Ripp v. Dobbs Houses, Inc.

• Decision Date: 14 September 1973
• Docket Number: Civ. A. No. 73-368.
• Parties: F. Paul RIPP, on behalf of himself and on behalf of all those similarly situated, Plaintiff, v. DOBBS HOUSES, INC., et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

366 F. Supp. 205

F. Paul RIPP, on behalf of himself and on behalf of all those similarly situated, Plaintiff, v. DOBBS HOUSES, INC., et al., Defendants.

Civ. A. No. 73-368.

United States District Court, N. D. Alabama, S. D.

September 14, 1973.

COPYRIGHT MATERIAL OMITTED

William B. Pugh, Dawson & Pugh, Birmingham, Ala., for plaintiff.

Allen Poppleton, James P. Alexander, Bradley, Arant, Rose & White, Birmingham, Ala., for defendants.

MEMORANDUM OF OPINION AND ORDER

GUIN, District Judge.

On April 13, 1973, F. Paul Ripp commenced this action in the Southern Division of the United States District Court for the Northern District of Alabama, against some five defendants — Dobbs Houses, Inc., Squibb-Beech-Nut, Inc., Airline Services Division of Dobbs Houses, Inc., Dobbs Houses Flight Kitchen of Birmingham, and an individual, identified as Jim Shaner, "Manager", of the Dobbs House Flight Kitchen. Plaintiff seeks to assert claims under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq.; the Civil Rights Act of 1866, 42 U.S.C. § 1981; and the Civil Rights Act of 1871, 42 U.S.C. § 1985.

According to the allegations in plaintiff's complaint, during 1970 plaintiff, a white person, was employed at the Dobbs House Flight Kitchen at the Birmingham Municipal Airport. On December 22, 1970, he alleges that he was "illegally discharged because of his association and sociable attitudes toward his fellow employees who were of the Black race". Plaintiff further alleges that defendants maintained employment practices and policies which operated to discriminate against the employment opportunities of blacks.

Pursuant to F.R.Civ.P. Rule 12(b), defendants moved separately and severally, to dismiss plaintiff's complaint on the ground that it fails, for several reasons, to state claims against defendants upon which relief can be granted. Defendants make several contentions. First, all defendants urge that plaintiff's complaint does not state a cause of action under Title VII of the Civil Rights Act of 1964, as amended (the "Act"), because plaintiff does not claim to have been discriminated against on account of his race. Defendant Shaner, the individual defendant, who apparently was plaintiff's immediate supervisor, urges that no claim under Title VII may be stated with respect to him, in any event, because he is not an "employer" within the meaning of the Act.

Second, all defendants urge that plaintiff may not complain of discrimination under 42 U.S.C. § 1981, since that statute is limited in application by its terms, to racial discrimination. Third, defendants contend that no claim has been stated under 42 U.S.C. § 1985, because plaintiff has not averred that any defendants conspired to deprive plaintiff of protected rights, and because the white plaintiff cannot complain of invidious discrimination against blacks. Finally, with respect to the claims under both 42 U.S.C. §§ 1981 and 1985, defendants urge that any possible cause of action which conceivably may have been stated is barred by the applicable one-year Alabama statute of limitations, with respect to all defendants except Dobbs Houses, Inc.

Having considered the pleadings, briefs, oral argument, and the affidavit of Larry D. Stebbins, the Court is prepared to decide the various issues raised by the motions.

In reaching its decisions, the Court is mindful of the fact that, for purposes of the motions to dismiss, the well-pleaded allegations of plaintiff's complaint are taken as admitted. Barnes v. Merritt, 376 F.2d 8 (5th Cir. 1967). Furthermore, the Court is cognizant of the Fifth Circuit's admonition that "procedural technicalities" should not operate to deprive a Title VII plaintiff of an opportunity to vindicate rights protected by the Act. Sanchez v. Standard Brands, Inc., 431 F.2d 455, 461 (5th Cir. 1970); Burns v. Thiokol Chemical Corp., 483 F.2d 300, 305 (5th Cir. 1973). With these considerations in view, the Court will consider the issues raised by defendants' motions to dismiss.

PLAINTIFF'S TITLE VII CLAIMS

The fundamental prohibition which Title VII directs toward employers is found in Section 703(a) of the Act. In pertinent part that section provides:

It shall be an unlawful employment practice for an employer —

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin; or

(2) to limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual's race, color, religion, sex, or national origin (emphasis added).

The statutory language makes abundantly clear that an employer may not arbitrarily penalize any employee because of his race, or any other protected characteristic.

Significantly, plaintiff makes no complaint that he has suffered any detriment on account of his race. In paragraph 3 of his complaint, for example, plaintiff alleges that he was "employed by Defendant Dobbs House at its Birmingham Airport Facility until, to-wit, 22 December, 1970, when he was illegally discharged because of his association and sociable attitude toward his fellow employees who were of the Black race". The class, which plaintiff seeks to represent, is that group of persons which is affected by defendant's employment practices, which "tend to unlawfully restrict the free association of individuals" (paragraph 5 of plaintiff's complaint).

In paragraph 6 of his complaint, plaintiff alleges that he was discharged because he refused to discriminate against black employees; further, he alleges he was ordered "not to associate with black employees". While plaintiff makes these allegations concerning his allegedly restricted associations, he also avers that the defendant engaged in unlawful employment practices which operate to discriminate against black employees. Fairly stated, the gravamen of plaintiff's complaint is that defendants have abridged his freedom to associate with persons of his own choosing. See, e. g., Langford v. City of Texarkana, 478 F.2d 262 (8th Cir. 1973). The question is whether plaintiff has stated a claim for relief under Title VII which this Court may consider. The Court concludes that plaintiff has failed to do so.

The employment practices which plaintiff attacks in his complaint are practices which result in disparate treatment of black employees. Plaintiff avers that he is a white citizen. The employment practices, subject to challenge in this action, have no impact upon plaintiff. It appears that plaintiff is without standing, and, further, that plaintiff is not a "person aggrieved" within the contemplation of the Act.

Neither counsel nor the court have found any cases which have directly dealt with a white plaintiff's Title VII challenge to employment practices which discriminate against blacks. However, in determining a class action issue, Judge Robinson touched upon the question of standing. In Martin v. Safeway Trails, Inc., 59 F.R.D. 683 (D. D.C.1973), the court held that a black male plaintiff could not appropriately represent a class attacking allegedly discriminatory employment practices, based upon both sex and national origin.

It further appearing that the appropriate standards for determination for the class was set forth in Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968), to the effect that the action must meet the criteria of Rule 23 and that the Plaintiff must have standing and be aggrieved as to each issue sought to be raised, and it further appearing that the Plaintiff has no such standing or grievance as to discrimination based on sex or national origin and would not be a proper class representative with respect thereto under Rule 23(a) . . . Id. at 684.

It seems clear to the Court that if a black male plaintiff cannot represent a class of allegedly aggrieved females, a white plaintiff cannot represent allegedly aggrieved blacks.

The question of standing has its origin in the requirement for a "case or controversy". Article III, Section 2, of the United States Constitution limits the judicial power to cases and controversies. See generally, 6 A. J. Moore, Federal Practice § 5711. That is, there must be an adversary interest between the parties before a federal court has the power to reach a decision.

As the Supreme Court noted in United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947):

The constitution allots the nation's judicial power to the federal courts. Unless these courts respect the limits of that unique authority, they intrude upon powers vested in the legislative or executive branches. Judicial adherence to the doctrine of separation of powers preserves the courts for the decision of issues, between litigants, capable of effective determination. Judicial exposition upon political proposals is permissible only when necessary to decide definite issues between litigants. When the courts act continually within these constitutionally imposed boundaries of their power, their ability to perform their function as a balance for the people's protection against abuse of power by other branches of government, remains unimpaired. Id. at 89-90, 67 S.Ct. at 564-565.

In Mitchell, the Supreme Court refrained from considering whether the Hatch Act was constitutional, since none of the plaintiff's actions had subjected them to the prohibition of that act. In the instant case, the Court can conceive of no circumstances in which the plaintiff can bring himself within the purported class, which is allegedly affected by the practices which he currently is challenging.

This Court is especially chary of entrusting the enforcement of important rights, guaranteed...