Infant, by Her Legal Guardian and Natural Mother, Jean Belt, and Jean Belt, Mary And Arlene Weasel Bear, by Their Legal Guardian and Natural Mother, Lucille Weasel Bear, and Lucille Weasel Bear, Alicia Bad Heart Bull, by Her Legal Guardian and Natural Mother, Olynn Bad Heart Bull and Olynn Bad Heart Bull, Natasha Cuny, Infant, by Her Legal Guardian and Natural Mother, Brenda Cuny, and Brenda Cuny, Latonia Little Spotted Horse, by Her Legal Guardian and Natural Mother, Irma Ten Fingers and Irma Ten Fingers, Sara Ten Fingers, Infant, by Her Legal Guardian and Natural Mother Sheryl Her Many Horses, and Sheryl Her Many Horses, Jessie Ten Fingers, by Her Legal Guardian and Natural Mother, Bernadine Ten Fingers, and Bernadine Ten Fingers, Carly Espinoza, by Her Legal Guardian and Natural Mother, Ina May Espinoza, and Ina May Espinoza,
YOUNG MEN'S CHRISTIAN ASSOCIATION,
a/k/a YMCA, Loneman School, Custer School District, Patrick Reynolds, John and Jane Doe 1, John and Jane Doe 2, and John and Jane Doe 3,
[1998 DSD 39]
United States District Court
District of South Dakota
MEMORANDUM OPINION AND
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
Filed October 29, 1998.
Richard H. Battey, Chief Judge
[¶1] On December 2, 1997, plaintiffs, 10- to12-year-old players on an all-female basketball team and their parents, filed a complaint against defendants stemming from conduct occurring at a YMCA basketball tournament in December 1995. Plaintiffs allege multiple state law tort violations as well as federal claims. The federal claims are brought under 20 USC § 1681 (Title IX), 42 USC § 1981 (intentional race discrimination), 42 USC § 2000d et seq. (Title VI), and 29 USC §§ 621 et seq. (age discrimination). Pending before the Court are motions for summary judgment filed by Custer School District (Custer), Loneman School (Loneman), the Rapid City YMCA (YMCA), and Patrick Reynolds (Reynolds).
SUMMARY JUDGMENT STANDARD
[¶2] Under Rule 56(c) of the Federal Rules of Civil Procedure, a movant is entitled to summary judgment if the movant can "show that there is no genuine issue as to any material fact and that [the movant] is entitled to judgment as a matter of law." In determining whether summary judgment should issue, the facts and inferences from those facts are viewed in the light most favorable to the nonmoving party, and the burden is placed on the moving party to establish both the absence of a genuine issue of material fact and that such party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348, 1356-57, 89 L. Ed. 2d 538 (1986). Once the moving party has met this burden, the nonmoving party may not rest on the allegations in the pleadings, but by affidavit or other evidence must set forth specific facts showing that a genuine issue of material fact exists.
[¶3] In determining whether a genuine issue of material fact exists, the Court views the evidence presented based upon which party has the burden of proof under the underlying substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986). The Supreme Court has instructed that "summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to 'secure the just, speedy, and inexpensive determination of every action.'" Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S. Ct. 2548, 2555, 91 L. Ed. 2d 265 (1986). The nonmoving party "must do more than show that there is some metaphysical doubt as to the material facts," and "[w]here the record as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 106 S. Ct. at 1356.
[¶4] The teaching of Matsushita was further articulated by the Supreme Court in Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 468, 112 S. Ct. 2072, 2083, 119 L. Ed. 2d 265 (1992) where the Court said, "Matsushita demands only that the nonmoving party's inferences be reasonable in order to reach the jury, a requirement that was not invented, but merely articulated, in that decision." The Court expounded on this notion by reiterating its conclusion in Anderson that, "[s]ummary judgment will not lie . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Eastman Kodak, 504 U.S. at 468 n.14, 112 S. Ct. at 2083 n.14 (quoting Anderson, 477 U.S. at 248, 106 S. Ct. at 2510). Finally, should there remain any doubt as to whether the courts continue to harbor any antagonistic feeling toward resolution of summary judgment motions, Chief Judge Arnold in City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., 838 F2d 268 (8th Cir. 1988), laid such thoughts to rest. He stated that,
[A] trilogy of recent Supreme Court opinions demonstrates that we should be somewhat more hospitable to summary judgment than in the past. The motion for summary judgment can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts' trial time for those cases that really do raise genuine issues of material fact.
Id. at 273. See also Midwest Radio Co. v. Forum Pub. Co., 942 F2d 1294, 1296 (8th Cir. 1991).
[¶5] Based on the foregoing, the trilogy of Celotex, Anderson, and Matsushita provides the Court with a methodology in analyzing defendants' motions for summary judgment. See generally 1 Steven A. Childress & Martha S. Davis, Federal Standards of Review § 5.04 (2d ed. 1991) (discussing the standards for granting summary judgment that have emerged from Matsushita, Celotex, and Anderson).(fn1) Under this trilogy, it is incumbent upon the nonmoving parties, based upon the showing set forth by defendants as the moving parties, to establish significant probative evidence to prevent summary judgment. See Terry A. Lambert Plumbing, Inc. v. Western Sec. Bank, 934 F2d 976, 979 (8th Cir. 1991). Plaintiffs have been unable to sustain their burden in the face of defendants' showing.
[¶6] The undisputed facts establish that on December 2, 1995, a basketball team representing Loneman School comprised of 10- to12-year-old girls participated in a YMCA invitational girls' basketball tournament in Rapid City. Plaintiffs' Undisputed Material Facts ("UMF") at 2-3. Loneman is located on the Pine Ridge Indian Reservation and is "operated by the Oglala Sioux Tribe pursuant to a grant from the Bureau of Indian Affairs." Affidavit of Gerald Roy. All team members are Indians. Plaintiffs' UMF at 2-3. On December 2, 1995, in the first round of the tournament, the Loneman team beat a team from Hermosa. Hermosa is a school within the Custer School District.
[¶7] After the first game several of the parents from the Hermosa team as well as the coach, Jennifer Neugebauer (Neugebauer), suspected that some of the Loneman players were in fact boys. Custer's UMF at 4. They brought this to the attention of Eric Thorstenson (Thorstenson), the site referee, and Linda Grieser (Grieser), the site supervisor. YMCA's UMF at 3-4. Both Thorstenson and Grieser were YMCA volunteers. Id. at 3. When the Loneman team returned to the gym for the championship game, Thorstenson and Grieser approached them and their coach, Scott Ten Fingers, and expressed concern that the Loneman team was playing boys. Id. at 6.
[¶8] The girls were taken to the rest room where some girls showed their bra straps and others who did not wear bras showed the tops of their panties to confirm that they were indeed females. Plaintiffs' UMF at 5. Plaintiffs allege that several players also opened or lifted up their jerseys to prove they were not boys. Id. Force was not used, but was unnecessary since the players themselves wanted to resolve the issue. Sara Ten Fingers noted that "some of the girls did not wear bras and panties and opened their jersey tops and trunks for inspection." Affidavit of Sara Ten Fingers at 1, Plaintiffs' exhibit F. No further action was taken.(fn2)
[¶9] Plaintiffs allege that the defendants are liable for the conduct occurring on December 2, 1995, as well as for actions surrounding the meetings on January 9 and 12 and the healing ceremony. See footnote 2. Complaint at 6-8.
[¶10] A. YMCA, Patrick Reynolds, John and Jane Doe
[¶11] 1. Age discrimination
[¶12] In count three of the complaint entitled "Discrimination Based on Sex, Age and Race," plaintiffs allege that the inspection of the girls, all of whom were 10 to12 years old, was "devised to discriminate against minor children." Complaint at 7. The only other reference to age discrimination is in the final paragraph of count three where plaintiffs summarize as follows: "The strip search of the plaintiff infants by the defendants resulted in the discrimination of the plaintiffs due to their race, age and gender in violation of the federal laws, Equal Protection under the Constitution of the United States." Id. Plaintiffs did not respond to the YMCA and Reynold's motion for summary judgment on the age discrimination issue although they did address the racial and gender discrimination issues.
[¶13] Plaintiffs base their age discrimination claim on a misreading of 29 USC §§ 621-634, known as the Age Discrimination in Employment Act (ADEA). As the title of the act indicates, the ADEA concerns age discrimination in the employment context. 29 USC § 621(a) There is no indication that the girls or their parents were somehow employees of the YMCA. Second, the ADEA was designed to prevent discrimination based on age for individuals over forty years old as indicated by 29 USC § 621(b) which outlines the purpose of the act: "to promote employment of older persons based on their ability rather than age." Although some of the parent plaintiffs may be over forty, there is no evidence that age was at all a factor in any harm they may have received. Finally, there is simply no scenario of events in this case which warrants an age discrimination claim. Plaintiffs do not demonstrate that they would have been treated differently but for their age. The ADEA by its clear definition is not implicated here.
[¶14] 2. Racial discrimination
[¶15] Plaintiffs contend that they were singled out and treated differently by the YMCA, Reynolds, Thorstenson, and Grieser because they are Indian. Complaint at 6. They further argue that the discrimination occurred during the basketball tournament as well as the meeting and healing ceremony taking place on January 12, 1996. Id. The complaint does not indicate under what federal law plaintiffs make this assertion. Plaintiffs fail to establish the YMCA as a state actor and are thus precluded from showing a constitutional-based claim.
[¶16] In order to establish a prima facie claim under Title VI of the Civil Rights Act of 1964, 42 USC §§ 2000d et seq., plaintiffs must establish that the entity accused is the recipient of federal funds, that they were discriminated against, and that "race, color, or national origin was the motive for the discriminatory conduct." Thompson v. Board of Special School District No. 1, 144 F3d 574, 580 (8th Cir. 1998). Even assuming that the YMCA receives federal funds for the basketball tournaments it organizes, plaintiffs have failed to demonstrate that they were discriminated against on the basis of race. Plaintiffs assert that since they were an all-Indian team, the treatment they received on December 2, 1995, was due to their race. Likewise under 42 USC § 1981, there must be a showing that plaintiffs were treated differently due to their race. The evidence does not support such assertions.
[¶17] Black's Law Dictionary defines discrimination as "[a] failure to treat all persons equally where no reasonable distinction can be found between those favored and those not favored." Black's Law Dictionary, Special Deluxe Fifth Edition (1979) (citing Baker v. California Land Title Co., 349 F. Supp. 235, 238-39 (C.D. Cal. 1972). This definition presupposes unequal treatment. The Loneman players were not treated any differently than another team in similar circumstances. In other words, there is no evidence suggesting that another team, similarly accused of playing males, would have been treated differently. So at the initial stage it is not clear that the Loneman team was "discriminated" against. Certainly they were treated with a lack of sensitivity and most inappropriately.
[¶18] 3. Gender discrimination
[¶19] As mentioned above, plaintiffs' constitutional, or constitutional-based, claims of gender discrimination fail for lack of state action. This leaves plaintiffs with a claim for gender discrimination under Title IX of the Civil Rights Act of 1964, 20 USC § 1681 et seq.(3) To support their claim of sexual discrimination under Title IX, plaintiffs make several assumptions which are not supported by the facts. They first claim that the conduct in question constitutes "sexual" harassment. Second, they claim that the elements for showing a Title IX violation are all present.
[¶20] Even assuming the treatment of the Loneman team could be construed as sexual discrimination, plaintiffs fail to meet the required elements of a Title IX claim as outlined by the Supreme Court in Gebser v. Lago Vista Independent School District, U.S. , 118 S. Ct. 1989, 141 L. Ed. 2d 277 (1998). In Gebser, the Court held that in cases involving sexual discrimination where an entity, a school district in that case, is being sued for the actions of one of its employees, the entity will not be held liable unless: (1) an official who has the authority to remedy the alleged discriminatory action; (2) has actual knowledge of the discrimination; and (3) is deliberately indifferent to the conduct. 118 S. Ct. at 1999. Principles of respondeat superior do not apply. Id. at 1997. Using this standard, the Court finds that neither the YMCA nor Patrick Reynolds discriminated against the Loneman team on the basis of sex.
[¶21] B. Custer School District
[¶22] Plaintiffs make the same accusations of sexual, racial, and age discrimination based upon federal law against Custer. Complaint at 7. Similarly, plaintiffs base their claims against Custer on both the December 2, 1995, incident and a meeting in January 1996.(4) The Court finds no merit in these claims.
[¶23] Plaintiffs fail to indicate any affirmative conduct by Custer officials which provides a basis for an age discrimination claim under the Constitution. Thus, plaintiffs' age discrimination claim against Custer fails for two reasons: (1) there is no federal law applicable in this instance and (2) the facts do not support such a claim.
[¶24] In their brief in response to Custer's motion for summary judgment, plaintiffs contend that Custer should be held liable for instigating the chain of events which led to the inspection of the Loneman players, for racial epithets directed at the Loneman players, and for conduct at a meeting in January 1996. Plaintiffs' Brief in Response to Custer's Motion for Summary Judgment (Response to Custer's Motion) at 10-14. Such an allegation is specious at best. They do not allege that any Custer official conducted the inspection and in fact concede that the Hermosa coach, Neugebauer, could not have participated in the search since her team was playing as it transpired. Id. at 12. Since Neugebauer was the only Custer official attending the tournament in an authorized position, plaintiffs' claims against Custer are based on her conduct as an agent or employee of Custer.
[¶25] As for the racial epithets by the spectators, plaintiffs have not demonstrated that Neugebauer made any racially demeaning statements to the Loneman players, coach, or fans. In her affidavit Sarah Ten Fingers noted that the racial slurs came from the Hermosa players and fans. Affidavit of Sarah Ten Fingers at 1. Unfortunately, lack of civility occurs far too often at sporting events. The conduct of a few fans does not provide a basis for liability for the school district nor do the verbal statements made by Hermosa players.
[¶26] The sole basis for alleging sex discrimination against Custer is the complaint made by Neugebauer that some of the Loneman players were boys. There is no accusation by plaintiffs that Neugebauer or any other Custer official participated in the physical inspection of the Loneman players. As previously mentioned, plaintiffs concede that Neugebauer was coaching at the time the inspection took place and could not have participated in the inspection. Response to Custer's Motion at 12. Therefore, there is no factual basis for a sex discrimination claim against Custer.
[¶27] C. Loneman School
[¶28] As with the other defendants, plaintiffs originally claimed that Loneman officials discriminated against them based upon age, race, and gender. Complaint at 7. There was no mention of the age discrimination claim in plaintiffs' response to Loneman's motion for summary judgment. Given this fact and the discussion of the age discrimination claims made against the YMCA and Custer, it is apparent that there is no basis for an age discrimination claim in this case. Accordingly, the Court need not consider the issue further.
[¶29] D. State law claims
[¶30] In addition to the many federal law claims, plaintiffs have alleged various state law claims such as intentional infliction of emotional distress, mental anguish, unlawful imprisonment, and negligence. Complaint at 5-6. The YMCA, Patrick Reynolds, and Custer request that the Court not exercise its discretion to extend jurisdiction to the state claims. Loneman contends that since it is a Bureau of Indian Affairs (BIA) school, a tort suit against it must be filed against the United States under the Federal Tort Claims Act, 28 USC § 2671 et seq. which preempts state court jurisdiction. Loneman's Reply at 5. No such claim has been filed. In such a case, this Court has no jurisdiction over an FTCA claim until administrative remedies have been pursued.
[¶31] Having concluded that there is no merit to plaintiffs' federal claims, the question becomes whether the remaining state law based claims should be entertained by this Court. 28 USC § 1367 outlines those instances when a district court can maintain supplemental jurisdiction over such claims. 28 USC § 1367(c)(3) permits a district court to refuse supplemental jurisdiction over state law claims if "the district court has dismissed all claims over which it has original jurisdiction." The decision to maintain jurisdiction over state claims once all federal claims have been dismissed is discretionary. Franklin v. Zain, 152 F3d 783, 786 (8th Cir. 1998).
[¶32] When considering whether to exercise supplemental jurisdiction over state claims a court should consider such factors as judicial economy, fairness to litigants, and convenience. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S. Ct. 1130, 16 L. Ed. 2d 218 (1966). Moreover, "[n]eedless decisions of state law should be avoided both as a matter of comity and to promote justice between the parties by procuring for them a surer-footed reading of applicable law." Id. None of these factors support maintaining federal jurisdiction. Therefore, the Court declines to exercise jurisdiction over the remaining state court claims against the YMCA, Patrick Reynolds, and Custer. The Court notes that dismissal of these claims is without prejudice. Unless South Dakota law provides a longer tolling period, plaintiffs' state law claims against these defendants are tolled for 30 days following this date pursuant to 28 USC § 1367(d). Franklin, 152 F3d at 786; Edmondson & Gallagher v. Alban Towers Tenants Assoc., 48 F3d 1260, 1267 (D.C. Cir. 1995).
[¶33] At the conclusion of its brief in support of the motion for summary judgment, Custer indicated that if there were a favorable disposition of the motion it would withdraw the cross-claims filed against the co-defendants. Given that the motion for summary judgment has been granted, cross-claims are therefore also dismissed upon request of the cross-claimant.
[¶34] Custer also filed a counterclaim against plaintiffs for barratry. Having thoroughly reviewed the record, the Court concludes that the counterclaim is without merit and dismisses it.
[¶35] Accordingly, it is hereby
[¶36] ORDERED that the YMCA and Patrick Reynolds' motion for summary judgment (Docket #46) is granted. Those claims allegedly based upon federal law are dismissed with prejudice. Plaintiffs' state law claims are dismissed without prejudice.
[¶37] IT IS FURTHER ORDERED that Custer School District's motion for summary judgment (Docket #59) is granted. All federal claims against Custer are dismissed with prejudice, whereas the state law claims are dismissed without prejudice.
[¶38] IT IS FURTHER ORDERED that Loneman School's motion for summary judgment (Docket #51) is granted. All claims against Loneman shall be dismissed with prejudice.
[¶39] IT IS FURTHER ORDERED that Custer's counterclaim for barratry is dismissed. Custer's cross-claim is dismissed without prejudice.
1. The trilogy of Celotex, Anderson, and Matsushita has redefined the standard for summary judgment previously annunciated in Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970) and Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 467, 82 S. Ct. 486, 7 L. Ed. 2d 458, 488 (1962). Poller and Adickes run counter to the teachings of Celotex, Anderson, and Matsushita which take issue with the concept that summary judgment is to be used sparingly. See generally William W. Schwarzer, Alan Hirsch, and David J. Barrans, The Analysis and Decision of Summary Judgment Motions: A Monograph on Rule 56 of the Federal Rules of Civil Procedure, Federal Judicial Center, at 4 (1991).
2. On January 9, 1996, Neugebauer and Paul Anderson, the athletic director of the Custer School District, were asked to attend a meeting at the Loneman School. Custer's UMF at 4; Affidavit of Neugebauer at 3. At the meeting, which was attended by the Loneman team and their parents, both Neugebauer and Anderson apologized for their conduct. Id.
On January 12, 1996, after extended communication between the YMCA and Loneman officials, a meeting was held in the Loneman School for representatives of the YMCA to apologize for the incident on December 2. Plaintiffs' UMF at 5. Attending the meeting were Roger Gallimore (Gallimore), the executive director of the Rapid City YMCA, Reynolds, the director of the basketball tournament, Mike Long, and Dana Nachtigal. Id. Several administrators from Loneman including Scott Ten Fingers, the team's coach, were present at this meeting as well as the Loneman players and their parents. Id. That same evening a healing ceremony was held to assist the plaintiffs in overcoming the December 2, 1995, incident.
3. 20 USC § 1681(a) reads in pertinent part as follows:
(a) Prohibition against discrimination; exceptions
No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.
4. Custer filed a counterclaim for barratry against plaintiffs and cross-claims against their co-defendants. Custer has agreed to withdraw the cross-claims if its motion for summary judgment is granted. Custer's Brief in Support of Motion for Summary Judgment at 13 n.3.