. A. No. 84-3001-Y.
• Citation: 626 F. Supp. 1097
• Parties: Rosa Elizabeth HUNT, Plaintiff, v. Robert WEATHERBEE, et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

626 F. Supp. 1097

Rosa Elizabeth HUNT, Plaintiff, v. Robert WEATHERBEE, et al., Defendants.

Civ. A. No. 84-3001-Y.

United States District Court, D. Massachusetts.

January 23, 1986.

Edward Greer, Cambridge, Mass., for plaintiff.

Robert E. Fast, Hale & Dorr, Boston, Mass., for defendants Turner Const. and Mark Dirksmeir.

Michael A. Feinberg, Feinberg & Feld, Boston, Mass., for defendants Weatherbee, Bryant and Shaw.

MEMORANDUM AND ORDER

YOUNG, District Judge.

This action arises from an alleged pattern and practice of sex discrimination and sexual harassment committed against the plaintiff Rosa Elizabeth Hunt ("Hunt") while she was employed as an apprentice with the United Brotherhood of Carpenters and Joiners of America, Local 40 ("Local 40"). Hunt has brought federal claims under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (Counts I-IV); the Civil Rights Acts, 42 U.S.C. §§ 1985(2), 1985(3), and 1986 (Counts V-IX); and the Landrum-Griffin Act, 29 U.S.C. § 101 et seq. (Count XIV). In addition, she has brought pendant state claims alleging civil rights violations and civil conspiracy (Counts X-XIII). Three of the defendants have now moved to dismiss Counts I-VII for failure to state a claim upon which relief can be granted, and to dismiss Counts X-XIII for lack of subject matter jurisdiction. For the reasons that follow, the motion is denied.

I. Background

Hunt has alleged by verified complaint the following facts, which are accepted as true for purposes of this motion: At all times relevant to this lawsuit, Hunt has been a member in good standing of Local 40. She is currently a certified journeyman carpenter, having successfully completed a four-year apprenticeship. Pursuant to an apprentice agreement executed on or about June 2, 1980, Local 40 has been responsible for obtaining employment for Hunt with certain construction companies, including the Perini Corporation and the Ceco Corporation.

From September, 1981 until June, 1983, Hunt was employed by the Perini Corporation at a construction site at Harvard Square in Cambridge, Massachusetts. She has alleged that throughout this period of employment at the Harvard Square site, she was subjected to numerous acts of sex discrimination and sexual harassment. In April or May of 1982, she attended a meeting with the defendant Robert Weatherbee, the Business Agent of Local 40, and informed him of these discriminatory practices. Weatherbee condoned and ratified such practices and refused to take any action to stop them, despite his power and authority to do so as an officer of Local 40.

In addition to her allegations of discriminatory and harassing practices which occurred on the Harvard Square worksite generally, Hunt has alleged specific facts relating to an incident in November, 1981. On November 5, 1981, while in the course of her employment at Harvard Square, Hunt was the victim of an assault and battery by a fellow servant, William Freeman. After filing a criminal complaint against Freeman on November 6, 1981, Hunt was called to a meeting with various officials, including Weatherbee and the defendant Robert Bryant, the Financial Secretary and Assistant Business Agent of Local 40. All of the officials present at that meeting accused Hunt of being responsible for the assault, expressed sexually discriminatory animus toward her, and demanded that she withdraw her criminal complaint. As a result of the alleged coercion and intimidation by Weatherbee and Bryant, Hunt did in fact withdraw her criminal complaint.

In March, 1984, Hunt worked at a construction site at Osborne Street in Cambridge, Massachusetts, at the direction of Local 40. At that time, Hunt was employed by the Ceco Corporation, which was a subcontractor to defendant Turner Construction Corporation ("Turner Construction"). According to Hunt, the defendant Mark Dirksmeir was the general superintendant of Turner Construction and had overall responsibility for the Osborn Street project. Throughout the period of her employment at the Osborne Street site, Hunt again was subjected to various acts of sexual harassment and sex discrimination.

On March 26 and 27, 1984, Hunt was approached by the defendant Joe Shaw, the shop steward of Local 40, who attempted to coerce her into purchasing raffle tickets for the so-called "Local 40 Political Action Fund." Shaw allegedly made hostile and intimidating statements to Hunt, based upon sexually discriminatory animus, including threats of personal injury if she did not purchase the tickets. Hunt left the worksite in fear of physical injury and loss of her employment, and contacted defendant Weatherbee for protection against such threats, but Weatherbee refused to act. Hunt returned to the site on March 27, 1984 and met with Shaw and Dirksmeir. Shaw repeated his threats of physical harm in the presence of Dirksmeir, but Dirksmeir refused to take any action. Hunt then left the site in fear for her safety and never returned to work as a Local 40 carpenter.

On September 21, 1984, Hunt filed this action against three officials of Local 40 — Weatherbee, Bryant, and Shaw — and against Turner Construction and its alleged general superintendent, Dirksmeir.¹

II. The RICO Claims

The Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. §§ 1961-1968, provides a private civil action to recover treble damages for "any person injured in his business or property by reason of a violation of section 1962." 18 U.S.C. § 1964(c). Section 1962 outlaws the use of income derived from a "pattern of racketeering activity" to acquire an interest in, establish, or operate an enterprise engaged in or affecting interstate commerce; the acquisition or maintenance of any interest in an enterprise "through" a pattern of racketeering activity; conducting or participating in the conduct of an enterprise through a pattern of racketeering activity; and conspiring to violate any of these provisions. 18 U.S.C. § 1962; Sedima, S.P.R.L. v. Imrex Co., ___ U.S. ___, 105 S.Ct. 3275, 3278, 87 L.Ed.2d 346 (1985).

Hunt has brought civil RICO claims against Weatherbee (Counts I and II) and Bryant (Counts III and IV), alleging as predicate acts of racketeering activity (1) the actions of Weatherbee and Bryant in coercing Hunt to withdraw her criminal complaint against Freeman, and (2) the actions of Shaw, described as the "agent" of Weatherbee and Bryant, in attempting to coerce Hunt to purchase raffle tickets for the Local 40 Political Action Fund. According to Hunt, these two predicate acts constitute a "pattern of racketeering activity" as defined by 18 U.S.C. 1961(5). Weatherbee and Bryant have moved to dismiss the RICO claims on several grounds.

A. Type of Injury Alleged

Weatherbee and Bryant argue that Hunt has alleged "the wrong type of injury" to sustain a civil RICO claim. First, they contend that Hunt's claim is simply one for emotional distress, and that such a claim is not actionable under RICO. Second, they argue that Hunt has not alleged any organized crime involvement by the defendants.

It is inacurate to characterize Hunt's action as a claim for emotional distress. The thrust of her complaint is that the defendants engaged in willful acts of discrimination and harassment which "permanently disabled her from her trade as a carpenter," and she seeks damages for loss of wages. Although Hunt also seeks substantial damages for pain and suffering, she has not included a cause of action for infliction of emotional distress.

Weatherbee and Bryant assert that an employee's action for lost wages is not cognizable under 18 U.S.C. § 1964(c), which provides a civil action to any person injured in his "business or property" by reason of a violation of § 1962. Weatherbee and Bryant rely on Van Schaick v. Church of Scientology of California, 535 F.Supp. 1125 (D.Mass.1982), in which the court dismissed a civil RICO claim on the ground that the plaintiff had alleged "no injury to business or property but rather that the plaintiff had to flee about the United States and suffered emotional distress." Id. at 1137.² Van Schaick did not involve an employment relationship and thus is easily distinguished from the case at bar.

In interpreting the scope of the "business or property" language of § 1964(c), it is appropriate to consider those decisions which have interpreted identical language from Section 4 of the Clayton Act, 15 U.S.C. § 15,³ since the Clayton Act served as the model for § 1964(c). Sedima, S.P.R.L. v. Imrex Co., ___ U.S. ___, 105 S.Ct. 3275, 3279-81, 87 L.Ed.2d 346 (1985). In the antitrust context, federal courts have frequently concluded that "the loss of employment constitutes an injury to one's business or property." McNulty v. Borden, Inc., 474 F.Supp. 1111, 1116 (E.D. Pa.1979) (collecting cases); see, e.g., Quinonez v. National Ass'n of Securities Dealers, Inc., 540 F.2d 824, 829-30 (5th Cir. 1976) (loss of an opportunity to perform work is an "injury to business"). There is no compelling reason to apply a different rule in this case, where Hunt has alleged that the defendants' actions forced her out of her job as a carpenter and disabled her from pursuing such work in the future. Therefore, this Court rules that Hunt has properly alleged an injury to "business or property" within the meaning of § 1964(c).

With respect to the assertion that Hunt did not allege any organized crime involvement by the defendants, the Supreme Court made clear in Sedima that such an allegation is not necessary to state a cognizable claim under § 1964(c). Because Congress wanted to reach both "legitimate" and "illegitimate" enterprises, there is no requirement that a RICO plaintiff must allege a "racketeering injury." 105 S.Ct. at 3284-87.

B. The Predicate Acts

Hunt has alleged that Weatherbee and Bryant committed two predicate acts of racketeering activity.⁴ First, she alleges that the actions of Weatherbee and Bryant in coercing her to withdraw...