author: JAMES McGIRR KELLY, District Judge.

text:
    SMITHKLINE BECKMAN CORP. and Menley & James Laboratories, Ltd. v. PENNEX PRODUCTS COMPANY, INC. v. PEOPLES DRUG STORES, INC., Revco D.S., Inc., Rite Aid Corp., Consumer Value Stores, a division of/and Melville Corporation, and Gray Drug Fair Stores, Inc., Third Party Defendants.
    Civ. A. No. 84-0913.
    United States District Court, E.D. Pennsylvania.
    Feb. 21, 1985.

      See also 103 F.R.D. 539.
    James R. Meyer, Philadelphia, Pa., for plaintiffs.
    Steven R. Trost, New York City, for Pennex Products Co., Inc.—defendants.
    Stuart E. Beck, Philadelphia, Pa., for Gray Drug Fair Stores, Inc.—third party defendant.
    Mark M. Wilcox, Philadelphia, Pa., for Consumer Value Stores—third party defendant.
    Barry E. Ungar, Philadelphia, Pa., for Rite Aid Corp.—third party defendant.
   MEMORANDUM AND ORDER

JAMES McGIRR KELLY, District Judge.

Plaintiffs, Smithkline Beckman Corporation and its wholly owned subsidiary Menley and James Laboratories, Inc. (Smithkline) have filed suit against Pennex Products Company (Pennex) for trademark infringement and unfair competition claims pursuant to the Lanham Act, 15 U.S.C. §§ 1114 and 1125(a) and Pennsylvania Unfair Competition laws. The matter presently before the court is defendant’s motion for partial summary judgment.

A. FACTS

As anyone who has suffered from the excruciating pain of a throbbing headache will agree, aspirin is truly a wonder drug. It is able to provide relief to a host of aches, pains, fevers and assorted ailments. As with all drugs, even those sold over the counter, there are both positive and negative aspects. Aspirin is no different. When aspirin dissolves in the stomach, its reaction with the body’s chemicals can cause gastric distress. This unfortunate side effect has significantly curtailed aspirin usage among a portion of the public. Approximately six years ago, Smithkline began to market a “safety coated” aspirin product which eliminated gastric distress by dissolving in the intestines and not the stomach. The designation for this analgesic is enteric coated aspirin. Smithkline offers it for sale under the brand name ECOTRIN®. The color of the coating is a bright orange. Enteric coated aspirins have been in existence for thirty years, but it has been only recently that their use became more widespread.

Not coincidentally, the sale of all enteric coated aspirin began to increase at the same time that Smithkline launched a, major promotional and marketing campaign for ECOTRIN®. In 1978, the year prior to the start of Smithkline’s marketing efforts, sales were less than $3.4 million dollars. By contrast, sales figures for the latest period available (1983) shows a seven-fold increase to $24.4 million dollars. Although enteric coated aspirin is interchangeable with regular aspirin in its effects upon symptoms, Smithkline targeted its ECOTRIN® product to the arthritis sufferer’s market. The advertising, which covers both the print and electronic media, prominently identifies that ECOTRIN® is for arthritis pain sufferers. Though Smithkline is attempting to segment the aspirin market, the fact remains that ECOTRIN® must compete against both regular aspirin and other safety coated aspirins.

There is no evidence before the court to suggest that the color of the safety coating is related to its effectiveness. The product should work just as well if it were coated another color. Undoubtedly, Smithkline desired to distinguish its analgesic product from the plethora of others by providing ECOTRIN® with a distinct trade dress.

If success is said to breed imitation, then to the business person imitation is the highest form of flattery. Pennex is a pharmaceutical manufacturer who produces enteric coated aspirins for approximately twenty private labels or house brands. The safety coating on their aspirin is also orange.

Private label brands owe their existence to the advertising and promotion efforts of the national brand. The national brand will expend tremendous sources of funds to build consumer recognition of both its product and tradename. If successful, the results should show higher market penetration and increased sales. The store brand plays upon increased consumer awareness by placing its own product in close proximity to the nationally advertised brand. Local advertising by the store will invite comparisons between its private label product and the nationally advertised one. Inevitably, the private label will be substantially less expensive than the nationally advertised product.

Smithkline seeks to halt what it terms as defendants’ unprivileged imitation of its product, a distinctive orange tablet. There are three counts to the complaint. Count I charges Pennex with imitating the packaging of their product. Count II of the complaint sets forth claims against Pennex for false designation of source or false representation (unfair competition) within the meaning of § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Count III of the complaint charges Pennex with trademark infringement within the meaning of § 32 of the Lanham Act 15 U.S.C. § 1114. The same legal standards are employed to determine violations under unfair competition claims as well as trademark infringement.

In many factual situations, the same result is reached whether the legal wrong is called trademark infringement or unfair competition. In such cases the courts often lump them together and speak of them as identical concepts (footnote omitted) ... Whatever route one travels, whether by trademark infringement or unfair competition, the signs give direction to the same inquiry— whether defendants’ acts are likely to cause confusion, (footnote omitted).

J. McCarthy, Trademarks and Unfair Competition, § 2.3 (2nd edition, 1984).

The court will discuss the issues seriatim.

B. DISCUSSION

The purpose of a motion for summary judgment is to test the merits of the action and determine prior to trial whether the parties have a basis for relief or defense. It is hornbook law that such a motion is not a substitute for trial. If the record, when examined in the light most favorable to the non-moving party, shows any material facts or inferences that are in dispute, the motion should be denied. Fed.R.Civ.P. 56, Swettlen v. Wagoner Gas & Oil, Inc., 369 F.Supp. 893 (W.D.Pa.1974); 6 Moore’s Federal Practice § 56.15.

1. Smithkline’s Trademark Infringement Claims.

The issue of trademark infringement is but one aspect of the broader field of unfair competition. Villager, Inc. v. Dial Shoe Company, 256 F.Supp. 694, 703 (E.D.Pa.1966). Since trademark infringement is a narrower concept, any finding that it has occurred will, by necessity, support an additional finding that the defendant is also guilty of unfair competition. The reverse, however, is not true. Evidence may be adduced to show that the defendant has simulated an aspect of plaintiff’s product sufficient to deceive the consumer without a finding that such action has infringed a trademark.

Section 45 of the Lanham Act, 15 U.S.C. § 1127 provides the basic definitions for trademark laws. A trademark may be any mark, name, symbol, device, or any combination thereof which is adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others. A symbol may rise to the level of a protect-able trademark in one of two ways. The mark can be registered or its continued use can establish a “secondary meaning” in the consumer’s mind. To establish secondary meaning the manufacturer must show that in the minds of the public the primary significance of a product feature or term is to identify the source of the product rather than the product itself. Freixenet, S.A. v. Admiral Wine & Liquor Co., 731 F.2d 148, 152 (3d Cir.1984) (quoting from Inwood Laboratories v. Ives Laboratories, 456 U.S. 844, 851 n. 11, 102 S.Ct. 2182, 2186 n. 11, 72 L.Ed.2d 606 (1982).

Smithkline believes that the defendant’s motion for summary judgment is inappropriate until it has the opportunity to show that ECOTRIN’s® bright orange tablet has acquired a secondary meaning. Pennex characterizes the issue differently by asserting that, as a matter of law, even if Smithkline were to show secondary meaning, a color per se may not act as a trademark.

The Third-Circuit in Campbell Soup Co. v. Armour & Co., 175 F.2d 795 (3d Cir.1949), cert. denied, 338 U.S. 847, 70 S.Ct. 88, 94 L.Ed. 518 (1949), addressed this very issue by holding that a party may not acquire a trademark by color alone, but only if the color is used in combination with a design in the form of the product. The Campbell soup decision drew its legal reasoning from Diamond Match Co. v. Saginaw Match Co., 142 Fed. 727 (6th Cir.1906), cert. denied, 203 U.S. 589, 27 S.Ct. 776, 51 L.Ed. 330 (1908). There the court said, “[s]ometimes a color, taken in connection with other characteristics, may serve to distinguish one’s goods, and thus be protected by the courts ...; but as a rule, a color cannot be monopolized to distinguish a product ...”. Id. at 729.

The sound reasoning behind the formation of this rule is basic. There are only a limited number of colors available and it would be impractical to allow proprietary rights in such an essential symbol as color to accrue in a limited group.

Three instances where color, in combination with other characteristics of the product, was held protectable is illustrative of the principle. In Ideal Toy Corp. v. Plawner Toy Mfg., 685 F.2d 78 (3d Cir.1982) the court extended trademark protection to the distributors of the “Rubik’s Cube” puzzle. The cube is six sided and composed of 26 smaller cubes. When the puzzle is solved the cube’s six sides will each represent a different color—red, blue, green, yellow, orange and white. The puzzle was identifiable on sight and referred to by all as a “Rubik’s Cube”. Defendant brought its cube puzzle on the market as the “Wonderful Puzzler”. It was identical in all respects to Ideal’s. The lower court enjoined the defendant from offering its toy for sale. The court of appeals upheld the ruling finding that sufficient evidence was presented to show that secondary meaning had attached to the Rubik’s Cube trade dress. Id. at 82.

Colored capsules of prescription drugs have also received trademark protection. SK & F Co. v. Premo Pharmaceutical Laboratories, Inc., 625 F.2d 1055 (3d Cir.1980) (Maroon and white color of a prescription drug capsule was protectable trade dress). And in Artus Corp. v. Nordic Co., Inc., 512 F.Supp. 1184 (W.D.Pa.1981) the defendant was found to have infringed plaintiff’s rights by color coding his gaskets identically to plaintiff’s. Artus Corp. for 25 years had color coded its gaskets to designate thickness. The colors were found to be a non-functional feature which had developed secondary meaning in the minds of its customers over that period of time. Id. at 1188.

These cases show that in very limited circumstances color, as a non-functional characteristic, can achieve a secondary meaning. The court cannot say as a matter of law, that even if Smithkline proved secondary meaning, its product could not receive protection.

The law is clear that it is not enough for plaintiffs to show simply that their orange tablet has achieved secondary meaning. They must also demonstrate that there exists a likelihood of confusion in the minds of the public over the source of the orange tablet. Freixenet, S.A. v. Admiral Wine & Liquor Co., supra, 153; SK & F v. Premo, supra, 1066; Artus Corp. v. Nordic Co., Inc., supra, 1191; LeBow Bros., Inc. v. LeBole Euroconf. S.p.A., 503 F.Supp. 209, 210 (E.D.Pa.1980); Surgical Supply Service, Inc. v. Adler, 321 F.2d 536 (3d Cir.1963). If the mark, however, is not visible at the time of purchase, can the consumer be confused since the decision to purchase is based upon some aspect other than the mark? Smithkline believes the answer is yes. There is a nexus between secondary meaning and the likelihood of confusion. Recognition and association are the cornerstones of secondary meaning. As more of the populace associates a particular mark with the source of the goods, the more likely it is that confusion may abound if a second identical mark is introduced. “The stronger the evidence of secondary meaning, the stronger the mark, and the more likely is confusion.” Levi Strauss & Co. v. Blue Bell, Inc., 632 F.2d 817, 821 (9th Cir.1980). A brief comparison of the packages the consumer sees at the time of purchase will be helpful in deciding this issue.

Plaintiff’s ECOTRIN® tablets are contained in a white non-translucent plastic bottle. The bottle is packaged in a box. The tradename ECOTRIN® is prominently displayed on the box. The “i” in ECOTRIN® is dotted by the orange tablet. The color motif of the box is white, green, and orange. It is a very bright and distinctive package. In addition to the brand name, the phrases “safety-coated aspirin” and “for arthritis pain” appear on the package. The color and copy seen on the package are carried over to the label placed on the bottle. This total image of the ECOTRIN® product is its “trade dress”. Although defendant Pennex manufactures enteric coated aspirin for over 20 private label brands, the partial summary judgment motion involves only two of those brands, Consumer Value Stores (CVS) and AARP Pharmacy Service (AARP). The CVS aspirins are housed in a nontranslucent plastic white bottle which is packaged in a box. The color scheme of the box is primarily white with blue, gold and black lettering. CVS does not use a brandname to market its product. The CVS letters are prominently displayed and the product is referred to as enteric coated aspirin (a generic designation). CVS does not depict the aspirin on its package. There is no reference to the color of the aspirin and the package is sealed. The layout on the box is carried over to the label. Again, no indication of the color of the aspirin is present. The AARP enteric coated aspirin is contained in a translucent plastic bottle. The orange colored aspirins are clearly visible through the bottle. AARP does not use a brandname, but lists the product only as special coated aspirin for arthritis. The color motif is black and blue. The consumer who sees the CVS package is ignorant of its contents unless he or she has previously purchased the product. There is no similarity between the ECOTRIN® package and the CVS package. They are visually different and bear no resemblance to one another in any manner. Pennex concludes that this precludes a finding that the consumer can be confused even if Smithkline established secondary meaning in its product. Smithkline disagrees and contends that the court should not limit the inquiry to confusion to the time of purchase, but instead should examine what effect post-purchase confusion has on the consumer. This expansive view, they say, is necessitated by the emerging retail practice of “generic brands”. Smithkline asserts that Pennex’s imitation of ECOTRIN’s® trade dress is related to the subtle aspects of consumer psychology in formulating purchase decision. The popularity of the housebrand or generic aspirin is attributable to the wide-spread perception among consumers that the housebrands are manufactured by the same company as the “national brand” (ECOTRIN®). This false assumption is reinforced by the retailing methods of the store. Its advertisements ask the shopper to compare “theirs” to “ours”. The store will place the housebrand next to ECOTRIN®. The consumer, upon opening the bottle, is further reinforced by the similarity of the product. And, the housebrand is always substantially less costly which undoubtedly is a factor underlying the consumer’s selection. Under Smithkline’s theory, it is not any one factor which holds balance but the combination of retailing practices, trade dress and consumer ignorance which culminate in creating an illusory image that will affect subsequent purchases by the consumer. In essence, Smithkline believes that the seed of unfairness is sown at the point of purchase, even though the consumer may not have labored under any false assumption at that time, but developed it at a later point. I believe this theory is too tenuous and the inquiry into the likelihood of confusion should center on confusion at the time of purchase. See Schmidt Manufacturing Co. of S.C. v. Sherrill Industries, Inc., 249 F.Supp. 480 (W.D.N.C.1965) (confusion must occur at time of purchase and relate to that being purchased); R.M. Smith, Inc. v. Collins, Ltd., 219 U.S.P.Q. 465 (W.D.Pa.1983) (critical issue is can consumer distinguish the source of the product at the point of purchase).

The “subtle psychological” factors which defendants employ are not inherently illegal and no allegations by plaintiff have been made to the contrary. The gravamen of plaintiff’s argument seems to be based more on competition than on unfairness. Advertisements which compare “theirs” to “ours” are common place in the retail field. Placing the enteric coated aspirin in close proximity to ECOTRIN® highlights the housebrand product, but that is not unfair, only competitive. Lastly, store employees who urge consumers to try or use the store brand product are certainly within their rights so long as there is no attempt to deceive the public as to the source of the goods. The characteristic that all the unfair competition claims share is that confusion is the direct and proximate result of an act undertaken by the defendant. Under Smithkline’s theory, confusion which is not created by the defendants, but only reinforced by them, would be consequential in determining a claim. This theory is so broad it would penalize a defendant for selling to a customer who believed all generic products come from a national brand manufacturer prior to ever having purchased Pennex’s product. It would also hold defendants accountable for confusion associated with consumers who believe that the housebrand and ECOTRIN® were manufactured by different companies, but subsequent to using Pennex’s product, developed a belief to the contrary. Such a far ranging inquiry serves no function to the underlying purpose of the law particularly in light of the fact that the plaintiffs are not required to prove actual confusion, only the likelihood of confusion. Alfred Dunhill of London, Inc. v. Kasser Distillers Products Corp., 350 F.Supp. 1341, 1360 (E.D.Pa.1972) (Becker, J.); aff’d without opinion, 480 F.2d 917 (3d Cir.1973). There is no reason to doubt plaintiffs when they assert that confusion and ignorance abound over the source and composition of “generic products”, but it is only that confusion which is the direct result of defendants’ acts that concerns the law of unfair competition. The inquiry into the likelihood of confusion is directed towards the time of purchase. Post-purchase confusion which is not the direct consequence of defendants’ action is not a factor. Secondary meaning is but an indicia of reliability that confusion may exist. However, it is not a substitute for proof of confusion. The consumer must have a specific product or package in mind with which to be confused. The buyer to be deceived must be looking for something specific, but chooses another in his confusion. Spangler Candy Co. v. Crystal Pure Candy Co., 235 F.Supp. 18, 28 (E.D.Ill.1964) aff’d 353 F.2d 641 (7th Cir.1966).

Defendants have cited the well-established rule of law that all combination of the features comprising the trade dress must be examined as a whole to determine whether the competing product is likely to cause confusion in the minds of the consumer. Perfect Fit Industries, Inc. v. Acme Quilting Co., 618 F.2d 950, 955 (2d Cir.1980). As this test is applied to CVS and ECOTRIN® packages, the court finds that no likelihood of confusion exists. The CVS packaging uses different colors. The distribution source (CVS) is readily apparent. There is no indication on the package of the contents inside. The trade dress shields the product and presents so unique a picture that the consumer will not confuse ECOTRIN® with CVS.

The AARP trade dress, however, leads us to a different conclusion. The consumer can clearly see the size, shape and color of the tablets. Since the tablet is exposed to the consumer at the time the purchase decision is made, a strong inference that a likelihood of confusion exists precludes granting the summary judgment motion on the AARP product.

Smithkline argues quite articulately that if they can prove secondary meaning of a nonfunctional characteristic along with proof of intentional copying, then the inference of consumer confusion which is created obviates any argument as to the package dissimilarity. Smithkline believes the proper rule of law is articulated in the SK & F v. Premo, supra, and Boehringer Ingelheim v. Pharmadyne Lab, 532 F.Supp. 1040 (N.J.1980) decisions which held that the appearance of a pharmaceutical dosage form (size, shape, color) could constitute trade dress protectable under the law of unfair competition if it is non-functional and has acquired secondary meaning. What the court believes is distinguishable between those cases and the facts presented by the CVS “trade dress” is the difference between prescription drugs and goods available from the shelf. Prescription drugs are a unique commodity. It is the physician, not the consumer, who selects the prescription. The drugs are repackaged by a pharmacist in clear vials which contain no easily identifiable designation of source, unique packaging or individual labeling trade dress to distinguish it. It cannot be compared side by side with another product. This is contrasted with shelf medication which can be compared side by side with similar products and comes in many unique packaging configurations which help indicate the source of the product. The decision to purchase the product is made by the consumer.

My reading of these two prescription drug cases leads me to conclude that those decisions were influenced by evidence that the generic drugs were being substituted for the brand name drug without the patient’s knowledge by unscrupulous pharmacists. Since the generic drug was less costly, the pharmacists maintained the same price but yielded a greater profit. .

Judge Lacey in the Boehringer decision said,

This leaves open the question of what actually motivated the defendants to imitate [the drugs’] trade dress. My review of the evidence persuades me that the explanation of defendants’ conduct is that such copying increase sales of their generic [drug] because unscrupulous pharmacists will buy it to pass it off profitably as [plaintiff’s product].

532 F.Supp. at 1051.

Likewise, Judge Gibbons in SK & F Premo, supra, stated similar reasons for the court’s ruling.

It is nowhere suggested that Premo was unaware of the practice by some unscrupulous pharmacists of substituting less expensive generic drugs for the brand name drugs prescribed without informing their customers and without passing along the benefit of the lower price. It was reasonable for the district court to conclude that Premo’s use of a practically identical trade dress would facilitate such passing off. The record shows, further, that in the short time that the Premo product was on the market an abbreviated survey established four instances of illegal undisclosed substitution.

625 F.2d at 1063.

This inherently distinctive aspect of prescription drugs is simply not present in the fact pattern presented here. This is not a case where the distributor is attempting to hide its involvement. The CVS name is prominent. The unassailable difference between the packaging of a prescription drug and that of a shelf medication is the crucial element in not extending the holding in Premo and Boehringer to these facts.

Accordingly, Pennex’s motion for partial summary judgment will be granted in part and denied in part. Summary judgment will be granted in favor of Pennex and CVS on counts I, II and III of plaintiff’s complaint. The summary judgment motion as to count I, II and III of plaintiff’s complaint will be denied against Pennex and AARP Pharmacy. An appropriate order follows.

      . The law of Pennsylvania with respect to unfair competition is identical to federal law except for the federal requirement that the products move in interstate commerce.

      . The facts indicate that the CVS packaging is unique and not an unprivileged imitation of the ECOTRIN® box.


source: Caselaw Access Project

author: VAN PELT, Senior District Judge.

license: Public Domain

text:
    Kathy O’CONNOR, Plaintiff, v. PERU STATE COLLEGE, Board of Trustees of the Nebraska State Colleges, Jerry L. Gallentine, Clyde J. Barrett, Harold D. Deselms, Jerry D. Joy, Ervin Pitts, Wayne Davidson, Maxine Mehus, Defendants.
    Civ. No. 83-L-253.
    United States District Court, D. Nebraska.
    Feb. 22, 1985.

      Jill Nagy and Kathy Goudy, Lincoln, Neb., for plaintiff O’Connor.
    George C. Rozmarin, Swarr, May, Smith & Andersen, P.C., Omaha, Neb., Richard L. Halbert, Falls City, Neb., for defendants.
   MEMORANDUM OPINION

VAN PELT, Senior District Judge.

This action was brought by plaintiff O’Connor, a non-tenured instructor, for injunctive relief and damages against Peru State College, Peru, Nebraska, her employer, and certain of its officers. She alleges discrimination in the course of her employment and in the termination thereof on account of her gender; alleges she was frustrated in attempting to perform her duties in violation of Title IX (20 U.S.C. § 1681 et seq.); and that she was punished for exercising rights protected by the First and Fourteenth Amendments to the United States Constitution. The grounds of her claim are set forth in greater detail later in this opinion. She sues all of the defendants except the defendant Jerry D. Joy, in their official capacities only. Joy is sued personally, as well as in his official capacity. A motion for a temporary restraining order was filed. A hearing was had May 6, 1983, and this Judge, for reasons set forth in Piling No. 16 filed herein June 17, 1983, denied the motion for temporary restraining order or in the alternative for a preliminary injunction, as shown by the Order, Filing No. 14, also entered June 17, 1983.

The United States Court of Appeals for the Eighth Circuit, by Order entered February 22, 1984, affirmed the district court’s judgment by written opinion filed the same date.

A First Amended and Supplemental Complaint was filed May 18, 1984. Among other things, it added as a defendant, Maxine Mehus.

A pre-trial conference was held on October 1, 1984, by the Judge. See Filing No. 37 dated October 15, 1984. The case came on for trial on October 15, 1984, and continued for four days.

It has been submitted on briefs and is now ready for decision.

This opinion will constitute the findings of fact and conclusions of law of the Court.

THE FACTS

Plaintiff was employed by Peru State College as a physical education instructor and women’s basketball coach for the academic years 1981-82 and 1982-83. Defendants are Peru State College; the Board of Trustees of the Nebraska State Colleges; Jerry L. Gallentine, President of Peru State College; Wayne Davidson, Chairman of the Physical Education Division and Director of Athletics for the second semester during the 1982-83 academic year; Maxine Mehus, present Director of Athletics; and Clyde J. Barrett, Vice President of Academic Affairs. Jerry D. Joy was Director of Athletics during 1981-82 and the first semester of 1982-83 and is currently Dean of Student Affairs.

Peru State College, located in Peru, Nebraska, is one of four four-year colleges organized under the Constitution and Statutes of the State of Nebraska. Neb.Rev.Stats. (NRS) Sections 85-301 to 318 (Reissue 1981). The general government of these colleges is vested in a seven member Board of Trustees, six of whom are appointed by the governor with the advice and consent of the legislature. The Commissioner of Education is a member ex officio. NRS 85-301. Under Section 85-316, all funds of the college are under the direction and control of the trustees. However, all warrants for money to be expended under Sections 85-301 to 85-318 are to be drawn by the Director of Administrative Services (another state agency) on certificates executed by the college president, countersigned by the college secretary and by a member of the Board. Warrants are paid by the State Treasurer. The College may retain $10,000 for equitable adjustment to students who are so entitled, for day-to-day operations and for contingencies requiring immediate payment.

Teaching loads at Peru State are determined by the number of credit hours taught per semester as opposed to the number of hours actually in contact with the students (contact hours). For example: a lecture course may be assigned three credit hours and also require three contact hours per week for the instructor to be present before the class lecturing; whereas, an activity class may be designated as one credit hour, but actually require the instructor to be present with the students for two or three hours. It is felt by the administration that a lecture class generally requires more preparation time by an instructor than an activity class. Coaches are allotted a certain number of credit hours for their coaching duties known as release time. The normal teaching load is 12-15 credit hours. If a class is cancelled because a minimum number of students failed to register, the instructor scheduled to teach that class is assigned to the admissions division to spend a specified amount of time in general recruiting and in publicity activities to promote the college.

In August, 1981, when Ms. O’Connor was offered the position of instructor and women’s basketball coach, she had an undergraduate major in English and had completed her course work and thesis, but not her orals, for a Master’s Degree in Physical Education. She subsequently received this degree in August, 1982.

It was, and is, the practice at Peru State to “plug” new faculty members into the course schedule vacated by their predecessors. Ms. O’Connor was assigned to teach courses totaling 12-13 hours, including release time of six hours in the fall for coaching basketball and three hours in the spring of 1981-82 for assisting with track. As a result of the plug-in policy, Ms. O’Con-nor found herself teaching several activity classes, in one of which, dance, she had no training whatsoever. Thus, the preparation time required to teach this class was greatly in excess of the normal preparation time required for activity classes.

As women’s basketball coach, she had both varsity and junior varsity squads. Her coaching duties included recruiting high school student athletes to attend Peru State and organizing and conducting a girls’ high school invitational basketball tournament. Another duty for which she found herself responsible was sponsoring the cheerleading squad which consisted of arranging transportation to out-of-town games, general chaperoning and checking expenditures. At one time when a scheduled class did not fill, Ms. O’Connor was assigned to 60 hours of general recruiting for admissions.

When Ms. O’Connor began coaching, she found that the women’s uniforms and equipment were in very poor condition, both in quality and quantity. During the season, the women’s locker room was commonly used by the visiting men’s basketball team. Since the women’s games were often played just prior to the men’s games, conflicts arose. At one time, the visiting men entered the room before the women had vacated, catching the girls in various stages of dress or undress. It was also common for both the Peru State men’s and women’s teams to be conducting practice sessions concurrently. Of the four basketball courts, one of them was closely ringed by bleachers, which created a hazardous condition for players during skirmishes at the net ends where the likelihood of falling into the bleachers was greatest. It seemed to Ms. O’Connor that her players were required to use this court for practice much more frequently than the men. Ms. O’Con-nor voiced her complaints about the equipment and facilities to Jerry Joy, Ervin Pitts, Chairman of the Physical Education Division in 1981-82 who retired after the spring of 1982, and Wayne Davidson, as well as fellow faculty members. In addition to practice court assignments, there was some controversy over a universal weight machine purchased with funds raised by the Women’s Athletic Association, a student organization, but which was also being used by the men.

During Ms. O’Connor’s first season, it was noticed that she arrived late or not at all to several practices and games. Men’s basketball coach, John Gibbs, whose team often practiced concurrently with the women’s team, and Wayne Davidson noted that women’s team practices appeared to be unorganized. Despite the fact that Coach O’Connor initiated pre-season conditioning, there was further testimony on both sides as to whether or not the team was or was not in good condition. While Coach O’Con-nor’s win/loss record of 7 wins 19 losses in 1981-82, and 6 wins and 19 losses in 1982-83 was better than the previous coach (1 and 21 for both years 1979-80, 1980-81), it is not outstanding and shows no improvement the second year, despite the return of most of the players. Ms. O’Connor attributed this to the fact that she was able to have more games scheduled against stronger opponents, although she herself was not directly responsible for setting up the schedule for the basketball season.

From the record, it would appear that Ms. O’Connor was lax on follow-up. There were several instances in which she had filled in the proper forms for excused absences, but where notice of her potential absence did not reach the proper persons. Consequently, they assumed willful neglect on her part. Another time, illness forced her to miss an important coaches meeting and again the proper person did not receive word of her illness until several days after the meeting. - Ms. O’Connor frequently placed the responsibility upon the players for continuing practices in her absences. Once players returned from Christmas break early to attend a scheduled practice only to find the gym locked, that no provisions for their early return had been made at the dormitories, and that Coach O’Con-nor had not returned. Ms. O’Connor did make an effort to get a non-student, non-staff person authorized to act as a volunteer assistant coach. However, college rules would not allow the use of a person unassociated in any way with the college and permission was denied.

In addition to Ms. O’Connor’s communication problems with Jerry Joy and Wayne Davidson, she also had disagreements with fellow faculty members over teaching assignments and her general attitude toward socializing with students on week-ends.

Despite the first year problems and a lower evaluation than any other faculty member in the Physical Education Division, then Chairman, Ervin Pitts recommended that Ms. O’Connor be rehired for the 1982-83 academic year. Under the college bylaws, non-tenured faculty members who have been employed for two or more years must be notified by December 15 if their contract is not to be renewed for the following academic year. Thus, although the basketball season had just gotten underway, on December 9, 1982, Ms. O’Connor was notified that she would not be rehired for the 1983-84 year. She requested and received a written list of reasons for her non-renewal and a hearing. The hearing was scheduled for February 9, 1983, at which time Ms. O’Connor could have been represented by an attorney. She chose to invite Dick Kirtenbach of the Nebraska Civil Liberties Union, who attended only as an observer. Plaintiff did have this opportunity to rebut the written reasons supplied to her in December. After this meeting, the administration affirmed its decision to not renew Ms. O’Connor’s contract.

On April 27, 1983, Plaintiff filed suit in the United States District Court, Lincoln, Nebraska, alleging violations of 20 U.S.C. § 1681 (Title IX); 42 U.S.C. § 1983; and 42 U.S.C. § 2000e et seq. (Title VII). Ms. O’Connor claimed the reasons given by Peru State for non-renewal were pretextual and that she was being dismissed in retaliation for her complaints and activities to improve the status of the women’s athletic program in general, and the women’s basketball program in particular. She alleged that Peru State was and had been according their women’s athletic program unequal treatment in terms of facilities, equipment, and financial assistance compared to that given the men’s programs. She further alleged that as part of this discriminatory attitude, she was assigned heavier teaching loads and was expected to perform more numerous extracurricular duties than her male counterparts in the Athletic Department. Plaintiff also asserts that her rights under the First Amendment, Freedom of Speech clause and the Fourteenth Amendment’s Equal Protection and Due Process clauses were violated. She moved for a preliminary injunction and a temporary restraining order prior to a hearing on the merits. After a hearing on this motion in May, 1983, the TRO was denied on June 17, 1983. An appeal was taken to the Court of Appeals for this circuit, which affirmed the District Court’s denial of the TRO. O’Connor v. Peru State College, 728 F.2d 1001 (8th Cir.1984).

Also in May, 1983, Ms. O’Connor filed complaints with the Nebraska Equal Opportunities Commission and the United States Department of Education, Office of Civil Rights, Region VII in Kansas City. The EEOC completed their investigation in August, 1983, and met with Peru State College officials in November, 1983. They issued a right-to-sue letter to Ms. O’Connor dated April 20, 1984. Subsequently, she filed a First Amended and Supplemental Complaint in the United States District Court, Lincoln, Nebraska, May 8, 1984. In the amended and supplemental complaint, plaintiff dropped an alleged breach of contract complaint and added Ms. Mehus as a defendant. A copy of the right-to-sue letter was attached. A trial on the merits was had in October, 1984.

CONCLUSIONS OF LAW

Plaintiff has filed for relief under 20 U.S.C. § 1681 (Title IX), 42 U.S.C. § 1983, and 42 U.S.C. § 2000e et seq. (Title VII) and the First and Fourteenth Amendments. This Court has subject matter jurisdiction under 20 U.S.C. § 1683, 28 U.S.C. § 1343, and 42 U.S.C. § 2000e-5(f)(3).

Defendants claim that Peru State College may not have the capacity to be sued. Such capacity depends upon state law. Byron v. University of Florida, 403 F.Supp. 49, 54 (N.D.Fla.1975); Rivas v. State Bd. for Community Colleges, 517 F.Supp. 467 (D.Col.1981). Under Nebraska Statute, the Board of Trustees of the Nebraska State Colleges constitutes a body corporate for the purposes of governing the State colleges. Neb.Rev.Stat. 85-302, (Reissue 1981); Levitt v. Bd. of Trustees of Nebraska State Colleges, 376 F.Supp. 945, 946 (D.Nebr.1974). It is the Board’s responsibility to appoint a President for each college (NRS 85-304) who is the chief executive officer in charge of the control and management of the college. NRS 85-306. For purposes of 42 U.S.C. § 2000e(b), the Board is an “employer” as defined by the statute.

However, the Board of Trustees of the Nebraska State Colleges and any officers of Peru State College being sued in their official capacities only, are entitled to immunity from damages under the Eleventh Amendment for purposes of Title IX and § 1983 actions. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974).

In Catania v. University of Nebraska, 204 Neb. 304, 282 N.W.2d 27 (1979), the Nebraska Supreme Court held that the University of Nebraska was a state agency entitled to Eleventh Amendment immunity. The state court went on to say that the state may only be sued where there is specific legislation to that effect. The mere presence of the words “sue” or “be sued” in the description of powers of the Board of Regents, or in the present case, the Board of Trustees of the Nebraska State Colleges, does not constitute a waiver of the state’s immunity. “This provision is not self-executing; legislation is necessary to make it available.” Wiseman v. Keller, 218 Neb. 717, 719, 358 N.W.2d 768, 770 (1984). See also: Cannon v. University of Health Science/The Chicago Medical School, 710 F.2d 351, 356 n. 5 (7th Cir.1983). Thus, waiver will" be found only “where stated by the most express language or by such overwhelming implications from the text as [will] leave no room for any other reasonable construction.” Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 53 L.Ed. 742 (1909) quoted in Edelman at 673; Wiseman at 720, 770. The state court in Wiseman held specifically that NRS section 20-148 under Title 20, the Nebraska Civil Rights Act, did not act to waive the state’s immunity as to actions brought in Federal Court under 42 U.S.C. § 1983 to protect rights under the contract clause of the Constitution.

Furthermore, under NRS 85-316, any monetary damages which might be awarded against Peru State College would be paid out of the State Treasury. Peru State is a small college, unlike the University of Minnesota, to which it was compared by plaintiff. It has no large reserves of non-state appropriated financial resources. Durham v. Parks, 564 F.Supp. 244 (D.Minn.1983). Despite the fact that the college may well have funds from endowments or gifts, endowment funds and private donations are generally created or given for a specific purpose and cannot be used for expenses outside the scope of the gift. The endowment fund designated by NRS 85-317 mentioned by plaintiff as a source of income outside legislative appropriations, arises from the sale of public school lands and is to be managed for the benefit of all the state colleges by the Board of Trustees and, thus, is also part of state funds.

Plaintiff has also misapplied the Eighth Circuit case of Board of Trustees of Arkansas A & M College v. Davis, 396 F.2d 730 (8th Cir.1968). In that case, the appeals court found that the defendant trustees had acted beyond their authority as representatives of the college and held them liable for damages on an individual basis under Ex Parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed.2d 714 (1908). The court recognized that, otherwise, the individual defendants in their official capacities would be entitled to partial immunity under the Eleventh Amendment. In the present case, the only defendant being sued in an individual capacity in addition to his official capacity is Jerry Joy. While some of Mr. Joy’s decisions were not necessarily fair or helpful in building a good relationship within the department, there is insufficient evidence to find that he intentionally pursued a course of discrimination against Ms. O’Connor in his official capacity, let alone to raise his actions to the level necessary to find him guilty of intentional discrimination against plaintiff in an individual capacity.

TITLE IX

Ms. O’Connor has no Title IX claim. Arguably, she is a person entitled to raise the issue of sex discrimination because of her employment as an instructor in the Physical Education Division at Peru State College. Under Title IX, 20 U.S.C. § 1681(a):

“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance, ...”

Subsection (c) defines “educational institution,” but “education program or activity” is not defined in the statute. The United States Supreme Court, in North Haven Bd. of Education v. Bell, 456 U.S. 512, 102 S.Ct. 1912, 72 L.Ed.2d 299 (1982), held that Title IX covered employment discrimination in federally funded programs, but specifically declined to define “program.” Id. at 540, 102 S.Ct. at 1928. This led to a split among the Circuit Courts. The Third Circuit chose to define “educational program” as the entire institution. Grove City College v. Bell, 687 F.2d 684 (3rd Cir.1982), aff’d in part, — U.S. -, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984). The First, Fifth, and Sixth Circuits took a narrower view, limiting the application of sanctions to the specific programs within a school or college which were receiving federal funds. See: Bennet v. West Texas State University, 525 F.Supp. 77 (N.D.Tex.1981), rev. w/o opinion 698 F.2d 1215 (5th Cir.1983) but cited four months later for its programmatic application of Title IX in Iron Arrow Honor Society v. Heckler, 702 F.2d 549 (5th Cir.1983); Rice v. President and Fellows of Harvard College, 663 F.2d 336 (1st Cir.1981), cert. den. 456 U.S. 928, 102 S.Ct. 1976, 72 L.Ed.2d 444 (1982); Hillsdale College v. Dept. of Health, Education, and Welfare, 696 F.2d 418 (6th Cir.1982). The United States Supreme Court finally clarified the definition of “program” in Grove City College v. Bell, — U.S. -, 104 S.Ct. 1211, 79 L.Ed.2d 516 (1984). The Court concluded that receipt of federal aid by students in the form of Basic Educational Opportunity Grants (BEOGs) made the financial aid program of Grove City College subject to regulation under Title IX even though the college received no direct federal funds for any other program. In limiting the regulation to the financial aid program, the Court stated:

“Only by ignoring Title IX’s program-specific language could we conclude that funds received under the RDS, awarded to eligible students and paid back to the school when tuition comes due represent federal aid to the entire institution....
“We conclude that the receipt of BEOGs by some of Grove City’s students does not trigger institution-wide coverage under Title IX.”

Id. -, 104 S.Ct. at 1221.

Evidence presented at trial showed that the Physical Education Division at Peru State received no direct federal funds. The only direct federal grant money received by Peru State was a Title III grant to support faculty and student research projects. While the grant was approved for the 1982-83 school year, the application was not signed until March, 1983, and equipment purchases were not made until September, 1983, long after the decision to not renew Ms. O’Connor’s contract had been made. There was testimony to the effect that some of the research projects submitted in this Title III grant proposal would be studies conducted in the Physical Education Division. Even had this grant been received in time to benefit Ms. O’Con-nor, compliance with Title IX would have been required only in the selection of research projects and the distribution of funding for those projects. Since research proposals could be submitted from any department in the college, the mere fact that one or more of the projects submitted might have involved the Physical Education Division would not be sufficient to bring the entire athletic program within the purview of Title IX, absent any direct federal funding to physical education programs.

Ms. O’Connor had been granted funding for a research project on vertical jump performance using the women basketball players to be conducted during the 1982-83 year. The project was in conjunction with plaintiff’s studies pursuant to the acquisition of a doctorate. There was no evidence as to the specific source of funding for this project, although there was testimony that some of the Title III grant monies were to be used to equip a physiology laboratory to which members of the Physical Education Division faculty would have access, but not exclusive control.

Even if the issue of Title IX violation had not been eliminated by virtue of the fact that there was no federal funding received by the Athletic Department at Peru State, the Title IX issue has been eliminated by the fact that disparities between the men’s and women’s athletic programs are in the process of being equalized. A representative of the EEOC conducted an extensive investigation of the alleged Title IX violations during the summer of 1983. The college was found not to be in compliance with Title IX requirements in the area of equality of equipment and facilities, but no charges were filed. The college prepared a written plan to correct the noted disparities which was acceptable to the Office of Civil Rights. At the time of trial, new uniforms and other equipment had been purchased for the women’s programs, and steps taken to ensure that such incidents as the visiting men’s intrusion into the women’s locker room while they were dressing would not happen again. These steps, while slow in coming, render any need for court action unnecessary at this time.

Plaintiff may argue that her complaints to the EEOC and subsequent law suit were the catalysts for any corrective action taken by defendants. However, Ms. O’Connor was neither the first nor the only individual to campaign for better equipment for the women athletes. Ms. Mehus testified that she too had requested better equipment and treatment for the women’s teams even before Ms. O’Connor had been hired. The evidence is not sufficient to find that Ms. O’Connor’s complaints were the major incentive in effecting the improvements for the women’s athletic program at Peru State.

§ 1983 RIGHTS

Plaintiff does not have a claim under 42 U.S.C. § 1983 either. Section 1983 requires deprivation of “a right ... secured by the Constitution and laws.”

“The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s protection' of liberty and property.”

Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

“To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it.... He must, instead, have a legitimate claim of entitlement to it.... Property interests ... are created and their dimensions are defined by existing rules or understandings that stem from an independent source....”

Id. at 577, 92 S.Ct. at 2709.

Ms. O’Connor was a non-tenured instructor. Under the by-laws of Peru State College, tenure will not be offered until the faculty member has served a minimum of four years. The by-laws provided that a non-tenured faculty member would be provided with written notice not later than December 15 when their appointment expired at the end of the school year (May) when the faculty member had been employed two or more years. The by-laws further state that if the faculty member requests, he/she will be advised of the reasons which contributed to that decision of non-renewal. The faculty member may request reconsideration by the recommending body or individuals.

Ms. O’Connor’s first year as an instructor-coach was not entirely smooth going. Dr. Pitts, Athletic Director in 1981-82, gave her a lower evaluation than anyone else in the department, but reappointed her to provide an opportunity for improvement. Wayne Davidson assumed the position of Athletic Director in the fall of 1982 and was responsible for the recommendation to not renew plaintiff’s contract for 1983-84. She was properly notified in writing on December 9, 1982. Ms. O’Connor requested and received a written statement of reasons contributing to that decision. She also requested and received a reconsideration meeting, held February 9, 1983. At that meeting, Ms. O’Connor had an observer from the Nebraska Civil Liberties Union present, but not an attorney. In any event, plaintiff was offered the opportunity to rebut or question the basis of the decision and the validity of the reasons supplied to her. The fact that she did not make full use of that opportunity does not negate its existence.

The terms of plaintiff’s agreement provided for notice and a chance to be heard in the case of a non-renewal of a year-to-year teaching contract. Ms. O’Connor received this property interest. There was no deprivation of any procedure to which she was entitled.

Just as there was no violation of property interest, neither was there a violation of any liberty interest. Like the plaintiff in Roth, Ms. O’Connor was simply not rehired for another year at Peru State. The school did not charge her with any activity which might have damaged her standing in the community or which might have precluded her obtaining another position. Roth at 573, 92 S.Ct. at 2707. Difficult as it may be to find another position in a crowded job market, there is simply no deprivation of a liberty interest where plaintiff is free to enter that market and compete on the basis of her own skills, much as her basketball teams compete, and win or lose, based upon their condition and skill relative to the condition and skill of their opponents.

Plaintiff alleges one of the unarticulated reasons for her non-renewal was a reaction by officials against her outspoken criticism of the Athletic Department and the treatment women athletes received. There is no evidence of this. Both Dr. Barrett and Mr. Davidson testified that Ms. O’Connor’s criticisms were not considered when they decided not to renew her contract; nor can Ms. O’Connor point to á specific instance which might have triggered an invasion of her right to free speech. In order for a firing or non-renewal of a contract to be in violation of the employee’s right to free speech, there must be a specific action or actions by the employee and a subsequent reaction by the employer concluding in the termination of the prior relationship. Pickering v. Bd. of Ed. of Township High School Dist. 205, Will Co., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

The Supreme Court in Pickering discussed factors which could be considered in the determination of whether or not school administrators infringed upon plaintiff teacher’s right to free speech. The Court focused upon the degree of public interest at stake and the legitimate concerns of taxpayers in the issues brought out by the teachers’ actions and contrasted those to any detrimental effect plaintiff’s actions might have had on maintaining the day-today order in school operations and his working relationships with administration and fellow teachers. The test of' whether the speech or action by the employee is constitutionally protected entails striking a “balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” Pickering at 568, 88 S.Ct. at 1734.

In Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) the Supreme Court required plaintiff to show causation, in that his/her conduct was constitutionally protected and that it was a substantial or motivating factor in the decision not to rehire him/her. The burden was then to shift to the defendant to show by a preponderance of the evidence that the employer could have reached the same decision even in the absence of the protected conduct. The test for causation must distinguish between a result caused by a constitutional violation and one not so caused. Id. at 286-287, 97 S.Ct. at 575-76.

The Court in Givhan v. Western Line Consolidated School District, 439 U.S. 410, 99 S.Ct. 693, 58 L.Ed.2d 619 (1979) considered the distinction between “public expressions” and “private expressions” as motivating factors in the firing of a school teacher. The freedom of speech is not lost to the public employee who “arranges to communicate privately with his employer rather than to spread his views before the public.” Id. at 415-416, 99 S.Ct. at 696-97. However, private expression may “bring additional factors to the Pickering calculus. When a government employee personally confronts his immediate superior, the employing agency’s institutional efficiency may be threatened not only by the content of the employee’s message, but also by the manner, time, and place in which it is delivered.” Givhan at 415 n. 4, 99 S.Ct. 696 n. 4. See also: Brockell v. Norton, 688 F.2d 588 (8th Cir.1982); Nathanson v. United States, 702 F.2d 162 (8th Cir.1983); Bowman v. Pulaski Co. Special School Dist., 723 F.2d 640 (8th Cir.1983).

In order to fall within the purview of the First Amendment protections, the content of the employee’s speech must encompass matters of public concern.

“When employee expression cannot be fairly considered as relating to any matter of political, social or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment.”

Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983).

“We hold only that when a public employee speaks not as a citizen upon matters of public concern, but instead as an employee upon matters only of personal interest, absent the most unusual circumstances a federal court is not the appropriate forum in which to review the wisdom of a personnel decision taken by a public agency allegedly in reaction to the employee’s behavior.”

Id. at 147, 103 S.Ct. at 1690.

Ms. O’Connor has not met her burden of proof. Granted, her complaints were in relation to an area of public concern, namely, the equal treatment of women athletes and the women’s athletic program at Peru State College. But, there must be a traceable connection between action and alleged reaction. Here there is none. Plaintiff did not put her complaints in writing; she did not publish them in any manner; she did not report the alleged Title IX violations until after her notice of non-renewal. Plaintiff can point to no specific incident, complaint or discussion which could be said to.have triggered defendant’s decision to not rehire her. She could not offer any evidence that her complaints were either a substantial or motivating factor in defendant’s decision. These facts essentially reduce plaintiff’s situation to one more comparable to that of a personnel decision in which the federal court only reluctantly intervenes.

On the other hand, defendants testified that they did not consider her complaints when they decided not to renew plaintiff’s contract. Furthermore, they articulated legitimate reasons for non-renewal such as to support a finding that, even if plaintiff’s complaints had contributed to their decision, the same decision could have been reached in the absence of the protected conduct. In this situation, the court finds that the administration did in fact base their decision to not renew Ms. O’Connor’s contract upon other valid reasons unrelated to any expressions by the plaintiff protected by the First Amendment.

TITLE VII

Plaintiff is alleging in her Title VII suit (42 U.S.C. § 2000e, et seq.) that Peru State College in the person of its president, Jerry L. Gallentine, and the Board of Trustees of the Nebraska State Colleges, discriminated against her on account of her gender in the course of her employment as women’s basketball coach and instructor in the Physical Education Division and in the termination of that employment. Plaintiff’s general arguments fall into the “disparate treatment” category of discrimination.

The burden of proof is upon plaintiff to show that defendants acted with a discriminatory motive, though motive may be inferred from differences in treatment. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). The defendant must produce “evidence that the plaintiff was rejected, or someone else preferred, for a legitimate non-discriminatory reason.” Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S. 711, 714, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983).

“The ‘factual inquiry’ in a Title VII case is ‘[whether] the defendant intentionally discriminated against the plaintiff.’ Burdine ... at 253, 101 S.Ct. at 1093.” Aikens at 715, 103 S.Ct. at 1482. Plaintiff has not presented any evidence to the effect that officials at Peru State deliberately treated her less favorably in the terms and conditions of her employment than any other new instructor in the same situation. Plaintiff has failed to carry her burden of proof. New teachers at Peru State are assigned basically the same courses their predecessor taught. The first semester Ms. O’Connor taught classes which had been scheduled in the spring of 1981 before she was offered and accepted the position in August, 1981. Individual classes could be, and were, reassigned among the instructors, but wholesale rescheduling was impracticable. Ms. O’Connor did not protest her teaching schedule for the 1982-83 season until the fall, instead of working with Dr. Davidson in the spring of 1982 when the schedule was first laid out.

Plaintiff alleges that she was assigned excessive duties because of her gender. Although it might appear that she did have a greater teaching load than others in the athletic department based on contact hours, teaching loads are determined on the basis of credit hours. In this regard, Ms. O’Con-nor was assigned a number of class credit hours comparable to other instructors at her level. Ms. O’Connor protested her assignment to general recruiting for the college when her regularly scheduled class was cancelled for lack of student enrollment. This was the usual practice and recruiting hours were calculated to replace only those hours which the instructor would have spent teaching. Three other faculty members from various departments were also assigned such duties during that semestér.

Ms. O’Connor points to the fact that she was informed that, in addition to her teaching-coaching activities, she was automatically sponsor of the cheerleading squad and had duties to recruit high school athletes for attendance at Peru State, and for the women’s athletic program specifically, and to organize and run a women’s high school invitational basketball tournament.

Sponsoring the cheerleading squad consisted of chaperoning them to out-of-town games, which occasionally involved overnight stays and general light supervision of their money-raising activities. Most college approved student groups have faculty advisors. It is logical that the cheerleaders’ sponsor should be a member of the athletic department. It is also reasonable to have a woman sponsor the cheerleaders (all girls) rather than a man in view of the need for overnight supervision involved with some away from Peru games.

Written or unwritten, all coaching positions require the coach to be responsible for keeping in touch with high school athletics and recruiting students with potential to benefit the college athletic program, male and female. Because of budget restrictions, the coaches at Peru State did, and do, much of this recruiting on their own time, with their own money. There were no differences in this respect between the male coaches and either Ms. Mehus or the plaintiff.

The high school invitational basketball tournament acts as a promotional device for the college and would certainly aid in the recruiting of women athletes. Such a tournament should reduce or supplement individual efforts by providing for a wider distribution of teams and players than might be practical for the coach to view under his or her own efforts. It is not discriminatory to assign the conduct of this tournament to the basketball coach, whomever that may be. The duty comes with the job, not the individual coach.

The teaching-coaching staff in the athletic department at Peru State is small and each individual has different responsibilities and background experience. It is difficult to make comparisons where there are few similarities, however, plaintiff has not demonstrated discrimination in the terms of her employment.

Plaintiff did not demonstrate any discriminative motive in the conditions of her job, either directly or by inference. Defendants, on the other hand, presented reasons for the nonrenewal of Ms. O’Connor’s contract, which, though weak, were legitimate. Whether or not Ms. O’Connor was actually as casual in her attitude toward punctuality and attendance at practices, games, and classes as defendants would have the court believe, there is no doubt that they did believe she was entirely too lax in these areas. It is clear that much of the confusion and misunderstanding arose out of lack of proper communications between Ms. O’Connor and the administration of the Physical Education Division, particularly Jerry Joy and Dr. Barrett.

Plaintiff insists that she notified her students and made arrangements for any practices or classes she had to miss. Yet, two of her students, one of whom was student manager for the team during the 1982-83 season, testified they had little or no notice of Ms. O’Connor’s absences from team practices. Plaintiff gave no reason why she had not made arrangements and was not present when the team returned early from the Christmas-New Year Holiday break for a scheduled practice only to find themselves locked out of the gym and dorms. Men’s basketball coach, John Gibbs, testified to noticing a number of practice sessions for which Ms. O’Connor was not present.

Testimony was heard concerning two games to which Ms. O’Connor was late. One was clearly a scheduling error for. which Ms. O’Connor was not responsible. However, it would have been a simple precaution to double check time with the opposing coach, especially when it was necessary to drive a long distance for the game. In the other instance, Ms. O’Connor had permission to attend a relative’s funeral, which caused her to arrive late. But, she had not informed the team of her need to be late, nor did she arrange for another member of the Physical Education Division to cover until she arrived.

There was a third incident in which Ms. O’Connor did not complete the trip home with the team. Plaintiff testified she stayed in Omaha to observe a high school game to assess potential recruits. Again, she did not notify her team or the parents who were also accompanying the team. As a result of these poorly explained absences, team confidence in her lagged. In coaching, more than in any other teacher-student relationship, the coach must be able to inspire her players. This is an intangible ability; yet it may be sensed in many ways. In evaluating Ms. O’Connor’s performance as a coach, the administration may well have noticed a lack of enthusiasm in the team’s performances or in the players’ relationships to Ms. O’Connor.

Last, but not least, Ms. O’Connor missed an important coaches meeting due to a sudden illness. While she could be excused for becoming ill, the problem arose with her notification to Jerry Joy. There was conflicting testimony on this matter, but the final impression of a serious communication gap between Ms, O’Connor and the administration is clear. Because of these absences, late arrivals and early departures, excused or not, the impression created in the minds of the administration was one of lack of organization, follow through, and an overly casual attitude toward responsibility on the part of Ms. O’Connor. These are not desirable characteristics in any teacher or coach and gave the administration legitimate concern for the effectiveness of such an individual.

In addition to a general impression of laxity on the part of Ms. O’Connor, it is also clear from the testimony of other members of the athletic department, that their working relationships with Ms. O’Con-nor were not all smooth and congenial. Ms. O’Connor is an intelligent, articulate individual who, when she perceives what she believes to be a wrong, plunges in to correct the situation. In the course of her campaign, she managed to rub most of the other members of the department the wrong way. As previously mentioned, there are only eight faculty members in the athletic department. By necessity, they must be able to function easily on a daily basis. It is the distinct impression of this Court that Ms. O’Connor’s personality did not lend itself to a close cooperative effort within this small department. The smooth functioning of a department based upon compatibility of personalities is a legitimate consideration in the selection of personnel to fill a position. See: Burrows v. Chemed Corp., 743 F.2d 612, 616 (8th Cir.1984).

Plaintiff had the burden of proving a showing of pretext on the part of the defendants by a preponderance of the evidence.

“Merely casting doubt on the employer’s articulated reason does not suffice to meet the plaintiff’s burden of demonstrating discriminatory intent for ‘[t]he defendant need not persuade the court that it was actually motivated by the proffered reasons’ in the first place, (cites omitted)”.

White v. Vathally, 732 F.2d 1037, 1043 (1st Cir.1984).

The issue at trial is not the quality of the business judgment, but rather whether the plaintiff can show she was the victim of intentional discrimination.

“A plaintiff cannot prove that the employer’s reason for his discharge was pretextual merely by claiming that the employer’s action was mistaken. The law is clear that an employer’s reason for his action may be a good reason, a bad reason, a mistaken reason, or no reason at all, as long as the decision was not based on race or other unlawful discrimination criteria.... (cites omitted). An employer is not required to prove that its decision was correct; the tryer of fact need only determine that the defendant, in good faith, believed the plaintiff’s performance to be unsatisfactory and that the asserted reason for the action was not a mere pretext for discrimination, (cites omitted).”

Bostic v. Wall, 588 F.Supp. 994, 1002 (W.D.N.C.1984).

The Court finds no credible evidence to indicate pretext or discriminative motive by those whose duty it was to make the determination as to plaintiff’s retention. There is no evidence of harassment. The Court accepts the testimony of the defendants, that by their action in not renewing Ms. O’Connor’s contract, they sought to strengthen the women’s athletic program at Peru State.

In the opinion of the Court with reference to the granting of the temporary relief, O’Connor v. Peru State College, 728 F.2d 1001 (8th Cir.1984), mention is made of the Court’s discussion in the original opinion of the possibility of success on the merits. This Court would not deny that upon hearing the original motion for injunctive relief from which the appeal was taken that the Court did discuss the possibility of success on the merits, and the Court’s conclusion from the evidence presented was that her chance of succeeding on the merits in a trial of the ease was not sufficient to justify any form of temporary relief at that time.

Because the original panel may have had a different view of the evidence than I had, I have given special consideration to the rights of plaintiff, a non-tenured instructor, under each and all of the theories which she has advanced to recover in this case. I can reach no other conclusion on the facts than that which is herein set forth.

Peru State College is the smallest of the four state colleges. Kearney is the largest. The town in which Peru State is located is smaller than that of any other city in which a state college is located. Whether, in a town the size of Kearney which exceeds the enrollment of Creighton by 2000 students or more, the college officials would have granted tenure is not an issue.

I do not feel that the constitutional rights of plaintiff have been violated by any of the defendants. I believe that for Peru State College they made the proper decision in not retaining plaintiff.

It seems to me that the federal courts would be placing too heavy a hand upon the choosing of faculty to say that the conduct of plaintiff which the administrative officers believe did not evidence that she was proper faculty and coaching material should by judicial fiat, be imposed upon the administration, the faculty, or the student body.

Plaintiff did not maintain the burden of proof the law places upon her. The defendants have each affirmatively established that their action was taken in good faith to build a better Physical Education Division at Peru State.

The complaint will be dismissed, by separate order, at plaintiff’s costs.


author: DEVINE, Chief Judge.

text:
    Richard B. KAY v. George BRUNO, et al.
    Civ. No. 84-679-D.
    United States District Court, D. New Hampshire.
    Feb. 26, 1985.

      Donald A. Kennedy, Manchester, N.H., for plaintiff.
    James R. Muirhead, Manchester, N.H., Robert A. Stein, Concord, N.H., for Bruno.
    Kenneth G. Bouchard, Manchester, N.H., for Goble.
    Peter W. Heed, Concord, N.H., for Powers.
    Michael Lenehan, Concord, N.H., for Raiche.
    Michael B. O’Shaughnessy, Manchester, N.H., for Manchester, King and Stewart.
    Katherine Hanna, Warren S. Nighswander, Concord, N.H., for N.H. Democratic Party.
   ORDER

DEVINE, Chief Judge.

A Floridian by residence, an attorney by profession, and Democratic in politics, plaintiff Richard B. Kay sought his party’s 1984 presidential nomination. In the course of such quest, he attended in October 1983 a New Hampshire political gathering sponsored by Democrats. The events which overtook him in the course of such visit gave birth to the instant litigation.

Named as defendants are the New Hampshire Democratic Party (“Party”), and George Bruno, Ted N. Goble, Stephanie Powers, and Robert E. Raiche, who are described as holding varied positions with respect to the October 1983 meeting. Plaintiff also sues the City of Manchester, a municipal corporation, its Chief of Police, Thomas King, and one of its police sergeants, Robert Stewart. All individual defendants are sued in both their individual and official capacities.

Plaintiff alleges that jurisdiction here exists on federal constitutional violations of Amendments I, V, VI, and XIV; Title 42 U.S.C. §§ 1973, 1981, 1983, and 1985; and Title 28 U.S.C. §§ 1331, 1343. Plaintiff also alleges a cause of action grounded on diversity jurisdiction, 28 U.S.C. § 1332, claiming damages in excess of $10,000, exclusive of interest and costs.

At this juncture of the proceedings, the issues presented to the Court for resolution arise from motions filed, respectively, by defendants Party, Bruno, Goble, Powers, and Raiche. Such motions seek dismissal pursuant to Rules 12(b) and (c), Fed.R.Civ.P. Their consideration brings into play the well-established and familiar requirement that the material facts alleged in the complaint are to be construed in the light most favorable to plaintiff and taken as admitted, with dismissal to be ordered only if plaintiff is not entitled to relief under any set of facts he could prove. Chasan v. Village District of Eastman, 572 F.Supp. 578, 579 (D.N.H.1983), aff’d without opinion 745 F.2d 43 (1st Cir.1984) (and cases therein cited). Thus construed, the relevant facts are as follows.

Plaintiff announced his presidential candidacy on September 12, 1983, at the National Press Club in Washington, D.C. He subsequently became aware that New Hampshire Democrats were planning to hold a so-called Mini-Convention on October 29, 1983, at New Hampshire College (“NHC”). Plaintiff accordingly sent in the requisite fee for attendance at such meeting and came to New Hampshire on October 28. On the evening of such date he attended a social gathering held in honor of the incumbent Democratic Mayor of Manchester, who was running for reelection. At such gathering, plaintiff was introduced as and given equal attention to that afforded other announced presidential candidates who were then present.

On the morning of October 29, 1983, plaintiff proceeded from his motel to NHC, where he procured his credentials and met with defendant Bruno. Plaintiff informed Bruno of his desire to participate in the presidential candidates’ forum which was scheduled to be held that afternoon. Bruno assured plaintiff that plaintiff would in fact be allowed to so participate. After “working the crowd”, i.e., introducing himself to others arriving to participate in the meeting, plaintiff returned to his motel to prepare his remarks for participation in the afternoon forum.

On his return that afternoon to NHC, plaintiff discovered that a table had been set up for prospective participants, in the forum with nameplates thereon. Noticing that his own name was absent, he again sought out Bruno, who then advised him that it had been decided that plaintiff would not be allowed to participate in the candidates’ forum.

Unhappy with this turn of events, plaintiff took a seat at the table reserved for such candidates. A person identifying himself as a member of the security force requested plaintiff to leave this position, but plaintiff declined. Defendant Goble then appeared, identified himself to plaintiff as the Chief of Security, and again requested plaintiff to remove himself from the platform. Plaintiff agáin declined, the police were summoned, and plaintiff was arrested, handcuffed, and removed from the premises of NHC.

At the Manchester Police Station, plaintiff was booked on a charge of criminal trespass and subsequently released on bond. At a subsequent time, defendant King caused his offense to be reduced to a charge of “disorderly conduct”. Trial on this latter charge was held in the month of November 1983 and resulted in plaintiff’s acquittal.

Plaintiff alleges the acts of the defendants in “disinviting” him from participation in the candidates’ forum were motivated by his known opposition to the position of most of the other candidates on the issue of “gay rights”. His ten-page, 55-paragraph complaint sets forth three causes of action: (1) violation of his constitutional rights; (2) false arrest and false imprisonment; and (3) malicious prosecution. The Court discusses these claims seriatim.

1. The Constitutional Claims

Plaintiff alleges that Party and the individual nonmunicipal employee defendants individually and in conspiracy with the police sought to injure him and deny him his constitutional rights of free speech and association pursuant to the First Amendment. Specifically, plaintiff alleges that the “Mini-Convention” was an official Democratic Party function in which plaintiff had been assigned a place as a forum participant and that denial of his participation therein deprived him of such constitutional rights. Plaintiff alleges that such actions of the defendants were under color of state law.

Otherwise stated, plaintiff’s basic constitutional claim is that by “disinviting” his participation in the forum defendants violated his civil rights in derogation of the provisions of 42 U.S.C. § 1983 and the Fourteenth Amendment. Title 42 U.S.C. § 1983 does not reach private action, but rather “prohibits interference with federal rights under color of state law”. Rendell-Baker v. Kohn, 457 U.S. 830, 838, 102 S.Ct. 2764, 2770, 73 L.Ed.2d 418 (1982). The identical issues in determining the viability of suits under either § 1983 or the Fourteenth Amendment is whether “the alleged infringement of federal rights [may be] ‘fairly attributable to the State’ ”. Id. at 838, 102 S.Ct. at 2770, quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, 102 S.Ct. 2744, 2754, 73 L.Ed.2d 482 (1982). “The ‘state action’ determination requires a fact-dependent inquiry into the degree of state control and involvement.” Mendez v. Belton, 739 F.2d 15, 17 (1st Cir.1984). We commence such inquiry with a brief outline of New Hampshire’s legislative approach to presidential primaries.

For most legislative purposes, the term “party” is defined to “mean any political organization which at the preceding state general election received at least 3 percent of the total number of votes cast for the office of governor”. New Hampshire Revised Statutes Annotated (“RSA”) 652:11 (Supp.1983). Since inception in 1949, the “first-in-nation” status of New Hampshire’s presidential primary has been jealously guarded. RSA 653:9 (Supp.1983). Its purpose is the election of “delegates to a national party convention”, RSA 652:6 (Supp.1983), such delegates being chosen by the voting of preference for presidential candidates. RSA 653:5 (Supp.1983).

In addition to the method of selection of national convention delegates, the New Hampshire statutes provide for the selection of delegates to state party conventions “in accordance with” certain geographical districts. RSA 653:6 (Supp.1983). A state party convention must be convened by the chairman of a state party committee, following the primary, and is to be held between the third Tuesday of September and the first Tuesday of October. RSA 667:21 (Supp.1983). Party nominees for certain state offices and delegates elected to attend the convention are to meet thereafter “for the purpose of adopting the platform of their party, nominating presidential electors and effecting an organization for the following 2 years.” Id. Only such nominees or state delegates may participate in such state convention. RSA 667:23 (Supp.1983).

From the foregoing description, it is clear that the gathering at New Hampshire College on October 29, 1983, was not a statutorily mandated convention of the state Democratic Party. Rather, it was a gathering of those interested in the ideas of the Democratic Party, to which meeting were admitted all those who were able to pay the requested fee for such entry. Nor was the rental of a building at NHC, a private college, for the purpose of such meeting equivalent to the establishment of a public forum. Contrast Widmar v. Vincent, 454 U.S. 263, 267-68 n. 5, 102 S.Ct. 269, 273 n. 5, 70 L.Ed.2d 440 (1981) (while a state university which allows students to meet on its premises thus creates a public forum, there is no constitutional basis for a holding that a campus must make all of its facilities equally available to students and nonstudents alike, or that a university must grant free access to all of its grounds or buildings).

Without pun intended, it is also clear that the final ballots are not yet counted on the issue of whether political candidacy comprises a “fundamental right”. Compare plurality opinion Clements v. Fashing, 457 U.S. 957, 963, 102 S.Ct. 2836, 2843, 73 L.Ed.2d 508 (per Rehnquist, J.) with dissent in same case, id. at 977 n. 2, 102 S.Ct. at 2849 n. 2 (per Brennan, J.). But the instant case does not concern itself with any restriction by either government or private entities of access to the ballot. The issue here is the plaintiff’s right to insist that his declaration of candidacy entitled him under the First Amendment to participation in a candidates’ forum, access to which had been specifically withdrawn from him.

It is to be remembered that the First Amendment does not guarantee the right to communicate one’s views at all times and places or in any conceivable manner. Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 647, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298 (1981); Greer v. Spock, 424 U.S. 828, 836, 96 S.Ct. 1211, 1216, 47 L.Ed.2d 505 (1976); Adderley v. Florida, 385 U.S. 39, 47-48, 87 S.Ct. 242, 247, 17 L.Ed.2d 149 (1966), reh’g denied, 385 U.S. 1020, 87 S.Ct. 698, 17 L.Ed.2d 559 (1967). As made applicable to the states by the Fourteenth Amendment, its command forbids interference by state governments with its principles. Hovan v. United Brotherhood of Carpenters and Joiners, 704 F.2d 641, 642 (1st Cir.1983).

It is also to be noted that political parties hold the strong and time-honored rights of free speech and association, and that interference with such freedoms is simultaneously an interference with the freedom of the party’s adherents. Cousins v. Wigoda, 419 U.S. 477, 487-88, 95 S.Ct. 541, 547, 42 L.Ed.2d 595 (1975). This freedom to associate for the common advancement of political beliefs necessarily presupposes the freedom to identify the people who constitute the association and to limit the association to those people only. Democratic Party of United States v. Wisconsin, 450 U.S. 107, 122, 101 S.Ct. 1010, 1019, 67 L.Ed.2d 82 (1981). Courts are thus well advised to move with caution before interfering with a party determination as to the choice of speakers who are to address any of its meetings. See Wymbs v. Republican State Executive Committee of Florida, 719 F.2d 1072 (11th Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 1600, 80 L.Ed.2d 131 (1984).

In short, there is here, taking the facts as pled most favorably to the plaintiff, insufficient evidence to demonstrate that the actions of the moving defendants were taken under color of state law. The evidence does not support a claim that a nexus existed between any involvement of the state in a private activity or a showing that the rented premises at NHC comprised a limited public forum sufficient to require that plaintiff be granted freedom to speak at the defendant’s forum. Nor is there any indication that denial of his right to do so barred him from other adequate avenues of communication, for he certainly could have sought from others in attendance in the audience action seeking to overrule the denial of his request to participate in the forum. See Cape Cod Nursing Home v. Rambling Rose Rest Home, 667 F.2d 238, 239-41 (1st Cir.1981). While the actions of the defendants in “disinviting” plaintiff’s participation in the forum might be considered by some to be either uncivil or discourteous, the law affords no damage remedy for the breach of good manners. There is accordingly no basis pursuant to 42 U.S.C. § 1983 on which plaintiff can recover against the moving party defendants.

It is similarly obvious that the Voting Rights Act, 42 U.S.C. § 1973 et seq., is not applicable, for there is no evidence of denial of the ballot on a discriminatory basis. And as there is no evidence of purposeful discrimination on the basis of race, 42 U.S.C. § 1981 is similarly not applicable. Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976).

And while 42 U.S.C. § 1985 clearly provides a civil remedy for both public and private infringements of constitutionally protected rights, Griffin v. Breckenridge, 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338 (1971), it is limited in application to cases where the plaintiff is deprived of a constitutionally protected right or privilege and where such deprivation is based upon “some racial, or perhaps otherwise class-based invidiously discriminatory animus”. Id. at 102, 91 S.Ct. at 1798. Such being here absent, plaintiff fails to state a claim under 42 U.S.C. § 1985.

Accordingly, for the reasons hereinabove stated, the Court finds and rules that plaintiff has no cause of action for violation of any constitutional rights as against the moving party defendants, and their motions to dismiss must therefore be granted with respect to such claims.

2. False Arrest and False Imprisonment

Plaintiff’s own complaint admits that on two separate occasions he was asked by representatives of the defendants’ security forces to leave the forum platform, and that in each such instance he declined. Clearly, therefore, the defendants were within their rights to summon law enforcement officials to remove him from the platform. Probable cause to arrest exists when facts and circumstances within the knowledge of the person causing the arrest and of which such person has reasonably trustworthy information are sufficient to warrant a man of reasonable caution and prudence in the belief that the defendant is committing or has committed an offense. State v. Lemire, 121 N.H. 1, 4, 5, 424 A.2d 1135, 1138 (1981). Probable cause and “reasonable ground” are synonymous, and determination of the existence of probable cause requires only a showing of reasonable probabilities, as proof beyond a reasonable doubt is not required. State v. Reynolds, 122 N.H. 1161, 1163, 453 A.2d 1319, 1320 (1982).

False imprisonment is the unlawful restraint of an individual’s personal freedom, Welch v. Bergeron, 115 N.H. 179, 181, 337 A.2d 341, 343 (1975), an essential element of which is the absence of valid legal authority for the restraint imposed. Id. As it is here clear that the evidence with respect to the moving party defendants actually supports the validity of plaintiff’s arrest and subsequent removal to the police station, it is clear that he asserts against them no valid constitutional or tort claim for either false arrest or imprisonment.

3. Malicious Prosecution

The disorderly conduct charge on which plaintiff’s prosecution was grounded came into existence as a result of subsequent action on the part of defendant King. A successful action for malicious prosecution requires proof that plaintiff was subjected to a criminal prosecution instituted by the defendant without probable cause and with malice, and that the criminal proceeding terminated in his favor. Johnston v. Flatley Realty Investors, 125 N.H. 133, 480 A.2d 55, 57 (1984); Hogan v. Robert H. Irwin Motors, Inc., 121 N.H. 737, 739, 433 A.2d 1322, 1324 (1981); Stock v. Byers, 120 N.H. 844, 846, 424 A.2d 1122, 1123 (1980). The existence of probable cause is a question of law for the Court when, as here, the facts are taken as established, Hogan, supra at 740, 433 A.2d 1325; Stock, supra at 847, 424 A.2d at 1124. And the absence of probable cause cannot be inferred from even express malice for

[i]f the defendant had such information as would reasonably lead him to believe that the accused had committed a crime, it is immaterial that the defendant may have been actuated by malice or by motives that were less than noble in bringing the charge.

Stock, supra, 120 N.H. at 848, 424 A.2d at 1124 (citations omitted).

Here, the plaintiff’s factual evidence with respect to malicious prosecution, as with respect to his claims for false arrest and false imprisonment, fall short of the proof required to sustain such actions, either in the constitutional rights context or in the state tort law context.

4- Conclusion

The facts in the instant action are quite similar on their face to those presented the court in McIntosh v. White, 582 F.Supp. 1244 (E.D.Ark.1984). In that case plaintiff, a black citizen, opposed to the policies of the incumbent governor, purchased for cash a ticket to a fundraising luncheon designed to aid such governor’s campaign for reelection. Plaintiff then advised the governor in writing that plaintiff intended to speak at the luncheon. As the Vice President of the United States was the featured guest speaker, plaintiff inquired of the governor in such correspondence as to whether he should speak before or after the Vice President.

The Secret Service, concerned with security problems, met and conferred with plaintiff and secured an agreement from him that he would not approach the head table where the Vice President would be seated and would not interfere with the latter’s speech. As the result of such meeting with plaintiff, the Secret Service was of the impression that he planned to speak at the meeting from his seat in the audience.

On the day of the luncheon, plaintiff arrived at the door with his ticket, but was there met by the chairman of the luncheon, who was accompanied by state police officers. He was advised that his purchase of a ticket for cash was in violation of a state fair political practices act, and therefore he would be given a refund but would not be allowed to enter the hall. Repeated suggestions that he accept a refund were refused by plaintiff, who insisted on entry, and the police then advised plaintiff that he could not enter this private function and that his ticket was not valid. When plaintiff refused to leave, he was arrested and subsequently .tried and acquitted on a charge of disorderly conduct. There, as here, the court found that plaintiff stated no cause of action either for violation of his constitutional rights or under the tort law claims for false arrest or malicious prosecution.

In short, the Court here finds and rules that plaintiff possessed no legal right to insist that he be granted the right to speak at the forum on October 29, 1983. When he persisted in his refusal to withdraw from the platform from which the speakers were to address the audience, the moving defendants herein were within their rights to seek that he be removed therefrom so that the gathering could go about its business. Relevant to the instant action is the following language from the First Circuit.

Here, defendants asked for police assistance in support of what they reasonably—and rightly—believed to be their legitimate property rights. Since the plaintiffs had no right to be on the property, the police action in removing them could not in itself create such a right where none existed before. Plaintiffs are attempting to create a first amendment right of access simply from the police involvement in arresting them. This bootstrap argument would turn any arrest in support of private rights into state action, thereby eviscerating the requirement. See Note, State Action: Theories for Applying Constitutional Restrictions to Private Activity, 74 Colum.L.Rev. 656, 677 (1974). Whatever the force such arguments might have in the context of race discrimination and equal protection, see Adickes, 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142; Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), they do not serve to create a first amendment right of access where none would otherwise exist. Cf. Note, supra, 74 Colum.L.Rev. at 680 (even under the Shelley v. Kraemer analysis of state action, a ‘private homeowner should be able to exclude others for whatever reason because his property interest is paramount to those of would-be trespassers’).

Cape Code Nursing Home v. Rambling Rose Rest Home, supra, 667 F.2d at 243.

For the reasons hereinabove detailed, the motions of the defendants Party, Bruno, Gobel, Powers, and Raiche seeking dismissal of the instant actions must be and they are herewith granted.

SO ORDERED.

      . Defendant Bruno is described as the State Chairman of the Democratic Party, defendant Goble as the Chief of Security for the October 1983 meeting, and defendants Powers and Raiche as Co-Chairpersons for said meeting.

      . New Hampshire College is a private college offering a variety of courses leading to Associate and Bachelor’s Degrees. It operates from two geographically separated campuses situated in the northern outskirts of Manchester, the largest city in the state of New Hampshire.

      . Before addressing plaintiffs claims in the context of the pending motions, the Court disposes of the claim of defendant Party that all actions against it should be disposed of because it is not a properly named legal party. In federal courts, an "unincorporated association ... may be sued in its common name for the purpose of enforcing ... against it a substantive right existing under the Constitution or laws of the United States”. Rule 17(b), Fed.R.Civ.P. The Court finds that the common understanding of most citizens of New Hampshire is that there is in existence a New Hampshire Democratic Party, commonly referred to and contributed to as such, which meets regularly in convention. There is therefore no merit to the claim that Party is not here a proper defendant. See Ripon Society v. National Republican Party, 525 F.2d 567, 571-72 n. 5 (D.C.Cir.1975) (en banc), cert. denied, 424 U.S. 933, 96 S.Ct. 1148, 47 L.Ed.2d 341 (1976).

      . As hereinabove indicated, plaintiff also claims deprivation of rights pursuant to the federal "Voting Rights" Act, 42 U.S.C. § 1973 et seq., as well as violation of his rights under other provisions of the Civil Rights Acts as detailed in 42 U.S.C. §§ 1981 and 1985. These additional claims will be later discussed in the course of the Order.

      . The exception is found in RSA 664 (Supp. 1983), which governs "political expenditures” and "contributions”. Section 2 of RSA 664 specifically holds that the definition of "party” in 652:11 is not applicable in such context, and defines “party” to mean "any political organization or number of persons which can nominate candidates in any manner prescribed by law and has done so for the current election".

      . RSA 653:9 (Supp.1983) provides for holding of the presidential primary election on the second Tuesday in March “or on the. Tuesday immediately preceding the date on which any other state shall hold a similar election, whichever is earlier".

      . Indeed, in passing the Court notes that plaintiff has attached to his legal memo a copy of what purports to be a contemporaneous news description of the events which took place at NHC on October 29, 1983. In addition to the description of what occurred with respect to plaintiff, there is a reference therein to a complaint of the NHC student government president, a Republican in politics, that use of the NHC building by the Democrats is to be equated with a denial of access “to our own campus".

      . RSA 594:10 I permits arrest without warrant on a charge of misdemeanor whenever the officer "has reasonable ground to believe” that the arrestee has committed the misdemeanor in the presence of the officer.

      . Plaintiff is not saved by his vague allegations of "conspiracy” between the moving party defendants and the police. This Circuit requires more specificity as to facts underlying such claims in cases of this nature. Glaros v. Perse, 628 F.2d 679, 685 (1st Cir.1980). As an attorney, plaintiff should be able to supply the Court with such pleading.