statement. After conceding that he might have made the remark to McDevitt, and after defending it as being just common sense, Lecce then testified that he "didn't care" if Stokes became a placing judge. The jury might well have disbelieved this expression of lack of concern. Although defense counsel argued to the jury that the Florida conversation between Lecce and Baranello referred only to the fact that Stokes would not be back as a steward, the jury was free to conclude that Lecce intended the "ex-manager" simile to apply whether Stokes "sat on the bench" as a management steward or as a placing judge.
There is further support for the jury's conclusion. The evidence revealed, and Baker was certainly aware, that qualified officials whose names had been submitted by the various associations had been routinely approved, yet he made inquiries about whether Stokes would be approved. He apparently had no doubt about approval for everyone else on his list. Baker's concern, as attested to by LeJohn, could well have corroborated for the jury that Baker, as his testimony indicated, had been informed by someone in power that Stokes' name ought to be removed. Significantly too, LeJohn, who worked closely with Lecce, gave Baker no assurance that Stokes would be approved.
In sum, although there is very little direct evidence in the record, there is ample circumstantial evidence to support the jury's verdict that Lecce used the power of his office to deprive Stokes of employment by the Associations as a placing judge. Defendant's motion for new trial on the ground that the verdict is against the weight of the evidence will accordingly be denied.
Defendant also contends that a new trial should be ordered because the jury's verdict on damages is excessive. It is within the power of the court to set aside a verdict and grant a new trial if damages awarded are such as to shock the court's conscience. The award of damages here was well within supportable limits.
There is clear evidence that plaintiff lost approximately $7,000 in wages for the 1972 racing season. Defendant's main contention concerns the approximately $3,000 which the jury awarded for damage to Stokes' reputation. He argues that the evidence compels the conclusion that Stokes suffered no damage to reputation. Those witnesses who testified to Stokes' prior excellent reputation in the racing community made it clear they still held him in highest regard. More significant from the defendant's standpoint, although Stokes didn't work as a racing official in 1972, he was hired as a steward by the Ontario Jockey Club in March 1973 and was paid at the rate of $150 a day. Shortly thereafter, he accepted a position at Delaware Park for the summer of 1973, leaving Ontario for a job closer to home. At the time of trial, although he was not working, Stokes "had several opportunities to work within the next month" when the racing season started. A man with a damaged reputation in the racing community, defendant argues, would not have had the choice of jobs Stokes had.
Charging the jury on the subject of reputation damage, I conveyed my doubt that Stokes had suffered any compensable damage of this sort. (N.T. 415). Nevertheless, there was testimony on which the jury could have found that questions were being raised as to Stokes' sobriety, integrity, etc., by reason of his failure to be approved as a placing judge. It is not my function to substitute my judgment for that of the jury. Certainly the amount awarded does not, under the circumstances, shock my conscience. Cf. Mainelli v. Haberstroh, 237 F. Supp. 190 (M.D. Pa. 1964), aff'd, 344 F.2d 965 (3d Cir. 1965); Peterson v. Calmar S.S. Corp., 296 F. Supp. 8 (E.D. Pa. 1969).
(b) Judgment N.O.V.
The second aspect of defendant's motion is that even if his involvement was adequately proven, his intervention and the resulting loss by Stokes of the job as placing judge does not constitute a violation of the Civil Rights Act and requires grant of a judgment n.o.v.
Stokes' cause of action against Lecce is based on 42 U.S.C. § 1983,
the Civil Rights Act of 1871. Section 1983 prescribes two elements as requisites for recovery: (1) the conduct complained of must have been by some person acting under color of law; and (2) such conduct must have subjected the complainant to some deprivation of rights secured to him by the Constitution and laws of the United States. Basista v. Weir, 340 F.2d 74, 79 (3d Cir. 1965).
Lecce's influence on Baker to remove Stokes' name was quite plainly conduct under color of law. Lecce was Chairman of the State Horse Racing Commission. Anything he said to Baker about Stokes, and any intimations he made about whether the Association's list of officials would be approved were directly related to his official capacity. His ability to influence Baker, General Manager of the Associations, stems precisely from the fact that he was Chairman of the State Racing Commission, and not a private individual. But defendant contends that his conduct did not deprive Stokes of a constitutional right, consequently the other prerequisites of a § 1983 action is missing. Defendant says the only relevant constitutional right seems to be the Fourteenth Amendment -- "no state shall deprive any person of life, liberty or property without due process of law." Defendant contends that Stokes had no property right in employment as a placing judge -- at least not before his name was actually before the Commission for approval following a submission by a private association.
"Thus, since it is only appointment and submission by the private Association which creates the claim of entitlement to employment and gives rise to a Constitutionally protected property right, any right to due process is conditional on such appointment and submission." Citing Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972) (Brief, p. 9)
It is defendant's position that if Stokes' name was withdrawn by the private association before it was acted upon by the Commission, that was purely private action against which the Constitution affords no protection.
Unquestionably if this case involved only a voluntary withdrawal of Stokes' name by a Racing Association, i.e., a revocation of an offer of a job, even if the offer had been accepted by Stokes, there is no constitutional deprivation by such private action. But that is not what is involved in this case. Plaintiff contends, and his evidence supports the contention that Lecce, the Chairman of the State Racing Commission, caused his name to be withdrawn by the private association, and effectively deprived him of the property right to the job which had been offered to him and which he had accepted. Defendant appears to concede that if plaintiff's name had been formally submitted by the Association to the Commission for approval, and if the defendant as Chairman of the Commission had ordered the Executive Secretary to remove the name from the list, thereby preventing action by the full Commission, such conduct would violate plaintiff's property right in the employment as placing judge. Proceeding from that, it appears equally clear to me that defendant must concede
that if the evidence had disclosed that he had made an open threat to use the power of his office to harass the Association unless it withdrew plaintiff's name, he would equally effectively have caused the removal of plaintiff's name. Here there was no flagrant open threat, but there was, as discussed above, sufficient evidence upon which the jury could conclude that by veiled threat, "for the sake of harmony," Lecce had used the power of his office to cause the Association to remove plaintiff's name, that he had used the power of his office to terminate an employer-employee relationship which had already been established between plaintiff and the Association, notwithstanding that the time for performance was not to commence until sometime in the future. "This informal, behind the scenes exertion of state authority is as much within the scope of § 1983 as the more usual examples of formal and open action leading to the denial of federal rights." Kletschka v. Driver, 411 F.2d 436, 447 (2d Cir. 1969).
From several of the questions asked during the trial, and from defendant's reliance on the Roth decision, there appears to be some confusion as to the nature of the property right involved here. This is not a case in which plaintiff is claiming entitlement to be reappointed to a job by the Commission, a situation more nearly analogous to Roth. In this case plaintiff claims a property right in the purely private employment relationship entered into between the Association and him. True enough, his appointment was subject to approval by the Commission, but as I interpret 15 P.S. § 2660, and as I instructed the jury, the Commission's role is limited to determining whether the officials appointed by the Association are qualified. Compensation of judges and starters is fixed by the Commission, but they are paid by the Associations. They are not state employees. The legislature apparently limited the Commission's role to insuring that officials were qualified, without burdening the Commission with the responsibility for the actual selection and hiring. The testimony reveals that the Commission has operated in conformity with that view of the statute. Qualified officials whose names have been submitted by the Racing Associations have been automatically approved. (N.T. 126-27; 283).
It would not be accurate to state that Stokes had a constitutionally protected interest in the job as placing judge. As between Stokes and the Racing Associations, the latter could have changed its mind and withdrawn the appointment, or it might have terminated the employment at anytime, at the most risking a breach of contract claim. The constitutionally protected right which Stokes did have was to be free from the exertion of the power of a state official's office to interfere with the employer-employee relationship. It was left for the jury to determine how long that relationship between the Associations and Stokes would have continued but for the interference by Lecce. By its verdict, the jury determined that the relationship would have lasted for the entire year during which Stokes was unable to obtain other employment as a racing official.
It should be noted that the evidence supports a finding of deprivation of rights by Lecce under color of state law in either of two ways. First, by the threat (albeit veiled) of some state sanctioned reprisal against the Associations if Stokes' name was not withdrawn, and second, by denying Stokes due process in the withholding of Commission approval of his appointment as a placing judge. At trial and in his brief on the post trial motion, Lecce has gone to great pains to point out that Stokes had not been disapproved since his name was never actually before the Commission. In my view, the fact that Stokes' name was not formally before the Commission is not dispositive of the due process issue. If Lecce, by his conduct, deliberately circumvented regular procedure and prevented Stokes' name from reaching the Commission, he just as effectively deprived Stokes of due process as if the name had been submitted and had been disapproved arbitrarily and summarily.
As Justice Frankfurter wrote, "Fairness of procedure is 'due process in the primary sense.' It is ingrained in our national traditions and is designed to maintain them." Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, 161, 95 L. Ed. 817, 71 S. Ct. 624 (concurring opinion) (citation omitted). Procedural regularity, as defined by law, regulations, and custom, is our basic safeguard against arbitrary and capricious abuse of official power. The due process clause prohibits government officials from jettisoning regular procedures whenever they perceive their objectives to be of overriding importance. Lecce may have borne Stokes no personal animosity and may have sincerely believed that a house cleaning was in order and that Liberty Bell would operate more smoothly without Stokes. But if he wanted to block Stokes' appointment, in the absence of a legislative alteration of § 2660, he was obligated to do so by allowing the matter of Stokes' qualifications to be resolved through fair procedures before the Commission. The due process clause brooks no other means of achieving the Commissioner's ends.
The alternative motion for judgment n.o.v. will be denied.
2. Plaintiff's Motion for Assessment of Attorney's Fee
In Hall v. Cole, 412 U.S. 1, 36 L. Ed. 2d 702, 93 S. Ct. 1943 (1973), a case arising under the Labor-Management Reporting and Disclosure Act of 1959, 29 U.S.C. § 412, Justice Brennan discussed at some length the principles governing the propriety of the award of attorney's fees to a successful plaintiff. The following quotation of portions of that discussion (footnotes and citations are omitted) capsulizes the applicable principles:
"Although the traditional American rule ordinarily disfavors the allowance of attorneys' fees in the absence of statutory or contractual authorization, federal courts, in the exercise of their equitable powers, may award attorneys' fees when the interests of justice so require. Indeed, the power to award such fees 'is part of the original authority of the chancellor to do equity in a particular situation,' . . . and federal courts do not hesitate to exercise this inherent equitable power whenever 'overriding considerations indicate the need for such a recovery. ' . . .
"Thus, it is unquestioned that a federal court may award counsel fees to a successful party when his opponent has acted 'in bad faith, vexatiously, wantonly, or for oppressive reasons. ' . . . In this class of cases, the underlying rationale of 'fee shifting' is, of course, punitive, and the essential element in triggering the award of fees is therefore the existence of 'bad faith' on the part of the unsuccessful litigant.