Potenza v. Schoessling

• Decision Date: 12 February 1976
• Docket Number: No. 75-1686,75-1686
• Citation: 541 F.2d 670
• Parties: 93 L.R.R.M. (BNA) 2556, 81 Lab.Cas. P 13,126 Rocco POTENZA et al., Plaintiffs-Appellants, v. Ray SCHOESSLING et al., Defendants-Appellees. . Heard
• Court: U.S. Court of Appeals — Seventh Circuit

Page 670

541 F.2d 670

93 L.R.R.M. (BNA) 2556, 81 Lab.Cas. P 13,126

Rocco POTENZA et al., Plaintiffs-Appellants, v. Ray SCHOESSLING et al., Defendants-Appellees.

No. 75-1686.

United States Court of Appeals Seventh Circuit.

Heard Feb. 12, 1976.

Decided Sept. 9, 1976.

Rehearing Denied Oct. 4, 1976.

Mark Schwartzman, Burton Joseph, Chicago, Ill., for plaintiffs-appellants.

Anna R. Lavin, Edward J. Calihan, Jr., Marvin Sacks, William R. Quinlan, Corp. Counsel, Chicago, Ill., for defendants-appellees.

Before FAIRCHILD, Chief Judge, and CUMMINGS and SPRECHER, Circuit Judges.

PER CURIAM.

In November 1974, six plaintiffs, all with criminal records, instituted this Civil Rights action under 42 U.S.C. §§ 1983 and 1985(3) challenging their dismissal as laborers at the McCormick Place exhibition hall in Chicago. The plaintiffs, all members of Local 714, ¹ alleged that the defendants conspired with each other, acting under color of state law, to deprive plaintiffs of their jobs. Defendant Ray Schoessling was the chairman of the Metropolitan Fair and Exposition Authority, a public body in charge of McCormick Place. Defendant John Sevcik was employed by that Authority as manager of McCormick Place. Defendant William Hogan, Sr., was secretary-treasurer of Local 714, and defendant William Hogan, Jr., was its president. Defendant Jerry Gladden was an employee of the Chicago Police Department and served under the direction and control of defendant Walter Murphy. ²

The complaint charges that in July 1974 Murphy directed Gladden to contact the Hogans, Schoessling and Sevcik to terminate plaintiffs' employment at McCormick Place. ³ In furtherance of the conspiracy, the Hogans allegedly contacted the Chief Shop Steward of Local 714 at McCormick Place and told him to terminate the plaintiffs' employment there and to refuse thereafter to place their names for consideration for employment. The complaint stated that Local 714 frequently employed persons with criminal records in an effort to rehabilitate them and that Local 714 and defendants knew of plaintiffs' criminal records during their employment. Despite this fact, plaintiffs contend that they were singled out by the defendants to have their employment terminated "in a discriminatory and illegal manner," denying them the equal protection of the laws under the Fourteenth Amendment. Plaintiffs demanded $225,000 in damages. In pendent Count II, plaintiffs charged defendants with terminating the "valid business relationship between Plaintiffs and various contractors which employed them at McCormick Place." Identical damages were demanded in that Count.

In an unreported memorandum opinion, the district court granted defendants' motions to dismiss on the ground that plaintiffs failed to allege sufficient state action to meet the requirements of 42 U.S.C. §§ 1983 and 1985(3). The court reasoned as follows:

"The action which was ultimately taken which allegedly deprived the plaintiffs of their right to continue in their employment was taken by the union officials, not by any state authorities. There is no allegation that the public authorities, either the police officer or the McCormick Place officials, had any control over the employment of the plaintiffs. In such a case, there cannot be action 'under color of state law.' Since the power exercised was not possessed by virtue of state law, but rather by virtue of an agreement between private parties, the exercise of such power is private action. The public officials had no authority by virtue of their official positions to exercise the power which terminated the plaintiffs' employment."

In a subsequent memorandum opinion disposing of plaintiffs' motion to reconsider, the district judge acknowledged that under Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338, a conspiracy involving racially discriminatory motivation is actionable under Section 1985(3) absent state action. However, since the amended complaint contained no allegations of racial discrimination, the court concluded that state action was still required here under Section 1985(3), citing Collins v. Hardyman, 341 U.S. 651, 71 S.Ct. 937, 95 L.Ed. 1253. We reverse the court's ruling on Section 1983.

In United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 16 L.Ed.2d 267, the Court held that private persons jointly engaged with state officials in prohibited action are acting under color of law for the purposes of 18 U.S.C. § 242, the criminal analog of 42 U.S.C. § 1983. It is enough that the private defendant be "a willful participant in joint activity with the State or its agents." 383 U.S. at 794, 86 S.Ct. at 1157. Plaintiffs' complaint clearly alleges that the decision to fire them was the product of action by both private and public officials; this is sufficient to meet the standard in Price. Because the test for state action is the same under 42 U.S.C. § 1983 as it is under 18...