USCA1 Opinion
December 7, 1992
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 92-1084
LEROY H. JOHNSON,
Plaintiff, Appellant,
v.
CHARLES O. WALGREEN, ET AL.,
Defendants, Appellees.
____________________
No. 92-1085
LEROY H. JOHNSON,
Plaintiff, Appellant,
v.
STANLEY GOLDSTEIN, ET AL.,
Defendants, Appellees.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. A. David Mazzone, U.S. District Judge]
___________________
____________________
Before
Breyer, Chief Judge,
___________
Torruella and Boudin, Circuit Judges.
______________
____________________
Leroy H. Johnson, Jr. on briefs pro se.
_____________________
Arthur P. Menard, Duncan S. Payne and Cuddy, Lynch & Bixby on
_________________ ________________ _____________________
brief for appellees, Charles R. Walgreen, III, Larry Fixler, Mark
Murzyn, John Carver and Walgreen Eastern Co., Inc.
Scott Harshbarger, Attorney General, and Amy Spector, Assistant
__________________ ____________
Attorney General, on briefs for appellee, Massachusetts Board of
Registration in Pharmacy.
Peter A. Biagetti, Kathleen D.H. Pawlowski and Mintz, Levin,
__________________ _________________________ ______________
Cohn, Ferris, Glovsky and Popeo, P.C., on brief for appellees, Stanley
_____________________________________
Goldstein, Harvey Rosenthal, Donna Donarovitch, David Woods, Jim
DeVita, Dave Sencebaugh, Melville Corporation and Consumer Value
Stores.
____________________
____________________
Per Curiam. This is a pro se appeal from the
___________ ___ __
district court's judgments dismissing plaintiff-appellant's
amended complaints in two companion civil rights and
employment discrimination actions. Finding no error, we
affirm.
Appellant Leroy H. Johnson, Jr., a black man and
disabled veteran, was 56 years old when he graduated from
the Massachusetts College of Pharmacy (the "College") in
December, 1987. He became licensed as a registered
pharmacist in Nevada in 1988 and in Massachusetts in 1989.
In January 1991, after repeated attempts to gain
employment, Johnson sued an assortment of individual and
corporate Walgreen Drug Corp. ("Walgreen") and Consumer
Value Stores ("CVS") defendants alleging that they had
refused to hire him as a registered pharmacist because of
his race and his age. In addition, the Massachusetts Board
of Registration in Pharmacy1 (the "Board") was charged
with depriving him, and conspiring "with private entities
and [their] agents" to deprive him, of equal protection of
the laws and other rights secured by the Thirteenth and
Fourteenth Amendments to the Constitution, and of refusing
to act so as prevent such deprivations.2 The facts and
their logical consequents, as gleaned from the original and
____________________
1. The Board of Pharmacy is an agency of the Commonwealth
responsible for the regulation of the practice of pharmacy.
2. The College was also named in the amended complaint, but
the record does not show that they were served, nor did they
enter an appearance below or otherwise respond. We deem
those claims waived.
amended complaints, and which, at this stage, we take to be
true, see Dartmouth Review v. Dartmouth College, 889 F.2d
___ ________________ __________________
13, 16 (1st Cir. 1989), indicate the following.
I.
I.
A. Background.
A. Background.
During his senior year at the College,
prospective employers held on-campus interviews for
applicants interested in employment. Johnson responded to
Walgreen's and CVS's advertisements for pharmacist
positions, and, in the Spring of 1987, an interview was set
up with Walgreen. However, on the appointed day, after
waiting more than an hour and a half beyond the scheduled
time for the interview, Johnson left when the Walgreen
representative ignored him and chose to interview a later
arrival instead. Between 1988 and 1991 Johnson responded
several times to Walgreen's advertisements for pharmacy
positions; he also contacted Walgreen's chief executive
officer at least twice with requests for interviews. None
were forthcoming.
Johnson was interviewed three times by CVS.
First, on campus in the Spring of 1987, next, after
graduation, and again after registration as a pharmacist.
In addition to refusing to hire him, Johnson alleges that
CVS failed to interview him when he responded to their
advertisements for pharmacist positions in the same 1988-
-4-
1990 time frame. Johnson claims that, during the time in
question, both companies employed no more than one or two
black pharmacists at the locations in the Commonwealth to
which Johnson had applied for work.
In August 1990 Johnson filed a complaint with the
Board of Pharmacy charging that Walgreen and CVS exhibited
race and age discrimination by their repeated failures to
consider him for a pharmacist position. Johnson requested
a hearing, but, after an informal conference, the Board
recommended that Johnson's employment discrimination
charges be filed with the Massachusetts Commission Against
Discrimination (the "MCAD"). Without deciding Johnson's
complaint, the Board stated that if the MCAD substantiated
the allegations, the Board would "aggressively pursue" the
matter.3
B. Proceedings below.
B. Proceedings below.
In January 1991 Johnson filed these pro se actions
___ __
against Walgreen, CVS, and the Board. He alleged that both
Walgreen and CVS had followed a policy and practice of
____________________
3. Johnson's complaint in district court would charge that
1) prior to graduation from the College, an agent of the
Board entered a pharmacy where the plaintiff worked part-time
and publicly stated that Johnson would never become a
registered pharmacist in Massachusetts, and 2) another member
of the Board tried to stop him from taking one part of the
pharmacist certifying exam and, in so doing, subjected him to
public humiliation and intimidation.
-5-
employment discrimination on the basis of age and race in
violation of several civil rights and statutory provisions:
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
2000e; the Age Discrimination in Employment Act, 29 U.S.C.
621 et seq. ("ADEA"); 42 U.S.C. 1981, 1982, 1983 and
_______
1985; and the Veterans Reemployment Act, 38 U.S.C. 2021
et seq. Johnson alleged that the Board, by failing to give
_______
him a meaningful hearing or act on his complaint, deprived
him of his right to equal protection and due process, and
conspired with the other defendants to ensure that he never
worked as a pharmacist, in violation of his civil rights
under 42 U.S.C. 1981, 1983 and 1985(3).4 Also asserted
were various state common-law claims against all
defendants. The complaint sought exemplary, compensatory
and punitive damages and a remedial order allowing him to
work as a pharmacist for 90 days.
After some discovery, all defendants moved to
dismiss or for summary judgment. The district court held a
hearing and dismissed the federal claims in both actions,
declining to reach the state common-law counts.
____________________
4. While not unambiguous, we do not read Johnson's complaint
to assert Title VII or ADEA claims against the Board. In any
event, as noted by the district court, the Board, in
performing licensing activities, is not an employer within
the meaning of either statute. See, e.g., EEOC v. Waterfront
___ ____ ____ __________
Comm. of New York Harbor, 665 F. Supp. 197, 200 (S.D.N.Y.
_________________________
1987) (ADEA); Haddock v. Board of Dental Examiners, 777 F.2d
_______ _________________________
462, 463 (9th Cir. 1985) (Title VII).
-6-
The court found Johnson's civil rights claims
against the Board -- premised upon the assertion that it
had a statutory duty to act as a "watch dog" over the
practice of pharmacy -- barred by the Eleventh Amendment.
In addition, the court decided that Johnson had failed to
state a factual basis for any of the claims under 1981,
1983 and 1985, also warranting dismissal under Fed. R. Civ.
P. 12(b)(6).
The Title VII and ADEA claims against Walgreen and
CVS were dismissed as untimely for failure to exhaust
administrative remedies. The 1983 claims against both
defendants were dismissed for failure to allege any action
which could fairly be attributed to the state.5
Similarly, the court decided that Johnson had failed to
show the existence of any conspiracy ( 1985), or the
deprivation of any contract right ( 1981), or property
right ( 1982) in support of the other civil rights claims.
The Veteran's Reemployment Act was found simply
____________________
5. The district court also stated that the 1983 claims
appeared to have been filed beyond the applicable three year
statute of limitations. This, in turn, was premised upon a
subsidiary finding that "the time frame of the events which
underlay the case was between 1986 and 1987." However,
Johnson claimed that he continued to apply for employment as
a pharmacist into 1990, and contended that both Walgreen and
CVS committed a "continuing violation." See Mack v. Great
___ ____ _____
Atlantic & Pacific Tea Co., 871 F.2d 179, 182-83 (1st Cir.
___________________________
1989). Since the dismissal of the 1983 claims is
adequately supported for other reasons, we need not decide
whether Johnson's facts fit the framework of that theory.
-7-
inapplicable, in that it applied only to the re-hiring of a
former employee.6
II.
II.
A. Walgreen and CVS
A. Walgreen and CVS
a) The Title VII and ADEA claims.
a) The Title VII and ADEA claims
The appellant has conceded, contrary to assertions
in his complaint, that he has never resorted to any
administrative remedy within the time-frame mandated either
by Title VII, 42 U.S.C. 2000e-5(e) or the ADEA, 29 U.S.C.
626(d). While the appellant correctly notes that the
failure to make such filings is not a jurisdictional
prerequisite to suit, Zipes v. Trans World Airlines, Inc.,
_____ __________________________
455 U.S. 385, 393 (1982), they, nonetheless, cannot be
waived at the plaintiff's option. Oscar Mayer & Co. v.
__________________
Evans, 441 U.S. 750, 757 (1979) (under both Title VII and
_____
the ADEA, "resort to administrative remedies in deferral
states [such as Massachusetts] is mandatory, not
optional"). Johnson attempts to excuse his failure to file
on the basis of futility: that the relevant state agency,
the MCAD, simply takes too long to resolve these matters.
The ADEA, however, only requires that a
Massachusetts claimant commence an appropriate grievance
________
before proceeding to federal court, 29 U.S.C. 633(a); a
____________________
6. This ruling is clearly correct and does not warrant
further discussion.
-8-
Title VII claimant must first receive a "right to sue"
letter, 42 U.S.C. 2000e-5(f)(1). We take a "narrow view"
of equitable exceptions to these prerequisites to suit.
Mack v. Great Atlantic & Pacific Tea Co., Inc., 871 F.2d
____ ________________________________________
179, 185 (1st Cir. 1989) (Title VII); Castro v. United
______ ______
States, 775 F.2d 399, 403-04 & n.4 (1st Cir. 1985) (ADEA).
______
Having, admittedly, made no attempt whatsoever to comply
with the statutory preconditions which mandate an attempt
to conciliate differences,7 or shown "special facts
justifying an equitable tolling," Ciccone v. Textron, Inc.,
_______ _____________
616 F.2d 1216, 1217 (1st Cir.), vacated on other grounds,
_________________________
449 U.S. 914 (1980), the appellant cannot rely upon the
excuse of futility for failing to pursue administrative
relief. The district court properly dismissed the Title
VII and ADEA claims.
b) The Civil Rights claims.
b) The Civil Rights claims.
____________________
7. There is no question but that the appellant was well
aware of these requirements. In Johnson v. Rodriguez, 943
_______ _________
F.2d 104 (1st Cir. 1991), cert. denied, 112 S. Ct. 948
_____________
(1992), the appellant asserted, in another employment
discrimination suit, that the MCAD's delay in adjudicating
the merits of his claim had denied him due process. In
finding the belated complaint in federal court frivolous, we
stated: "[Mere] slowness in the [MCAD's] decisionmaking
process, without more, did not infract state law or otherwise
impinge on a protected interest." Id. at 110.
___
-9-
1. 1983. Title VII, like the ADEA, creates an
______
exclusive remedy for a violation of its terms. Polson v.
______
Davis, 895 F.2d 705, 710 (10th Cir. 1990); Izquierdo Prieto
_____ ________________
v. Mercado Rosa, 894 F.2d 467, 469 (1st Cir. 1990) (ADEA
____________
provides a "comprehensive statutory remedy that may not be
bypassed through the means of an action under 42 U.S.C.
1983"). In Izquierdo Prieto, 894 F.2d at 470, we found
________________
that the plaintiff had failed to establish at trial a
violation of any constitutional right to be free of
discrimination based on age, and reserved the question
whether the ADEA's statutory scheme preempted a remedy
under 1983 for alleged violations arising out of the same
conduct.
Johnson's assorted civil rights claims, however,
focus exclusively upon discrimination on the basis of race.
The complaint, fairly read, asserts the deprivation of two
independent rights: the right, under Title VII, to be free
from discriminatory hiring practices, and the right,
grounded in the equal protection clause of the Fourteenth
Amendment, to be free of race discrimination.8 We agree
____________________
8. Although Johnson has attempted to assert a claim that the
refusal to hire deprived him of a protected property interest
without due process of law, such interests are clearly absent
here. A pharmacist license does not bestow an automatic
right to employment. Coyne v. City of Somerville, 972 F.2d
_____ __________________
440, 443 (1st Cir. 1992) (state teacher certification
requirement does not confer a job "entitlement" upon any
particular applicant); see Board of Regents v. Roth, 408 U.S.
____ ________________ ____
564, 577-78 (1972) (the "need", "desire" or "unilateral
-10-
with the district court's implicit conclusion that when
employment practices violate Title VII and a separate and
___
independent constitutional or statutory right, an aggrieved
individual is not necessarily limited to Title VII in the
search for relief, and may pursue additional remedies under
1983. Bradley v. Pittsburgh Bd. of Education, 913 F.2d
_______ ___________________________
1064, 1078-79 (3d Cir. 1990) (collecting cases); Johnston
________
v. Harris County Flood Control Dist., 869 F.2d 1565, 1573-
_________________________________
76 (5th Cir. 1989), cert. denied, 493 U.S. 1019 (1990); see
____ ______ ___
also Alexander v. Gardner-Denver Co., 415 U.S. 36, 48
____ _________ ___________________
(1974).
Nonetheless, the district court correctly decided
that Johnson's claim for relief under 1983 failed to
allege facts indicating that Walgreen's or CVS's conduct
implicated state action. "That a private entity performs a
function which serves the public does not make its acts
state actions." Rendell-Baker v. Kohn, 457 U.S. 830, 842
_____________ ____
(1982) (employment decision made by private school that
receives public money and is subject to certain regulatory
constraints is not "state action").
Nor are Johnson's largely conclusory allegations
that Walgreen and CVS acted in concert with the Board to
deprive him of federal rights adequate to categorize such
____________________
expectation" of future employment does not give rise to the
level of an entitlement protected by procedural due process);
see also note 10 infra, at 13.
___ ____ _____
-11-
conduct as "under color of" state law for 1983 purposes.
See Rendell-Baker, 457 U.S. at 838 n.6 ("[T]he acts of a
___ _____________
private party are fairly attributable to the state . . .
[only] when the private party acted in concert with state
actors"); Dennis v. Sparks, 449 U.S. 24, 28 (1980). Merely
______ ______
refusing to interview or hire an applicant for an
advertised pharmacist position, does not, per se, convert
Walgreen or CVS into conspiratorial actors with the Board.
Johnson does not allege, for example, that the employment
decision not to interview or hire him was based upon some
"understanding" reached with the Board, and no other facts
are detailed to support an inference that the Board played
any role in Walgreen's or CVS's personnel decisions.9 See
___
Coyne v. City of Somerville, 972 F.2d 440, 444 (1st Cir.
_____ __________________
1992).
On the contrary, the Board entertained Johnson's
discrimination complaint against Walgreen and CVS, and
recommended that the MCAD be contacted. The fact that the
____________________
9. The only specific allegation by Johnson to bolster a
conspiracy claim is the unadorned statement: "Did you send
that Black Flunkie to me for a pharmacist position?", made,
apparently to a member of the Board, by one of the individual
CVS defendants. There are no hints as to what any of the
other defendants may have done to further the alleged
conspiracy. It is a rule of long-standing that civil rights
conspiracy complaints must, in order to survive a motion to
dismiss, be supported by specific facts showing the
"existence and scope of the alleged conspiracy." Slotnick v.
________
Staviskey, 560 F.2d 31, 33 (1st Cir. 1977), cert. denied, 434
_________ _____ ______
U.S. 1077 (1978).
-12-
Board licenses pharmacists in the Commonwealth and takes
certain actions, i.e., investigating complaints with
respect to the practice of pharmacy, is insufficient to
transform a hiring decision by a private party otherwise
subject to regulation by the Board into state action. See
___
Rendell-Baker, 457 U.S. at 841-42; Mendez v. Belton, 739
_____________ ______ ______
F.2d 15, 17-18 (1st Cir. 1984). Johnson has failed to
state a claim of race discrimination under 42 U.S.C.
1983.
2. 1985(3) Private conspiracies that do not
_________
involve the state are within the remedial reach of
1985(3). Griffin v. Breckenridge, 403 U.S. 88, 104 (1971).
_______ ____________
However, rights created by Title VII cannot be the basis of
a 1985(3) claim, Great American Federal Savings & Loan
_______________________________________
Ass'n v. Novotny, 442 U.S. 366, 378 (1979), which "requires
_____ _______
proof of a conspiracy to violate independent rights."10
Rice v. New England College, 676 F.2d 9, 11 (1st Cir.
____ ____________________
1982). To the extent that Johnson attempts to vindicate
some other "independent" federal right, Novotny, 442 U.S.
_______
at 376, Johnson has, as discussed above, failed to show any
factual basis for the charge that Walgreen and CVS
conspired with each other, or with the Board, or its
____________________
10. As Justice Powell observed, concurring in Novotny, the
_______
"Court has never held that the right to any particular
private employment is a right of national citizenship, or
derives from any other right created by the Constitution."
Novotny, 442 U.S. at 380 (punctuation and citation omitted).
_______
-13-
officials or agents, to deprive Johnson of a pharmacy
position on the basis of race. Johnson's amorphous
allegations fail to establish, or even suggest, that which
Title VII does not require: a conspiracy between two or
more persons, plus the existence of class-based
discriminatory motive. Id.; see Griffin, 403 U.S. at 102-
___ ___ _______
103. The 1985(3) claims were properly dismissed for
failure to allege detailed facts upon which relief can be
granted. Mendez, 739 F.2d at 19.
______
3. 1981 Johnson also alleges purposeful refusal
______
to hire on the basis of race in violation of 42 U.S.C.
1981. That section, which extends to private conduct as
well as state action, prohibits, inter alia, "when based on
_____ ____
race, the refusal to enter into a contract with someone, as
well as the offer to make a contract only on discriminatory
terms." Patterson v. McLean Credit Union, 491 U.S. 164,
_________ ____________________
175, 177 (1989). When, as here, wrongful conduct in the
making of a contract is alleged, Title VII remedies do not
preempt those available under 1981. Id. at 182; Johnson
___ _______
v. Railway Express Agency, Inc., 421 U.S. 454, 459 (1975)
_____________________________
(Title VII and 1981 "augment each other and are not
mutually exclusive").
Thus, while a racially motivated refusal-to-hire
claim is actionable under 1981, an examination of the
complaint here reveals that Johnson has failed to state
-14-
facts which are sufficient to lead to the "reasoned
inference" that Walgreen or CVS failed to hire him "because
of" his race, or that those defendants possessed any
particular animus toward black applicants. Dartmouth
_________
Review, 889 F.2d at 18 & n.4. On the contrary, the fact
______
that the defendants had hired other black pharmacists
suggests that the failure to interview or hire Johnson was
for objective reasons. In any event, "unfairness alone
does not invoke the statute." Id. at 19. Without "some
___
meaningful, fact-specific . . . causal link" upon which a
permissible inference of race-based discrimination could be
premised, id., Johnson has failed to make out a cognizable
___
1981 claim.
4. 1982 While 42 U.S.C. 1982 applies to
_______
private actors, and does not require state action, Johnson
has not shown that the defendant's actions adversely
affected any interest in "real" or "personal" property
within the intended reach of that statute. See Memphis v.
___ _______
Greene, 451 U.S. 100, 122 & n.35 (1981). The alleged
______
violation of 1982 was properly dismissed for failure to
state a claim.
B. The Board
B. The Board
Johnson's civil rights claims against the Board,
which, at bottom, seek the recovery of monetary damages
from the Commonwealth, are clearly barred by the Eleventh
-15-
Amendment. Edelman v. Jordan, 415 U.S. 651, 668-69 (1974);
_______ ______
Fred v. Roque, 916 F.2d 37, 39 (1st Cir. 1990). As an "arm
____ _____
of the state", the Board is not a "person" within the
meaning of 1983 and shares the Commonwealth's immunity
from suit for damages. Wilson v. Brown, 889 F.2d 1195,
______ _____
1197 (1st Cir. 1989) (citing Will v. Michigan Dep't of
____ __________________
State Police, 491 U.S. 58, 70-71 (1989)). "This
_____________
jurisdictional bar applies regardless of the nature of the
relief sought" against a state agency. Pennhurst State
_______________
School & Hospital v. Halderman, 465 U.S. 89, 100 (1984)
_________________ _________
(citations omitted). Although the amended complaint
vaguely suggests claims against Board members in their
individual capacities (intimating that Johnson seeks to
hold certain state actors personally liable for monetary
damages, thus avoiding the Eleventh Amendment bar, Kentucky
________
v. Graham, 473 U.S. 159, 166-67 (1985)), no state official
______
is a named party, no Board members are identified by name
in the complaint, none were served, and the complaint makes
no allegations whatsoever as what role such officials
played so that the action could fairly be read as one
-16-
against a state official.11 Johnson had ample
opportunity to correct any defects along this line.
Since it is evident that the Board has not waived
its immunity or otherwise consented to suit, the claims
under 1981 and 1985(3) were also properly dismissed as
proscribed by the Eleventh Amendment. Freeman v. Michigan
_______ ________
Dep't of State, 808 F.2d 1174, 1178-79 (6th Cir. 1987) (
______________
1981); True v. New York State Dep't of Correctional
____ _________________________________________
Services, 613 F. Supp. 27, 31 (W.D.N.Y. 1984) ( 1985(3)).
________
III.
III.
____
Because all of the federal claims were properly
dismissed, the district court correctly dismissed the
pendent state-law claims without prejudice. United Mine
___________
Workers v. Gibbs, 383 U.S. 715, 726 (1966) ("[I]f the
_______ _____
federal claims are dismissed before trial, ... the state
claims should be dismissed as well."); Carnegie-Mellon
_______________
Univ. v. Cohill, 484 U.S. 343, 350 (1987).
_____ ______
The judgments of the district court are affirmed.
________
Appellant's motion to a single judge is denied.
____________________
11. Johnson assertions that on two occasions unnamed agents
or members of the Board publicly humiliated or intimidated
him, allege, at most, mere negligence or lack of due care by
those officials in the conduct of their duties, and, as such,
do not state a claim under 1983. Daniels v. Williams, 474
_______ ________
U.S. 327, 330-32 (1986); Davidson v. Cannon, 474 U.S. 344,
________ ______
347 (1986).
-17-