MEDIA

December 10, 2004

Dismissal of § 1981 Equal Benefit Claim Denied

Published in: New York Law Journal | volume 231
Written by: Peter R. Schlam and Harvey M. Stone

In the U.S. District Court for the Eastern District of New York, Judge Sterling Johnson Jr. held that plaintiff’s conclusory claim of discriminatory retaliation by his employer could not survive a motion for summary judgment. Judge Raymond J. Dearie denied a motion to dismiss a § 1981 "equal benefit" claim despite the absence of any state action. Judge Arthur D. Spatt granted plaintiffs’ motion to dismiss the action with prejudice, over defendants’ opposition, after dismissing defendants’ counterclaims. And Judge Jack B. Weinstein remanded a case to state court after determining that preemption was a defense and that the preemption theories here did not fit under the Caterpillar exception.

Title VII–Unlawful Retaliation

In Butler v. Raytel Medical Corp., 98 CV 6446 (EDNY, Aug. 24, 2004), Judge Johnson granted summary judgment to defendant with respect to plaintiff’s Title VII claims that he was terminated for complaining about racially discriminatory treatment.

Plaintiff, a black male, alleged in his complaint that, before his discharge in February 1998, he had told defendant about unlawful discrimination by the manager of the unit where plaintiff worked. In his deposition plaintiff described verbal complaints he had made in late 1996 or early 1997 to defendant’s Human Resources Department and written complaints he had voiced in an opinion survey distributed to defendant’s employees in fall 1997. Plaintiff contended that his discharge was retaliation for these criticisms of unlawful employment practices.

Judge Johnson found plaintiff’s deposition testimony regarding his survey response to be deficient for failing to mention race or racial discrimination. While the response criticized the company for pay limitations, a demoralizing environment, nepotism and sycophantic conduct, plaintiff never showed that he was engaged in an activity protected by Title VII.

After his deposition, plaintiff submitted a declaration asserting that his survey response had also complained of discrimination against minorities. Under the "sham affidavit rule," the court did not consider that declaration, because: (1) the statement contradicted the prior testimony, (2) the issue of discrimination was thoroughly explored at the deposition, and (3) there was no other testimony contradicting the prior deposition. Slip op. 7-8, n. 4.

Nor could plaintiff salvage his claim by pointing to defendant’s discarding of the actual survey responses during a file clean up between June and October 1998. As Judge Johnson found, "[t]his is far from a ‘borderline case’ which could be ‘pushe[d] over the line’ by a showing of spoliation." Slip op. 6, n. 3 (citation omitted).

As to plaintiff’s verbal complaints to Human Resources, his deposition never described any clear focus on discrimination. Asked if he had complained about "racial discrimination," plaintiff testified, "I called it favoritism. My euphemism for discriminatory, not to be harsh. …" Regarding what he had "specifically" told Human Resources, plaintiff testified:

… just basically the things I have alleged here. Not going with the program. Why is it that if you are minority, especially black male, why do we feel the way we do or get this harsh treatment?

In short, when plaintiff briefly mentioned race in his deposition, "he spoke in vague terms and could not give details about what he alleged were discriminatory acts." Slip op. 9. "Indeed," the court stated, "it is difficult to say" whether plaintiff "reasonably" believed he had been the victim of racial discrimination.

In any event, plaintiff could not show a causal link between the purported protected behavior and the retaliation. Aside from the vagueness of his deposition testimony, the time lapse between plaintiff’s complaints to Human Resources and the discharge was a full year. On the facts here, this delay was fatal to plaintiff’s causation theory. Slip op. 10-11.

Equal Benefit–§ 1981

In Pierre v. J.C. Penney Co., 03 CV 4782 (EDNY, Nov. 3, 2004), Judge Dearie, declining to dismiss an "equal benefit" claim under 42 USC § 1981, held that plaintiff’s allegations of racially motivated assault, battery and false imprisonment fell within the reach of the statute, even though defendant was a private actor.

In this proposed class action, plaintiff asserted that J.C. Penney stores in the New York City-area single out black and African-American customers for extra scrutiny based on suspicions of shoplifting. In September 2002, J.C. Penney security guards from a Queens outlet accused plaintiff of shoplifting after she left the store without making a purchase. A search revealed no stolen merchandise. According to plaintiff, the guards forced her to return to the store, abused her verbally and physically and detained her for nearly three hours, pressuring her, without success, to sign a confession. Security personnel did not call the police or file a complaint against her, but plaintiff did file a police complaint against the store.

Plaintiff alleged here that she was singled out as a black person and that she saw only nonwhite shoppers in detention. The store, she claimed, violated § 1981’s "equal benefit" clause by subjecting her to false imprisonment, assault and battery, and unreasonable search and seizure.

Section 1981 provides that "[a]ll persons … shall have the same right … to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens. …" A claim under § 1981 requires, among other things, an allegation of racial discrimination.

As Judge Dearie noted, the U.S. Court of Appeals for the Second Circuit, unlike the Third and Eighth circuits, does not require an "equal benefit" claim to allege traditional state action. Phillip v. University of Rochester, 316 F3d 291, 292 (2d Cir. 2003). But Phillip provides little guidance on the necessary link, for purposes of § 1981, between a private actor and state "laws and proceedings." In Phillip, the nexus was clear: private university security officers, treating black students in a racist manner, summoned the police, who arrested four of the students and held them overnight. Here, by contrast, the store did not call in the police or start a legal proceeding against plaintiff.

Yet, in Judge Dearie’s view, plaintiff alleged a sufficient nexus between defendant and a "state law" for the protection of persons and property. As Judge Dearie observed, the legislative history of § 1981, which reveals a concern over racially motivated private acts, suggests that allegations of standard-fare torts, with no involvement by state actors, can satisfy the nexus element. The laws against assault, battery and false imprisonment allegedly violated here were clearly intended for the "security of persons." "To be sure," Judge Dearie added, "plaintiff does not allege the type of violent attack that originally concerned Congress. However, the severity of the harm does not offer a principled way to distinguish the cases." Indeed, the acts alleged by plaintiff are "more subtle, but no less invidious" examples of private discrimination. Slip op. 8.

The court, however, found plaintiff’s Fourth Amendment claims of unreasonable search and seizure to be defective for failure to allege state action.

Voluntary Dismissal

In Brown v. Brown, 03 CV 3359 (EDNY, Nov. 5, 2004), Judge Spatt granted plaintiff’s motion for voluntary dismissal of the complaint with prejudice, after dismissing defendants’ counterclaims. The decision addressed the "rarely encountered issue of when a plaintiff may discontinue an action with prejudice in the face of opposition." Slip op. 2.

Plaintiff sought to dismiss his amended complaint against his spouse, Sgt. Jane B. Brown, and other law-enforcement officials. The complaint alleged unlawful search and seizure, malicious abuse of process, larceny, forgery, endangering the welfare of a child, intentional infliction of emotional distress and negligence. A settlement agreement resolving a matrimonial action before the New York Supreme Court obligated plaintiff to dismiss the complaint with prejudice. Deputy Sheriff Eugene F. Brosnan, a defendant, objected to dismissal with prejudice because his state law counterclaims for malicious prosecution and abuse of process could not stand alone if plaintiff’s federal claims were dismissed.

Judge Spatt first addressed the validity of the counterclaims and found them meritless. The court dismissed Deputy Sheriff Brosnan’s claim for malicious prosecution because the action against him was still pending, it had not been resolved in his favor and he had not alleged special damages. Similarly, the court dismissed Deputy Sheriff Brosnan’s counterclaim for abuse of process because, even apart from the failure to allege special damages, such a claim cannot be based solely on the commencement of a civil action. With the counterclaims dismissed, the court granted plaintiff’s motion to dismiss the complaint with prejudice.

Remand and Preemption

In Alcantara v. Allied Properties, LLC, 04 CV 3313 (EDNY, Sept. 10, 2004), Judge Weinstein granted plaintiffs’ motion to remand the case back to Supreme Court, Queens County, rejecting defendants’ contentions that plaintiffs’ state law claims were preempted by the National Labor Relations Act and the Labor Management Relations Act.

In response to the Sept. 11, 2001 attacks, New York City passed the New York Displaced Building Service Workers Protection Law (NYDWPA), which provided building service workers the right to temporary continuance in employment under a new building owner. Plaintiffs had been employed as building service workers in residential buildings purchased by defendant Allied Properties LLC, which refused to retain plaintiffs pursuant to the NYDWPA after the purchase, and hired new workers.

Plaintiffs filed their complaint in Supreme Court, Queens County, alleging violations of the NYDWPA and seeking restoration of their employment, back wages and benefits. Defendants removed the action to the Eastern District. Plaintiffs moved to remand the action on the ground that there was no basis for federal jurisdiction.

As Judge Weinstein observed, a case may not be removed solely on the basis of a federal defense, including a preemption defense, but only when federal jurisdiction is clear from the face of a properly pleaded complaint. However, Caterpillar Inc. v. Williams, 482 US 386, 392 (1987), providing an exception to the well-pleaded complaint rule, holds that, for the purpose of the rule, the preemptive force of a statute may be so extraordinary that an ordinary state common-law complaint is converted into a complaint stating a federal claim.

Judge Weinstein then examined the preemption theories raised by defendants and determined that none fit into the Caterpillar exception. First, the court considered preemption under San Diego Bldg. Trades Council v. Garmon, which held that states are preempted from regulating activities that fall under § § 7 and 8 of the National Labor Relations Act, regulating concerted activities and unfair labor practices. Judge Weinstein rejected Garmon as a basis for removal here because it provides a defense, and most courts have held that it is not a basis for removal from state to federal court.

Second, the court considered the Supreme Court’s preemption doctrine in Lodge 76, Int’l Ass’n of Machinists v. Wisconsin Employment Relations Comm’n, 427 US 132 (1976), which preempts state law and state causes of action "concerning conduct that Congress intended to be unregulated." Judge Weinstein found that displaced worker laws, such as the one at issue here, did not disturb the regulatory framework and labor dispute resolution system established by the NLRA or the collective bargaining process scheme. Accordingly, the Machinists preemption doctrine did not apply.

Finally, Judge Weinstein considered preemption under § 301 of the Labor Management Relations Act. State law-based claims for violation of collective bargaining agreements are completely preempted if the application of state law requires the interpretation of a collective bargaining agreement. Judge Weinstein found that there was no collective bargaining agreement between plaintiffs and Allied Properties, and the alleged violation of the NYDWPA by Allied Properties did not require interpretation of plaintiffs’ collective bargaining agreement with the former owner, because Allied Properties never agreed to be bound by that agreement.

Peter R. Schlam and Harvey M. Stone are partners at Schlam Stone & Dolan.

[This article is reprinted with permission from the December 10, 2004, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]