Tucker v. Harley Davidson Motor Co.

• Decision Date: 12 July 1978
• Docket Number: No. 77-C-725.,77-C-725.
• Citation: 454 F. Supp. 738
• Parties: Golden V. TUCKER, Plaintiff, v. HARLEY DAVIDSON MOTOR COMPANY and Allied Industrial Workers of America Local 209, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

454 F. Supp. 738

Golden V. TUCKER, Plaintiff, v. HARLEY DAVIDSON MOTOR COMPANY and Allied Industrial Workers of America Local 209, Defendants.

No. 77-C-725.

United States District Court, E. D. Wisconsin.

July 12, 1978.

Glenn E. Carr, Milwaukee, Wis., for plaintiff.

Kenneth R. Loebel, Goldberg, Previant & Uelmen, Milwaukee, Wis., for Local 209.

Robert E. Schreiber, Jr., and James R. Scott, Milwaukee, Wis., for Harley Davidson.

DECISION and ORDER

MYRON L. GORDON, District Judge.

This case is before me on a series of motions by the defendant Harley-Davidson for dismissal of and entry of summary judgment in its favor as to the plaintiff's claims of employment discrimination.

This action was filed in 1977 by the plaintiff Golden V. Tucker against his former employer Harley-Davidson Motor Co. and the defendant union, the Allied Industrial Workers of America Local 209. The plaintiff has brought claims of employment discrimination under the Thirteenth and Fourteenth Amendments, 42 U.S.C. §§ 1981, 1983, and 1985, and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.

The initiation of this suit followed the filing of claims of racial discrimination against Harley-Davidson in October, 1972, with the United States Equal Employment Opportunity Commission (EEOC). Following an apparent settlement of the case in November, 1972, the case lay dormant until April 10, 1975, when the case was reopened by the EEOC.

The plaintiff filed a second charge of race discrimination against the defendant dated October 9, 1975, challenging his discharge on September 10, 1975, for poor attendance. This charge was filed both with the Wisconsin Equal Rights Division and the federal EEOC; the EEOC treated this as an amendment to the original charge. The state equal rights division issued an initial determination on October 14, 1976, finding that there was no probable cause to believe that the plaintiff was in any way discriminated against because of race. The plaintiff did not request a hearing to review this initial determination. However, on January 4, 1977, the federal EEOC issued a letter of determination finding that there was reasonable cause to believe that the plaintiff had been discriminated against because of race. A letter was issued to the plaintiff on August 17, 1977, informing him that the EEOC was not filing a civil action on his behalf and notifying him of his right to commence judicial action. The instant action was commenced by Mr. Tucker on November 10, 1977.

I. CLAIMS UNDER THE FOURTEENTH AMENDMENT and § 1983

The defendant company has moved that the plaintiff's claims brought under the Fourteenth Amendment and 42 U.S.C. § 1983 be dismissed. The defendant points out that the prohibitions of the Fourteenth Amendment and § 1983 apply to state actions rather than private actions. District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972). The plaintiff, in response, urges that since the "defendant company receives substantial income from the contracts with the state of Wisconsin and other states . . . and receives certain beneficial tax treatment by the state of Wisconsin," for the purposes of this action, the requisite state action has occurred.

I do not believe that the nature of the contacts between the defendant company and the state are sufficient to support the plaintiff's claim of state action. "To be regulable under constitutional standards through . . . § 1983, the very activity of a private entity which a plaintiff challenges must be supported by state action." Driscoll v. International Union of Op. Eng., Local 139, 484 F.2d 682, 690 (7th Cir. 1973), cert. denied, 415 U.S. 960, 94 S.Ct. 1490, 39 L.Ed.2d 575 (1974); Doe v. Bellin Memorial Hospital, 479 F.2d 756, 761 (7th Cir. 1973).

Since there is no claim that the state of Wisconsin has supported or participated in the discriminatory practices allegedly engaged in by the defendant company, the plaintiff's claims under the Fourteenth Amendment and 42 U.S.C. § 1983 should be dismissed pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure.

II. CLAIMS UNDER 42 U.S.C. § 1985(3)

The defendant has also moved that the plaintiff's claim under 42 U.S.C. § 1985(3) be dismissed. 42 U.S.C. § 1985(3) provides in part:

"If two or more persons in any State or Territory conspire . . . for the purpose of depriving either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws, . . . in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages, occasioned by such injury or deprivation, against any one or more of the conspirators."

The defendant company argues that the complaint fails to make "any factual allegations regarding a conspiracy to interfere with the civil rights of the plaintiff." The plaintiff, in response, argues that a claim of conspiracy can be "inferred" from statements in the complaint regarding (1) the existence of a collective bargaining agreement between the defendant company and the defendant union, and (2) the alleged practice of the defendant company of sending discriminatory employment references to prospective employers which have prevented the plaintiff from gaining further employment.

After reviewing the complaint, I do not believe it contains any factual allegations which would support a claim of conspiracy. By alleging the existence of a collective bargaining agreement, the plaintiff has not thereby alleged that the union was involved in discriminatory activities. Similarly, allegations that the defendant has sent out discriminatory employment references does not support a claim of conspiracy, especially where there is no claim that the companies receiving the references rejected the plaintiff's applications on the basis of race.

"In order to state a cause of action under the Federal Civil Rights Act a complaint must set forth more than bare unsupported conclusionary allegations in support of constitutional deprivation." Metcalf v. Ogilvie, 436 F.2d 361, 363 (7th Cir. 1970); Scott v. Larson, 58 F.R.D. 131 (E.D.Wis.1973). Therefore, I am persuaded that the plaintiff's claim under 42 U.S.C. § 1985(3) should be dismissed.

III. THIRTEENTH AMENDMENT CLAIMS

The defendant company has further moved that the plaintiff's claim for relief under the Thirteenth Amendment be dismissed. The Thirteenth Amendment states in part:

"Neither slavery nor involuntary servitude, except as a punishment for a crime whereof the party shall have been duly convicted shall exist within the United States, or any place subject to their jurisdiction."

While the prohibitions of the Amendment have been extended beyond the literal terms "slavery" and "involuntary servitude" in the employment context, a claim under the Thirteenth Amendment cannot be sustained unless the plaintiff has no option to work elsewhere. Pollock v. Williams, 322 U.S. 4, 18, 64 S.Ct. 792, 88 L.Ed. 1095 (1944); Flood v. Kuhn, 443 F.2d 264 (2d Cir. 1971), aff'd, 407 U.S. 258, 92 S.Ct. 2099, 32 L.Ed.2d 728 (1972). There is no allegation in the complaint that the plaintiff was compelled to continue his employment with the defendant company. Therefore, I find that the plaintiff's Thirteenth Amendment claim should be dismissed.

IV. CLAIMS UNDER 42 U.S.C. § 1981

The defendant company has further moved that the plaintiff's constitutional claims and those brought pursuant to 42 U.S.C. §§ 1981, 1983, and 1985 be dismissed on the ground that they are barred by the statute of limitations. I have already indicated that I believe the constitutional claims and the statutory claims pursuant to 42 U.S.C. §§ 1983 and 1985 should be dismissed. Thus, I will deal with the defendant's statute of limitations claim only as it applies to 42 U.S.C. § 1981.

In Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), the Court stated:

"Since there is no specifically stated or otherwise relevant federal statute of limitations for a cause of action under § 1981, the controlling period would ordinarily be the most appropriate one provided by state law." Id. at 462, 95 S.Ct. at 1721.

I believe that the Wisconsin Fair Employment Act, § 111.31 et seq., Wis. Stats., which provides state remedies for employment discrimination is the most appropriate statute from which to draw a period of limitations for the plaintiff's claims under 42 U.S.C. § 1981. The plaintiff's cause of action under § 1981 arises out of activities that allegedly occurred between 1972 and 1975. During that period, a six year statute of limitations, pursuant to § 893.19(4), Wis.Stats., applied to causes of action brought under § 111.31. Reaves v. Westinghouse, 430 F.Supp. 623 (E.D.Wis. 1977); Yanta v. Montgomery Ward & Co., 66 Wis.2d 53, 224 N.W.2d 389 (1974). The plaintiff's suit, filed November 8, 1977, clearly falls within six years of the time his cause of action arose.

The Wisconsin Fair Employment Act, however, has been amended, and effective July 1, 1977, § 111.36(1), Wis.Stats., provides that a complaint may be filed no more than 300 days after the alleged employment discrimination occurred. The defendant company argues that the plaintiff's claim under 42 U.S.C. § 1981 is barred since the suit was filed more than 300 days after Mr. Tucker's claim arose.

In my opinion, the six year statute of limitations, which was operative at the time Mr. Tucker's claim arose, should govern this action. Section 991.07, Wis.Stats. provides that a change in a statute of limitations...