Gorman v. Roberts

• Decision Date: 18 October 1995
• Docket Number: Civ. No. 94-D-673-N.
• Parties: Charles Johnny GORMAN, Jr., Plaintiff, v. G.M. ROBERTS, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

909 F. Supp. 1493

Charles Johnny GORMAN, Jr., Plaintiff, v. G.M. ROBERTS, et al., Defendants.

Civ. No. 94-D-673-N.

United States District Court, M.D. Alabama, Northern Division.

October 18, 1995.

COPYRIGHT MATERIAL OMITTED

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Robert J. Varley, Montgomery, AL, for plaintiff.

Janie B. Johnston Clarke, Robert M. Alton, III, Department of Transportation, Legal Division, Montgomery, AL, for defendants.

MEMORANDUM OPINION

DE MENT, District Judge.

Before the court is defendant former Governor Guy Hunt's motion to dismiss filed July 7, 1994. The plaintiff responded in opposition on July 22, 1994. After careful consideration of the arguments of counsel, the relevant case law and the record as a whole, the court finds that the defendant's motion is due to be granted.

STANDARD OF REVIEW FOR MOTION TO DISMISS

Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a defendant may move to dismiss a complaint on the ground that the plaintiff has failed to state a claim upon which relief may be granted. A Rule 12(b)(6) motion questions the legal sufficiency of a complaint; therefore, in assessing the merit of a Rule 12(b)(6) motion, the court must assume that all the factual allegations set forth in the complaint are true. See, e.g., United States v. Gaubert, 499 U.S. 315, 327, 111 S.Ct. 1267, 1276, 113 L.Ed.2d 335 (1991); Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir.1990). Moreover, all factual allegations are to be construed in the light most favorable to the plaintiff. See e.g., Sofarelli v. Pinellas County, 931 F.2d 718, 721 (11th Cir.1991); see also Brower v. County of Inyo, 489 U.S. 593, 598, 109 S.Ct. 1378, 1382, 103 L.Ed.2d 628 (1989).

On a motion to dismiss for failure to state a claim upon which relief may be granted, the movant "sustains a very high burden."¹ Jackam v. Hospital Corp. of America Mideast, Ltd., 800 F.2d 1577, 1579 (11th Cir.1986) (citing Currie v. Cayman Resources Corp., 595 F.Supp. 1364, 1376 (N.D.Ga.1984)). The Court of Appeals for the Eleventh Circuit has held, "motions to dismiss for failure to state a claim should be denied unless it appears beyond doubt that the plaintiff can prove no set of facts in support of its claims." Jackam, 800 F.2d at 1579 (quoting Bracewell v. Nicholson Air Servs., Inc., 680 F.2d 103, 104 (11th Cir. 1982)); see also Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984).

The court also stresses that on a motion to dismiss for lack of subject matter jurisdiction, Rule 12(b)(1) of the Federal Rules of Civil Procedure, the nonmoving party has the burden of showing that it properly invoked the court's jurisdiction. Menchaca v. Chrysler Credit Corp., 613 F.2d 507, 511 (5th Cir.), cert. denied, 449 U.S. 953, 101 S.Ct. 358, 66 L.Ed.2d 217 (1980).² In ruling on the motion, the court is to "consider the allegations of the complaint as true." Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir.), cert. denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981).

FINDINGS OF FACT

This case is essentially composed of a retaliatory harassment action brought under 42 U.S.C. §§ 1981, 1983 and 1985. The plaintiff, who filed this case pro se, also attempts to enforce his First Amendment rights, and his Fourteenth Amendment due process rights through § 1983.³ Further, the plaintiff attempts to invoke the court's jurisdiction under the Sherman Anti-Trust Act and the Rehabilitation Act of 1973.⁴

The plaintiff, Charles Johnny Gorman, Jr. (hereafter "Mr. Gorman"), is currently employed with the Alabama Department of Transportation and is on leave without pay due to medical problems. However, on June 10, 1992, Mr. Gorman received an employment termination letter from the Director of the Department, and another letter on July 14, 1992, which the Department considered to be an amended termination letter. The reasons given in the letters for termination of Mr. Gorman's employment were as follows:

Falsifying your Application for Examination with the State of Alabama contained in the June 10, 1992 letter.

... for the good of the service and for failing to list certain criminal convictions in the state court of Alabama.... Furthermore the felony nature of the crimes of which you were convicted disqualifies you from performing your job duties as Equal Employment Officer contained in the July 14, 1992 letter. (Emphasis supplied.)

See State of Alabama Highway Dep't v. State Personnel Bd., CV-92-2581 (Ala.Ct.App. 1993) (attached to Def.'s Mot. to Dis.).

A hearing was held before a hearing officer on August 12, 1992, at which Mr. Gorman was present. Mr. Gorman alleged that his right to due process was violated, and as a result, he should be reinstated. The hearing officer rejected this contention and recommended Mr. Gorman's termination. The State Personnel Board rejected the recommendation of the hearing officer and reinstated Mr. Gorman finding a violation of his right to due process. Thereafter, the Board's decision was affirmed by the Circuit Court of Montgomery County and reaffirmed by the Alabama Court of Civil Appeals. Mr. Gorman filed this complaint alleging numerous violations on June 1, 1994, and subsequently filed an almost identical complaint on June 2, 1994, in the Circuit Court of Montgomery County.

DISCUSSION

A. Claims Under 42 U.S.C. §§ 1981 and 1985

At the outset, the court will first address Mr. Gorman's attempt to invoke the court's jurisdiction pursuant to 42 U.S.C. §§ 1981 and 1985. Section 1981 prohibits race discrimination in making and enforcing contracts and is a statutory remedy available in both private and public sectors.⁵ Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459-60, 95 S.Ct. 1716, 1719-20, 44 L.Ed.2d 295 (1975). Prior to the 1991 amendments to the Civil Rights Act of 1964, the Supreme Court of the United States narrowly construed the right "to make and enforce contracts" clause of § 1981(a). In Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the Court held that § 1981 "covers conduct only at the initial formation of the contract and conduct which impairs the right to enforce contract obligations through the legal process." Thus, conduct affecting "the terms and conditions of continuing employment" was not actionable. Goldsmith v. City of Atmore, 996 F.2d 1155, 1160 (11th Cir.1993) (quoting Patterson, 491 U.S. at 179, 109 S.Ct. at 2374).

In 1991, the Civil Rights Act (hereafter the "Act") was amended, expanding the coverage of 42 U.S.C. § 1981 to include claims of racial discrimination based upon wrongful termination. Pub.L. No. 102-166, S. 1745, 102d Cong., 1st Sess. (1991) (Congress passed the Act on November 7, 1991, which was signed into law on November 21, 1991, by former President George Bush.). The Act effectively reverses Patterson and its progeny and now permits claims for intentional racial discrimination in "... the making, performance, modification, and termination of employment contracts," as well as "... the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship." 42 U.S.C. § 1981(b). Hence, the Act maximizes the overlap between Title VII and § 1981 and allows an aggrieved party alleging intentional discrimination to alternatively seek recourse under both statutes.

Mr. Gorman's claim under § 1981 requires proof of intentional discrimination. General Bldg. Contractors Ass'n., Inc. v. Pennsylvania, 458 U.S. 375, 391, 102 S.Ct. 3141, 3150, 73 L.Ed.2d 835 (1982); Washington v. Davis, 426 U.S. 229, 246-48, 96 S.Ct. 2040, 2050-52, 48 L.Ed.2d 597 (1976); Baldwin v. Birmingham Bd. of Educ., 648 F.2d 950, 954 (5th Cir.1981).⁶ Further, section 1981 only applies to racial discrimination, not to discrimination based upon religion, national origin, or sex. See Masel v. Industrial Comm'n of Illinois, 541 F.Supp. 342, 344 (D.C.Ill.1982). Thus, counts seeking damages under § 1981 must contain some allegations of racial discrimination. Id. In this case, the court finds that Mr. Gorman has not even hinted that he has suffered racial discrimination, but rather, his complaint is couched in terms of a retaliatory harassment claim.⁷ Accordingly, the court concludes that Mr. Gorman has failed to proffer that he has suffered discrimination based on his race, white, and therefore, he has failed to set forth a § 1981 claim.

The court will next address Mr. Gorman's attempt to invoke the court's jurisdiction under § 1985. Although § 1985 has several intricate subdivisions,⁸ the court will only consider subsection (3), which is relevant to this case. The Eleventh Circuit has summarized the basic elements of § 1985(3) as follows:

"(1) conspiracy; (2) for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; and (3) act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States." United Brotherhood of Carpenters & Joiners of America, Local 610, AFL-CIO v. Scott, 463 U.S. 825, 828-29, 103 S.Ct. 3352, 3356, 77 L.Ed.2d 1049 (1983). More specifically, the second element requires a showing of "some racial, or perhaps otherwise class-based, individiously discriminatory animus behind the conspirators' action." Id. at 829, 103 S.Ct. at 3356 (quoting Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971)).

Lucero v. Operation Rescue of Birmingham, 954 F.2d 624, 627 (11th Cir.1992) (emphasis added); see also Saville v. Houston County Healthcare Authority, 852 F.Supp. 1512, 1537 (M.D.Ala.1994).

As the above quote underscores, the Supreme Court of the United States, in analyzing the predominate purpose of the civil rights conspiracy statute, has viewed § 1985(3) in a narrow sense. United Broth. of Carpenters & Joiners v. Scott, 463 U.S. 825, 103...