Carrillo v. Illinois Bell Tel. Co.

• Decision Date: 03 May 1982
• Docket Number: No. 81 C 4410.,81 C 4410.
• Citation: 538 F. Supp. 793
• Parties: Christine M. CARRILLO, Plaintiff, v. ILLINOIS BELL TELEPHONE COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Illinois

538 F. Supp. 793

Christine M. CARRILLO, Plaintiff, v. ILLINOIS BELL TELEPHONE COMPANY, Defendant.

No. 81 C 4410.

United States District Court, N. D. Illinois, E. D.

May 3, 1982.

COPYRIGHT MATERIAL OMITTED

Tully, Roddy & Weinstein, Chicago, Ill., for plaintiff.

Stephen S. Schulson, Francine Soliunas, Lincoln V. Janus, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge.

Plaintiff Christine Carrillo brings this action against her former employer, Illinois Bell Telephone Co., alleging discrimination in violation of Title VII of the 1964 Civil Rights Act, 42 U.S.C. 2000e et seq., and 42 U.S.C. § 1981. As a Hispanic female, she alleges that this discrimination was based on her sex, race and national origin. She also seeks pendent jurisdiction over state law claims of breach of contract and intentional infliction of emotional distress.¹

Carrillo claims that after she told her supervisors that she was pregnant, they began to subject her to harassment and discrimination, and that this led to her demotion, which was ostensibly for excessive tardiness. She contends that she was told to accept the demotion or lose her job, and that when she refused to accept the demotion, she was discharged. Lastly, she asserts that Illinois Bell has a policy requiring women employees who have recently had a child to return to work at the arbitrary decision of the company's physician, and that this discriminates against them on the basis of sex and pregnancy.

Illinois Bell has moved to dismiss, or in the alternative for summary judgment on, Carrillo's § 1981 claims, portions of her Title VII claims and her pendent state claims. For the reasons stated below, the motion is granted.

Section 1981 Claims

42 U.S.C. § 1981 provides, in relevant part, that:

All persons within the jurisdiction of the United States shall have the same right ... to make and enforce contracts ... and to the full and equal benefit of all laws ... as is enjoyed by white citizens ....

The statute encompasses claims of discrimination based upon race and alienage, Takahashi v. Fish & Game Commission, 334 U.S. 410, 68 S.Ct. 1138, 92 L.Ed. 1478 (1948). It does not, however, provide relief for claims of discrimination based on sex, Movement for Opportunity & Equality v. General Motors Corp., 622 F.2d 1235, 1278 (7th Cir. 1980) or based on national origin, Plummer v. Chicago Journeyman Plumbers' Local Union No. 130, 452 F.Supp. 1127, 1142 (N.D.Ill.1978), rev'd on other grounds, 657 F.2d 890 (7th Cir. 1981), cert. denied, ___ U.S. ___, 102 S.Ct. 1710, 72 L.Ed.2d 134 (1982).

On the issue whether discrimination against Hispanics constitutes discrimination based on race or on national origin, there is a substantial divergence of opinion. Some courts have viewed such discrimination as based solely on national origin and have dismissed Hispanics' claims under § 1981. E.g. Martinez v. Bethlehem Steel Corp., 78 F.R.D. 125 (E.D.Pa.1978); Vazquez v. Werner Continental, Inc., 429 F.Supp. 513 (N.D. Ill.1977)²; Gradillas v. Hughes Aircraft Co., 407 F.Supp. 865 (D.Ariz.1975). The trend among the judges of this district has been to consider discrimination against Hispanics as racial discrimination. E.g. Aponte v. National Steel Service Center, 500 F.Supp. 198, 202-03 (N.D.Ill.1980) (Moran, J.); Ridgeway v. International Brotherhood of Electrical Workers, Local No. 134, 466 F.Supp. 595, 597 (N.D.Ill.1979) (Crowley, J.); Garcia v. Rush-Presbyterian-St. Luke's Medical Center, 80 F.R.D. 254, 262-64 (N.D.Ill.1978) (Leighton, J.); Hernandez v. United Fire Insurance Co., 79 F.R.D. 419, 423 n. 2 (N.D. Ill.1978) (Bua, J., dicta); Ortega v. Merit Insurance Co., 433 F.Supp. 135 (N.D.Ill. 1977) (Will, J.).

The courts extending § 1981 to discrimination against Hispanics have frequently relied on the following dicta from Budinsky v. Corning Glass Works, 425 F.Supp. 786, 788 (W.D.Pa.1977):

The terms "race" and "racial discrimination" ... are subject to a commonly-accepted, albeit sometimes vague, understanding. Those courts which have extended the coverage of § 1981 have done so on a realistic basis, within the framework of this common meaning and understanding. On this admittedly unscientific basis, ... Hispanic persons and Indians, like blacks, have been traditional victims of group discrimination, and however inaccurately or stupidly, are frequently and even commonly subject to a "racial" identification as "non-whites." There is accordingly both a practical need and a logical reason to extend § 1981's proscription against exclusively "racial" employment discrimination to those groups of potential discriminatees.

As Judge Moran explained the issue in Aponte, supra,

The plain meaning of the statute § 1981 attempts to remedy different treatment of whites and non-whites. Because Hispanics are frequently identified as "non-whites," this court believes that the scope of § 1981 is broad enough to extend to that group.

These and other cases that have considered Hispanics as a race for § 1981 purposes have recognized a legitimate problem in our society today. Those persons with Spanish surnames come from a wide spectrum of racial and ethnic backgrounds; their ancestors include Old-World Spaniards, New-World Indians, blacks, and mestizos of mixed ancestry. Indisputably, there are individual Hispanics who consider themselves as nonwhite, are frequently identified by others as nonwhite, and suffer discrimination not only on the basis of their Spanish surname but because of their "race," which is perceived as nonwhite. Nevertheless, both practically and logically, it would be a mistake to conclude from this that all Hispanics, as a group, are subject to racial discrimination.

This court is convinced that the better rule is one that operates on a case-by-case basis, because such a rule recognizes that individual Hispanics may suffer racial discrimination and provides these individuals with a remedy under § 1981, but does not unnecessarily extend the scope of a statute that was never meant to redress discrimination based on national origin. This rule has been adopted by courts in this and other districts. See, e.g., Lopez v. Sears, Roebuck & Co., 493 F.Supp. 801, 807 (D.Md.1980); Plummer v. Chicago Journeyman Plumbers' Local Union No. 130, 452 F.Supp. 1127, 1142 (N.D.Ill.1978), rev'd on other grounds, 657 F.2d 890 (7th Cir. 1980), cert. denied ___ U.S. ___, 102 S.Ct. 1710, 72 L.Ed.2d 134 (1982); Martinez v. Hazelton Research Animals, Inc. 430 F.Supp. 186, 187-88 (D.Md.1977); Gomez v. Pima County, 426 F.Supp. 816, 818-19 (D.Ariz.1976).

The decision in Gomez stands for the proposition that Mexican-Americans of brown race or color can sue under § 1981. The court there distinguished between discrimination against Hispanics that is racially motivated and that which is based on national origin:

This court concludes that Mexican-American/Spanish-Surnamed individuals of brown race or color who allege that they have been discriminated against because of that race or color have stated a claim for relief under ... Section 1981, but have no claim under Section 1981 for discrimination based upon national origin.

Judge Robson relied on Gomez when he dismissed two Hispanics' § 1981 claims of national origin discrimination while retaining their racial discrimination claims in Plummer, supra. A similar result was had in the Lopez case, where the plaintiff alleged discrimination "based both on nationality (Hispanic) and race (brown)," 493 F.Supp. at 807.

The most complete analysis of the rule adopted by this court is set forth in the Martinez case:

The court is of the opinion that the mere assertion that the plaintiff is an Hispanic male is an insufficient allegation of racial background to support an allegation of racial discrimination. While it may be true that Hispanic individuals may suffer discrimination closely akin to that experienced by members of the black race, it is not necessarily true of all Hispanic people. As noted by this court at the time of oral argument on this motion, many people of Hispanic origin cannot be classified as "nonwhites." Therefore, this court finds that the allegation that the plaintiff is an Hispanic male, without more, is an insufficient allegation of racial background to support an allegation of racial discrimination and thus to state a cause of action under 42 U.S.C. § 1981.

430 F.Supp. at 187-88. The court went on to find that the bare allegation of discrimination "because of ... ethnic and racial background" was insufficient; the court required specific allegations as to the plaintiff's racial background. Id. at 188.

Examining the complaint here in light of these cases, the court concludes that Carrillo has not adequately alleged her racial background in order to support her cause of action under § 1981. Her complaint identifies certain allegedly unlawful employment practices and then states, in Count V, ¶ 7:

Such practices of invidious racial and sexual discrimination serve to stigmatize Plaintiff on the basis of her race and national origin. (Hispanic)

Aside from this, Carrillo never identifies her race or asserts any other facts indicating her racial background. As the court has determined that the mere allegation of Hispanic does not bring a plaintiff within § 1981, Carrillo's claims under § 1981 must be dismissed. The court, however, grants her leave to file an amended complaint within 30 days, if she can adequately allege a nonwhite racial background to support a claim of racial discrimination.³

Title VII Claims

The scope of the judicial inquiry in a Title VII action depends on the content of the employee's charge to the Equal Employment Opportunity Commission (EEOC). The standard for determining whether the judicial claim is within the parameters of the EEOC charge is whether the former is "like or reasonably related to" the allegations of the charge and "growing out of such allegations." The EEOC charge, because it is...