Whitten v. Petroleum Club of Lafayette, Civ. A. No. 800872.

• Decision Date: 13 February 1981
• Docket Number: Civ. A. No. 800872.
• Citation: 508 F. Supp. 765
• Parties: Mary M. WHITTEN et al. v. PETROLEUM CLUB OF LAFAYETTE et al.
• Court: U.S. District Court — Western District of Louisiana

508 F. Supp. 765

Mary M. WHITTEN et al. v. PETROLEUM CLUB OF LAFAYETTE et al.

Civ. A. No. 800872.

United States District Court, W. D. Louisiana, Lafayette-Opelousas Division.

February 13, 1981.

Colleen McDaniel, Lafayette, La., for plaintiffs.

John G. Torian, II, Lafayette, La., for defendants.

RULING ON MOTION

SHAW, District Judge.

Plaintiffs are female persons employed in the petroleum industry who are excluded from membership in the Petroleum Club of Lafayette, Louisiana. Defendants are the Petroleum Club and several of its current and past members of the Board of Directors. Plaintiffs have filed a class action pursuant to Rule 23 of the Federal Rules of Civil Procedure on their behalf, and all other female persons employed in the petroleum industry who have been or will be excluded from service and membership, and seek declaratory and injunctive relief and damages. Plaintiffs originally claimed that defendants have violated their rights protected by 28 U.S.C. §§ 1343 and 1344, 42 U.S.C. § 1983, 42 U.S.C. §§ 1985(3), 1986 and 1988, 29 U.S.C. § 206, 42 U.S.C. §§ 2000a-c, et seq., the Fourteenth Amendment to the United States Constitution and Louisiana Constitution of 1974 Art. 1, § 12 and assert that declaratory relief is authorized by 28 U.S.C. §§ 2201 and 2202 and Rule 57, F.R.C.P.

Defendants, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, filed a Motion for Judgment on the Pleadings which shall be treated as one for summary judgment.

Plaintiffs have now refined and basically limited their claims against the defendants to violations of 42 U.S.C. § 1983 and 42 U.S.C. § 1985(3). The Court has jurisdiction under 28 U.S.C. § 1343.

Background

The depositions, affidavits and exhibits filed herein make it clear that there is no genuine issue as to any material fact and that the case is ripe for disposition by summary judgment. The material facts show that the Petroleum Club of Lafayette is a tax-exempt, non-profit membership club, which provides dining and drinking facilities for its members and their guests, along with meeting rooms available by reservation for the use of members and their guests.

With certain exceptions not pertinent herein, the Petroleum Club has always prohibited all women from membership, including professionals who have business there, consistent with the purpose for which the club was formed, and is presently operating. Further, women are denied service in the main dining room within certain hours. Some employers have attempted to pay for membership for plaintiffs as company fringe benefits to no avail. One plaintiff was actually accepted for membership on the mistaken belief that she was a man, and then her membership was revoked when the Board and membership discovered that she was a female.

Substantial dues, membership fees and entertainment expenses are "written off" by members or their companies each year. Approximately ninety (90%)¹ per cent of the memberships are corporate memberships. The Petroleum Club, for all practicable purposes, is totally dependent financially on these corporate memberships, and without them, the club would probably have to close its doors.

A great deal of business is carried on at the Petroleum Club. There is no doubt that women employed in the petroleum industries are at a distinct disadvantage in being denied the use of the facility and have suffered in the areas of career advancement, employment advantages, fringe benefits, and access to the market place, because that's where the action is and there is no substitute.

In early 1980, when the issue of membership of females surfaced, including two of the plaintiffs herein, the Board of Directors of the defendant met, discussed the matter, and voted to continue the "males only" policy.

Section 1983

Plaintiffs have sued under 42 U.S.C. § 1983. Section 1983 was modeled on § 2 of the Civil Rights Act of 1866 and was enacted for the express purpose of enforcing the provisions of the Fourteenth Amendment. It provides:

"Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory ... subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. * *"

Since the Fourteenth Amendment applies only to state action, § 1983 only establishes a cause of action for deprivation under color of state law. This term may encompass acts by all of those "who carry a badge of authority of a state and represent it in some capacity, whether they act in accordance with their authority or misuse it." Monroe v. Pape, 365 U.S. 167, 172, 81 S.Ct. 473, 476, 5 L.Ed.2d 492 (1961). Therefore, it is necessary to determine the relationship, if any, between the state and the defendants.

State action was found lacking in a § 1983 complaint against a non-profit corporation that provided medical and hospitalization insurance to the general public of Eastern Pennsylvania, where the plaintiff contended that the defendants' enrollment and rate policies discriminated against married women. Broderick v. Associated Hospital Service of Philadelphia, 536 F.2d 1 (3rd Cir. 1976). Therein, there was no state involvement even though it was required by statute to approve Blue Cross and Blue Shield contracts and rates to be charged to subscribers. The enrollment practices of the defendants were determined solely by the defendants, and there was no evidence that the state "put its own weight" on the side of the privately initiated enrollment practice.

The evidence in the instant case confirms that the state disapproved of the discriminatory practices of the Petroleum Club when made aware of the situation and state disapproval of challenged practices cannot support a "state action" theory. Girard v. 94th Street and Fifth Avenue Corporation, 530 F.2d 66 (2nd Cir. 1976), cert. denied 425 U.S. 974, 96 S.Ct. 2173, 48 L.Ed.2d 798 (1976).

Plaintiffs claim that the issuance of a liquor license by the state to the Petroleum Club constitutes sufficient state action to involve the Fourteenth Amendment.

In Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), the Supreme Court held that Pennsylvania's extensive regulation of liquor traffic was not sufficient to implicate Pennsylvania in the discriminatory guest practices which were employed by the Lodge. The Court stated at Pages 176-177, 92 S.Ct. at 1973:

"However detailed this type of regulation may be in some particulars, it cannot be said to in any way foster or encourage racial discrimination. Nor can it be said to make the State in any realistic sense a partner or even a joint venturer in the club's enterprise. * * *"

In Millenson v. New Hotel Monteleone, Inc., 475 F.2d 736 (5th Cir. 1973) cert. denied 414 U.S. 1011, 94 S.Ct. 376, 38 L.Ed.2d 250, a female plaintiff filed a Section 1983 action against the New Hotel Monteleone to enjoin its operation of a restaurant known as "The Men's Grill", and to declare its "males only" admissions policy unconstitutional as violative of the equal protection clause of the Fourteenth Amendment. The plaintiff contended that the various licenses issued to the Hotel by Louisiana so intertwined the policies of the Hotel with state authority that impermissible state action was present. Specifically, the plaintiff alleged that the Men's Grill had a liquor license as required by Title 26 of the Louisiana Revised Statutes, that the Hotel collected sales tax on all transactions in the grill as an agent of the State of Louisiana, as provided in Title 47 of the Louisiana Revised Statutes, and that the Hotel received rebates on such sales taxes pursuant to Section 56-43 of the New Orleans City Code. The Court's discussion is significant:

"Ms. Millenson contends that the admission policies of the grill are unconstitutional because they violate the equal protection clause of the fourteenth amendment. Of course for such a claim to withstand close judicial scrutiny, it is incumbent on the aggrieved party to prove that the actions complained of were taken under color of state law. To fulfill this assigned task Millenson contends that the various licenses issued to the hotel by Louisiana so intertwine the policies of the hotel with state authority that impermissible state action is present. Accordingly, the dispositive issue in the instant case is whether the issuance of regulatory licenses to a public accommodation by a state will suffice to color the admission policies of the former with the authority and the involvement of the latter.

"For Millenson to succeed it is necessary for her to show that the state licensing system encourages, mandates, or affirmatively authorizes the admission policies of the grill. A cursory examination of these state licensing statutes manifestly leads one to the conclusion that they are completely unrelated to the admission policies of the licensees.

"The impetus for the grill's admission policies originated with the hotel and not with the state. * * *"

In view of the above, it is apparent that the various licensing arrangements between the state and the Petroleum Club are insufficient to involve the state in the membership and service policies of the defendant, Petroleum Club.

Plaintiffs have shown that the State of Louisiana, through the Department of Natural Resources, Office of Conservation, has been holding official pre-hearing unitization conferences at the Petroleum Club of Lafayette, for a number of years and contend that this constitutes significant state action to support a § 1983 claim.

The evidence shows that no state official ever reserved the meeting rooms of the club, and that conferences are not held by the Office of Conservation but are set by private parties at a...