Bouknight v. Dist. of Columbia

Decision Date18 June 2015
Docket NumberCivil Action No.: 1:13–cv–2064 (RDM)
Citation109 F.Supp.3d 244
Parties Anthony Bouknight, Plaintiff, v. District of Columbia, Defendant.
CourtU.S. District Court — District of Columbia

Donna Williams Rucker, Rucker & Associates, PC, Washington, DC, for Plaintiff.

Alex Karpinski, Office of Attorney General, Washington, DC, for Defendant.


RANDOLPH D. MOSS, United States District Judge

In this civil action, Plaintiff Anthony Bouknight alleges that his former employer, the District of Columbia Fire and Emergency Medical Services Department, discriminated against him on the basis of race, unlawfully retaliated against him, and created a hostile work environment. Dkt. 1 ¶¶ 1–2. Before the Court is Defendant's Motion to Partially Dismiss Plaintiff's Complaint. Dkt. 7. For the reasons discussed below, the motion is GRANTED in part and DENIED in part.


Plaintiff filed his complaint on December 30, 2013. Dkt. 1. The complaint contains five counts, including claims for employment discrimination on the basis of race, retaliation, hostile work environment, violation of 42 U.S.C. § 1983, and equitable relief. Id. According to the complaint, Plaintiff has been an employee of the District of Columbia Fire and Emergency Services Department ("DCFESD") since 1991, where he has worked as a paramedic.

Id. ¶¶ 1213. He currently holds the rank of Captain. Id. ¶ 12. The complaint alleges that in 2007 Plaintiff was called to make an emergency pick-up of a patient. Id. ¶ 14. Plaintiff rode in the back of the ambulance, while another paramedic drove the vehicle. Because the driver became lost during the trip, they were delayed in reaching the patient. Although Plaintiff was not driving the ambulance, as the senior paramedic on the call, he was faulted for the delay and suspended for 10 days. Id. ¶¶ 15, 18. Plaintiff, who is African American, alleges that a white paramedic was not disciplined under similar circumstances, id. ¶ 19, and that the DCFESD "has a custom and practice of disciplining African American employees more often and more severely than White employees for the same, similar or less egregious incidents," id. ¶ 20. He alleges that he was treated less favorably because of his race and that he was subjected to retaliation for raising separate allegations of racial discrimination on a prior occasion. Id. ¶¶ 24–149.

On May 1, 2014, Defendant filed a Motion to Partially Dismiss Plaintiff's Complaint, seeking dismissal of Plaintiff's Section 1983 and Section 1981 claims. Dkt. 7. With respect to the Section 1983 claims, the motion argues that the availability of a Title VII action precludes Plaintiff from bringing suit under Section 1983. Id. As to the Section 1981 claims, Defendant contends that those claims should be dismissed because Section 1981 does not create a private cause of action against state or municipal entities. Id. Although, as Defendant notes, the complaint does not contain a separate count invoking Section 1981, it does allege in a prefatory paragraph that the action is brought pursuant to a number of civil rights statutes, including Section 1981. Dkt. 1 ¶ 1.

Plaintiff opposes the motion, arguing that the Court of Appeals for the D.C. Circuit has held that Title VII does not preclude state employees from bringing suit for workplace discrimination under other statutes, and that the Civil Rights Act of 1981 does create a private right action against state actors. Dkt. 10. In response, Defendant filed a "Praecipe," withdrawing Defendant's motion to dismiss Plaintiff's Section 1983 claims, and briefly reiterating its argument that the Section 1981 claims should be dismissed. Dkt. 12. Accordingly, at this juncture, the sole issue before the Court is whether Plaintiff's Section 1981 claim should be dismissed. See id.


Defendant's partial motion to dismiss raises a pure question of law and is thus properly resolved on the pleadings. See Pitt v. District of Columbia, 491 F.3d 494, 509 (D.C.Cir.2007). That question is whether Section 1981 creates a private right of action against municipal defendants. Although addressing a previous version of Section 1981, the Supreme Court has resolved precisely that question, and has held that it does not. See Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989). The intervening amendments to Section 1981, moreover, do not change that result. The Court, accordingly, holds that Section 1981 does not create a private cause of action against municipal defendants like the DCFESD and that Plaintiff's Section 1981 claims must be dismissed.

The Supreme Court has long construed Section 1981 to create a private cause of action for violations by private defendants. See, e.g., Johnson v. Ry. Exp. Agency, Inc., 421 U.S. 454, 459–60, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) ( "[Section] 1981 affords a federal remedy against discrimination in private employment on the basis of race."). In 1989, the Supreme Court decided two cases involving the meaning of Section 1981. In the first, Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the Court declined to overrule its decision in Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), which held that Section 1981 prohibits discrimination in private—as well as public—contracting. At the same time, however, Patterson narrowly construed the substantive scope of Section 1981, concluding that it reached only discrimination in the making and enforcement of contracts, and not discrimination that otherwise occurred during the course of an employment relationship. 491 U.S. at 176–77, 109 S.Ct. 2363.

The second case, Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 109 S.Ct. 2702, 105 L.Ed.2d 598 (1989), is more directly at issue here. In that case, the Supreme Court addressed whether the version of Section 1981 then in effect created a private cause of action against local governmental entities. In concluding that it did not, the Court explained that, "in the context of the application of § 1981... to private actors," it had previously implied a cause of action because " ‘there existed no other remedy to address such violations of the statute.’ " Id. at 731–32, 109 S.Ct. 2702 (quoting Cannon v. Univ. of Chicago, 441 U.S. 677, 728, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (White, J., dissenting)). With respect to the application of Section 1981 to public actors, however, the Court concluded that Section 1983 already provided a remedy "against state actors [in cases] alleging violation of the rights declared in § 1981." Jett, 491 U.S. at 731, 109 S.Ct. 2702. As the Supreme Court observed, "it has long been the law that" the power to imply a cause of action "should not be exercised in the face of an express decision by Congress concerning the scope of remedies available under a particular statute." Id. at 732, 109 S.Ct. 2702. Where a local governmental entity violates Section 1981, the victim is not without a remedy. That remedy, however, is the "express ‘action at law’ provided by § 1983," which, among other things, encompasses the "custom or policy" requirement within the meaning of Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Jett, 491 U.S. at 735–36, 109 S.Ct. 2702.

Plaintiff does not dispute that the version of Section 1981 in effect when the Supreme Court decided Jett did not include a private cause of action against municipal actors under Section 1981. He argues, however, that the Civil Rights Act of 1991 created a private cause of action against state and local governmental actors under Section 1981. Dkt. 10 at 6–7. That statute was enacted, at least in part, in response to several Supreme Court civil rights decisions from the same Term that Patterson , Mc Cr a ry and Jett were decided. Congress, for example, expressly overturned the Supreme Court's decisions in Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989) and Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989), see H.R.Rep. No. 10240, at 2 (1991), reprinted in 1991 U.S.C.C.A.N. 694, 695, both of which construed provisions of Title VII of the Civil Rights Act of 1964.

With respect to Section 1981, Congress added two paragraphs. Prior to the 1991 legislation, Section 1981 read as follows:

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

42 U.S.C. § 1981 (1976). The first additional paragraph expressly overturns the Supreme Court's decision in Patterson, and provided that the phrase "make and enforce contracts," should be construed to include "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b). As a result, Section 1981 now reaches claims relating to an ongoing employment relationship. The second addition to Section 1981 provides: "The rights protected by [Section 1981 ] are protected against impairment by nongovernmental discrimination and impairment under color of State law." 42 U.S.C. § 1981(c). According to Plaintiff, this new paragraph—subsection (c)—created an implied cause of action against state and local governmental actors under Section 1981. The Court disagrees.

"The guiding principle" for determining whether a statute includes an implied right of action "is legislative intent." El Paso Natural Gas Co. v. United States, 750 F.3d 863, 889 (D.C.Cir.2014). The key question is whether the statute "displays an intent to create not just a private...

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