Johnson v. Hills & Dales General Hosp.

• Decision Date: 16 November 1994
• Docket Number: No. 93-1854,93-1854
• Citation: 40 F.3d 837
• Parties: 66 Fair Empl.Prac.Cas. (BNA) 504 Vivian JOHNSON, Plaintiff-Appellant, v. HILLS & DALES GENERAL HOSPITAL, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 837

40 F.3d 837

66 Fair Empl.Prac.Cas. (BNA) 504

Vivian JOHNSON, Plaintiff-Appellant, v. HILLS & DALES GENERAL HOSPITAL, et al., Defendants-Appellees.

No. 93-1854.

United States Court of Appeals Sixth Circuit.

Argued Oct. 3, 1994.

Decided Nov. 16, 1994.

Melissa Zakiya El (argued and briefed), Detroit, MI, for plaintiff-appellant.

Karen B. Berkery (briefed), Mark D. Willmarth, Linda M. Garbarino (argued), Elizabeth I. Huldin, Kitch, Drutchas, Wagner & Kenney, Detroit, MI, for defendants-appellees.

Before: MILBURN, DAUGHTREY and WEIS ^*, Circuit Judges.

WEIS, Circuit Judge.

Because a corporation cannot conspire with itself, employees of the company generally cannot be liable for a conspiracy under the Civil Rights Act, 42 U.S.C. Sec. 1985(3). In this appeal, we conclude that an exception to that rule exists when the challenged activity takes place outside the course of employment. In this case, the evidence does not establish that the employees' conduct meets that standard, and therefore, we will affirm the district court's grant of summary judgment to defendants.

I.

Plaintiff, a black physician, was employed by the MasterCare Corporation, a company that provides hospitals with physicians to staff emergency rooms. Although the physicians work in the hospital, they remain employees of MasterCare and their assignments may be terminated at the hospital's request.

Under this arrangement, plaintiff worked at defendant Hills & Dales General Hospital for a number of weekends in the period between October 1989 and April 1990. During this time, she experienced some hostility from various hospital employees and was subjected on one occasion to a derogatory racial remark. The employees complained that plaintiff ordered excessive diagnostic testing and that she unnecessarily called in employees for weekend assignments. They also criticized the plaintiff's professional competence and, ultimately, wrote a letter to the hospital administration complaining about her performance. Based on this letter indicating discord between the staff and plaintiff, the hospital president asked MasterCare to assign a different physician to the Hills & Dales emergency room.

Asserting that she had been reassigned because of racial discrimination, plaintiff sued the hospital, its president, and the members of the staff who had been critical of her. The complaint asserted claims arising under state law and various federal civil rights statutes, including allegations of a conspiracy under 42 U.S.C. Sec. 1985(3). The district court entered summary judgment for defendants on all counts.

In ruling on the section 1985(3) charge, the district court did not deem it necessary to determine whether the statements of the staff were false, because there could not have been an actionable intra-corporate conspiracy in any event. As the court observed, "There simply are not two people which would be required for a conspiracy. That fails and everything else falls away into unimportance...." Conceding the possibility of an exception to the intra-corporate conspiracy rule, the court continued:

"The only possible exception to that is if people are off doing things which are palpably beyond the scope of their employment. The falsity alleged by the plaintiff of these statements that were made in this petition is not of a character to allow any court to determine that these statements were made beyond the scope of the employment responsibilities ... The statements were made within the scope of that employment situation and that defeats, in and of itself, the claim of conspiracy in the [section 1985] claim."

Plaintiff has appealed, but she limits her challenge to the ruling on the conspiracy count.

We review a district court's grant of summary judgment de novo. Brooks v. American Broadcasting Cos., 932 F.2d 495, 500 (6th Cir.1991). Summary judgment is appropriately granted if the record developed through discovery shows 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).

In Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 2554, 91 L.Ed.2d 265 (1986), the Court stated that the moving party may meet its burden by showing that there is an absence of evidence to support the nonmoving party's case. The nonmoving party must do more than merely present its own pleadings and affidavits. Ashbrook v. Block, 917 F.2d 918, 921 (6th Cir.1990). As the Supreme Court remarked in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986), "there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party."

II.

To establish a claim under 42 U.S.C. Sec. 1985(3), ¹ a plaintiff must prove (1) a conspiracy involving two or more persons (2) for the purpose of depriving, directly or indirectly, a person or class of persons of the equal protection of the laws and (3) an act in furtherance of the conspiracy (4) which causes injury to a person or property, or a deprivation of any right or privilege of a citizen of the United States. Hilliard v. Ferguson, 30 F.3d 649, 652-53 (5th Cir.1994). Plaintiff must also establish that the conspiracy was motivated by a class-based animus. Id. at 653.

This Court has held that in cases brought under section 1985(3), a corporation cannot conspire with its own agents or employees. In Hull v. Cuyahoga Valley Joint Vocational Sch. Dist. Bd. of Educ., 926 F.2d 505, 510 (6th Cir.1991), we stated: "[I]f all of the defendants are members of the same collective entity, there are not two separate 'people' to form a conspiracy." This holding is generally labeled the "intracorporate conspiracy" doctrine. Although the precept is frequently discussed in the antitrust field, see e.g., Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752, 104 S.Ct. 2731, 81 L.Ed.2d 628 (1984) and Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911 (5th Cir.1952), it is also applied in cases alleging civil rights conspiracies. See e.g., Robison v. Canterbury Village, Inc., 848 F.2d 424, 431 (3d Cir.1988); Buschi v. Kirven, 775 F.2d 1240, 1251-52 (4th Cir.1985); Doherty v. American Motors Corp., 728 F.2d 334, 339-40 (6th Cir.1984); Girard v. 94th St. & Fifth Ave. Corp., 530 F.2d 66, 70-72 (2d Cir.1976); Baker v. Stuart Broadcasting Co., 505 F.2d 181, 183 (8th Cir.1974). But see Stathos v. Bowden, 728 F.2d 15, 21 (1st Cir.1984); Novotny v. Great Am. Fed. Sav. & Loan Ass'n., 584 F.2d 1235, 1257 (3d Cir.1978) (en banc), vacated on other grounds, 442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957 (1979) (Supreme Court assumed but expressly withheld decision on the application of the intracorporate conspiracy doctrine to section 1985(3)).

The intracorporate conspiracy doctrine, if applied too broadly, could immunize all private conspiracies from redress where the actors coincidentally were employees of the same company. Aware of this possibility, courts have created a "scope of employment" exception that recognizes a distinction between collaborative acts done in pursuit of an employer's business and private acts done by persons who happen to work at the same place.

In Dombrowski v. Dowling, 459 F.2d 190, 196 (7th Cir.1972), the Court held that a claim under section 1985(3) is not established "if the challenged conduct is essentially a single act of discrimination by a single business entity." The mere "fact that two or more agents participated in the decision or in the act itself will normally not" suffice to create a conspiracy. Id. The Dombrowski Court commented that it did not mean to "suggest that an agent's action within the scope of his authority will always avoid a conspiracy finding." Id.

The same Court of Appeals clarified its Dombrowski holding in Travis v. Gary Community Mental Health Ctr., Inc., 921 F.2d 108 (7th Cir.1990). That case reiterated that "managers of a corporation jointly pursuing its lawful business do not become 'conspirators' when acts within the scope of their employment are said to be discriminatory or retaliatory." Id. at 110. Travis also held that "[s]ection 1985 depends on multiple actors, not on multiple acts ...." Hence, "it does not matter whether the corporate managers took multiple steps to carry out their plan...." Id. at 111.

Another Court of Appeals discussed a limitation to the intracorporate conspiracy doctrine in Garza v. City of Omaha, 814 F.2d 553 (8th Cir.1987). There, the Court held that a section 1985 "intracorporate conspiracy may be established where individual defendants are also named and those defendants act outside the scope of their employment for personal reasons." Id. at 556.

In Hartman v. Board of Trustees of Community College Dist. No. 508, Cook County, Ill., 4 F.3d 465, 470 (7th Cir.1993), the Court questioned whether it was appropriate to hold corporate agents liable under section 1985(3) when their actions within the scope of employment were prompted,...