TABLE OF CONTENTSI. BACKGROUND ........................................................ 789 II. PUBLIC ACCOMMODATION .............................................. 789 A. PLACE OF ENTERTAINMENT ......................................... 790 B. SNACK BAR AS COVERED ESTABLISHMENT ............................. 793 III. PRIVATE CLUB EXEMPTION ............................................ 795 A. GENUINE SELECTIVITY ............................................ 797 B. HISTORY OF CLUB ................................................ 802 C. USE OF CLUB BY NONMEMBERS....................................... 803 D. COUNTERVAILING CONSIDERATIONS .................................. 804 IV. PATTERN OR PRACTICE OF DISCRIMINATION ............................. 805 A. BURDEN OF PROOF ................................................ 805 B. STATISTICAL EVIDENCE ........................................... 807 1. Legal Principles ............................................ 807 2. Prima Facie Case ............................................ 808 3. Defendant's Rebuttal ........................................ 809 C. REJECTIONS AND ADMISSIONS ...................................... 811 1. Burden of Proof ............................................. 811 2. Allison Family .............................................. 812 3. Ryan Family ................................................. 814 4. Ivery Family ................................................ 815 5. B Family .................................................... 817 6. Johnson Family .............................................. 817 7. Wilson Family ............................................... 817 8. V Family .................................................... 817 9. Number of Rejections ........................................ 818 D. DISCRIMINATION IN ORGANIZATION OF CLUB ......................... 818 E. DETERRENCE OF BLACK APPLICANTS ................................. 819 1. Parker Family ............................................... 819 2. Reaves Family ............................................... 819 3. Allison Family .............................................. 820 4. Ivery Family ................................................ 820 5. M Family .................................................... 820 F. OTHER ANECDOTAL EVIDENCE ....................................... 821 G. ADDITIONAL REBUTTAL EVIDENCE ................................... 822 V. CONCLUSIONS OF LAW ................................................ 823 VI. RELIEF ............................................................ 823
O'NEILL, District Judge.
The United States brought this action against the Lansdowne Swim Club ("The Club", "LSC"), alleging that it is a place of public accommodation that discriminates in its membership policies and practices against blacks on the basis of their race or color
LSC denies that it is a place of public accommodation, claims that it is a private club exempt from the coverage of Title II, and denies that it has discriminated. This Memorandum sets forth my findings of fact and conclusions of law as to these issues, as required by Fed.R.Civ.P. 52(a).
For the reasons that follow, I conclude that LSC is a place of public accommodation, is not a private club, and has engaged in a pattern or practice of discrimination against blacks in its membership policies.
Lansdowne Swim Club is a Pennsylvania nonprofit corporation which owns and maintains facilities at the corner of Burmont Road and Baltimore Pike in Lansdowne, PA. Stipulation of Facts ("Stip.") 1, 3; Defendant's Exhibit ("DX") 1. It is the only swimming facility in Lansdowne, except for pools located on personal property. Stip. 6. LSC opened its facilities in 1958 (Stip. 2) and has been open every summer since then.
LSC's recreational facilities include a swimming pool with diving and sliding boards, a wading pool, lounging and sunbathing areas, shower and dressing facilities, ping pong tables, horseshoes, lounge chairs, umbrellas, picnic tables, and basketball and volleyball facilities. Stip. 21-31, 33-39. There is an entrance gate into the Club property off Burmont Road that leads to the parking area, where the basketball and volleyball equipment is located. Kressley Testimony, Tr. 6/17/88, at 18; Stip. 91. From the parking area, a ramp leads to an enclosed area where the pool is located. Kressley, at 18. The pool is accessible through a gate, which is staffed by LSC employees who admit members, associates and guests during normal pool hours. See Cunningham Testimony, Tr. 6/16/88, at 4-5; Kressley, at 18-19. LSC leases a portion of its facilities to a concessionaire as a snack bar. Stip. 52.
The Club is managed by a twelve-person Board of Directors, including a President, Vice-President, Secretary and Treasurer. DX 3a (Art. II, Secs. 1, 2(a)). The shareholder members of the LSC are referred to in the Club's Bylaws as "active" members. Stip. 106; DX 2 (Art. IV, Sec. 1). Membership is evidenced by a capital share, or "bond", which has a par value of $250. Stip. 108; DX 1 (Art. 9). The Club limits its shareholder members to 500. Stip. 142. LSC also permits persons and families, known as "associates", to use its facilities for one season only. Stip. 107. The Club's general policy is that before being elected to membership an applicant must use the facilities of LSC for one swimming season as an associate. Stip. 110.
Prior to 1979, all applicants for shareholder membership or associate privileges were required to be approved by the Membership Committee and elected to membership by the Board of Directors. Stip. 113-114; DX 2 (Art. IV, Sec. 2). Since 1979, all applicants must be approved by ninety percent of the shareholders present and voting at the annual meeting. Stip. 115-117. At this meeting, voting members cast ballots anonymously: an affirmative vote is cast by not listing the applicant's name on the ballot, and a negative vote is cast by listing the applicant's name. Stip. 118-119. Since 1985, the attendance of one of the applicant's sponsors at the annual meeting has also been required. Stip. 173-175.
II. PUBLIC ACCOMMODATION
Title II of the Civil Rights Act prohibits discrimination in places of public accommodation. An establishment is a place of public accommodation within the meaning
The operations of an establishment covered by section 2000a(b)(2) affect commerce if the establishment "serves or offers to serve interstate travelers or a substantial portion of the food which it serves ... has moved in commerce." Id. § 2000a(c)(2). The operations of an establishment covered by section 2000a(b)(3) affect commerce if the establishment "customarily presents films, performances, athletic teams, exhibitions, or other sources of entertainment which move in commerce." Id. § 2000a(c)(3). The operations of an establishment covered by section 2000a(b)(4) affect commerce if the establishment "is physically located within the premises of, or there is physically located within its premises, an establishment the operations of which affect commerce within the meaning of this subsection." Id. § 2000a(c)(4).
A. PLACE OF ENTERTAINMENT
The Lansdowne Swim Club is a place of entertainment pursuant to section 2000a(b)(3). At its facilities, members, associates and guests (and members of the public in some instances), are amused and entertained by swimming, diving, sunbathing and "people-watching". They also consume snack food and beverages; talk to and associate with each other; play basketball, volleyball, ping pong and horseshoes; participate in and observe swimming and diving meets; and attend pool parties which sometimes include musical entertainment. See Stip. 20-47.
It is well-established that a place of entertainment includes an establishment where entertainment takes the form of direct participation in an activity or sport. See Daniel v. Paul, 395 U.S. 298, 306-08, 89 S.Ct. 1697, 1701-02, 23 L.Ed.2d 318 (1969);
Although LSC concedes that its swimming and other recreational areas constitute a place of entertainment, it contends that this designation is limited to its "recreational areas". Defendant's Brief in Support of its Proposed Findings of Fact and Conclusions of Law [hereinafter Defendant's Brief], at 4. Thus, LSC appears to be dividing its facilities into entertainment and nonentertainment areas. This bifurcation has no support in the plain language of the Act or the case law interpreting it. Once an establishment is determined to be a place of entertainment, the entire facility is identified as such. See Daniel, 395 U.S. 298, 89 S.Ct. 1697 (recreational facility including swimming, boating, sunbathing and picnicking areas, miniature golf, dancing facilities, and a snack bar); Olzman, 495 F.2d 1333 (swim club including swimming pool, wading pool, parking area and snack bar); Miller, 394 F.2d 342 (amusement park including mechanical rides, ice skating rink during winter, and small concession stand); United States v. Johnson Lake Inc., 312 F.Supp. 1376 (S.D.Ala.1970) (recreational complex including swimming, picnicking and dancing areas, snack bar, pool tables, jukebox and gum machine); Evans v. Laurel Links, 261 F.Supp. 474 (E.D.Va.1966) (golf course with lunch counter); cf. Martin v. United Way, 829 F.2d 445, 449-50 (3d Cir.1987) (noting that the Supreme Court in Daniel "held that the entire facility was a place of entertainment `affecting commerce'....").
As a place of entertainment, the operations of LSC affect commerce because LSC customarily presents sources of entertainment which move in interstate commerce. A "source of entertainment" is "the utilization of a device or an implement to engage in an entertaining activity". Slidell Youth Football Ass'n, 387 F.Supp. at 483. The sliding board at LSC, which the Club bought in 1968, was manufactured in Texas. Stip. 444(c), (d); Government's Exhibit ("GX") 108.
Participants in activities are also considered sources of entertainment for purposes of Title II. See Scott v. Young, 421 F.2d 143, 144 (4th Cir.), cert. denied, 398 U.S. 929, 90 S.Ct. 1820, 26 L.Ed.2d 91 (1970); Brown, 573 F.Supp. at 402; Johnson Lake, 312 F.Supp. at 1380; Laurel Links, 261 F.Supp. at 477. Some of the persons who have used the Club's facilities are out-of-state residents. Stip. 51. For example, in 1986, the Club's guest receipts show that there were 117 visits by out-of-state guests; in 1987 there were 165 visits. See GX 106, 107.
The pool chemicals,
The sliding board and the guests have "moved in commerce" because they originated in a state other than Pennsylvania, the state where they are presented. See Daniel, 395 U.S. at 308, 89 S.Ct. at 1702;
Finally, LSC "customarily" presents these interstate sources of entertainment. Customarily means "by custom", which is defined as "a form or course of action characteristically repeated under like circumstances", "a usage or practice that is common to many or to a particular place or class or is habitual with an individual," or a "repeated practice." Laurel Links, 261 F.Supp. at 477. Senator Magnuson, the Senate floor manager of Title II, stated that "customarily" meant "more than occasionally. Some significant percentage of the performances occurring in an establishment must move in interstate commerce if it is to come within the purview of title II." 110 Cong.Rec. 7406 (1964). Any of these definitions is satisfied here. LSC's sliding board is "not only `customarily' presented, but permanently provided for the entertainment of the establishment's customers." DeRosier, 473 F.2d at 752. Moreover, the number of guests from out of state (13% of the guests in 1986 and 8% in 1987) is significant and the use of the facilities by them is regular. Cf. Brown, 573 F.Supp. at 402 (commerce requirement satisfied by annual golf tournament in which out-of-state professionals and club members play); Evans, 261 F.Supp. at 477 (commerce requirement satisfied by golf team from out-of-state playing on course once a year).
I do not accept LSC's attempt to nullify the significance of the attendance of out-of-state guests. First, I do not believe that the United States must prove that these guests actually used the pool in order to be considered sources of entertainment. The existing records reveal only who entered the premises, not who actually used the pool or the other facilities; therefore, it would be difficult, if not impossible, for the government to determine who used the facilities. Imposition of such a requirement also would run counter to the broad definition of entertainment that has been developed in the case law. Even if these guests did not participate in any activities at the Club, they would be sources of entertainment to others at the pool who are "people-watching," a popular amusement at any swimming pool or beach. See Scott v. Young, 307 F.Supp. 1005, 1007 (E.D.Va. 1969), aff'd, 421 F.2d 143. Second, the fact that LSC does not advertise for out-of-state patrons is not critical. In Miller, 394 F.2d 342, the case cited by defendant to support its contention that the government must show solicitation of out-of-state residents to satisfy the commerce requirement, evidence of advertising was necessary because there was no direct proof of the place where each patron originated. Miller, 394 F.2d at 349. In this case, however, LSC and the government stipulated that out-of-state residents patronized the facility; in addition, the government presented evidence of how many of them were admitted into the facility in recent years. A greater showing is not required.
B. SNACK BAR AS COVERED ESTABLISHMENT
LSC is an establishment within the premises of which is physically located a covered establishment, a facility engaged in selling food for consumption on the premises, and which holds itself out as serving patrons of that covered establishment, the snack bar.
The snack bar at LSC is leased to a concessionaire who operates it. Stip. 52. Food and drink purchased from the bar cannot be taken from the snack bar and ticket booth areas. See GX 56 (1962 Rules and Regulations); GX 57 (1964 Pool Regulations); GX 58 (1978 Pool Regulations); GX 59 (1979 Pool Regulations); GX 60 (1986 Pool Regulations). The bar sells hamburgers, hot dogs, french fries, coffee, pizza, candy, tea, soda and hot chocolate to the members, guests and employees of the Club. Stip. 53-62.
When John and Carolyn Doucas operated the snack bar,
Nonresidents of Pennsylvania have been served by the operators of the snack bar. Stip. 64, 66.
It is undisputed that the snack bar sells food for consumption on the premises. Stip. 53. Thus, the snack bar at the Club is a "facility principally engaged in selling food for consumption on the premises" pursuant to 42 U.S.C. § 2000a(b)(2). Accord Daniel, 395 U.S. at 303-04, 89 S.Ct. at 1700 (snack bar in recreational area); Fazzio Real Estate v. Adams, 396 F.2d 146, 150 (5th Cir.1968) (snack bar in bowling alley); United States v. Beach Assocs., Inc., 286 F.Supp. 801, 806 (D.Md.1968) (restaurant adjoining beach club); Johnson Lake, 312 F.Supp. at 1378-81 (snack bar in recreational area).
The Club holds itself out as serving patrons of the snack bar: the bar serves the members, associates, guests and employees of LSC, Stip. 63-66; conversely, LSC provides entertainment to those who patronize the bar. Cf. Adams v. Fazzio Real Estate, 268 F.Supp. 630, 638-39 (E.D.La.1967), aff'd, 396 F.2d 146 (5th Cir.1968) (to satisfy "holding out" requirement, not necessary to show that primary function of bowling alley is to serve patrons of refreshment counter). Defendant disputes that the snack bar satisfies this requirement because the bar is not independent of the other facilities and, as such, "[t]here are no `patrons' of the snack bar who are not already `patrons' of LSC." Defendant's Brief, at 6. The Supreme Court's decision in Daniel refutes defendant's argument, however. In Daniel, the snack bar encompassed only a small portion of a larger recreational area, the Lake Nixon Club, to which blacks were denied admission. See Daniel, 395 U.S. at 301, 89 S.Ct. at 1699. Thus, it appears there were no patrons of the snack bar who were not already patrons
The operations of LSC's snack bar affect commerce because it serves and offers to serve interstate travelers. This standard is "satisfied by minimal evidence." Adams, 268 F.Supp. at 639 n. 19. It is undisputed that nonresidents have used the Club's facilities and have been served at the snack bar. The statute does not designate how many nonresidents must be served within a certain period of time in order to "affect commerce". I have already concluded that the number of out-of-state guests who have patronized LSC is significant. See supra p. 792. This requirement need not be fulfilled by showing solicitation of out-of-state residents. Cf. Daniel, 395 U.S. at 304, 89 S.Ct. at 1700; Newman v. Piggie Park Enters., 256 F.Supp. 941, 951 (D.S.C.1966), rev'd on other grounds, 377 F.2d 433 (4th Cir.1967) (both cases showing that out-of-state residents were patrons of facility because it advertised). As I have previously stated, evidence of solicitation is simply a substitute for direct evidence of attendance by out-of-state residents, see supra p. 792; in this case the government need not show that LSC advertised for nonresident patrons because it has been stipulated that the snack bar has in fact served them.
I also find that the snack bar offers to serve interstate travelers because LSC offers to serve all persons who use the Club's facilities, including out-of-state guests. See Daniel, 395 U.S. at 304, 89 S.Ct. at 1700; Gregory v. Meyer, 376 F.2d 509, 510 (5th Cir.1967); United States v. All-Star Triangle Bowl, Inc., 283 F.Supp. 300, 302 (D.S.C.1968); Laurel Links, 261 F.Supp. at 476.
Finally, the operations of the snack bar affect commerce because a "substantial" portion of the food served at the bar has moved in interstate commerce in accordance with 42 U.S.C. § 2000a(c)(2).
Ingredients in the soda and coffee sold at the snack bar originated outside Pennsylvania. I take judicial notice of the fact that many of the purchases at a swimming pool's snack bar, open during the hot summer months, include a cold drink. The primary cold drinks sold at the snack bar are "Coca-Cola" soft drinks, which contain an essential ingredient that has moved in commerce.
I recognize that in Daniel, 395 U.S. at 305, 89 S.Ct. at 1701, the Court found that a substantial portion of food had moved in commerce where "three of the four food items sold at the snack bar contain[ed] ingredients originating outside of the
The operations of LSC affect commerce because the snack bar is physically located within its premises. "The snack bar's status as a covered establishment automatically brings the entire ... facility within the ambit of Title II." Daniel, 395 U.S. at 305, 89 S.Ct. at 1701.
For all of the above reasons, I find that the Club is a place of public accommodation within the meaning of 42 U.S.C. § 2000a(b)(4), as well as under § 2000a(b)(3).
III. PRIVATE CLUB EXEMPTION
LSC claims that it is exempt from the coverage of Title II because it is a private club pursuant to 42 U.S.C. § 2000a(e).
LSC bears the burden of demonstrating that it is a private club. See Anderson v. Pass Christian Isles Golf Club, Inc., 488 F.2d 855, 857 (5th Cir.1974); United States v. Richberg, 398 F.2d 523, 529 (5th Cir. 1968); Nesmith v. YMCA, 397 F.2d 96, 101 (4th Cir.1968); Brown v. Loudoun Golf & Country Club, Inc., 573 F.Supp. 399, 402 (E.D.Va.1983); Wright v. Cork Club, 315 F.Supp. 1143, 1150 (S.D.Tex.1970). The defendant possesses this burden "because [it]
The statute itself does not define a private club: "[t]he statute sets forth a factual test of sorts—`not in fact open to the public,' but it does not define `private club'." Cork Club, 315 F.Supp. at 1150 (footnote omitted). The limited legislative history of section 2000a(e) provides me with only broad guiding principles. The private club exemption "must be examined in the light of the Act's clear purpose of protecting only `the genuine privacy of private clubs * * * whose membership is genuinely selective * * *.'" Nesmith, 397 F.2d at 101-02 (citing remarks of Sen. Humphrey, 110 Cong.Rec. 13,697 (1964)). This exemption must also be examined in light of the remedial purpose of the Act, to eliminate racial discrimination in places open to the public. See Cork Club, 315 F.Supp. at 1150; see also supra p. 795 & n. 21 (discussing general remedial purpose of Title II).
The few decisions of the Supreme Court addressing the scope of section 2000a(e) are of limited value in developing a comprehensive definition of a private club, perhaps because they clearly involved shams. See Cork Club, 315 F.Supp. at 1151. In Daniel v. Paul, 395 U.S. 298, 89 S.Ct. 1697, 23 L.Ed.2d 318 (1969), the Lake Nixon Club was a recreational area in which 100,000 whites per season were given "membership" cards for paying a 25¢ "membership" fee. The Court concluded that this requirement was a subterfuge designed to avoid the impact of the Civil Rights Act. Id. at 302, 89 S.Ct. at 1699. The facility was "simply a business operated for a profit with none of the attributes of self-government and member-ownership traditionally associated with private clubs." Id. at 301, 89 S.Ct. at 1699. In Sullivan v. Little Hunting Park, 396 U.S. 229, 90 S.Ct. 400, 24 L.Ed.2d 386 (1969), the facility was a community park and playground where membership could be obtained as a tenant of an existing member who had assigned his or her share. Id. at 234-35, 90 S.Ct. at 403. The Supreme Court concluded that Little Hunting Park was not a private social club, but rather "a device functionally comparable to a racially restrictive covenant, ..." Id. at 236, 90 S.Ct. at 404. The organization had "no plan or purpose of exclusiveness. It is open to every white person within the geographic area, there being no selective element other than race." Id. Finally, in Tillman v. Wheaton-Haven Recreation Ass'n, 410 U.S. 431, 93 S.Ct. 1090, 35 L.Ed.2d 403 (1973), the Court followed Sullivan and concluded that a community swimming pool open to all whites within a geographic area was not a private club. Id. at 438, 93 S.Ct. at 1094. The Court reached this conclusion despite a restriction on the number of memberships and a formal membership procedure which required board or membership approval. Id. at 438-39, 93 S.Ct. at 1094.
Other Courts interpreting section 2000a(e) have not relied on a single test to determine if an establishment is a private club. Instead, they have weighed a variety of relevant factors. "Each factor is considered and either tips the balance for or against private club status." Cork Club, 315 F.Supp. at 1150; see also Nesmith, 397 F.2d at 101-02. I agree that a factor analysis is appropriate. The following factors are relevant to this determination and will be considered:
1. The genuine selectivity of the group in the admission of its members. See, e.g., Tillman, 410 U.S. at 438, 93 S.Ct. at 1094; Nesmith, 397 F.2d at 102; Durham v. Red Lake Fishing & Hunting Club, 666 F.Supp. 954, 960 (W.D.Tex.1987); Brown, 573 F.Supp. at 402-03; United States v. Trustees of Fraternal Order of Eagles, 472 F.Supp. 1174, 1175-76 (E.D.Wis.1979); Cornelius v. Benevolent Protective Order of Elks, 382 F.Supp. 1182, 1203 (D.Conn. 1974) (three-judge panel); United States v. Jordan, 302 F.Supp. 370, 375 (E.D.La. 1969);
2. The membership's control over the operations of the establishment. See, e.g., Durham, 666 F.Supp. at 960; Jordan, 302 F.Supp. at 375-76;
4. The use of the facilities by nonmembers. See, e.g., Eagles, 472 F.Supp. at 1175; Cornelius, 382 F.Supp. at 1203;
5. The purpose of the club's existence. See, e.g., Jordan, 302 F.Supp. at 376;
6. Whether the club advertises for members. See, e.g., Wright v. Salisbury Club, Ltd., 632 F.2d 309, 312-13 (4th Cir. 1980); Eagles, 472 F.Supp. at 1175; Cornelius, 382 F.Supp. at 1203; Cork Club, 315 F.Supp. at 1152;
7. Whether the club is profit or non-profit. See, e.g., Daniel, 395 U.S. at 301, 89 S.Ct. at 1699; Cornelius, 382 F.Supp. at 1203;
8. The formalities observed by the club, e.g., bylaws, meetings, membership cards. See, e.g., Nesmith, 397 F.2d at 102; Durham, 666 F.Supp. at 960; Jordan, 302 F.Supp. at 376.
Upon consideration of the factors listed above, I conclude that LSC has not established that it is a private club.
A. GENUINE SELECTIVITY
The genuine selectivity of the membership process is the most important factor in ascertaining private club status. During the floor debate regarding section 2000a(e), Senator Humphrey stated: "We intend only to protect the genuine privacy of private clubs or other establishments whose membership is genuinely selective on some reasonable basis." 110 Cong.Rec. 13,697 (1964). Moreover, Courts construing this provision, including the Supreme Court, have concluded that genuine selectivity is an integral characteristic of a private club. See, e.g., Tillman, 410 U.S. at 438, 93 S.Ct. at 1094; Sullivan, 396 U.S. at 236, 90 S.Ct. at 404; Salisbury Club, 632 F.2d at 312; Durham, 666 F.Supp. at 960; People of the State of New York v. Ocean Club, 602 F.Supp. 489, 495 (E.D.N.Y.1984); Brown, 573 F.Supp. at 403; Eagles, 472 F.Supp. at 1175; Cornelius, 382 F.Supp. at 1203; Cork Club, 315 F.Supp. at 1151; Jordan, 302 F.Supp. at 375.
A number of features reflect a club's genuine selectivity in membership practices:
I conclude that LSC has not demonstrated that its membership procedures are genuinely selective on some reasonable basis.
Shareholder membership in LSC is evidenced by a capital share, or bond, which has a par value of $250. Stip. 108; DX 1 (Art. 9). The Club may have only 500 shareholder members at any given time. Stip. 142; DX 1 (Art. 9). In 1987, LSC had 494 such members. DX 76. The Board of Directors may provide for use of the Club's facilities by an unspecified number of individuals or families as associates, whose applications are processed and submitted to the membership for approval in the same manner as those of shareholder members. Stip. 143. The Club does not have a written limit on the number of associates it will admit for the year. Stip. 107, 109. The Board determines the number of associates to be accepted based on estimates of the number of active members who will not use the facilities during the ensuing season and the number of associates from the previous year who intend to reapply. Stip. 145-147. The number of associates admitted each year has varied. Stip. 144.
A shareholder member pays $250 for the capital share or bond. DX 1 (Art. 9). Such a member also pays $32 annual dues for up to three family members and $14 for each additional family member. DX 8 (Minutes of Jan. 13, 1985). An associate pays $230 per season. Id. The government admits that the dues paid by members and associates are "not insignificant". Plaintiff's Pre-Trial Brief, at 25.
Prior to 1979, the Club's Bylaws stated that individuals or families desiring membership had to be approved by the Membership Committee and elected to membership by the Board of Directors. Stip. 113-114; DX 2 (Art. IV, Sec. 2). The Bylaws further provided that each applicant for membership had to be sponsored by two active members and that the Board of Directors could make such rules and regulations "with respect to the means of determining the qualifications and the desirability of admitting applicants to membership as they deem in the best interests of the Club." DX 2 (Art. IV, Sec. 7). After a family requested membership, a person on the Membership Committee interviewed the family; at the time of the interview, the Club required that a written application be completed and payment for the stock be tendered. See GX 124, at 24, 32. The purpose of the interview was to explain to the applicant the Club's activities, rules and procedures, and to complete the application. Boyd Testimony, Tr. 6/17/88, at 54-55. The application form asked for name, address, phone, occupation, name of spouse, names and birthdates of children, and names of two sponsors. GX 89. Before 1969, applicants were required only to provide the names of their sponsors; no written recommendations were required. Beginning in late 1969, letters of reference were required from the sponsors. GX 72 (Minutes of Sept. 14, 1969).
Prior to 1979, the Club did not conduct any background investigation of membership applicants. GX 122, at 102. The record does not reveal that the Club had any articulated standards or criteria for approving applications. After taking an application, the Membership Committee forwarded it to the Board of Directors, who voted on it. GX 122, at 98-99. Until 1967, the Board of Directors voted on the applications in groups rather than individually. See GX 69 (Minutes of April 16, 1967).
Since 1979, applications have been voted on by the membership of the Club. At the annual meeting on November 15, 1978, the Club amended its Bylaws to provide that membership applications be approved by ninety percent of the members present and
Except for applicants who were accepted as associates in the previous year, a member of the Membership Committee visits applicants. The purposes of the interview are only to describe the Club in general, to explain the membership procedure and to verify the names and ages of any children in the applicant's family. Stip. 126-128. Other than the names and ages of the children, the Club does not provide voting members with any information about the interviews. Stip. 129. Applications for membership usually are completed by the interviewer and signed by the applicant at the applicant's residence. Stip. 153-156.
Prior to the vote by the general membership, letters of recommendation from two active Club members must be submitted and reviewed by the Membership Committee. Stip. 130-131. Ordinarily, these letters are not seen by the voting members prior to the vote and, other than the identities of the recommenders, no information about the contents of the letters is provided to these members. Stip. 132-133. Applicants are directed to submit the application, the required payment and letters of recommendation to the Membership Chairman by a stated deadline, which is imposed to allow sufficient time for preparation of a list of applicants for the annual voting meeting. Stip. 159-167.
Applicants who have been interviewed, have completed an application, have submitted letters of recommendation and have paid all fees are listed in a notice distributed to members in advance of the special meeting. Boyd, at 37-38. The only information given to the members prior to the meeting is the applicants' names, addresses, names and ages of children, and the identities of the recommenders. Stip. 125; see also GX 99-102 (Notices of Special Meeting of Members for 1983, 1984, 1985, 1986).
The Club does not investigate the background, character or financial status of the applicants. Stip. 134-139. The Club does not have an absolute requirement that applicants reside in a particular geographic area, as it has admitted nonresidents of Lansdowne as both members and associates. Stip. 148-150.
Since 1958, LSC has admitted at least 1400 shareholder member families (Stip. 245) and a large number of associate families.
Although LSC requires substantial membership fees, places a limit on the number of shareholder members, and utilizes a formal admission procedure that has been controlled by the shareholder members since 1978, the process is not genuinely selective. LSC possesses no objective criteria or standards for admission. "If there is no established criteria for selecting members, the courts are reluctant to accept the claim of private status." Cork Club, 315 F.Supp. at 1151 (citation omitted). The applicants are not investigated in any meaningful way. "Where there is a ... policy of admission without any kind of investigation of the applicant, the logical conclusion is that membership is not selective* * *." Nesmith, 397 F.2d at 102 (citations omitted). The Club's interview of potential members is not probing and, moreover, provides no information to voting members that is useful in making an informed decision as to whether the applicant and his or her family would be compatible with the existing members. Although recommendations are required, their contents are not revealed to the members.
The fact that recommendations are required is an insufficient demonstration of selectivity. See, e.g., Tillman, 410 U.S. at 433, 438, 93 S.Ct. at 1092, 1094; Salisbury Club, 632 F.2d at 312; Brown, 573 F.Supp. at 403; Ocean Club, 602 F.Supp. at 495. The existence of substantial dues also does little to strengthen LSC's claim of selectivity. In other Courts, clubs with substantial dues were not able to sustain their burden of demonstrating that they were private clubs. See, e.g., Tillman, 410 U.S. at 433 n. 2, 93 S.Ct. at 1092 n. 2 ($375); Olzman, 495 F.2d at 1335 ($2000); Brown, 573 F.Supp. at 400, 403 ($750).
A country club with a membership procedure similar to LSC failed to show that it was a private club. Ocean Club, 602 F.Supp. at 495. The Court described the Ocean Club's membership procedures as follows:
Id. I find that the procedures of LSC are similarly lacking in substance.
In support of its assertion of selectivity, LSC emphasizes that members must be voted in by the membership. Defendant's Trial Memorandum, at 12-13. As I have discussed, under Tillman this procedure by itself is not sufficient to establish selectivity.
The lack of selectiveness in LSC's membership process is dramatically revealed by the results it yields: in the thirty-year history of LSC, only three non-black families have been denied membership and one non-black family (perhaps two) has been denied associate privileges. See supra p. 799 n. 30. As in Sullivan, 396 U.S. at 236, 90 S.Ct. at 404, "[t]here is no plan or purpose of exclusiveness. It is open to every white person ..., there being no selective element other than race." See also Olzman v. Lake Hills Swim Club, Inc., 495 F.2d 1333, 1336 (2d Cir.1974) (applying Tillman and Sullivan to swim club). Courts have generally found no selectivity where few whites have been rejected. See Tillman,
Other facts buttress the conclusion that LSC is not selective in its membership practices. First, although the Club imposes a limit of 500 on the number of shareholders, the number is not so small as to suggest exclusivity simply by virtue of the Club's size. Facilities with smaller memberships were not able to sustain their burden of demonstrating that they were private clubs. See Tillman, 410 U.S. at 433, 93 S.Ct. at 1092 (325 members); Brown, 573 F.Supp. at 400 (450 members); Durham, 666 F.Supp. at 956 (80 members). Second, there is no limit to the number of associates admitted in a given year and the determination of this number year-to-year appears not to be governed by a desire for selectivity, but rather by a concern for sufficient space. See supra pp. 797-98. Third, associates, who constitute approximately one-fifth of the users of these facilities, must satisfy the same entrance requirements as active members and yet have no voice in the selection of new members. See Ocean Club, 602 F.Supp. at 495-96. Fourth, members were voted upon by group until 1967.
I cannot accept defendant's argument that the end result, i.e., the number of applicants denied membership compared to the number who have applied, is irrelevant to my determination of genuine selectivity. A formal membership procedure has little meaning when in practice it is not selective, even if the process permits a member to vote against an applicant. See Salisbury Club, 632 F.2d at 312 (citing Tillman); Durham, 666 F.Supp. at 960 (citing Salisbury Club); Brown, 573 F.Supp. at 403 (citing Nesmith). A process whereby "the members ... decide for themselves on whatever grounds they deem suitable whether or not they wish to associate with the applicant", Defendant's Brief at 54, is a process that has no purpose or plan of exclusiveness.
The few establishments that Courts have found to possess a selective process are readily distinguishable from LSC. In Cornelius, 382 F.Supp. at 1203, three judges of the District of Connecticut found that a local Elks club was selective because it had clear admission standards: "only white male citizens of the United States who believe in God and who live within the jurisdictional limits of the local lodge were eligible for membership." In addition, the club had extensive procedures for investigating the suitability of an applicant: background questions were answered, sponsorship by a member was required, the applicant appeared before an investigating committee who issued a report to the general membership, and the membership voted on the applicants. Id.
The failure of the Cornelius Court to discuss how many applicants had been refused admission, assuming such evidence existed, is of no consequence. The Court relied on the Supreme Court's decision in Tillman as support for its consideration of the selectivity factor. Tillman recognized the importance of selectivity in substance and form. The Court in Cornelius, 382 F.Supp. at 1203, also cited Jordan, 302 F.Supp. at 375-76, which found that the number of applicants rejected was relevant to determining the selectiveness of a club.
I also note that Cornelius is inapposite to this case for two other important reasons. First, the legislative history demonstrated an intent to exempt local fraternal organizations in general and the Elks in particular from Title II. Cornelius, 382 F.Supp. at 1204. The Cornelius Court cited Moose Lodge v. Irvis, 407 U.S. 163, 171, 92 S.Ct. 1965, 1970, 32 L.Ed.2d 627 (1972), which exempted a local chapter of a national fraternal organization. Cornelius, 382 F.Supp. at 1204. Second, the plaintiff in Cornelius stipulated that the organization
The decision of the Court of Appeals in Kiwanis Int'l v. Ridgewood Kiwanis Club, 806 F.2d 468 (3d Cir.1986), cert. dismissed, 483 U.S. 1050, 108 S.Ct. 362, 97 L.Ed.2d 812 (1987), which held that a local Kiwanis Club was not a public accommodation, is also distinguishable. The Court reached its result pursuant to the New Jersey Law Against Discrimination and the applicable New Jersey case law, not Title II. LSC does not argue that Title II is coextensive with the New Jersey Act, which exempts any "bona fide club ... which is in its nature distinctly private." Id. at 472.
In Kiwanis, the Court emphasized the importance of selective membership practices, including formal membership procedures, to the determination whether the club was private. In particular, the Court noted that sponsorship by a current member was required, a requirement also followed by LSC. Id. at 475. However, the Court highlighted a number of facts which differentiate the Kiwanis Club from LSC: the Kiwanis Club had only twenty-eight members, with ten individuals having been members for over twenty years; only twenty members had been admitted in the last ten years; the club imposed local membership requirements and limited solicitation was conducted.
My finding that LSC does not have a genuinely selective membership process is a finding that weighs heavily against its contention that it is private. Other factors also support my conclusion that LSC is not a private club.
B. HISTORY OF CLUB
The history of an organization ordinarily is relevant to show whether it was created to avoid the effect of civil rights legislation. See, e.g., Daniel, 395 U.S. at 301-02, 89 S.Ct. at 1699-1700; Brown, 573 F.Supp. at 402; Eagles, 472 F.Supp. at 1175. There is no such contention here; in fact, LSC was created prior to the enactment of Title II. However, the history of LSC is relevant for another reason; the origins of LSC suggest that it was intended to serve as a "community pool" for families in the area and not as a private club.
Matthew Richards, a founder and former secretary of LSC, testified that LSC was created as a community pool to serve, in particular, the neighborhood children. Richards Testimony, Tr. 6/16/88, at 125. The minutes of May 22, 1957 also illustrate that the founders intended to form a community swim club. GX 61. When LSC was organized, the Borough of Lansdowne had no community pool. Richards, at 135. The Club was intended to be open to members of the public provided they could pay the membership fee. Id. at 136.
Initially, the organizers sent out a questionnaire to Lansdowne residents to determine their interest in membership. Stip. 7-8; GX 62; GX 63. A membership drive seeking 300 members was commenced in 1957. Stip. 9-11. The organizers solicited door-to-door. Richards, at 125-26. They
The government contends that another event in the Club's history is relevant; that the 1978 changes in the membership procedures were motivated by Dale Allison's filing of a complaint against LSC with the Pennsylvania Human Relations Commission (PHRC).
On or about March 14, 1978, Dale Allison filed a complaint against the Lansdowne Swim Club with the PHRC, alleging racial discrimination in a place of public accommodation, resort, or amusement, in violation of the PHRA. Stip. 290-291. On November 15, 1978, LSC amended its Bylaws to provide for approval by ninety percent of the membership. Stip. 116. John Boyd, who was a member of the Board of Directors, testified that the reason for the proposal was that "[t]here was a feeling among the club's members that the membership procedure should be made somewhat more democratic and the members themselves be given a larger voice in the selection of its members, ..." Boyd Testimony, Tr. 6/17/88, at 35-36. I credit this testimony. Prior to this time, concern for a more democratic process had been expressed by at least one shareholder member but no action was taken by the Board. See Kidder Testimony, Tr. 6/15/88, at 109-113.
On this evidence, I find that the government has not proved its contention that the changes in the Bylaws were motivated by the filing of the Allison complaint.
C. USE OF CLUB BY NONMEMBERS
Nonmembers are permitted to use LSC's facilities in a number of ways which, taken together, undercut LSC's claim that it is a private club. First, members and associates may bring an unlimited number of guests into the pool area provided that they pay the guest fee,
Considered together, these intrusions on the privacy of the Club support the image of a community swimming pool serving residents of the surrounding neighborhood and not merely the Club's members. As stated by the Court in Cork Club, 315 F.Supp. at 1151-52:
Every year, the facilities of LSC are regularly used by nonmembers, which I believe contradicts its purported desire to be exclusive.
D. COUNTERVAILING CONSIDERATIONS
LSC does possess certain characteristics that support its claim that it is a private club. Its shareholder members control the operations of the Club through their election of the Board of Directors and their ownership of shares. LSC is a nonprofit organization. Stip. 1; DX 1. The Club's Articles of Incorporation state that one of the purposes of the Club's existence is "[t]o maintain a private club for civic and social enjoyments of a moral, educational and legal nature." DX 1 (Art. 3). LSC has never advertised its activities or facilities. Richards Testimony, Tr. 6/16/88, at 132-33; Boyd Testimony, Tr. 6/17/88, at 35.
In view of all of the evidence relevant to LSC's private club status, I find that these considerations are insufficient to sustain LSC's burden to establish that it is a private club. Under similar circumstances, other Courts have found that the purported club was not private. See Brown, 573 F.Supp. at 402-03;
For the above reasons, I conclude that LSC is not entitled to exemption from Title II as a private club.
IV. PATTERN OR PRACTICE OF DISCRIMINATION
A. BURDEN OF PROOF
To succeed on the merits, the government must prove that LSC has engaged in a pattern or practice of discrimination against blacks. 42 U.S.C. § 2000a-5(a). Proof of a pattern or practice requires proof of disparate treatment, that is intentional discrimination, not simply disparate impact. See International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335, 97 S.Ct. 1843, 1854, 52 L.Ed.2d 396 (1977);
The words "pattern or practice" are not terms of art; they are to be given their generic meanings. See United States v. West Peachtree Tenth Corp., 437 F.2d 221, 227 (5th Cir.1971); United States v. Slidell Youth Football Ass'n, 387 F.Supp. 474, 480 (E.D.La.1974); United States v. Real Estate Dev. Co., 347 F.Supp. 776, 783 (N.D. Miss.1972). The government must "prove more than the mere occurrence of isolated or `accidental' or sporadic discriminatory acts. It [must] establish by a preponderance of the evidence that racial discrimination was the company's standard operating procedure — the regular rather than the unusual practice." Teamsters, 431 U.S. at 336, 97 S.Ct. at 1855; see also Bazemore v. Friday, 478 U.S. 385, 398, 106 S.Ct. 3000, 3008, 92 L.Ed.2d 315 (1986) (per curiam) (Brennan, J., writing for majority, concurring in part); Cooper v. Federal Reserve
The government's prima facie case may consist of "statistics alone ... or ... a cumulation of evidence, including statistics, patterns, practices, general policies, or specific instances of discrimination." EEOC v. American Nat'l Bank, 652 F.2d 1176, 1188 (4th Cir.1981), cert. denied, 459 U.S. 923, 103 S.Ct. 235, 74 L.Ed.2d 186 (1982); see also Croker v. Boeing Co., 662 F.2d 975, 991 (3d Cir.1981) (statistical evidence and individual testimony); Coates v. Johnson & Johnson, 756 F.2d 524, 532 (7th Cir.1985) (statistical evidence buttressed by evidence of general policies or specific instances of discrimination). The use of statistics in pattern or practice cases was approved by the Supreme Court in Teamsters, 431 U.S. at 337-39, 97 S.Ct. at 1855-56, and Hazelwood School Dist. v. United States, 433 U.S. 299, 306-09, 97 S.Ct. 2736, 2740-42, 53 L.Ed.2d 768 (1977). "Where gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination." Hazelwood, 433 U.S. at 307-08, 97 S.Ct. at 2741.
Specific instances of discrimination may be used to bring the "cold numbers convincingly to life." Teamsters, 431 U.S. at 339, 97 S.Ct. at 1856. In its prima facie case the government need not show that each person for whom it seeks relief was injured by the defendant's discriminatory conduct. See id. at 360, 97 S.Ct. at 1867; see also Franks v. Bowman Transp. Co., 424 U.S. 747, 96 S.Ct. 1251, 47 L.Ed.2d 444 (1976). See generally B. Schlei & P. Grossman, Employment Discrimination Law 1322-24 (2d ed. 1983) [hereinafter Schlei & Grossman]. The issue of individual relief ordinarily does not arise until it is proven that the defendant followed a policy or practice of discrimination. See Teamsters, 431 U.S. at 342-43 n. 24, 360-62, 97 S.Ct. at 1858-59 n. 24, 1867-68.
I must consider all of the evidence as a whole, both statistical and nonstatistical, to determine whether the government has satisfied its initial burden. See American Nat'l Bank, 652 F.2d at 1189. "Neither statistical nor anecdotal evidence is automatically entitled to reverence to the exclusion of the other." Coates, 756 F.2d at 533.
If the government makes a prima facie showing, the defendant then has the burden to demonstrate that the government's proof is either inaccurate or insignificant, or to provide a nondiscriminatory explanation for the discriminatory result. See Teamsters, 431 U.S. at 360, 97 S.Ct. at 1867; Croker, 662 F.2d at 991; Coates, 756 F.2d at 532 (citing, inter alia, Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53 L.Ed.2d 786 (1977)). The defendant need only produce evidence that raises a genuine issue of fact as to whether it discriminates. See EEOC v. Sears, Roebuck & Co., 839 F.2d 302, 309 (7th Cir.1988). Defendant "may endeavor to impeach the reliability of
"[I]f the defendant [has] not succeeded in having a case dismissed on the ground that [the government has] failed to establish a prima facie case, and [has] responded to the [government's] proof by offering evidence of [its] own, the factfinder then must decide whether the [government has] demonstrated a pattern or practice of discrimination by a preponderance of the evidence." Bazemore, 478 U.S. at 398, 106 S.Ct. at 3008. The burden of persuasion remains at all times with the government. See Sears, Roebuck, 839 F.2d at 309; Croker, 662 F.2d at 991.
A pattern or practice of discrimination may be found even if a defendant does not discriminate uniformly. See Ironworkers Local 86, 443 F.2d at 552; Real Estate Dev. Corp., 347 F.Supp. at 783-84. Moreover, no minimum number of acts is required. See West Peachtree, 437 F.2d at 227 ("The number of blacks actually turned away or discriminated against is not determinative."); Real Estate Dev. Corp., 347 F.Supp. at 783 ("The number of Negroes rejected is not determinative of the presence of such a pattern or practice."). However, sporadic or isolated incidents of discrimination are insufficient. See Goff v. Continental Oil Co., 678 F.2d 593, 596-97 (5th Cir.1982) (three instances of individual discrimination); Ste. Marie v. Eastern R.R. Ass'n, 650 F.2d 395, 406 (2d Cir.1981) ("While the definition of a pattern or practice is not capable of a precise mathematical formulation, ... more than two acts will ordinarily be required.") (citing, inter alia, Presseisen, 442 F.Supp. at 608); see also Croker, 662 F.2d at 995 (plaintiff class proved no more than isolated or sporadic discriminatory acts).
Upon consideration of the foregoing legal principles and of the facts as found below, I conclude that the government has sustained its burden of proving that the Lansdowne Swim Club has engaged in a pattern or practice of discrimination.
B. STATISTICAL EVIDENCE
The government presented the testimony of Chapman Gleason, Senior Statistician for the Department of Justice Employment Litigation Section, to support its prima facie case.
1. Legal Principles
Although the Supreme Court has sanctioned the use of statistics to prove a pattern or practice of discrimination, see supra, p. 806, it has cautioned: "[S]tatistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances." Teamsters, 431 U.S. at 340, 97 S.Ct. at 1856-57; Hazelwood, 433 U.S. at 312, 97 S.Ct. at 2744 (citing Teamsters); see also Croker, 662 F.2d at 995; Presseisen, 442 F.Supp. at 599. See generally Schlei & Grossman, at 1331. Recently, the Supreme Court again expressed its reluctance to accept statistical evidence: "Nor are courts ... obliged to assume that plaintiffs' statistical evidence is reliable. `If the [defendant] discerns fallacies or deficiencies in the data offered by the plaintiff, he is free to adduce countervailing evidence of his own.'" Watson v. Fort Worth Bank & Trust, ___ U.S. ___, 108 S.Ct. 2777, 2789, 101 L.Ed.2d 827 (1988) (plurality opinion) (citations omitted). Such weaknesses may include "small or incomplete data sets", "inadequate statistical techniques", or other deficiencies which may emerge from the unique facts of the case. Watson, 108 S.Ct. at 2790.
The Court of Appeals also has been cautious in relying on statistical evidence in the discrimination context. In Mazus v. Department of Transp., 629 F.2d 870, 875 (3d Cir.1980), cert. denied, 449 U.S. 1126, 101 S.Ct. 945, 67 L.Ed.2d 113 (1981), the Court noted: "Statistical comparisons, if they are to have any value, must be ... free from variables which would undermine the reasonableness of the discrimination inferences
2. Prima Facie Case
As a preliminary matter, I find that the government's expert, Chapman Gleason, was qualified to give expert testimony concerning statistical analyses of applications for membership in LSC. See GX 133 (Curriculum Vitae of Chapman Gleason); Tr. 6/16/88, at 59-62 (voir dire of Gleason). I initially made this determination during trial. Tr. 6/16/88, at 60, 62.
Mr. Gleason recommended that first-year associate privileges be used as the basis for the statistical analyses because one cannot become a member of the Club without first becoming an associate. Gleason Testimony, Tr. 6/16/88, at 64, 93-94. On the government's recommendation, Mr. Gleason used the admittance data for blacks and non-blacks rather than the individual ballots. Id. at 64-65, 93.
This data revealed that from 1979 to 1987, 379 non-black families applied to become first-year associates and none were rejected by the membership,
As a general rule, a standard deviation of greater than two or three excludes chance as an explanation for the underrepresentation of blacks.
3. Defendant's Rebuttal
Defendant argues, inter alia, that the government's statistical evidence is insignificant because the number of black applicants was too small to yield a valid result using the chi-square test. I agree.
The Supreme Court has recognized that small sample size may detract from the value of statistical evidence. See Teamsters, 431 U.S. at 339-40 n. 20, 97 S.Ct. at 1856-57 n. 20 (citing Mayor of Philadelphia v. Educational Equality League, 415 U.S. 605, 620-21, 94 S.Ct. 1323, 1333, 39 L.Ed.2d 630 (1974)); see also Watson, 108 S.Ct. at 2790 (an example of weakness in statistical evidence is small data set). Apart from this general admonition, however, I "have no guidance as to how small is too small other than [my] own best judgment." American Nat'l Bank, 652 F.2d at 1193-94.
The danger posed by small samples is that they may produce short-term results that would not hold over the long run, and thus erroneously may be attributed to discriminatory practices rather than to chance. See Baldus & Cole §§ 9.1, 9.11, 9.12; Commonwealth v. Rizzo, 466 F.Supp. 1219, 1229 (E.D.Pa.1979); see also Williams v. Tallahassee Motors, Inc., 607 F.2d 689, 693 (5th Cir.1979), cert. denied, 449 U.S. 858, 101 S.Ct. 159, 66 L.Ed.2d 74 (1980). Recognizing this danger, a number of Courts have invalidated or failed to give weight to statistics derived from small samples. See Rizzo, 466 F.Supp. at 1228-32; see also Fudge v. Providence Fire Dept., 766 F.2d 650, 657-58 (1st Cir.1985); Soria v. Ozinga Bros., 704 F.2d 990, 995
In Baldus & Cole, a treatise relied upon by statisticians in discrimination cases (see Gleason Testimony, Tr. 6/16/88, at 103-04), the authors state that for comparing selection rates the chi-square test will generally be preferred "if the sample sizes are not too small." Baldus & Cole § 9A.1, at 323. To determine the appropriate sample size for this test, the authors refer to the Dixon and Massey text (p. 242), which states: "The minimum theoretical frequency for the two by two table should not be less than 5." Gleason, at 104. During cross-examination, Mr. Gleason admitted that some of the theoretical frequencies in his chi-square analyses did not exceed five. Gleason, at 103, 109, 110-12. The computer software used by Mr. Gleason recognized the danger of using theoretical frequencies of less than five in a chi-square test. Upon performing its analyses of the admissions data of the Club from 1979 to 1987 (identifying the Johnson family as part-black), the computer issued a warning: "50% of the cells have expected counts less than 5. Chi-square may not be a valid test." DX 86.
Mr. Gleason testified that, notwithstanding these warnings, the theoretical frequencies did not need to be greater than five for the chi-square test to be valid. Id. at 103-05. However, he seemed to acknowledge the limitations of this test with such a small sample size by emphasizing that he did not rely solely on this test to conduct his analyses. Id. at 105-06.
I conclude that the small sample used in the government's study renders the chi-square test invalid. Because the analyses based on other tests are not admissible, see supra p. 808 n. 50, the statistical evidence is not probative of a pattern or practice of discrimination.
I also note that there is another problem with this evidence related to small sample size. As discussed infra p. 818, LSC had a discriminatory reputation among blacks in the Lansdowne community and LSC deterred blacks from applying to the Club. The creation of a chilling effect through these means distorted the applicant pool, thus weakening the statistical proof. See Baldus & Cole, § 4.124; see also Schlei & Grossman, at 1348-51 (among factors affecting quality of applicant flow data are inadequate recruiting efforts and application procedures that chill protected
Notwithstanding the invalidity of the government's statistical evidence, anecdotal evidence may satisfy the government's burden of proof. When the statistics are flawed, "strong evidence of individual instances of discrimination becomes vital to the plaintiff's case." Sears, Roebuck, 839 F.2d at 311 (citations omitted). It is to this evidence that I now turn.
C. REJECTIONS AND ADMISSIONS
I find that the rejections of the black and part-black families who sought membership in the Club, the Allisons (1983 and 1986), Ryans (1984 and 1986) and Iverys (1986), are highly probative of a pattern or practice of discrimination, and that the admissions of the Johnsons (1981 and 1982) and the Wilsons (1984 and 1985) and the rejection of the V family (1984) do not counter this finding.
1. Burden of Proof
The government claims that each rejection of a black or part-black family who applied to the Club was racially motivated and that, taken together, the rejections constituted a pattern or practice. It appears that other Courts have not yet determined the precise standard of proof applicable to individual claims of disparate treatment offered to support a pattern or practice of discrimination. In Presseisen, 442 F.Supp. at 600-01, my colleague Judge Bechtle suggested that each individual claimant must satisfy the tripartite test for individual disparate treatment set forth in McDonnell-Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). I agree. The McDonnell-Douglas framework was developed to evaluate claims of intentional discrimination against individuals and has been applied to a private action brought pursuant to Title II. See Durham v. Red Lake Fishing & Hunting Club, 666 F.Supp. 954, 957 (W.D.Tex.1987). Moreover, this framework is a flexible one that can be readily adapted to different contexts. See Furnco Constr. Co. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 2949, 57 L.Ed.2d 957 (1978); Jackson v. United States Steel Corp., 624 F.2d 436, 440 (3d Cir.1980). The parties agree that McDonnell-Douglas is applicable. Defendant's Brief, at 14; Transcript of Oral Argument, Tr. 9/21/88, at 8.
In this case, a prima facie case of discriminatory rejection is made out if the government shows, by a preponderance of the evidence, that: 1) the rejected family was black or part-black; 2) it applied and qualified for membership; 3) it was rejected; and 4) openings for membership sought by the black or part-black family were available and were filled by non-black families. See McDonnell-Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. Satisfying the elements of the prima facie case was not intended to be onerous. See Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981).
To rebut this prima facie case, LSC must articulate a legitimate, nondiscriminatory reason for the family's rejection. See Burdine, 450 U.S. at 253, 101 S.Ct. at 1093. The reason must be clearly articulated and reasonably specific, and must be supported by the introduction of admissible evidence.
If LSC carries its burden, the government must then prove that the legitimate reason proffered by LSC was merely a pretext for discrimination. Pretext may be proven either "directly ... [by showing] that a discriminatory reason more likely motivated the [defendant] or indirectly by showing that the [defendant's] proffered explanation is unworthy of credence." Id. at 256, 101 S.Ct. at 1095. The burden of persuasion remains at all times with the government. Id. at 253, 256, 101 S.Ct. at 1093, 1095.
2. Allison Family
Dale Allison is white; her husband Dr. Anthony Allison is black; and their children Patricia, Vivian and Anita are part-black. Stip. 268-271; D. Allison, Tr. 6/15/88, at 6-7. The Allison family lived in Lansdowne from approximately 1968 to April 1988. Stip. 274; D. Allison, at 6.
The Allisons' thwarted attempts to gain admission into the Club prior to their first rejection in 1983 are probative of the motive for this rejection.
Thereafter, Ms. Allison called Club Official Donald Solenberger,
On November 23, 1976, shareholder member Donald Kidder wrote a letter to Mr. Solenberger, asking the Club to let him know the status of the Allisons' membership request and whether they should reapply or if their initial request would be on "hold" for the subsequent year. GX 40. The letter also expressly stated that Dr. Allison was black. Id. Mr. Kidder received no communication or acknowledgment in response to this letter. Kidder Testimony, Tr. 6/15/88, at 112.
On March 29, 1977, Ms. Allison sent President Walls another written request for membership, in which she provided the names and addresses of three Club shareholder members who were willing to sponsor her family. Stip. 278-279; GX 2. The Club did not respond to this letter. Stip. 280. In 1977, the Club responded to and admitted four non-black families who made membership requests on or after March 29, 1977. See GX 92, 93, 94 and 95 (requests) with GX 76 and 77 (approvals).
On July 10, 1977, Ms. Allison and a Club member went to President Walls' home. Stip. 281. Ms. Allison asked Mr. Walls why her family had not been admitted to the Club, a question which he did not directly answer. Stip. 282; D. Allison, at 9. He suggested that she write a letter to the Club requesting membership. Stip. 283.
On July 18, 1977, President Walls received, by registered mail, a letter dated July 12 from Ms. Allison regarding her family's interest in joining the Club. Stip. 284-285; GX 3, 4. The Club did not reply. Stip. 286.
On March 8, 1978, Ms. Allison sent the Club another request for membership, to which she received no response. Stip. 288-289; GX 5. On or about March 14, 1978, she filed a complaint against the Club with the PHRC, which alleged racial discrimination
The Allison family applied for first-year associate privileges in 1983 but was rejected by the membership. I find that this rejection was motivated by racial animus.
The government made out a prima facie case of discrimination. First, the Allisons are a part-black family. Second, they met the qualifications of membership: they filed a timely request, completed an application, were interviewed by a member of the Membership Committee, tendered the requisite fee and were sponsored by two shareholder members. Stip. 296-310; GX 10-11. Third, they were rejected, with forty of the forty-two negative ballots containing the Allisons' name. Stip. 311; DX 18. Fourth, memberships were available and were given to non-black families: the Allisons were the only black or part-black family who applied and were the only family rejected for either associate or shareholder privileges. Stip. 223-228.
LSC set forth what it believed were two legitimate nondiscriminatory reasons for the rejection of the Allisons: their failure to receive 90% of the membership vote
The second reason advanced by LSC was Ms. Allison's involvement in certain groups and activities. Ms. Allison belongs to the Religious Society of Friends. D. Allison, at 12. In 1976, when she first sought membership in the Club, she worked with unwed pregnant adolescents at the University of Pennsylvania. Id. at 15-16. A few years later, she became involved in the Lansdowne-Upper Darby Fair Housing Council. Id. at 16. She also participated in a peace demonstration in the center of Lansdowne, which was conducted by the Lansdowne Peace Council. Id. at 16-17. She filed her discrimination charge against the Club in 1978. Stip. 290-291. She appeared before the Lansdowne Borough Council on two or three occasions concerning alleged discrimination at LSC and was director of the Committee to Integrate the Lansdowne Swim Club. D. Allison, at 17-19.
Ms. Allison's activities and affiliations unrelated to the Club are legitimate, non-discriminatory reasons
The government sustained its burden of proving that the only nondiscriminatory reason advanced by LSC, Ms. Allison's activities and affiliations unrelated to the Club, was a pretext for discrimination. Although Ms. Allison admitted that she participated in these activities, there was no evidence that any of the members knew about them or voted against the Allison family because of them. The number of times prior to 1983 that the Club failed to respond to Ms. Allison's requests for membership also suggests that the 1983 rejection was racially motivated.
The Club's rejection of the Allisons' 1986 application also was due to their race. The government set forth a prima facie case of discrimination by showing that the Allisons were qualified to become associate members (Stip. 321-336; GX 15-20) and were rejected by the voting membership (Stip. 337; GX 21), and that all openings were filled by non-black families.
The Club stated that the reason for this rejection was Ms. Allison's picketing of the Club. Ms. Allison admitted her participation in this activity. D. Allison, at 22-23. I find that this picketing, which protested alleged discriminatory practices of the Club, was not a legitimate nondiscriminatory reason to reject the Allison family, but constituted retaliation against them because they attempted to assert their right to enjoy the full enjoyment of Club privileges without regard to race. See supra pp. 813-14.
3. Ryan Family
James and Thomasine Ryan are white. Stip. 346. They have three adopted children: two are of black and Mexican ancestry, and one is a dark-skinned Puerto Rican. Stip. 347-350. They have lived in Lansdowne since about 1980. Ryan Testimony, Tr. 6/15/88, at 46. The Ryans sought to join the Club because they wanted their children to swim at the pool. Id. at 49, 52-53.
The Ryan family applied for first-year associate privileges in 1984, but were rejected by the membership. I find that they were rejected because two of their children are of black ancestry.
The government set forth a prima facie case of discrimination. First, the Ryans are a part-black family. Second, they qualified for first-year associate privileges: they filed a timely request, were interviewed, filled out an application, tendered the required fee, and were recommended by two shareholder members. Stip. 352-370; GX 29. Third, the Club rejected them, with twenty-eight of the twenty-nine ballots with negative votes including the Ryans' name. Stip. 371; GX 30; DX 20. Fourth, all but one of the non-black families applying for associate or shareholder memberships were admitted to the Club. Stip. 229-234; see also infra p. 817.
There is no direct evidence that Club members were aware that two of the Ryan children were of black ancestry. However, considering James Ryan's phone call to Richard Burke in which Mr. Ryan revealed that his children were Hispanic,
LSC articulated the following reasons for rejecting the Ryans' application: Mr. and Ms. Ryan formerly were members of Roman Catholic religious orders and were involved in social causes such as the United Farm Workers. Ryan, at 60-61. I find that these were legitimate nondiscriminatory reasons for their rejection.
The government, in turn, satisfied its burden to show that these reasons were pretextual. The Ryans did not participate in the above-mentioned activities in the Lansdowne area. Id. at 64. Ms. Ryan believed that her family was not generally known to the community, id. at 65-66, and LSC submitted no evidence to the contrary. Moreover, there is no evidence that, even if members were aware of this conduct, they voted against the Ryans because of it. It is not likely that the membership's rejection of the Ryans' application was based on activities that did not take place in the Lansdowne community.
The rejection of the Ryans' 1986 application also was motivated by intentional discrimination. The government's prima facie case was satisfied: the Ryans qualified for membership (Stip. 374-391; GX 31-37), their application was rejected (Stip. 392; GX 38), and openings for associate and shareholder memberships were available and filled by non-black families. See supra p. 814 n. 60.
LSC attempted to rebut the government's prima facie case by showing that 1) the Ryans were involved in picketing and other protests of what they perceived as discriminatory policies of the Club, and 2) the Ryan children acted inappropriately. In 1984, after their first application was rejected, the Ryans wrote letters to the press and distributed leaflets and picketed at the gate of the Club's parking lot to protest the Club's allegedly discriminatory policies. Ryan, at 53-56; DX 73-75. In July, 1984, the Ryans, along with others, picketed the business offices of the Club's Membership Chairman. Boyd Testimony, Tr. 6/17/88, at 44-45. They also participated in a demonstration at the Club by the Ethnic Labor Coalition of Philadelphia, an event that was covered by area news media. See DX 84. Mr. Ryan filed a charge with the PHRC and contacted the Department of Justice regarding his family's rejection from the Club. Ryan, at 58. I find, as I did concerning the Allisons' 1986 application, see supra p. 814, that the 1986 rejection of the Ryan family's application based on these activities constituted retaliation against them for their attempts to assert their right to enjoy Club membership without regard to race.
The inappropriate behavior of the Ryan children is a legitimate nonracial reason for the family's rejection. Mr. Burke testified that he voted against the Ryans in part because "I saw [the Ryan] children running around town in their diapers, running up and down Owen Avenue in their Big Wheels. I just didn't think it was the type of children that I wanted my children to swim in the same pool with." Burke Testimony, Tr. 6/16/88, at 48-49.
Mr. Burke has stated why he personally voted against the Ryans, and I find his testimony credible. However, the nonracial reason does not justify rejection by the entire membership. It is more likely that a discriminatory reason motivated the membership to reject the Ryans. There is no evidence that the behavior of the Ryan children was known to other members or motivated the overwhelming number of negative votes cast against the Ryans: of 98 negative ballots cast, 97 included the Ryans' name. See DX 24.
4. Ivery Family
Ellen and Harold Ivery and their two children are black. Stip. 394-396. Ellen
The events which occurred prior to the Iverys' rejection in 1986 are probative of the Club's discriminatory intent. In February 1985, Ms. Ivery wrote to the Club's Membership Committee requesting a membership application for her family. Ivery Testimony, Tr. 6/15/88, at 35-36. Ms. Ivery wanted to apply to the Club because it had a good swim program that her son was interested in joining. Id. at 37-38. She received no response to this letter. Id. at 36.
Ms. Ivery then approached Richard Burke concerning the February 1985 letter: he stated that he had not received it. Id. at 37; Burke Testimony, Tr. 6/16/88, at 42-43. The Club received a letter from Ms. Ivery dated March 17, 1985, which was marked "Second Request". Stip. 404; GX 22. The Board of Directors had established March 10, 1985 as the deadline for processing inquiries from new applicants and thus this second request was received too late to process that year. See DX 8 (Minutes of Mar. 10, 1985).
The Iverys applied for first-year associate privileges in 1986, but were rejected by the membership. I find that this rejection was racially motivated.
The government made out its prima facie case of discrimination. First, the Iverys are black. Second, they qualified for membership: they filed a timely request for an application, a representative of the Club interviewed them, an application was completed, the appropriate fee was paid, and recommendations were submitted by two shareholder members of the Club. Stip. 409-422; GX 23-27. Third, the Club rejected their application. Stip. 423; GX 28. Fourth, openings for associate and shareholder memberships were available and all were filled by non-black families. See supra p. 814 n. 60.
The reason for the rejection offered by LSC
5. B Family
The B family, who are white, were granted associate privileges in 1980 and 1981. Stip. 338-341. During the 1981 swim season, Ms. B brought black guests to the Club. Second Additional Stipulation of Facts. In 1982, the Club rejected the application of the B family for shareholder membership. Stip. 343.
With only this evidence, the government has not proved that the Club rejected the B family in 1982 because Ms. B had brought black guests to the pool.
6. Johnson family
The Johnsons are a part-black family, see supra p. 808 n. 49, who were admitted as associates in 1981 (see DX 14) and as shareholder members in 1982 (see DX 16). The admission of the Johnson family into Club membership does not diminish the strength of the government's showing that the Club's rejection of the Allisons, the Ryans and the Iverys were part of a pattern or practice of discrimination. I need not find that LSC always discriminated to find that it engaged in a pattern or practice. See supra p. 807. The rejection of black and part-black families by LSC approaches the "inexorable zero." See Teamsters, 431 U.S. at 342 n. 23, 97 S.Ct. at 1858 n. 23.
7. Wilson Family
The Wilsons, a white family, were associate members of LSC in 1983. Wilson Testimony, Tr. 6/16/88, at 25. During the summer of 1983, after they had been granted associate privileges for that year, the Wilsons took a black infant into their home as a foster child. Id. at 25-26. In 1984, while this child was still living with them, the Club admitted them as associates. Id. at 26. They were granted associate privileges again in 1985, when the black foster child was no longer in their home. Id. at 26-27.
LSC offered this evidence to show that it did not discriminate. But the Wilsons were not a part-black family. The child in their home was a pre-adoption placement and thus it was never contemplated that he would become a permanent member of the Wilson family. Id. at 28-29. The unique status of this child was reflected in the notice sent to the membership with respect to their 1984 application: the child's name was not listed as a family member. See GX 100. Moreover, the child was only five days old when he came into the Wilson's home and consequently never used the Club's facilities, although Ms. Wilson brought him into the pool area. Wilson, at 28.
Prior to the 1985 vote, the Wilsons wrote a letter advising the Membership Chairman that another black foster child would be in their home that summer. DX 38. However, this child had not entered the Wilson's household at the time of the annual voting meeting and did not become a member of the family even when she entered their home.
8. V Family
The V family, who is white, was rejected for associate privileges in 1984. Stip. 438, 441. This rejection is distinguishable from those of the black and part-black families and thus fails to counter the government's showing. First, unlike the rejected black and part-black families who were never permitted to become associates, the V family was granted associate privileges every year from 1977, when they first applied, to 1983. Stip. 263, 439-440. Second, it is undisputed that a number of Club members voted against the Vs because of perceived misconduct by the family. Stip. 442. Third, although the Club rejected the V family's application, a director's pass was made available to at least one of the V children to use the Club's facilities. Stip. 443; Burke Testimony, Tr. 6/16/88, at 38-39. No similar privileges were extended to the black and part-black families who were rejected.
Finally, the rejection of one non-black family does not explain the rejection of all
9. Number of Rejections
A pattern or practice of discrimination requires more than isolated or sporadic instances of discrimination. See supra pp. 805-06, 807. Although the number of discriminatory rejections in this case is small, the rejections are not merely isolated or sporadic because the small number is attributable to LSC's discriminatory reputation in the Lansdowne community and its deterrence of potential black applicants, which resulted in a small number of black applicants.
Evidence of discriminatory reputation is not admissible to show that the defendant discriminated, but is admissible to show why more blacks did not apply. See People of the State of New York v. Ocean Club, 602 F.Supp. 489, 491 (E.D.N. Y.1984); EEOC v. Sheet Metal Workers, Local 122, 463 F.Supp. 388, 425-26 (D.Md. 1978); United States v. Lee Way Motor Freight, Inc., 7 F.E.P. Cases 710, 748-49, 1973 WL 278 (W.D.Okla.1973); United States v. Central Motor Lines, 338 F.Supp. 532, 558-59 (W.D.N.C.1971). Two long-time black residents of Lansdowne, India Harris and Gloria Harrison, testified that as early as the 1960s the Lansdowne Swim Club had a reputation among blacks in the community of Lansdowne for racial discrimination. Harris Testimony, Tr. 6/15/88, at 152-54; Harrison Testimony, Tr. 6/15/88, at 158. Inez Parker, whose testimony is discussed in more detail infra p. 819, testified that she had "heard that they didn't want blacks around there [the Club], ..." Parker Testimony, Tr. 6/15/88, at 74.
The small number of black applicants also is attributable to conduct which deterred blacks from applying to the Club. See infra pp. 819-03.
D. DISCRIMINATION IN ORGANIZATION OF CLUB
During the Club's organization in 1957 and 1958, the Club solicited membership applications from Lansdowne residents. Stip. 15.
E. DETERRENCE OF BLACK APPLICANTS
The Club's deterrence of black applicants was an integral part of its discriminatory practice.
1. Parker Family
Inez Parker and her family are black. Parker Testimony, Tr. 6/15/88, at 70. Ms. Parker has resided in Lansdowne since December 1968, when her son was approximately eleven years old. Id. at 73, 75.
In the spring of 1969, Ms. Parker sent a letter to LSC to the attention of Membership Chairman Newton Walls, which was addressed to the Club's box number at the post office. Id. at 70-71, 75. In the letter she included her name and address, and stated that she was applying for any membership that was available. Id. at 71. She obtained three sponsors for membership: Ann Gravagno, Pat Guzzardo, and Fran Schultz. Id. at 72; Guzzardo Testimony, Tr. 6/15/88, at 78-80. Ms. Guzzardo, a shareholder member of the Club, wrote a letter to the Membership Chairman on behalf of the Parkers' application. Guzzardo, at 85, 89-90.
I find that Ms. Parker's request was received by the Club. Ms. Parker testified that her letter was properly mailed. A letter shown to be properly mailed is presumed to be received by the addressee. See Hagner v. United States, 285 U.S. 427, 430, 52 S.Ct. 417, 418, 76 L.Ed. 861 (1932); Paul v. Dwyer, 410 Pa. 229, 188 A.2d 753, 755-56 (1963). Testimony by the addressee that he did not receive the letter, without more, does not rebut the presumption of receipt. See Meierdierck v. Miller, 394 Pa. 484, 147 A.2d 406, 408 (1959). By failing to reply to Ms. Parker's letter, the Club failed to adhere to its policy to respond to all inquiries concerning membership. Burke Testimony, Tr. 6/16/88, at 54; Boyd Testimony, Tr. 6/17/88, at 51-52.
I find that this failure to respond was due to the race of the Parker family. Although there is no evidence in the record that the Club knew that Ms. Parker was black, I conclude that members of the Club must have known her race in light of the evidence of regular nonresponses to the requests of other black and part-black families.
2. Reaves Family
The trial record does not reveal that the deposition of Charles E. Reaves was admitted; however, counsel agree that I admitted the deposition subject to LSC's objections. Oral Argument, Tr. 9/21/88, at 4-5.
Charles Reeves is black. Reaves Deposition, GX 128, at 4. He and his family resided in Lansdowne from 1971 to 1978. Id. at 5. When Mr. Reaves moved to Lansdowne in 1971, the other members of his family were his wife and his daughter, who was six. Id. He desired membership in the Club so that his daughter could swim
The President told the Reaves that there was a long waiting list for Club membership with a thousand names on it. Id. at 10, 12-13, 17-18.
I find that the statements concerning the waiting list were untrue and intended to deter the Reaves family from pursuing their membership application. There is no evidence that a waiting list for associates existed in 1971;
3. Allison Family
I find that the Club's failure to respond to Ms. Allison's 1976-1979 requests for membership, see supra pp. 812-13, and the incorrect statement made by a Club officer to Ms. Allison in 1976, see supra p. 812, were intended to deter her from applying because of her family's race.
4. Ivery Family
I find that the Club's failure to respond to Ms. Ivery's February 1985 request for membership, see supra pp. 815-16, also was racially motivated.
5. M family
To counter the government's proof that the Club failed to respond to the inquiries of black and part-black families in order to deter them from applying, LSC submitted evidence illustrating that it had failed to respond to the requests of a non-black family, the M family, who wrote two letters to the Club which apparently received no response. DX 83. This situation is readily distinguishable and thus fails to rebut the government's showing that the Club deterred black applicants. First, the Ms eventually were admitted into the Club as both associate and shareholder members. Id. In contrast, only one black or part-black family was ever admitted, regardless of how many times these families requested membership. Second, there is no evidence suggesting that the M's requests were received by the Club and purposefully disregarded, as the Allisons' 1976 and 1977 requests were.
F. OTHER ANECDOTAL EVIDENCE
I do not give any weight to the other anecdotal evidence offered by the government to support its contention that the Club engaged in a pattern or practice of intentional discrimination against blacks.
1. Domestic Help Rule
The Club prohibits the admission of domestic helpers unless they are members. See GX 56 (1962 Rules and Regs), 57 (1964 Regs), 58 (1978 Regs), 59 (1979 Regs), 60 (1986 Regs). The reason for this rule advanced by Club members, whose testimony I credit, was to prevent members and associates from leaving their children at the pool with a babysitter who did not have to pay a membership fee. Richards Testimony, Tr. 6/16/88, at 133-34; Weiss Testimony, 6/16/88, at 18. Domestic helpers may be admitted to the Club as guests if they are accompanied by a member. Weiss, at 18. I find that the Club's failure to drop this rule at the urging of certain Club members (see Biscontini Testimony, Tr. 6/15/88, at 136-37) was not motivated by racial animus.
2. Instruction of Boy Scouts at Nile Swim Club
Mr. Richards conducted lifesaving instruction for white Boy Scouts at LSC but gave this instruction to black Boy Scouts at the Nile Swim Club. Richards, at 134-35. The black Boy Scouts were neither invited to nor attended lifesaving instruction at LSC. Id. at 135. However, the government has not shown that the reason for this practice was discriminatory. Mr. Richards, whose testimony I credit, stated that he would have offered to instruct them at LSC, but they belonged to the Nile Swim Club. Id. at 131.
3. Janet Ariza Testimony
Janet Ariza testified that in 1971 she asked someone she believed to be an officer of the Club whether a black girl, who was going to be visiting her family for a month during the summer, would be permitted to use the pool as a guest. The purported officer said that she would not. Ariza Testimony, Tr. 6/15/88, at 97-99. This testimony is entitled to no weight because Ms. Ariza was unable to identify either the officer or the acquaintances who referred her to the officer. Id. at 96, 98.
4. 1976 Kidder Resolution
On November 17, 1976, Donald Kidder proposed to the Club's Board of Directors that it adopt a resolution instructing the Membership Committee "that no family shall be denied membership or consideration for membership solely on the basis of race." GX 39. The Board failed to adopt this resolution. Kidder Testimony, Tr. 6/15/88, at 109-10. The government has not shown that this inaction was motivated by racial animus. Mr. Kidder himself testified that the Board told him that the Club did not discriminate and therefore such a resolution was inappropriate and unnecessary. Id. at 110, 121.
5. Letters to Club
In the late 1970s and in 1984, Club members and area religious organizations wrote to the Club expressing their concern that the Club was engaging in racial discrimination and/or requesting that the Club take action against future discrimination. See GX 40, 42, 82, 83, 84, 85, 86. The fact that these letters were sent to the Club does not prove that it discriminated against blacks.
6. 1978 and 1984 Kidder Proposals
On November 15, 1978, Mr. Kidder proposed the following changes in the membership procedures: applicants must be approved by two-thirds of the voting membership and members unable to attend the annual special meeting may vote by mail. GX 41; Kidder, at 113-16. The Club did not approve this proposal; however, it did amend the Bylaws to provide that members be approved by 90% of those present
At the special meeting of the membership held on August 2, 1984, Mr. Kidder again proposed the resolution set forth above. Stip. 168-170; GX 41. The Club did not approve this proposal; however, it did amend the Bylaws to require that one sponsor of an applicant be present at the annual meeting. Stip. 171-175.
The reason or reasons for the Club's failure to approve Mr. Kidder's proposal are unknown. Therefore, the government has not shown that the Club's failure to approve Mr. Kidder's proposal was motivated by intentional discrimination.
7. Dyhan Cassie Testimony
In 1981, while the Cassie family was being interviewed for membership by John Boyd, Dyhan Cassie asked him if the Club was integrated. He responded, "oh no, ... it was not integrated .... it was only segregated because no black people had ever applied." Cassie Testimony, Tr. 6/15/88, at 103-04. Mr. Boyd had no specific recollection of this conversation with Ms. Cassie, although he testified that he usually tells prospective members that the Club is not integrated and not segregated. Boyd Testimony, Tr. 6/17/88, at 43-44. Assuming that Ms. Cassie's recollection of Mr. Boyd's statement is accurate, it is not sufficient to show intentional discrimination by the Club.
8. Racist Comments by Club Members
At one of the annual voting meetings, a Club member asked if there were any "niggers" applying that year. Kidder Testimony, Tr. 6/15/88, at 119. At the special meeting of the membership held on August 2, 1984 to discuss changes in membership policies because of concerns of discrimination in the Club, Ms. Biscontini, one of the members proposing these changes, was told by another member, "we don't need their kind and we don't need your kind either." Another member then said "nigger-lover". Biscontini Testimony, Tr. 6/15/88, at 135-37, 147-48. However offensive these statements may be, they express the views of the members who uttered them rather than a policy of the Club.
9. Proposal at 1984 Meeting
At the Club's Annual Meeting on November 15, 1984, a shareholder member suggested that the Club cure ill will by inviting qualified Lansdowne people of any race or religion to apply. GX 80, at 2. The Club's attorney advised that this action would jeopardize its private club status and that it should keep a low profile. Id. The rejection of this recommendation does not establish intentional discrimination, as it is consistent with the Club's belief that it was entitled to private club status and thus was not required to issue the proposed invitation.
G. ADDITIONAL REBUTTAL EVIDENCE
First, the Club offered evidence that black or dark-skinned guests have been admitted to the Club without incident. Cunningham Testimony, Tr. 6/16/88, at 6-9a; Johnson Testimony, Tr. 6/17/88, at 15-16; Kressley Testimony, Tr. 6/17/88, at 21-22, 25-27. The government does not contend that the Club discriminates in its guest policies and practices, but in its membership policies and practices. United States' Post-Trial Supplemental Brief, at 6. Title II requires nondiscrimination in all of
Second, the existence of other swim clubs in the area surrounding Lansdowne where black and part-black families could have obtained or did in fact obtain membership is irrelevant to whether LSC discriminated.
* * * * * *
In sum, I find that, upon consideration of all of the evidence and the applicable law, the government has sustained its burden of proving that the Lansdowne Swim Club has engaged in a widespread pattern or practice of discrimination against blacks from its inception to the present. When the Club was organized, it did not solicit blacks from the Lansdowne community and, when blacks inquired about membership, they were referred to the nearby "black" swim club. When black and part-black families requested or inquired about membership, the Club regularly failed to respond; the Club also had a reputation for discrimination, which deterred black and part-black families from applying. When black and part-black families satisfied the qualifications of Club membership, all but one were denied membership because of their race. "As [discriminatory] behavior has become more unfashionable, evidence of intent has become harder to find. But this does not mean that racial discrimination has disappeared." 12 Lofts Realty, 610 F.2d at 1043 (citation omitted). The evidence in this case convinces me that such discrimination has existed in LSC.
V. CONCLUSIONS OF LAW
1. The Lansdowne Swim Club is a place of public accommodation within the meaning of 42 U.S.C. § 2000a(b)(3), (b)(4).
2. The operations of the Club affect commerce within the meaning of 42 U.S.C. § 2000a(c)(3), (c)(4).
3. The Club is not a private club or other establishment not in fact open to the public within the meaning of 42 U.S.C. § 2000a(e).
4. The United States has sustained its burden of demonstrating that the Club has engaged in a pattern or practice of resistance to the full and equal enjoyment by black persons of the rights secured by 42 U.S.C. §§ 2000a to 2000a-6, and that the pattern or practice is of such a nature and is intended to deny the full exercise of these rights.
I will defer entering a remedial order until the defendant responds to the Revised Proposed Remedial Order submitted by the government.
42 U.S.C. § 2000a-5(a). This determination of reasonable cause to file suit is not reviewable. See United States v. Gray, 315 F.Supp. 13, 22-24 (D.R.I.1970) (citing, inter alia, 110 Cong.Rec. 15,895 (1964) (statement of Cong. Celler)).
Miller, 394 F.2d at 351 (footnote omitted).
Miller, 394 F.2d at 349 (footnote omitted).
In support of its interpretation of the commerce requirement, the Court added:
Id. at 352-53.
I do not decide whether the result in this case would be different if I applied the Policy Statement as a guide, although I note that the Statement incorporates many of the factors listed above.
The membership procedures of the Red Lake Club are analogous to those of LSC, which defendant admits. See Defendant's Brief, at 55. The maximum number of members was eighty. The qualifications for membership were completion of an application, payment of a fee, receipt of a recommendation by a membership committee, and acceptance by the entire membership (less than five negative votes). Only two white applicants for membership had ever been rejected, both for specified reasons. Other whites had been accepted into membership, although they had received negative votes. Durham, 666 F.Supp. at 956.
The characteristics of the Red Lake Fishing and Hunting Club differ in some respects from those of LSC, but their similarities are sufficient to support my conclusion that LSC has not sustained its burden to demonstrate that it is a private club.
The Court of Appeals has adopted the Teamsters standard in class actions alleging a pattern or practice under Title VII. See Croker v. Boeing Co., 662 F.2d 975, 990-91 (3d Cir.1981); cf. Green v. USX Corp., 843 F.2d 1511, 1525-30 (3d Cir.1988) (applying McDonnell-Douglas and Burdine, see infra pp. 811-12, to private class action). The elements of proof in a private class action suit are the same as in a suit brought by the government. See Cooper v. Federal Reserve Bank, 467 U.S. 867, 876 n. 9, 104 S.Ct. 2794, 2799 n. 9, 81 L.Ed.2d 718 (1984); Presseisen v. Swarthmore College, 442 F.Supp. 593, 599 (E.D.Pa.1977).
The parties agree that the Teamsters analysis is applicable to this case. Defendant's Brief, at 12-13; Plaintiff's Pre-trial Brief, at 15.
Susan Johnson is white, her husband (now deceased) was black, and her child Jared is part-black. Her late husband's race and Jared's mixed race were known to the membership when Ms. Johnson and Jared first applied to join the Club. Ms. Johnson testified that a neighbor who recommended her knew her late husband's race and that she thought his race was common knowledge. Johnson Testimony, Tr. 6/17/88, at 14. At the Club's informational interview, the interviewer asked if a picture in her home was that of her late husband and she replied yes. Id. Richard Burke, who was on the Club's Board of Directors and is now Membership Chairman, coached Jared at the Boys' Club and knew that, when the Johnsons first applied, Ms. Johnson had been dating a black man. Burke Testimony, Tr. 6/16/88, at 46-47. Ms. Johnson acknowledged that she was dating a black man near the time when she first applied for associate privileges and that she believed this was known to everyone in the Boys' Club. Johnson, at 16-17.
Because of my invalidation of the statistical evidence on this basis, I need not reach LSC's other contentions relating to Mr. Gleason's testimony. See Defendant's Brief, at 38-42.
I find it distressing that such an instruction should have been given by an officer of this Court representing the government of the United States with respect to evidence which the government intended to offer to this Court.