Retail Clerks U., Local 770 v. Retail Clerks Int. Ass'n, Civ. No. 72-2143.

• Decision Date: 13 April 1973
• Docket Number: Civ. No. 72-2143.
• Citation: 359 F. Supp. 1285
• Court: U.S. District Court — Central District of California
• Parties: RETAIL CLERKS UNION, LOCAL 770 et al., Plaintiffs, v. RETAIL CLERKS INTERNATIONAL ASSOCIATION et al., Defendants.

359 F. Supp. 1285

RETAIL CLERKS UNION, LOCAL 770 et al., Plaintiffs, v. RETAIL CLERKS INTERNATIONAL ASSOCIATION et al., Defendants.

Civ. No. 72-2143.

United States District Court, C. D. California.

April 13, 1973.

Wyman, Bautzer, Rothman & Kuchel, Terry Christensen, Beverly Hills, Cal., for plaintiffs.

Kadison, Pfaelzer, Woodard, Quinn & Rossi, Richard T. Williams, Los Angeles, Cal., for defendants.

MEMORANDUM OF DECISION AND ORDER DISMISSING ACTION

WHELAN, District Judge.

In this action, defendants have moved to dismiss the action on the ground that plaintiffs have failed to state a claim upon which relief can be granted. The action was submitted to the Court for decision after argument, both oral and written, by counsel for the respective parties. It is the opinion of this Court that this is a proper case for dismissal of the action for it can be determined affirmatively from the pleadings and affidavits filed herein that plaintiffs cannot secure any relief in this action.

Plaintiffs have charged that the defendant Retail Clerks International Association (hereinafter referred to as RCIA) by adopting at their recent convention bylaws to the RCIA constitution providing for the mandatory retirement at age 65 of officers and employees of the International Union and its chartered locals has discriminated against plaintiffs on the basis of age.

The applicable bylaws read:

". . . No person may hold an elected office in The International Association or any of its chartered bodies beyond the first day of the month next following January 1974 or his 65th birthday, whichever occurs later."

". . . The International Association and its chartered bodies shall not commence or continue the employment of any person beyond the first day of the month next following January 1974 or his 65th birthday, whichever occurs later."

By operation of these bylaws, plaintiffs DeSilva, who is and has been the chief executive officer of plaintiff Retail Clerks Union, Local 770, for thirty-five years, and Tiano, who has been employed by the same local as a business agent for more than twenty-five years, will cease to be eligible for union employment on February 1, 1974. Plaintiff DeSilva, in fact, will be 69 years of age in May, 1973.

Plaintiffs have alleged that RCIA's retirement bylaws violate the Fifth and Fourteenth Amendments to the United States Constitution. However, this Court is of the opinion that plaintiffs have failed to allege the requisite "state action" as required by the recent case of Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972) wherein the Supreme Court stated:

"The Court has never held, of course, that discrimination by an otherwise private entity would be violative of the Equal Protection Clause if the private entity receives any sort of benefit or service at all from the State, or if it is subject to state regulation in any degree whatever." Id. at p. 173, 92 S.Ct. at p. 1971.

In the instant case, there is no allegation that the state or federal government either originated the idea of the mandatory retirement bylaw, or is in any way active in the perpetration of the bylaw by the union. Likewise, there is no allegation of the significant involvement of the state which this Court considers to be required by Moose Lodge. The power of the state is not used in such a manner as to enforce or encourage private discrimination. Therefore, there is not the kind of state action necessary to state a claim pursuant to the Fifth and Fourteenth Amendments.

Plaintiffs additionally allege a violation of 42 U.S.C. § 1985(3) and § 1986, asserting that these sections are applicable to private action as well as state action. The case of Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971) holds that under these sections of the Civil Rights Act of 1866 (Ku Klux Klan Act) Negroes are entitled to sue for damages because of purely private conspiracies aimed at depriving Negro citizens of their right to travel freely without interference upon the public highways. The Court in Griffin held Section 1985(3) to be constitutional under the Thirteenth Amendment and under the Congressional power to protect the right to interstate travel, even though there was no state action. The Court in Griffin did not, however, reach the question of whether Congress could punish purely private conspiracies which were not racially motivated, and which did not involve the right to travel upon the public highways.

"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, invidiously discriminatory animus behind the conspirators' action." Id. at p. 102, 91 S.Ct. at p. 1798.

Likewise, the Court stated:

"That the statute was meant to reach private action does not, however, mean that it was intended to apply to all tortious, conspiratorial interferences with the rights of others." Id. p. 101, 91 S.Ct. p. 1798.

This Court holds that it was not the intent of Congress to punish under these statutes purely private conspiracies of the nature alleged in the complaint. Thus, it would be erroneous to apply § 1985(3) or § 1986 to defendants in the absence of a showing of state involvement in the alleged discrimination.

However, this Court holds that even if § 1985(3) or § 1986 did not require state action in the circumstances of this case, plaintiffs...