Boddorff v. Publicker Industries, Inc.

Decision Date25 March 1980
Docket NumberCiv. A. No. 79-4023.
Citation488 F. Supp. 1107
PartiesHerbert E. BODDORFF, John M. Barley, Isabella Johnson, as Executrix of the Estate of John A. Johnson, Gordon B. Lane, Howard E. Reighard, Jr., Harold W. Reinert v. PUBLICKER INDUSTRIES, INC., and its subsidiary Continental Distilling Corp. and John Doe and Jim Doe.
CourtU.S. District Court — Eastern District of Pennsylvania

Robert D. Kaplan, Andrea B. Wapner, Peter A. Gold, Blank, Rome, Comisky & McCauley, Philadelphia, Pa., for plaintiffs.

Harry Reagan, Francis M. Milone, Lawrence B. Fine, Morgan, Lewis & Bockius, Philadelphia, Pa., for defendants.


TROUTMAN, District Judge.

The Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 623 (ADEA), generally proscribes arbitrary discrimination based on age in hiring and discharging workers. Lorillard v. Pons, 434 U.S. 575, 98 S.Ct. 866, 55 L.Ed.2d 40 (1978). Claiming violations of this statute, plaintiffs instituted this action to recover for defendants' allegedly discriminatory and willful termination of their employment. Specifically, plaintiffs assert that defendants discriminatorily terminated them because of their age and replaced them with younger individuals1, even though they, plaintiffs, were performing their jobs satisfactorily and had exemplary work records2. As recompense plaintiffs seek back pay with full retirement and pension benefits, liquidated damages and compensatory and punitive damages for "physical, emotional and mental injury and humiliation" which plaintiffs suffered as consequences of defendants' actions. The corporate defendants now move to dismiss part of the complaint.

First, defendants move to dismiss Count Two, in which plaintiffs claim that defendants' actions also violated the Civil Rights Act of 1866, 42 U.S.C. § 1981, which states, in pertinent part, that

all persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . and to the full and equal benefit of all laws and proceedings for the security of persons and property as enjoyed by white citizens
. . .

Enacted by virtue of the Thirteenth Amendment, the Civil Rights Act of 1866, from which § 1981 devolved, Ex parte Virginia, 100 U.S. 339, 25 L.Ed. 676 (1879), seeks to implement the Fourteenth and Fifteenth Amendments as well, Siegel v. Ragen, 180 F.2d 785 (6th Cir.), cert. denied, 339 U.S. 990, 70 S.Ct. 1015, 94 L.Ed. 1391 (1950), by conferring equality in civil rights before the law in all respects for all persons within its provisions.3 Basista v. Weir, 340 F.2d 74 (3d Cir. 1965). See also United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 (1875). Passed by Congress immediately following the Civil War, the Act, as a statutory analog to the Thirteenth Amendment, clearly intended to afford blacks a civil status equivalent to white people. Valle v. Stengel, 176 F.2d 697 (3d Cir. 1949). The standard of comparison, "as enjoyed by white persons", speaks directly to race and does not concern disparity in treatment on the basis of religion, sex or national origin. Similarly, 42 U.S.C. § 1982 grants to all citizens "the same right" to purchase and lease property "as is enjoyed by white citizens". The Supreme Court has construed this language as "dealing only with racial discrimination". Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413, 88 S.Ct. 2186, 2189, 20 L.Ed.2d 1189 (1968). In fact, the operative language of both § 1981 and § 1982 evolved from the original Act of 1866 and can be construed similarly. Tillman v. Wheaton-Haven Recreational Association, 410 U.S. 341, 93 S.Ct. 1090, 35 L.Ed.2d 403 (1973).

One of the original Act's proponents hailed the measure as a bellwether which would "break down all discrimination between black men and white men". Cong. Globe, 39 Cong., 1st Sess., 599 (Remarks of Sen. Trumbell of Illinois) (emphasis added). Consistently, the Supreme Court has interpreted § 1981 in terms of race. For example, in Jones v. Alfred H. Mayer Co., supra, the Court noted that

when the House passed the . . . Act, it did so on the same assumption that had prevailed in the Senate: It was believed that it was approving a comprehensive statute forbidding all racial discrimination affecting the basic civil rights enumerated in the Act.

392 U.S. at 435, 88 S.Ct. at 2200-2201 (emphasis added and footnote omitted). Later the Court remarked that

the legislative history of the 1866 Act clearly indicates a Congressional intention to protect a limited category of rights, specifically defined in terms of racial equality. As originally proposed in the Senate, § 1 of the bill that became the 1866 Act did not contain the phrase "as is enjoyed by white citizens". That phrase was later added in committee in the House, apparently to emphasize the racial character of the rights being protected.

Georgia v. Rachel, 384 U.S. 780, 791, 86 S.Ct. 1783, 1789, 16 L.Ed.2d 925 (1966) (emphasis added and footnote omitted). Finally, in Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) the Supreme Court wrote that the Act

on its face relates primarily to racial discrimination . . . § 1981 affords a federal remedy against discrimination in private employment on the basis of race.

Id. at 459, 95 S.Ct. at 1720 (emphasis added).4 To hold that § 1981 embraces claims of age discrimination would contradict not only decisions of virtually every circuit court of appeals,5 but also the district courts in every circuit,6 districts within this circuit,7 and the judges within this district.8 Because § 1981 is limited to claims of racial discrimination, plaintiffs' claims under this section must be dismissed for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b)(6).

In Count Three plaintiffs accuse their former employers and two fictional defendants of

intentionally, deliberately and invidiously acting in concert and embarking upon and pursuing a course of conduct, the goal of which was to deny plaintiffs . . of their right to the equal employment opportunities

guaranteed them under the ADEA, Fair Labor Standards Act of 1938, as amended, 29 U.S. § 215, and the Pennsylvania Human Relations Act of 1967, as amended, 43 P.S. § 955(a) (Purdon). These actions allegedly violated plaintiffs' rights under the Civil Rights Act of 1871, 42 U.S.C. § 1985(3). Defendants move to dismiss this count on the ground that plaintiffs fail to plead the conspiracy with requisite specificity. The rule in this circuit has been established beyond contention.9 Civil rights complaints must be pleaded "with specificity". Other circuits,10 other districts within this circuit,11 and virtually every judge in this district12 have so held.

In the complaint at bar the only facts concerning this conspiracy have been quoted above. This allegation is patently insufficient to establish a conspiracy in a civil rights matter "with specificity", particularly in light of the fact that the two individual defendants are fictional. Where plaintiffs accuse law enforcement officers or hospital personnel, for example, of such actions, the monolithic appearance and prodigious number of such defendants render use of fictional defendants understandable and perhaps necessary. But where the fictional defendants acted as plaintiffs' supervisors, requiring plaintiffs to identify them by name cannot be considered an unfair responsibility. At the very least, plaintiffs could have named those individuals who direct, formulate or implement corporate policies. Complaints with similarly vague and conclusory allegations have been dismissed regularly. For example, in Rotolo v. Borough of Charleroi, 532 F.2d 920 (3d Cir. 1976), plaintiff alleged only that defendants had terminated his employment because he had "exercised his First Amendment privileges". In Marvin v. Pinto, 463 F.2d 583 (3d Cir. 1972) plaintiff, appearing pro se, alleged only that prison conditions were "worser than in ghetto areas" and that food was "not fit for human consumption". In Carr v. Sharp, 454 F.2d 271 (3d Cir. 1971), plaintiff's allegations only included "vicious discrimination with forethought of malice", "deprivation of fair impartial hearing by suppressing criminal evidence", "obstruction of the administration of justice", and "conspiracy to inflict discrimination". In Marcedes v. Barrett, 453 F.2d 391 (3d Cir. 1971), still another pro se plaintiff alleged only that defendants "confederated and conspired with another defendant in obstructing and suppressing Plaintiff's right to legal assistance". In every instance the Court of Appeals sustained a dismissal for failure to plead "with specificity". In view of judicial solicitude evinced in this circuit for pro se litigants,13 these results compel dismissal where, as here, counsel represent plaintiffs. To withstand a motion to dismiss, a complaint alleging a civil rights conspiracy should identify with particularity the conduct violating plaintiffs' rights, the time and place of these actions, and the people responsible therefor. Hall v. Pennsylvania State Police, 570 F.2d 86 (3d Cir. 1978), Turley v. Hall's Motor Transit Co., 296 F.Supp. 1183 (M.D.Pa.1969). Because plaintiffs have failed to meet this minimal requirement Count Three must be dismissed.14

Finally, defendants move to strike plaintiffs' prayer for compensatory and punitive damages under the ADEA on the basis of Rogers v. Exxon Research & Engineering Co., 550 F.2d 834 (3d Cir. 1977), cert. denied, 434 U.S. 1022, 98 S.Ct. 749, 54 L.Ed.2d 770 (1978), which held that these damages cannot be awarded properly in ADEA actions. The ADEA provides, in pertinent part, that

amounts owing to a person as a result of a violation of this chapter shall be deemed to be unpaid minimum wages or unpaid overtime compensation for purposes of sections 216 and 217 of this title: Provided, That liquidated damages shall be payable in cases of willful violations.


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