Butler v. RMS Technologies, Inc., Civ. A. No. 89-0822-S.

• Decision Date: 12 July 1990
• Docket Number: Civ. A. No. 89-0822-S.
• Citation: Butler v. RMS Technologies, Inc., 741 F.Supp. 1008 (D. Mass. 1990)
• Parties: Betty Lou BUTLER, Plaintiff, v. RMS TECHNOLOGIES, INC., Defendant.
• Court: U.S. District Court — District of Massachusetts

741 F. Supp. 1008

Betty Lou BUTLER, Plaintiff, v.RMS TECHNOLOGIES, INC., Defendant.

Civ. A. No. 89-0822-S.

United States District Court, D. Massachusetts.

July 12, 1990.

MEMORANDUM AND ORDER ON DEFENDANT'S MOTIONS TO DISMISS

SKINNER, District Judge.

The plaintiff, a black woman, filed this action alleging racial discrimination in employment.The amended complaint pleads two counts under Title VII of the Civil Rights Act of 1964,42 U.S.C. § 2000e et seq., and one count each under 42 U.S.C. § 1981, M.G.L. c. 12, § 11I, andM.G.L. c. 93, § 102.The defendant has moved to dismiss the § 1981 and state law claims.

Plaintiff's Allegations

According to the complaint, the defendant hired the plaintiff in Pennsylvania in 1981.In September 1985, after two promotions, the plaintiff was transferred to Lexington, Massachusetts to work as a data management specialist.The plaintiff was the defendant's only black employee in Lexington.In December 1985, the plaintiff began complaining to her supervisor and other company officials about discriminatory treatment.Unlike her white co-workers, she was given negative performance appraisals, was denied salary increases, and was not allowed to attend meetings and seminars necessary to effective job performance.Beginning in early 1986, the plaintiff complained to company officials that suspected co-workers were making "unwelcome" telephone calls to her at home at night in which they made "racially offending and derogatory remarks."Despite her numerous complaints, the defendant did not take appropriate action to end this harassment.In January 1987, the defendant fired the plaintiff on the pretext that she was insubordinate in sending an objectionable electronic communication to her supervisor.White employees were not fired for similar acts.Her discharge was in retaliation for her complaints about racial discrimination.

CountIII: 42 U.S.C. § 1981

The defendant maintains that the plaintiff's § 1981 claim is precluded by Patterson v. McLean Credit Union,___ U.S. ___, 109 S.Ct. 2363, 105 L.Ed.2d 132(1989), which holds that relief is not available under § 1981 for harm caused by discriminatory job conditions after an employment relationship has been established.¹

Section 1981 states:

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.

In Patterson,the Court stated:

Section 1981 cannot be construed as a general proscription of racial discrimination in all aspects of contract relations, for it expressly prohibits discrimination only in the making and enforcement of contracts....

By its plain terms, the relevant provision in § 1981 protects two rights: "the same right ... to make ... contracts" and "the same right ... to ... enforce contracts."The first of these protections 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 or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions.Such postformation conduct does not involve the right to make a contract, but rather implicates the performance of established contract obligations and the conditions of continuing employment, matters more naturally governed by state contract law and Title VII ....

The second of these guarantees, "the same right ... to ... enforce contracts ... as is enjoyed by white citizens," embraces protection of a legal process, and of a right of access to legal process, that will address and resolve contract-law claims without regard to race....It also covers wholly private efforts to impede access to the courts or obstruct nonjudicial methods of adjudicating disputes about the force of binding obligations, as well as discrimination by private entities, such as labor unions, in enforcing the terms of a contract....The right to enforce contracts does not, however, extend beyond conduct by an employer which impairs an employee's ability to enforce through legal process his or her established contract rights ....

. . . . .

... § 1981 ... covers only conduct at the initial formation of the contract and conduct which impairs the right to enforce contract obligations through legal process.

109 S.Ct. at 2372-73, 2374.

Patterson expressly held that claims based on racial harassment, denial of salary increases, and other discriminatory job conditions are not cognizable under § 1981. 109 S.Ct. at 2373-74.Accordingly, the plaintiff's similar claims under Count III must be dismissed.Her claim for discriminatory firing, though, presents a separate issue not reached in Patterson.

Most courts that have decided this issue have held that the rationale of Patterson precludes claims for discriminatory discharge under § 1981.See, e.g., McKnight v. General Motors Corp.,902 F.2d 244(7th Cir.1990);Lavender v. V & B Transmissions & Auto Repair,897 F.2d 805, 807-08(5th Cir.1990);Overby v. Chevron USA, Inc.,884 F.2d 470, 473(9th Cir.1989).Cf.Sherman v. Burke Contracting, Inc.,891 F.2d 1527(11th Cir.1990)(rejecting claim for retaliatory interference with plaintiff's subsequent employment on similar grounds).To date, only one court of appeals has held that racially motivated discharge is still actionable under § 1981.Hicks v. Brown Group, Inc.,902 F.2d 630(8th Cir.1990).The majority opinion in Hicks, however, follows the logic of the dissenters in Patterson, and in my opinion it is inconsistent with the teaching of Patterson.

The Court's restrictive reading of § 1981 is explained in part by the Court's desire to minimize the overlap between § 1981andTitle VII, fostering the administrative resolution of employment claims under Title VII.See109 S.Ct. at 2375.As in Patterson, that consideration militates against permitting the plaintiff's § 1981 claim for wrongful discharge.The Court noted that the necessary overlap between the statutes regarding refusal to hire makes sense because Title VII's mediation and conciliation procedures are less effective before there is an employee-employer relation to salvage.109 S.Ct. at 2375.Despite her termination, the plaintiff's five-year relationship with the defendant formed a basis for administrative mediation and conciliation.But seeHicks,902 F.2d at 640-41(after discharge, "there is no relationship to salvage").Accordingly, the circumstances of the plaintiff's discharge, like the conditions of her employment, are "more naturally governed by ... Title VII."109 S.Ct. at 2373.

The plaintiff also asserts that the defendant interfered with her right to enforce her employment agreement by complaining about disparate treatment.Except for certain cases of retaliatory discharge, however, wrongful termination does not impair the right to enforce a contract.See, e.g., Hicks,902 F.2d at 638-39 n. 20.But seeBirdwhistle v. Kansas Power and Light Co.,723 F.Supp. 570, 575(D.Kan.1989)(discharge is directly related to contract enforcement).Since the plaintiff was not pursuing legal redress or other adjudicative procedures but was simply complaining to her superiors, the defendant's firing her did not violate her right to enforce her employment contract under § 1981.SeePatterson,109 S.Ct. at 2373.

Count IV: M.G.L. c. 12, § 11I

The complaint alleges disparate treatment, racial harassment by co-workers, and racially motivated, retaliatory discharge.M.G.L. c. 12, § 11I provides a remedy for racial harassment.O'Connell v. Chasdi,400 Mass. 686, 511 N.E.2d 349, 353(1987)(extending remedy to sexual harassment by private defendants, based on right to equality).The complaint alleges that the plaintiff's co-workers made "unwelcome" telephone calls in which they subjected her to "racially offending and derogatory remarks."Although the plaintiff was not assaulted, like the plaintiff in O'Connell, whether these calls actually threatened or intimidated her is a question of fact.

The plaintiff's harassment claim under M.G.L. c. 12, § 11I is nevertheless precluded by the specific remedy for employment discrimination accorded by M.G.L. c. 151B.Cf.Mouradian v. General Electric Co.,23 Mass.App. 538, 503 N.E.2d 1318, 1321, rev. denied,399 Mass. 1105, 507 N.E.2d 1056(1987)(wrongful discharge based on age discrimination);Sereni v. Star Sportswear Mfg. Corp.,24 Mass.App. 428, 509 N.E.2d 1203, rev. denied,400 Mass. 1107, 513 N.E.2d 1289(1987)(followingMouradian).But cf.O'Connell,511 N.E.2d at 353 n. 9(expressing no opinion whether M.G.L. c. 151B, § 4 would be exclusive remedy against covered employers for sexual harassment, since defendant employer was not covered by c. 151B).

The other discriminatory acts alleged do not involve "threats, intimidation or coercion" as construed under M.G.L. c. 12, §§ 11H and 11I.Marsman v. Western Elec. Co.,719 F.Supp. 1128, 1138(D.Mass.1988)(negative employment decision alone does not constitute threats, intimidation, or coercion);Appling v. City of Brockton,649 F.Supp. 258, 261(D.Mass.1986)(same);Mouradian,503 N.E.2d at 1321 n. 5(same)(dictum).A violation of M.G.L. c. 12, § 11I requires "an actual or potential physical confrontation accompanied by a threat of harm."Layne v. Superintendent, Massachusetts Correctional Institution,406 Mass. 156, 546 N.E.2d 166(1989)(physical...