Kimble v. D. J. McDuffy, Inc., No. 78-1474

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: Before TUTTLE, AINSWORTH and SAM D. JOHNSON; SAM D. JOHNSON; AINSWORTH
• Citation: 623 F.2d 1060
• Parties: Versie KIMBLE, Plaintiff-Appellant, v. D. J. McDUFFY, INC. and Industrial Foundation of the South, and all of its subscribers, Defendants-Appellees.
• Docket Number: No. 78-1474
• Decision Date: 14 August 1980

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623 F.2d 1060 Versie KIMBLE, Plaintiff-Appellant,
v.
D. J. McDUFFY, INC. and Industrial Foundation of the South,
and all of its subscribers, Defendants-Appellees. No. 78-1474. United States Court of Appeals,
Fifth Circuit. Aug. 14, 1980.

Page 1061

Lawrence D. Wiedemann, New Orleans, La., for plaintiff-appellant.

Phelps, Dunbar, Marks, Claverie & Sims, Harry S. Redmon, Jr., Rutledge C. Clement, Jr., Margaret Ann Brown, New Orleans,

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La., George J. Petrovich, Jr., Fort Worth, Tex., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before TUTTLE, AINSWORTH and SAM D. JOHNSON, Circuit Judges.

SAM D. JOHNSON, Circuit Judge:

Tales of the violence of white sheeted Southerners prompted Congress to pass the Ku Klux Klan Act of 1871. Today this Court is asked to decide whether one of the offspring of that Act, 42 U.S.C. § 1985(2), ¹ provides relief for individuals who allege they are unable to obtain employment in the oil drilling industry because they filed personal injury claims against companies in that industry. The district court, 445 F.Supp. 269, held as a matter of law that the statute does not cover this alleged blacklisting and granted summary judgment for defendants. We affirm in part and reverse in part.

I. The Facts

The Industrial Foundation of the South (the Foundation) is a non-profit corporation that assists its member companies, all affiliated with the oil industry, in making personnel decisions. Specifically, the Foundation checks court records in Louisiana, Texas, Mississippi, Alabama, Oklahoma, New Mexico, and Missouri to discover all claims filed against companies in the oil industry for injuries resulting from employment. ² The Foundation then compiles a list of the individuals who have filed suit in federal or state courts, as well as those who have sought workers' compensation pursuant to federal or state law. ³ Whenever someone applies for employment with one of the approximately 300 subscribers to the Foundation's services, the person handling the job application notifies the Foundation and provides the Foundation with the prospective employee's name and social security number. ⁴ The Foundation searches through its one-half million records and supplies the requesting company with any pertinent information that it has on the applicant. Using this information as a guideline, the employer then makes an appropriate employment decision.

One of the individuals whose record may be found in the Foundation's files is the named plaintiff in this cause of action, Versie Kimble. In 1969 Kimble injured his right shoulder while working for Noble Drilling Company. He filed suit in federal court and, after a jury trial, recovered $35,000. In December 1972, Kimble began working for D. J. McDuffy, Inc. (McDuffy), a now-defunct oil well service company. At the time McDuffy hired Kimble, the company was not a member of the Industrial Foundation of the South. In March 1973 McDuffy joined the Foundation. Shortly thereafter, in early April, McDuffy fired Versie Kimble. McDuffy contended that it terminated Kimble because he was about to seek political office. Kimble claims he was fired because of his prior suit against Noble Drilling Company.

On May 13, 1973, Versie Kimble filed this class action on behalf of all individuals who had been denied employment by Foundation members because they had filed workers' compensation or personal injury claims against companies affiliated with the oil

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drilling industry. The defendants included D. J. McDuffy, Inc., the Industrial Foundation of the South, and all members of the Foundation. The complaint, based entirely on 42 U.S.C. § 1985(2), ⁵ sought damages for the class and a permanent injunction enjoining defendants from continuing their allegedly unlawful practices. ⁶ The district court denied class action status with respect to the damage claim, but certified the class with respect to the claim for injunctive relief.

In January 1978 the district court considered the defendants' motion for summary judgment. The district court gave plaintiffs the benefit of all assumptions and drew all inferences in favor of the plaintiffs. After thoroughly examining Section 1985(2), the district court concluded that the statute does not cover the actions that plaintiffs complained of, and held that the defendants were entitled to judgment as a matter of law. Kimble v. D. J. McDuffy, Inc., 445 F.Supp. 269 (E.D.La.1978). Plaintiff then instituted this appeal.

II. Statutory History

The starting point for delineating the coverage provided by section 1985(2) is the section's statutory roots. See Brawer v. Horowitz, 535 F.2d 830 (3d Cir. 1976). The parent of Section 1985 is Section 2 of the Ku Klux Klan Act. ⁷ Act of April 20, 1871, Ch. 22, § 2, 17 stat. 13. In 1874, pursuant to

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Congressional authorization, Secretary of State Hamilton Fish supervised the revision and publication of all the statutes of the United States. During the course of that revision, minor grammatical changes were made and Section 2 of the Ku Klux Klan Act was reformulated into three subsections. Brawer 535 F.2d at 838, 839. The reformulated version of Section 2 of the Ku Klux Klan Act made its way into the revised statutes as Section 1980. The current language of Section 1985, including Section 1985(2), is taken verbatim from Revised Statutes § 1980, Second.

Section 1985(2) was once part of a unitary statutory scheme designed to protect individuals from a wide range of conspiracies. Thus, in seeking to interpret the language of Section 1985(2), courts must be guided by prior interpretations of similar language found in Section 2 of the Ku Klux Klan Act, specifically those provisions that today constitute 1985(1) and (3).

III. The Section 1985(2) Cause of Action

A. Analytical Framework

The issue before this Court is whether plaintiffs produced sufficient evidence to survive defendants' motion for summary judgment. A careful analysis of the various provisions of Section 1985(2) and an application of the facts to those provisions is required in order to resolve this question. In conducting this examination, we must approach the "perfidious syntax" of Section 1985(2) with some care. Brawer, 535 F.2d at 837. The statute contains several different provisions, no two of which are directed at the same type of conspiracy. As the district court noted, when one omits the clauses in Section 1985(2) that are applicable to juries and jurors (and inapplicable in the case at bar), subsection 2 contains four clauses that create four distinct causes of action:

A. If two or more persons conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein . . . or

B. to injure such party or witness in his person or property on account of his having so attended or testified, or

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C. if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or

D. to injure him or his property for lawfully enforcing . . . the right of any person, or class of persons, to the equal protection of the laws.

445 F.Supp. at 274. In determining whether plaintiffs' claim should have survived a motion for summary judgment, this Court must examine each of these four clauses individually.

B. Clause C

Clause C of Section 1985(2) is aimed at conspiracies designed to obstruct "the due course of justice in any State or Territory." The conspiracy must be entered into with the intent to deny "equal protection of the laws . . . ." The district court held that plaintiffs failed to allege or show a conspiracy entered into with the intent to deny them equal protection of the law. We agree.

Exactly what evidence is required to establish that defendants entered into a conspiracy with the intent of denying plaintiffs equal protection of the law is not readily apparent. The starting point for this inquiry must be the Supreme Court's interpretation of similar language from Section 1985(3) in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971). Although the Supreme Court in Griffin was focusing on the language of Section 1985(3), this Court has held that, in light of its statutory roots, ⁸ clause C is to be interpreted in accordance with Griffin. Slavin v. Curry, 574 F.2d 1256, 1262, modified 583 F.2d 779 (5th Cir. 1978).

Griffin involved an assault on blacks traveling a Mississippi highway by white private citizens. The attack was racially motivated defendants acted on the mistaken belief that the plaintiffs were civil rights workers. The issue in Griffin was whether Section 1985(3) created a cause of action for damages against individuals acting in a purely private capacity.

The Court held that Section 1985(3) was designed to protect individuals from actions by private persons. The Court recognized, however, that Section 1985(3) was not "intended to apply to all tortious, conspiratorial interferences (by private parties) with the rights of others." Id. 403 U.S. at 101, 102, 91 S.Ct. at 1798. "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, animus behind the conspiratorial actions." Id. at 102, 91 S.Ct. at 1798 (footnote omitted). Thus, since defendants in the case at bar are private parties, in determining whether plaintiffs have satisfied the requisites of clause C this Court must determine whether plaintiffs have established that defendants were motivated by the appropriate class-based, discriminatory animus.

We note from the start that not all classes of individuals fall within the protective cloak of clause...