Wilhelm v. Continental Title Co.

• Decision Date: 07 November 1983
• Docket Number: No. 82-1747,82-1747
• Citation: Wilhelm v. Continental Title Co., 720 F.2d 1173 (10th Cir. 1983)
• Parties: 33 Fair Empl.Prac.Cas. 385, 32 Empl. Prac. Dec. P 33,916, 1 A.D. Cases 520 Robert L. WILHELM, Plaintiff-Appellant, v. CONTINENTAL TITLE COMPANY, a Colorado corporation, Angelo J. Visconti, individually and in his capacity as President of Continental Title Company, and Dorothy J. Porter, individually and in her official capacity as Director of the Colorado Civil Rights Division, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1173

720 F.2d 1173

33 Fair Empl.Prac.Cas. 385,

32 Empl. Prac. Dec. P 33,916, 1 A.D. Cases 520

Robert L. WILHELM, Plaintiff-Appellant, v.CONTINENTAL TITLE COMPANY, a Colorado corporation, Angelo J Visconti, individually and in his capacity as President of Continental Title Company, and Dorothy J. Porter individually and in her official capacity as Director of the Colorado Civil Rights Division, Defendants-Appellees.

No. 82-1747.

United States Court of Appeals Tenth Circuit.

Nov. 7, 1983.

Certiorari Denied March 19, 1984.

See 104 S.Ct. 1601.

David L. Smith, Denver, Colo., for plaintiff-appellant.

Perry L. Goorman of Eiberger, Stacy & Smith, Denver, Colo., for defendants-appelleesContinental Title Co. and Angelo J. Visconti.

Timothy R. Arnold, Asst. Atty. Gen., State of Colo., Denver, Colo. (J.D. MacFarlane, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Joel W. Cantrick, Sol.Gen., and William Levis, Asst. Atty. Gen., Denver, Colo., on brief), for defendant-appelleeDorothy J. Porter.

Before SETH, Chief Judge, McKAY, Circuit Judge, and BOHANON, District Judge^*.

SETH, Chief Judge.

Robert L. Wilhelm appeals the dismissal of his claims asserted under 42 U.S.C. Sec. 1985(3), andColo.Rev.Stat. Sec. 24-34-301, against defendants-appelleesContinental Title Insurance Company and its president, Angelo J. Visconti.Claims under Sec. 1983 were alleged against Dorothy J. Porter, Director of the Colorado Civil Rights Division.The federal causes were dismissed for failure to state a cause of action--that a handicap was not a basis for a claim under 42 U.S.C. Sec. 1985 or Sec. 1986.The cause against defendant Porter was dismissed on the ground that she had official immunity.The cause under the statestatute was dismissed by the trial court on the ground that there was nothing to support the pendent claim and that there was pending in the state courts a suit asserting the very same cause of action.

Appellant worked as a real estate title insurance salesman at Continental for a year and a half before being promoted to branch office manager in January.In March he learned he had multiple sclerosis, advised his employer, in less than a month he was demoted, and in May discharged.Appellant filed an employment discrimination charge based on handicap with the Colorado Civil Rights Commission.The Commission determined that there was probable cause to believe his charges were true but defendant Porter closed the file due to failure of conciliation.

The questions presented on appeal are: whether handicapped persons constitute a class entitled to the protection of Sec. 1985; whether the district court abused its discretion in declining to exercise pendent jurisdiction over the claim based on Colo.Rev.Stat. Sec. 24-34-301 et seq., and whether Dorothy J. Porter has absolute immunity from suit under 42 U.S.C. Sec. 1983.

In his first claim for relief, appellant invoked Sec. 1985(3) by alleging that he, as a handicapped person, was a member of a class for which that section was intended to provide a civil remedy.

Section 1985 has been interpreted in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338, to require that private conspiracies be based on some type of class-based discriminatory animus.The Court stated:

"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.The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all."(Emphasis supplied.)

The district court based its dismissal of the Sec. 1985(3) claim on appellant's failure to establish that the alleged conspiracy was motivated by a class-based invidiously discriminatory animus.Referring to the decision in Lessman v. McCormick, 591 F.2d 605(10th Cir.), the district court said, "It is not sufficient to state a claim under Section 1985(3) to allege individual discriminatory animus or even group animus unless the discrimination can be said to be invidious."

In Lessman, we denied appellant's claim under Sec. 1985 that the class of debtors of which she was a member was subject to invidious discrimination because, as in Ward v. St. Anthony Hospital, 476 F.2d 671(10th Cir.), the allegations did not show the plaintiff to be the object of class-based invidiously discriminatory animus.We cited Harrison v. Brooks, 519 F.2d 1358(1st Cir.), for the requirement that the criteria for the definition of the class must be invidious and the conspiracy against plaintiff was "because" of class membership.

This appeal, as mentioned, reaches us on the dismissal of the Sec. 1985 cause for failure to state a claim, and must be examined under the applicable standard.

We have some serious doubts as to whether there can be a conspiracy between defendant Visconti and the corporation he heads but the issue was not raised in the corporate-officer context, and the trial court did not pass on the question, and we will not do so.

In United Brotherhood of Carpenters v. Scott, --- U.S. ----, 103 S.Ct. 3352, 77 L.Ed.2d 1049, the Court was considering a conspiracy directed by a pro-union group against a non-union group.The Court made it clear that Sec. 1985(3) did not cover conspiracies motivated by economic, political or commercial animus.The opinion (as in Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338), contains a significant analysis of reasons why 42 U.S.C. Sec. 1985(3) was enacted and the conditions sought to be remedied.The opinion puts emphasis on the nature of the animus and motivation as to which the legislation was directed, and the groups sought to be protected.The Court describes conditions prevailing in the South in 1871, and the debates in Congress centering on the broad scope of the proposed statute as originally introduced.The Court in Scott said:

"As we interpreted the legislative history 12 years ago in Griffin, the narrowing amendment'centered entirely on the animus or motivation that would be required....' "

The Court accords great weight to the "limiting" or narrowing amendment which was adopted and altered the bill as introduced.

The Court in Scott quotes from Griffin as to the importance of the amendment:

" 'The constitutional shoals that would lie in the path of interpreting Sec. 1985(3) as a general federal tort law can be avoided by giving full effect to the congressional purpose--by requiring, as an element of the cause of action, the kind of invidiously discriminatory motivation stressed by the sponsors of the limiting amendment.See the remarks of Representatives Willard and Shellabarger, quoted supra, at 100.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.The conspiracy, in other words, must aim at a deprivation of the equal enjoyment of rights secured by the law to all.'Id., at 102(footnotes omitted)."(Emphasis supplied.)

The Court in Scott continued as to the above quotation:

"This conclusion was warranted by the legislative history, was reaffirmed in [Great American Fed. S. & L. Assn. v.] Novotny, supra[442 U.S. 366, 99 S.Ct. 2345, 60 L.Ed.2d 957(1979) ], and we accept it as the authoritative construction of the statute."

Of the case before it the Court said:

"Both courts below answered that question; both held that the section not only reaches conspiracies other than those motivated by racial bias but also forbids conspiracies against workers who refuse to join a union.We disagree with the latter conclusion and do not affirm the former."

The Court in Scott discussed at some length the conditions prevailing in 1871, the actions of the Klan and again the "narrowing amendment," and said:

"The narrowing amendment, which changed Sec. 1985(3) to its present form, was proposed, debated, and adopted there, and the Senate made only technical changes to the bill.Senator Edmunds's views, since he managed the bill on the floor of the Senate, are not without weight.But we were aware of his views in Griffin, 403 U.S., at 102 n. 9[91 S.Ct. at 1798 n. 9], and still withheld judgment on the question whether Sec. 1985(3), as enacted, went any farther than its central concern--combatting the violent and other efforts of the Klan and its allies to resist and to frustrate the intended effects of the Thirteenth, Fourteenth, and Fifteenth Amendments.Lacking other evidence of congressional intention, we follow the same course here."

As to private conspiracies, the Court has thus held that Sec. 1985(3) protects against rights under the Thirteenth Amendment and the right to travel guaranteed by the Federal Constitution, also certain equal protection rights not limited by the constraints of the Fourteenth Amendment as to state action.The Court has held that Sec. 1985(3) does not protect under the First Amendment against wholly private conspiracies.

In summary as to the Scott opinion, we find nothing therein to give any encouragement whatever to extend Sec. 1985 to classes other than those involved in the strife in the South in 1871 with which Congress was then concerned.In fact from Scott we get a signal that the classes covered by Sec. 1985 should not be extended beyond those already expressly provided by the Court.

In the case before us the Amended Complaint alleges that plaintiff had a particular and serious disease which did or would have physical manifestations.He advised the company of his condition and asserts he was demoted and fired as a consequence.It is apparent that different individuals are handicapped in vastly different ways, for different periods of time, and to very different degrees or extent.The variations in each category are infinite and as a consequence...