Abdulrahim v. Gene B. Glick Co., Inc.

• Decision Date: 26 June 1985
• Docket Number: Civ. No. F 84-337.
• Citation: 612 F. Supp. 256
• Parties: Osama ABDULRAHIM, Plaintiff, v. GENE B. GLICK COMPANY, INC., Defendant.
• Court: U.S. District Court — Northern District of Indiana

612 F. Supp. 256

Osama ABDULRAHIM, Plaintiff, v. GENE B. GLICK COMPANY, INC., Defendant.

Civ. No. F 84-337.

United States District Court, N.D. Indiana, Fort Wayne Division.

June 26, 1985.

COPYRIGHT MATERIAL OMITTED

Ernest M. Beal, Steven L. Jackson, Parrish, Knight, Jackson & Beal, Fort Wayne, Ind., for plaintiff.

Virginia Dill McCarty, James W. Beatty, Landman & Beatty, Indianapolis, Ind., Richard J. Thonert, Romero & Thonert, Fort Wayne, Ind., for defendant.

ORDER

WILLIAM C. LEE, District Judge.

This matter is before the court on defendant's ("Glick") motion to dismiss and to strike certain paragraphs in plaintiff's ("Abdulrahim") complaint. In essence, Glick seeks to have these paragraphs and certain other claims dismissed for failure to state a claim upon which relief can be granted. For the following reasons, the motion to dismiss will be granted in part and denied in part.

This cause arises out of Abdulrahim's employment with Glick during the summer of 1982, and his attempt to be reemployed by Glick during the summer of 1983. Abdulrahim sues under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and 42 U.S.C. § 1981, for alleged discrimination on the basis of his race, color, and national origin, as well as Indiana common law theories of fraud and negligent misrepresentation. Glick has moved to dismiss several claims and paragraphs in the complaint under Rule 12(b)(6) of the Federal Rules of Civil Procedure.

In deciding a motion to dismiss for failure to state a claim, this court must take the well pleaded factual allegations of plaintiff's complaint as true. Ashbrook v. Hoffman, 617 F.2d 474 (7th Cir.1980). A complaint should be dismissed for failure to state a claim only if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). However, Conley has never been interpreted literally. Sutliff, Inc. v. Donovan Companies, 727 F.2d 648, 654 (7th Cir.1984). The test is whether a complaint contains either direct or inferential allegations respecting all the material elements necessary to sustain a recovery under some viable legal theory. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1106 (7th Cir.1984). This court must consider the complaint in the light most favorable to the plaintiff and must resolve every reasonable doubt in favor of the claimant. Henry C. Beck Co. v. Fort Wayne Structural Steel, 701 F.2d 1221 (7th Cir.1983). "The heavy costs of modern federal litigation ... counsel against launching the parties into pretrial discovery if there is no reasonable prospect that the plaintiff can make out a cause of action from the events narrated in the complaint." Sutliff, 727 F.2d at 654.

Taking the allegations of the complaint as true, the relevant facts of this case are as follows. Abdulrahim is a United States citizen of Syrian descent whose "skin pigmentation is such that he may be perceived as `non-white.'" In June, 1982, he began working for Glick as a maintenance-groundsperson at Glick's Cambridge Square I apartment complex. He worked there until September 14, 1982. During the course of that employment, he was subjected to ethnic jokes and remarks by two members of Glick's management staff.

In September, 1982, Abdulrahim applied for two open maintenance-ground staff positions with Glick, but was not hired. He then spoke with Becky Altmanshofer, an executive manager of Glick, about future employment with Glick. Ms. Altmanshofer told Abdulrahim that she would take steps to insure that he was hired the following summer.

In the summer of 1983, Abdulrahim tried repeatedly to obtain summer employment with Glick, but was not rehired despite the fact that Glick had a past record of keeping summer help on their payroll year round and rehiring those people as summer workers the following year. While Abdulrahim was not rehired, other employees were rehired, and new employees were hired as well.

On June 21, 1983, Abdulrahim filed a charge with the Fort Wayne Metropolitan Human Rights Commission alleging discrimination on the basis of national origin. A right to sue letter issued on August 31, 1984, and Abdulrahim filed this suit on November 1, 1984. The suit alleges violations of Title VII in Count One, violations of § 1981 in Count Two, and fraud and negligent misrepresentation in Count Three.

Glick's motion to dismiss offers several grounds for dismissing particular portions of the complaint. The first seeks dismissal of the Title VII claim as it relates to the actions of Glick during Abdulrahim's 1982 employment on the grounds that the EEOC charge filed June 21, 1983 was untimely filed with respect to those claims. The second seeks dismissal of the § 1981 claim as it relates to the events of 1982 on the grounds of untimeliness as well. The third ground argues that charges of race and color discrimination in Count One should be dismissed because they were not alleged in the EEOC charge filed in June, 1983. The fourth ground urges dismissal of any Title VII or § 1981 claims arising out of the ethnic jokes and remarks directed at Abdulrahim on the grounds that there are no allegations of Glick involvement in or knowledge of the activity. The fifth ground seeks dismissal of the national origin claim under § 1981 because national origin is not a valid basis for a § 1981 claim, while the sixth ground argues that the race claim under Count Two fails because of a failure to allege that race was actually involved in Abdulrahim's case. Finally, the seventh ground challenges the common law counts, arguing that fraud cannot be based on a promise to perform in the future, while negligent representation is not a common law cause of action.

The court will consider each of these arguments in turn.

Timeliness of the EEOC Charge and the 1982 Incidents

Glick has spent a large portion of its briefs arguing that the EEOC charge filed June 21, 1983 was beyond all applicable time limits for filing a Title VII claim about the discrimination occurring during Abdulrahim's 1982 employment, thus justifying dismissal of Count One's Title VII claim as to those 1982 events.

As Glick correctly points out, the EEOC charge was filed on June 21, 1983, approximately 280 days after his last date of employment, September 14, 1982. Indiana is a deferral state; it requires that a complaint be filed with the local civil rights commission within ninety days of a discriminatory employment practice, I.C. 22-9-1-3. Abdulrahim's filing was clearly untimely if he wished to press a Title VII claim as to the 1982 events. While Title VII allows for a filing with the EEOC up to 300 days after the discriminatory practice occurred in a deferral state, 42 U.S.C. § 2000e-5(e), the failure to file a timely charge with the local commission prevents the 300 day limitation period from applying, so that the usual 180 day limitation for non-deferral states would apply. Battle v. Clark Equipment, 524 F.Supp. 683, 686 (N.D.Ind.1981); Gunn v. Dow Chemical Co., 522 F.Supp. 1172 (S.D. Ind.1981). Thus, if Abdulrahim were asserting that the events of 1982 give rise to Title VII claims, the claims arising out of those events would be time-barred, and thus would be dismissed.

However, it is apparent that Abdulrahim does not seek to present the 1982 events as Title VII claims, but as events which are relevant background information to the May, 1983 failure to rehire, which is the substance of Abdulrahim's Title VII claim. He admits as much in his brief in opposition, and the EEOC charge indicates this as well. Several courts, including those cited by Glick, hold that time-barred claims can be used as "relevant background" to a timely-filed claim:

A discriminatory act which is not made the basis for a timely charge is the legal equivalent of a discriminatory act which occurred before the statute was passed. It may constitute relevant background evidence in a proceeding in which the status of a current practice is at issue, but separately considered, it is merely an unfortunate event in history which has no present legal consequences.

United Airlines, Inc. v. Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 1889, 52 L.Ed.2d 571 (1977) (emphasis supplied). See Valentino v. United States Postal Service, 674 F.2d 56, 66 n. 11 (D.C.Cir.1982) ("employment practices in the time barred period may serve as relevant background evidence"); Hooker v. Tufts Univ., 581 F.Supp. 98, 101 (D.Mass.1983); James v. KID Broadcasting Corp., 559 F.Supp. 1153, 1155 (D.Idaho 1983). Some courts speak of the time-barred claims as useful in establishing a "continuing violation" of Title VII, see Hazlewood School Dist. v. United States, 433 U.S. 299, 310 n. 15, 97 S.Ct. 2736, 2742 n. 15, 53 L.Ed.2d 768 (1977); Stewart v. CPC International, Inc., 679 F.2d 117, 120-21 (7th Cir.1982); Valentino; others speak of the evidence as assisting in establishing a discriminatory intent or a pattern of discrimination, see Hooker; Hunter v. Westinghouse Elec. Corp., 576 F.Supp. 704, 722 n. 16 (S.D.Ohio 1983); Cormier v. P.P.G. Industries, Inc., 519 F.Supp. 211, 216 (W.D.La.1981), aff'd, 702 F.2d 567 (5th Cir.1983).

The message of this line of cases is that time-barred incidents of discrimination are not to be erased from a case because of their tardiness. Certainly, no relief can be obtained for those acts; the paragraphs alleging the 1982 events must be dismissed as Title VII claims. However, those events may be used as background to Abdulrahim's Title VII claim for failure to rehire; they may be probative evidence of Glick's intent. Thus, the court will grant the motion to dismiss those portions of the Title VII claim of Count One which pertain to the summer, 1982 events, but the court will deny the motion to strike the paragraphs setting forth the 1982 events.¹

Timeliness of § 1981 Claim for the 1982 Incidents

Glick argues...