Boyce v. Fleet Finance, Inc.

• Decision Date: 15 July 1992
• Docket Number: Civ. A. No. 2:92cv170.
• Citation: 802 F. Supp. 1404
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Reynard S. BOYCE, Jr., Plaintiff, v. FLEET FINANCE, INC., Defendant.

802 F. Supp. 1404

Reynard S. BOYCE, Jr., Plaintiff, v. FLEET FINANCE, INC., Defendant.

Civ. A. No. 2:92cv170.

United States District Court, E.D. Virginia, Norfolk Division.

July 7, 1992.

As Corrected July 15, 1992.

Reynard S. Boyce, Jr., pro se.

Thomas R. Bagby, Cathie Shattuck, Epstein, Becker & Green, P.C., Washington, D.C., for defendant.

CORRECTED ORDER

CLARKE, District Judge.

This matter is before the Court on a Motion to for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons stated below, the Court grants the motion and dismisses plaintiff's claims pursuant to 42 U.S.C. §§ 1981 and 2000e-5(f)(3), as well as his claims of intentional infliction of emotional distress. In addition, the Court orders plaintiff, within twenty (20) days, to show cause why his claims pursuant to 42 U.S.C. § 1985 should not be dismissed.

FACTS

Plaintiff is a former employee of Fleet Industrial Loan Company. On June 28, 1991, plaintiff telephoned the Department of Human Resources for Fleet Finance, Inc., Fleet Industrial's parent corporation, to report charges of harassment. Complaint para. 10 (filed Feb. 27, 1992). On the same day he was terminated for "disrespecting a customer and that his temperament was not in unison with the conduct that should be displayed." Id. at para. 15.

After several conversations with company officials, plaintiff's termination was rescinded and he was transferred from the Norfolk, Virginia office to the Cherry Hill, New Jersey office and instructed to report to work by July 5, 1991. He was advised that if he did not report he would be considered voluntarily terminated. Id. para. 21. Plaintiff reported on July 29, 1991 and was terminated on August 28, 1991. Id. paras. 23, 26.

On September 13, 1991, plaintiff filed with the Equal Employment Opportunity Commission (hereinafter "EEOC") a charge of discrimination against Fleet Industrial Loan Company. Plaintiff alleged that on June 29, 1991 and July 1, 1991, he reported to three different company officials that he was being subjected to racially discriminatory treatment and was contemplating a lawsuit. He further alleged that in retaliation for this complaint he was transferred to Cherry Hill, New Jersey.

On November 27, 1991 the EEOC issued an opinion from its branch office in Norfolk, Virginia. Determination (November 27, 1991). In a somewhat confusing opinion, the Commission stated that plaintiff claimed racial discrimination "in that he was reported to Respondent officials of being racially discriminated against and considering a law suit." Id. at 1. The Commission found that plaintiff had informed respondents of the discrimination, and of his intent to sue, in response to being terminated. Id. at 1. It found that plaintiff was initially terminated, and later transferred, because of unprofessional conduct toward a customer and abusive conduct toward a co-worker. Id. at 1. It further found that four white employees had been disciplined for similar conduct. Id. at 1-2. The Commission advised plaintiff that he could file an action in the federal district court within ninety (90) days, and that if he failed to do so his right to sue would be lost. Id. at 2. Plaintiff claims that he received the right to sue letter on November 27, 1991. Complaint at para. 31.

On February 27, 1992, plaintiff filed a complaint with this Court. Plaintiff alleges that he was harassed, transferred and terminated in retaliation for making an EEOC protest with his company and because of his sex and race. He claims defendant's actions violated 42 U.S.C. §§ 1981, 1985, and 2000e-5(f)(3) and that he was subjected to intentional infliction of emotional distress.

DISCUSSION

Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law." Fed.R.Civ.P. 56(c). To avoid summary judgment, the nonmoving party must introduce evidence to create an issue of material fact on "an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A verified complaint based on personal knowledge serves as the equivalent of an opposing affidavit for the purposes of summary judgment. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir.1991).

Section 1981

Section 1981 of Title 42 of the United States Code provides:

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 extent 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.

In Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the Supreme Court held that the right to make contracts under section 1981:

extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment. The statute prohibits, when based on race, the refusal to enter into a contract with someone, as well as the offer to make a contract only on discriminatory terms. But the right to make contracts does not extend, as a matter of either logic of semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or the imposition of discriminatory working conditions. Such postformation conduct does not involve the right to make a contract, but rather implicated the performance of established contract obligations and the conditions of continuing employment, matters more naturally governed by state contract law and Title VII.

Id. at 176-77, 109 S.Ct. at 2372-73.

In Williams v. First Union National Bank, 920 F.2d 232 (4th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 2259, 114 L.Ed.2d 712 (1991), a black employee alleged retaliation resulting from his filing an EEOC claim. The Court, citing Patterson, expressed its reluctance to stretch section 1981 to protect conduct already covered by Title VII and held that plaintiff's claim was not actionable under section 1981.

The Civil Rights Act of 1991, effective November 21, 1991, overturns Patterson and provides that section 1981 will apply to post-formation conduct. Section 101 of the Act amends 42 U.S.C. section 1981 by adding subsections (b) and (c). Subsection (b) provides:

For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

The retroactivity of the 1991 Act has been a topic of heated debate.¹ A large part of the confusion on this subject stems from two conflicting presumptions created by the Supreme Court. In Bradley v. Richmond School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), petitioners sought attorney fees under a provision awarding a reasonable fee to the prevailing party in a school desegregation case. The Supreme Court anchored its holding "on the principle that a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Id. at 711, 94 S.Ct. at 2016. In determining whether a manifest injustice might result from retroactive application, the Court centered upon: "(a) the nature and identity of the parties, (b) the nature of their rights, and (c) the nature of the impact of the change of law upon the parties." Id. at 717, 94 S.Ct. at 2019. The Court noted that respondent was a publicly funded governmental entity, respondent would not lose a matured or unconditional right by the application of provision, and that retroactive application of the law would not affect the substantive obligations of the parties. Id. at 718-21, 94 S.Ct. at 2019-21. The Court found that retroactive application would not result in a manifest injustice.

On the other hand, in Bowen v. Georgetown University Hospital, 488 U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988), respondents, a group of hospitals, challenged a retroactive "wage index" promulgated by the Department of Health and Human Services. Applying the index, the Secretary of Health and Human Services ordered respondents to refund certain Medicare payments. The Court stated that "congressional enactments and administrative rules will not be construed to have retroactive effect unless their language requires this result." Id. at 208, 109 S.Ct. at 471. The Court found that Congress had not authorized retroactive rulemaking and held that the index was invalid. Id. at 215-16, 109 S.Ct. at 475-76.

In addressing the apparent tension between Bradley and Bowen,² most courts have chosen one rule or the other as the "better rule." See Khandelwal v. Compuadd Corp, 780 F.Supp. 1077, 1081 (E.D.Va.1992). Two district courts in this circuit, in discussing the Civil Rights Act of 1991, have opted for the Bowen presumption against retroactivity. Khandelwal, 780 F.Supp. at 1081; Rowson v. County of Arlington, 786 F.Supp. 555, 560 (E.D.Va. 1992). Similarly, in Leland v. Federal Insurance Administrator, 934 F.2d 524, 528 (4th Cir.1991), cert. denied, ___ U.S. ___, 112 S.Ct. 417, 116 L.Ed.2d 437 (1991), the Fourth Circuit indicated a preference for the Bowen presumption.³

One court in this district has attempted to resolve this apparent conflict, finding the reasoning in Robinson v. Davis Memorial, 790 F.Supp. 325, 58 Fair.Empl.Prac. Cas. 1084 (D.D.C.1992), persuasive. Jaekel...