Clark v. Sears Roebuck & Co.

• Decision Date: 29 March 1993
• Docket Number: Civ. A. No. 92-6438.
• Citation: 816 F. Supp. 1064
• Parties: Theodore CLARK v. SEARS ROEBUCK & COMPANY.
• Court: U.S. District Court — Eastern District of Pennsylvania

816 F. Supp. 1064

Theodore CLARK v. SEARS ROEBUCK & COMPANY.

Civ. A. No. 92-6438.

United States District Court, E.D. Pennsylvania.

March 29, 1993.

COPYRIGHT MATERIAL OMITTED

William P. Murphy, Prospect Park, PA, for plaintiff.

Eric A. Weiss, Liebert, Short & Hirshland, Philadelphia, PA, for defendant.

MEMORANDUM AND ORDER

JOYNER, District Judge.

The Defendant, Sears, Roebuck & Company has brought this civil rights action before the Court by filing a motion to dismiss both of Plaintiff's Title VII, 42 U.S.C. § 2000e-5 and Section 1981, 42 U.S.C. § 1981 claims. For the reasons which follow, the motion is denied.

I. HISTORY OF THE CASE

According to the allegations set forth in the complaint, the Plaintiff, Theodore Clark is "a black individual" who prior to August, 1991 had been "employed by Sears in Philadelphia for approximately twenty-four years as an at-will employee." Beginning in 1987, Mr. Clark was employed as both the Receiving Manager and the Maintenance Manager at Sears' retail store at 22nd Street and Oregon Avenue in Philadelphia at an hourly wage rate of $10.63. In the summer of 1989, however, Sears gave the position of Receiving Manager to a white employee, Anthony Barile. Mr. Clark was not criticized for his performance as Receiving Manager; to the contrary, he received a pay raise to $10.95 per hour and was told that Mr. Barile had been given the position because he had requested a change from his then-present position as Service Station Manager due to family pressures and job dissatisfaction.

In June, 1991, Mr. Clark contends he first learned (through documents anonymously provided to him from someone having access to Sears' private files), that in September, 1989, Sears had paid $13.42 per hour to Mr. Barile for his work as Receiving Manager. Because that rate of pay had never been made available to him when he had the position, Plaintiff Clark now claims that the Defendant discriminated against him on the grounds of race in violation of Section 1981 and Title VII of the Civil Rights Acts of 1964 and 1991.

II. STANDARDS APPLICABLE TO FED. R.CIV.P. 12(b)(6) MOTIONS TO DISMISS

It is well-settled that the most-commonly used vehicle for challenging the sufficiency of a claim or pleading filed in the district courts is a motion to dismiss for failure to state a claim upon which relief can be granted made pursuant to Fed.R.Civ.P. 12(b)(6). In determining whether to grant a Rule 12(b)(6) motion, the court primarily considers the allegations in the complaint, although matters of public record, orders, items appearing in the record of the case and exhibits attached to the complaint may also be taken into account. 5A Wright & Miller, Federal Practice and Procedure: Civil 2d § 1357, citing, inter alia, Chester County Intermediate Unit v. Pennsylvania Blue Shield, 896 F.2d 808, 812 (3rd Cir.1990). As a general rule, the court must accept as true the facts alleged in the complaint together with all reasonable inferences that can be drawn therefrom and construe them in the light most favorable to the plaintiff. Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3rd Cir.1990); Hough/Loew Associates, Inc. v. CLX Realty Co., 760 F.Supp. 1141 (E.D.Pa.1991). The court's inquiry is directed to whether the allegations constitute a statement of a claim under Rule 8(a) and whether the plaintiff has a right to any relief based upon the facts pled. Dismissal under Rule 12(b)(6) for failure to state a claim is therefore limited to those instances where it is certain that no relief could be granted under any set of facts that could be proved. Ransom v. Marrazzo, 848 F.2d 398, 401 (3rd Cir.1988); Angelastro v. Prudential-Bache Securities, Inc., 764 F.2d 939, 944 (3rd Cir. 1985), cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274 (1985). Thus, if the facts pled in the complaint and the reasonable inferences therefrom are legally insufficient, a motion to dismiss may be granted. McCoy v. United States, 758 F.Supp. 299, 301 (E.D.Pa.1991).

Moreover, as a general rule under Fed. R.Civ.P. 8(c):

"In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense ..." (emphasis supplied)

Although the quoted language of this rule would seem to suggest that the statute of limitations defense cannot be raised via a Rule 12(b) motion to dismiss, an exception is made where the affirmative defense clearly appears on the face of the pleading. In this regard, it has been reasoned that since Rule 9(f) makes averments of time material, the inclusion of dates in the complaint indicating that the action is untimely renders it subject to dismissal for failure to state a claim. 5A Wright & Miller, Federal Practice and Procedure: Civil 2d, § 1357. Consequently, a 12(b)(6) motion should not be granted on limitations grounds unless the complaint facially shows noncompliance with the limitations period. Morgan v. Kobrin Securities, Inc., 649 F.Supp. 1023, 1027-1028 (N.D.Ill. 1986). See Also: Trevino v. Union Pacific Railroad Co., 916 F.2d 1230 (7th Cir.1990).

III. THE SUFFICIENCY OF THEODORE CLARK'S CIVIL RIGHTS CLAIMS

By way of its motion to dismiss, Sears first makes the two-fold argument that Plaintiff has failed to state a viable cause of action under Section 1981 as a consequence of the United States Supreme Court's decision in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) and that, even in the event that this Court should find that such a claim has been stated, both it and Plaintiff's Title VII claim are time-barred under the applicable statutes of limitations. Obviously then, any analysis of these arguments must first begin with close and careful scrutiny of the Patterson decision and the subsequent Congressional enactment of the Civil Rights Act of 1991.

Specifically, in Patterson v. McLean Credit Union, the United States Supreme Court was faced with the question of whether the plaintiff, a black woman employed by the defendant credit union as a teller and file coordinator for ten years, had stated a cause of action under Section 1981 when she alleged that the said defendant had harassed, failed to promote and eventually discharged her solely because of her race. In upholding the district court's issuance of binding instructions to the jury on plaintiff's Section 1981 claim, the United States Supreme Court declined to overrule its decision in Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976) that while Section 1981 prohibits racial discrimination in the making and enforcement of private contracts, it does not extend beyond conduct by an employer which impairs an employee's ability to enforce through legal process his or her established contract rights. Rather, the court noted, claims of racial discrimination in the workplace are to be redressed through the vehicle and administrative mechanisms of Title VII, which mechanisms would effectively be "rendered a dead letter" were plaintiffs permitted to circumvent them by using Section 1981 (which has no administrative prerequisites) to bring causes of action based upon such discrimination claims. See: 491 U.S. at 180, 109 S.Ct. at 2375. Accordingly, the court held that neither the plaintiff's racial harassment claims nor her discriminatory promotion claim were actionable under Section 1981. See Also: Hayes v. Community General Osteopathic Hospital, 940 F.2d 54 (3rd Cir.1991); Perry v. Command Performance, 913 F.2d 99 (3rd Cir.1990).

Effective November 21, 1991, however Section 1981 was amended, and the definitions set forth therein were broadened to essentially make actionable discrimination claims such as the ones brought by the plaintiff in Patterson, i.e., those which arose in the course of an employment relationship. Indeed, Section 1981 now reads as follows:

§ 1981. Equal rights under the law

(a) Statement of equal rights

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.

(b) Definition

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.

(c) Protection against impairment

The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

Defendant Sears has taken the position that the Plaintiff cannot invoke this amendment because he filed his complaint with the Equal Employment Opportunity Commission one day before the effective date of the new act and the majority of the courts which have considered the issue have held against retroactive application of the amendment to cases then pending in the courts. See, e.g.: Kimble v. DPCE, Inc., 784 F.Supp. 250 (E.D.Pa. 1992); Thompson v. Johnson & Johnson Management Information Center, 783 F.Supp. 893 (D.N.J.1992). Inasmuch as Mr. Clark did not bring this action until November 9, 1992, some seven weeks after the EEOC issued notice of his Right to Sue and in view of the fact that the Supreme Court in the very case upon which Defendant relies recognized that a plaintiff must first pursue those administrative remedies available through...