The tangled history of this case begins in March of 1972 when the pro se appellant Ella Hornick (now approximately seventy-five years of age) became a permanent resident of the Madison, Wisconsin YWCA and was assigned to a room on the fifth floor, one of the floors designated for elderly women. (The previous twenty years Mrs. Hornick spent as a resident of a state mental institution in Pennsylvania.) The record indicates that there was considerable friction among the residents of this floor, and numerous complaints about the appellant were made to the Resident Director, defendant Doris Hoopman. In response, the President of the Board of the YWCA, defendant Ruth Noyes, on February 3, 1976 informed the appellant that a meeting of the staff and floor residents would be held on February 13, 1976 for the purpose of discussing these problems. The appellant declined to attend. 1 On February 13, 1976 the YWCA, through its Executive Director (defendant Gertrude Ramey), and Board President Noyes decided that the appellant’s residency should be terminated. Accordingly, a letter was sent February 23, 1976 directing the appellant to vacate the premises of the Y on or before March 31, 1976 (appropriate notice for a month-to-month tenancy). On March 10, 1976, the appellant filed a complaint with the Madison Equal Opportunities Commission (EOC) against the Y, alleging that her pending eviction was motivated by anti-semitism. 2 A representative of the EOC arranged to visit with Hornick and the staff at the Y on March 30, 1976 to see if a conciliation could be effected, and to interview other residents in order to investigate the charges. The appellant declined to participate. Instead, she filed a state court suit on that date seeking to enjoin the Y from terminating her residency. On April 7, 1976 the Y filed an eviction action. (The state court ultimately concluded that Mrs. Hornick’s tenancy was yearly; a new eviction petition was filed March 14, 1977, and the appellant was evicted by the sheriff on June 14,1978.)
On May 10, 1976 the appellant filed suit, amended July 19, 1976, in federal district court against Noyes, Ramey, Hoopman, and the YWCA seeking injunctive and mone
I. No. 82-1511.
As directed by this court in its order of remand of June 24, 1980,
We also note that under Title II, only injunctive relief is available to a prevailing plaintiff. See
Newman
v.
Piggie Park Enterprises,
II. No. 82-2891.
After the trial, Judge Doyle found that several of the elderly ladies on the fifth floor were anti-semitic, as was the Assistant Resident Director (not a defendant, and not one of the Y decision makers). The judge further found that some of the residents’ complaints about Mrs. Hornick could well have been prompted by anti-semitism. Nevertheless, he found that the three decision makers, Noyes, Ramey and Hoopman, were themselves not motivated by anti-sem-itism (if indeed they even had knowledge that Mrs. Hornick was of Jewish origin), and that they had clearly articulated and set forth a nondiscriminatory reason (the necessity of maintaining a harmonious residential program for women, many of whom had psychiatric or physical problems, who were unable to live by themselves) for seeking the appellant’s eviction. The appellant countered at trial that these decision makers knew or should have known of the antisemitic basis for the residents’ complaints. In rejecting this argument, the district judge placed particular stress on the fact that the decision makers had arranged two formal meetings at which the appellant could have apprised them of the anti-semi-tism problem, if in fact any existed, and that on each occasion she had refused to participate. He concluded that the Y management had thereby sufficiently discharged any duty of inquiry that it might have had into the motivations of the complainants. Thus, in the absence of any evidence of anti-semitism on the part of the Y management, the Y could not be held liable under Title II.
This case thus presents a novel question under Title II, namely, the extent to which Title II liability can be premised on religious prejudice somewhere in the causal sequence of events that leads to eviction, but on the part of persons other than the decision makers. It speaks well for this society that there is a paucity of Title II litigation, but we are faced with an absence of precedent on this point to aid in deciding this case. A preliminary question, then, is the theory under which this case should be evaluated.
It is clear that the YWCA is a place of public accommodation for purposes of Title II. See,
e.g., Nesmith v. YMCA,
In contrast, the situation at the Madison YWCA involves substantial “horizontal” interactions among long-term residents. In addressing this Title II oddity, Judge Doyle suggested that the situation might be more analogous to a Title VII employment case in which there are long-term “horizontal” relationships among employees as well as a hierarchical chain of command that separates the ultimate decision maker (e.g., the personnel director) from, e.g., the assembly line worker who is fired. 8 As the district judge posed the hypothetical question, suppose that assembly line workers, motivated by religious or racial prejudice, falsely complain about a coworker’s work or safety habits, and the information is passed up the chain of command until the worker is discharged. Does management have an obligation to inquire whether any bad conduct report, nondiscriminatory on its face, is actually false, and was initiated for discriminatory reasons? The judge suggested that management would have no such obligation in the absence of some clear and specific claim (presumably raised by the worker who had received the bad conduct reports) that there was in fact discrimination afoot. While we of course do not decide such a Title VII case here, we agree that the courts cannot create a presumption (even a rebuttable one) that any firing or denial of public accommodation facilities is discriminatory — unless, that is, management is somehow put on notice that there may be a discrimination problem. 9
Given that we conclude that the burdens of proof and production were correctly allocated, the only remaining question is whether the evidence supports the finding of no violation of § 2000a. In reviewing factual findings of the district court, we are bound by the “clearly erroneous” standard of Rule 52(a), Federal Rules of Civil Procedure. This rule rests in part on the district court’s unique opportunity to view and weigh the testimony of the witnesses to assess their credibility.
Medtronic, Inc. v. Benda,
Notes
. She testified at trial that the meeting conflicted with her Federal Jurisdiction class at the University of Wisconsin Law School.
. Appellant, a baptised Lutheran, is of Russian Jewish parentage. She considers herself to be ethnically Jewish, and residents of the Y apparently categorized her as Jewish. (While there was originally some claim of discrimination based on national origin, this was dropped during the trial and is not at issue on appeal.)
. Section 2000a states in pertinent part:
(a) Equal Access: All persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation ... without discrimination or segregation on the ground of race, color, religion, or national origin.
. There was also some contention at trial, not pressed on appeal, that the eviction suit was filed in retaliation for the appellant’s filing of the complaint before the EOC, retaliation proscribed by 42 U.S.C. § 2000a-2. The district court found that while the March 10, 1976 EOC complaint preceded the April 10, 1976 eviction action, the Y had decided to evict the appellant on February 13, 1976, and had merely persisted in its original decision — and continued to do so up until June 14, 1978 when it was finally successful.
. The history of this litigation is also replete with motions for rehearing, attempts to remove state proceedings to federal court, attempted appeals to the United States and Wisconsin Supreme Courts, and petitions for writ of mandamus, etc. The appellant has also made numerous attempts to disqualify Judge Doyle, and one of her chief contentions on appeal is that she was deprived of a fair trial because of Judge Doyle’s “bias and personal animus towards her.” That argument is absolutely without merit. It is apparent from a careful review of the transcripts of the seven-day trial and the various pretrial conferences that Judge Doyle took great care to make sure that the appellant had every opportunity to present her claim. We commend him for his handling of a very trying case.
. Section 2000a-3(c) provides in pertinent part: Notification of State or local authority. In the case of an alleged act or practice prohibited by this subchapter which occurs in a State, or political subdivision of a State, which has a State or local law prohibiting such act or practice and establishing or authorizing a State or local authority to grant or seek relief from such practice or to institute criminal proceedings with respect thereto upon receiving notice thereof, no civil action may be brought .. . before the expiration of thirty days after written notice of such alleged act or practice has been given to the appropriate State or local authority ....
. The Madison Equal Opportunities Commission is an agency that fits the requirements of § 2000a-3(c). See Madison General Ordinances § 3.23(10), (14) (1975). The Commission is authorized to investigate, and to seek conciliation. If unsuccessful, the Commission, which has subpoena powers, may convene a hearing; the parties may be represented by counsel and testimony is under oath. If respondent does not comply with any resulting order, the case can be forwarded to the City Attorney for prosecution.
. Because of this similarity to the Title VII paradigm — as well as the absence of recent Title II precedent — this case was tried in accordance with the allocation of burdens and order of proof set forth in
McDonnell Douglas Corp. v. Green,
We agree that Burdine provides the best available guidance for handling a case of this sort.
. Mrs. Homick asserts that she had given such notice in 1974 when she sent on to Ruth Noyes a seating chart posted in the fifth floor kitchen which listed “the Jewish lady” and the “Philippine lady.” The district court concluded that while this might be a tactless descriptive, it did not amount to an anti-semitic slur sufficient to put the Y management on notice of an antisemitism problem. We do not find this assessment to be clearly erroneous.