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NEW YORK v. OCEAN CLUB

September 11, 1984

The PEOPLE OF the STATE OF NEW YORK by Robert ABRAMS, the Attorney General of the State of New York, William Bell and Sharon Bell, Plaintiffs,
v.
The OCEAN CLUB, INC., Defendant.



The opinion of the court was delivered by: MISHLER

Memorandum of Decision and Order

MISHLER, District Judge.

 The issues of fact were tried to a jury which rendered a special verdict. The jury failed to agree on the question as to whether The Ocean Club, Inc. was a private club. (1st question). On the other issues the jury found as follows:

 2. Does The Ocean Club engage in a practice or policy of discriminating against Jewish guests or prospective guests or against Jewish applicants for membership?

 Yes No x

 3. Did Charles Williams, the manager of the club, on July 9, 1981 tell William Bell not to invite Jewish guests?

 Yes x No

 4. Was it within the scope of the authority of Charles Williams to advise members not to invite Jewish guests?

 Yes No x

 The court directed the Clerk to enter judgment in favor of the defendant and against the plaintiffs dismissing the complaint.

 The Motion by The People of the State of New York

 The court sustained objection to the testimony of Fred Lager, Mayor of Atlantic Beach, that was offered to show that The Ocean Club had a reputation for discriminating against Jewish applicants for membership or guests. The court also sustained objection to the introduction of statements made by Robert Kullman, Chairman of the Board of Governors of The Ocean Club, that the club was a "Christian club."

 Reputation Testimony

 At trial plaintiffs offered the reputation testimony under the hearsay exception of Rule 803(20) of the Federal Rules of Evidence. That rule refers to "[r]eputation in a community . . . as to boundaries . . . and as to events of general history. . . ." The matter must be ancient "or one as to which it would be unlikely that living witnesses could be obtained. . . ." 4 Weinstein's Evidence, p. 803-268.

 Plaintiffs now cite district court cases brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. where reputation of discriminatory policies of the employer is admissible as evidence of why a member of the protected class failed to apply. Equal Employment Opportunity Commission v. Sheet Metal Workers, Local No. 122, 463 F. Supp. 388, 426 (D.Md.1978); U.S. v. Lee Way Motor Freight, 7 Fair Empl. Prac. Cas. (BNA) 710 (D.C.Okla.1973). Non-applicants are members of the protected class under Title VII. The evidence is admitted in such cases to show that the plaintiff would have applied but for the employer's reputation of a discriminatory policy. International Brotherhood of Teamsters v. United States, 431 U.S. 324, 365-66, 97 S. Ct. 1843, 1869-70, 52 L. Ed. 2d 396 (1977). The reputation evidence was offered to prove The Ocean Club's discriminatory practice and policy. It was inadmissible hearsay on that issue.

 Plaintiff's counsel requested a ruling on whether he would be permitted to ask Kullman whether he had made statements that The Ocean Club was a "Christian Club." Such a question is inadmissible under Rule 804(b)(3). *fn1" However, even if the request extended to permission to use the prior statement, anticipated to be inconsistent with the testimony Kullman was about to give, the ruling would be the same. The admissibility of such statements is left to the trial court's discretion. United States v. Oropeza, 564 F.2d 316 (9th Cir.1977), cert. denied, 434 U.S. 1080, 98 S. Ct. 1276, 55 L. Ed. 2d 788 (1978) (Prior statement offered under Rule 804(b)(3)). The use of the term "Christian Club" in no way implies a discriminatory policy. Yet its use in the trial presented a danger of unfair prejudice while showing no support for plaintiff's contention that The Ocean Club had a practice and policy of discriminating against Jews. The potential unfair prejudice is underscored when considered with the testimony of Eugene Bechtle, an applicant for membership, who testified that Conrad Remling told him that The Ocean Club was a Christian beach club and that Jewish guests were not welcome. Kullman's proffered statement would probably have suggested the same discriminatory attitude as Remling's. See Workman v. Cleveland, 68 F.R.D. 562, 563 (N.D.Ohio 1975) ("the rule requires a more definite showing of the declarant's awareness of the possibility of liability" -- a ruling under Rule 804(b)(3)). Additionally, it is noted that plaintiffs offered testimony through Kullman (Tr. pp. 1346-1356) and Gloria Rogers (Tr. pp. 1537-38) that The Ocean Club was known as a "Christian beach club." The motion by The People of the State of New York for a new trial pursuant to Rule 59(a) is denied.

 Motion by William Bell and Sharon Bell

 The Bells, who were members of The Ocean Club, claim a violation of Title II § 202 of the Civil Rights Act of 1964, 42 U.S.C. § 2000a, *fn2" § 296(2)(a) of the New York Executive Law (Human Rights Law) *fn3" and § 40 of the New York Civil Rights Law. *fn4" The claims are based on an incident that occurred at The Ocean Club on July 9, 1981. It is alleged that on that day, Charles Williams, The Ocean Club manager, upon learning that Bells' guests were Jewish, advised William Bell that The Ocean Club bars Jewish guests, does not admit Jews to membership; and that his Jewish guests ...


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