Anderson v. Conboy

• Decision Date: 10 September 1998
• Docket Number: Docket No. 97-7677
• Citation: 156 F.3d 167
• Parties: 77 Fair Empl.Prac.Cas. (BNA) 1278, 74 Empl. Prac. Dec. P 45,552 Linden D. ANDERSON, Plaintiff-Appellant, v. Kenneth CONBOY, Investigations and Review Officer, Defendant, United Brotherhood of Carpenters and Joiners of America, Sigurd Lucassen, General President, District Council of New York City and Vicinity, Frederick W. Devine, and Local 17, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

Page 167

156 F.3d 167

77 Fair Empl.Prac.Cas. (BNA) 1278,

74 Empl. Prac. Dec. P 45,552

Linden D. ANDERSON, Plaintiff-Appellant, v. Kenneth CONBOY, Investigations and Review Officer, Defendant,

United Brotherhood of Carpenters and Joiners of America,

Sigurd Lucassen, General President, District

Council of New York City and Vicinity,

Frederick W. Devine, and Local

17, Defendants-Appellees.

Docket No. 97-7677.

United States Court of Appeals, Second Circuit.

Argued Dec. 5, 1997.

Decided Sept. 10, 1998.

Paul Schachter, Reinhardt & Schachter, Newark, NJ (Nancy Macirowski, of counsel), for Plaintiff-Appellant.

Lawrence R. Sandak, Sive Paget & Riesel, New York City (Michael S. Bogin, Sandra Song, of counsel), for Defendants-Appellees.

Before: WINTER, Chief Judge, LEVAL, Circuit Judge, and GOLDBERG, ^* Judge.

WINTER, Chief Judge:

Linden Anderson, a former Business Representative of Local 17 of the United Brotherhood of Carpenters and Joiners ("UBC"), appeals from the dismissal of his complaint by Judge Haight. In that complaint, Anderson alleged, inter alia, that appellees violated 42 U.S.C. § 1981 by discharging him because he was not a citizen of the United States. Judge Haight held that Section 1981 does not prohibit alienage discrimination by private actors. The correctness of that ruling is the sole question on appeal.

Anderson is a citizen of Jamaica who immigrated to the United States in 1968. He began working for Local 17 in 1973. Local 17 is presently governed under the terms of a consent decree, otherwise not pertinent here, that gives various powers to Investigations and Review Officer Kenneth Conboy. In June 1992, Anderson was elected to the position of Business Representative of Local 17. Section 31(A) of the UBC Constitution provides in relevant part:

No member shall be eligible to be an officer or business representative, delegate or committee member unless such member is a citizen of the United States or Canada, and the member, to be eligible to serve in any such capacity, must be a citizen of the country in which the Local Union is located.

In August 1994, upon learning that Anderson was not a United States citizen, Conboy informed Anderson that he was ineligible to serve as Business Representative. Anderson was removed from his position on September 19, 1994.

Anderson then filed the instant complaint, claiming: (i) discrimination on the basis of alienage, in violation of 42 U.S.C. § 1981; (ii) discrimination on the basis of alienage, in violation of the New York City Human Rights Law; and (iii) violation of the Labor-Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 411(a)(5). The District Council and its President, Frederick W. Devine, filed cross-claims against Conboy for indemnification.

Acting under Federal Rule of Civil Procedures 12(b)(6), Judge Haight dismissed all Section 1981, as amended by the Civil Rights Act of 1991, Pub.L. No. 102-166, § 101, 105 Stat. 1071, 1071-72, prohibits certain kinds of discrimination in the making and enforcement of contracts, including contracts of employment. The disputed issue here is whether it prohibits alienage discrimination by private parties. Prior to the 1991 amendment, the circuits were divided on the question. Compare Duane v. GEICO, 37 F.3d 1036 (4th Cir.1994) (before 1991 amendment, Section 1981 prohibited private discrimination against aliens) with Bhandari v. First Nat'l Bank of Commerce, 829 F.2d 1343 (5th Cir.1987) (en banc) (Section 1981 prohibits alienage discrimination under color of law but does not extend to discrimination by private actors), vacated and remanded, 492 U.S. 901, 109 S.Ct. 3207, 106 L.Ed.2d 558 (1989) (in light of Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989)), reaffirmed on remand, 887 F.2d 609 (5th Cir.1989) (per curiam). Prior to the instant matter, we have had no occasion to consider the question. One district court in this circuit has held that the pre-1991 version of Section 1981 extended to alienage discrimination, but not to alienage discrimination by private parties, see Ben-Yakir v. Gaylinn Assocs., Inc., 535 F.Supp. 543 (S.D.N.Y.1982) while another has held that it did not prohibit alienage discrimination by state or private actors, see Rios v. Marshall, 530 F.Supp. 351 (S.D.N.Y.1981).

                claims and cross-claims against Conboy, concluding that he was entitled to absolute immunity from suit for his conduct as court-appointed Investigations and Review Officer.  See Anderson v. Conboy, No. 94 Civ. 9159, 1997 WL 177890, at * 4-* 8 (S.D.N.Y. April 14, 1997).  Anderson does not appeal from that ruling.  As to Anderson's claims against the remaining defendants, Judge Haight concluded that Anderson had abandoned his LMRDA claim, See id. at * 9, and that Section 1981 does not prohibit private alienage discrimination, See id. at * 9-* 11.   Having disposed of Anderson's federal claims, Judge Haight declined to exercise supplemental jurisdiction over the alienage discrimination claim under New York City Law.  Anderson appeals only from the dismissal of his Section 1981 claim
                

Anderson argues that before the 1991 Civil Rights Act, Section 1981 prohibited (at least) state action that discriminated on the basis of alienage in the making and enforcement of contracts, and that the 1991 amendment extended Section 1981's coverage to private alienage discrimination. This post-1991 effect of Section 1981 is a question of first impression in this (or any) circuit, although two district courts have taken the position advocated by Anderson, see Cheung v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 913 F.Supp. 248 (S.D.N.Y.1996); Chacko v. Texas A & M Univ., 960 F.Supp. 1180 (S.D.Tex.1997), aff'd, 149 F.3d 1175 (5th Cir.1998), while one has taken the opposite position. See Murtaza v. New York City Health & Hosps. Corp., No. 97-CV-4554, 1998 WL 229253 (E.D.N.Y. Mar. 31, 1998).

We hold that Section 1981, at least since the 1991 amendment, proscribes private alienage discrimination with respect to the rights set forth in the statute. We therefore reverse.

DISCUSSION

We review de novo a district court's dismissal of a complaint under Federal Rule of Civil Procedure 12(b)(6). Section 1981 ¹ applies to all incidents of the contractual It is established that Section 1981 prohibits discrimination based on race in the making and enforcement of contracts, see Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), and extends to private as well as state actors in that regard. See Patterson v. McLean Credit Union, 491 U.S. 164, 172, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989); Saint Francis College v. Al-Khazraji, 481 U.S. 604, 609, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987); Runyon v. McCrary, 427 U.S. 160, 170-71, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976); Johnson, 421 U.S. at 459-60, 95 S.Ct. 1716. The prohibition against racial discrimination encompasses discrimination based on ancestry or ethnic characteristics. See Al-Khazraji, 481 U.S. at 613, 107 S.Ct. 2022; Magana v. Northern Mariana Islands, 107 F.3d 1436, 1446-47 (9th Cir.1997). It is also settled that Section 1981 does not prohibit discrimination on the basis of gender or religion, see Runyon, 427 U.S. at 167, 96 S.Ct. 2586; national origin, see Al-Khazraji, 481 U.S. at 613, 107 S.Ct. 2022; Von Zuckerstein v. Argonne Nat'l Lab., 984 F.2d 1467, 1472 (7th Cir.1993); or age, Kodish v. United Air Lines, Inc., 628 F.2d 1301, 1303 (10th Cir.1980).

relationship, including contract terminations. See 42 U.S.C. § 1981(b). The question, therefore, is whether Anderson falls within the class of persons protected by Section 1981.

Few cases have addressed whether Section 1981 prohibits discrimination on the basis of alienage and, if so, whether that prohibition extends to private actors. As to the latter question, Section 1981 was amended by Section 101 of the Civil Rights Act of 1991 to provide that "[t]he rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law." 42 U.S.C. § 1981(c). As we conclude later in this opinion, the amendment settles the latter question--whether the prohibition against alienage discrimination, if it exists, extends to private actors. However, we first address the more difficult question of whether discrimination on the basis of alienage was, at the time of the 1991 amendment to Section 1981, covered by the statute at all.

1. Section 1981 and Alienage Discrimination

Appellees first contend that the 1991 amendment's extension of Section 1981 to "nongovernmental discrimination" is irrelevant because Section 1981 does not prohibit alienage discrimination, public or private. There are few holdings on this issue but there is language in the caselaw to support this view. Many courts, ours included, have stated--or seemed to state--that a plaintiff must allege race discrimination to state a claim under Section 1981. ² The language of these cases is not dispositive because in none of them was the issue of alienage discrimination directly at issue. ³ There is language in other cases, however, stating that Section 1981 does prohibit such discrimination. ⁴

These cases are also less than dispositive because they did not involve claims of alienage discrimination. ⁵

However, the language, history, and structure of Section 1981, as well as caselaw directly addressing alienage discrimination, convinces us that, at the time of the 1991 amendment, Section 1981 prohibited (at least) governmental alienage discrimination.

a) Language

Section 1981 provides in relevant part that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens." 42 U.S.C. § 1981(a). The statute's juxtaposition of "[a]ll" and "white" suggests that it prohibits race discrimination, cf. McDonald v. Santa Fe Trail...