Harris v. White

• Citation: 479 F. Supp. 996
• Decision Date: 02 November 1979
• Docket Number: Civ. A. No. 76-501-N,76-4216-N.
• Parties: Phillip HARRIS et al., Plaintiffs, v. Kevin H. WHITE et al., Defendants. UNITED STATES of America, Plaintiff, v. CITY OF BOSTON et al., Defendants.
• Court: U.S. District Court — District of Massachusetts

479 F. Supp. 996

Phillip HARRIS et al., Plaintiffs, v. Kevin H. WHITE et al., Defendants.

UNITED STATES of America, Plaintiff, v. CITY OF BOSTON et al., Defendants.

Civ. A. Nos. 76-501-N, 76-4216-N.

United States District Court, D. Massachusetts.

November 2, 1979.

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Peter L. Resnik, Shepard M. Remis, James M. Hughes, Herrick D. Smith, Boston, Mass., Mark S. Brodin, Lawyers' Committee for Civil Rights, Boston, Mass., for plaintiffs.

Donald K. Stern, E. Michael Sloman, Alan K. Posner, Asst. Attys. Gen., Boston, Mass., for State defendants.

White & Casazza, Thomas F. McKenna, Jr., Boston, Mass., for City defendants.

Sandra L. Hughes, U. S. Dept. of Justice, Washington, D. C., for Federal defendants.

MEMORANDUM OF DECISION ON MOTIONS TO DISMISS

GARRITY, District Judge.

Private plaintiffs, two applicants for employment with, and one former CETA-funded employee of, the Boston Public Works Department (hereinafter PWD), bring this class action against various city, state and federal officials seeking declaratory and injunctive relief from employment practices of the PWD. Plaintiffs claim that these practices discriminate against minorities on the basis of race and national origin, denying them equal protection of the laws in violation of the Thirteenth and Fourteenth Amendments to the United States Constitution, 42 U.S.C. § 1983, 42 U.S.C. § 1981, Title VI and Title VII of the Civil Rights Act of 1964 (42 U.S.C. §§ 2000d et seq. and 2000e et seq.), and the nondiscrimination provision of the State and Local Fiscal Assistance Act of 1972, Section 1242(a)(1) of 31 U.S.C. §§ 1221 et seq. (hereinafter Revenue Sharing Act) and its implementing regulations, 31 C.F.R. §§ 51.50 et seq. The jurisdiction of this court is based on 28 U.S.C. §§ 1331, 1343 and 1361. A motion for class certification has been referred to a Magistrate and no decision has yet been made. After the commencement of this action, the United States filed a complaint, United States v. City of Boston, C.A. No. 76-4216-G, against city and state officials, claiming violations of the nondiscrimination provision of the Revenue Sharing Act, 31 U.S.C. § 1242(a)(1), and seeking the same relief as that requested by the private parties. A motion to consolidate the two cases, C.A. No. 76-501-G and C.A. No. 76-4216-G, was granted on April 8, 1977.

The state defendants, officials of the Massachusetts Civil Service Commission and Personnel Administrator of the Massachusetts Division of Personnel Administration, moved to dismiss some of the claims of the private parties and, by a separate motion, the claims of the United States. Regarding the claims of the private parties, the state defendants contend that plaintiffs' complaint should be dismissed in certain respects for failure to state a claim upon which relief can be granted, Fed.R.Civ.P., Rule 12(b)(6), and for lack of subject matter jurisdiction, Fed.R.Civ.P., Rule 12(b)(1), because (1) plaintiffs have not met the requirements for unlawful discrimination since they do not allege a racially discriminatory purpose on the part of state officials, (2) plaintiffs do not have standing to challenge employment practices in the official service category for the reason that none of them applied for official service positions, and (3) plaintiffs have failed to allege a violation of the Revenue Sharing Act since their complaint does not claim that the state defendants received revenue sharing funds or that any moneys received by the state funded a program or an activity involved with plaintiffs' allegations of discrimination. The state defendants also moved to dismiss the complaint of the United States, urging the first and third grounds supporting dismissal of the private plaintiffs' complaint, failure to allege intentional discrimination and non-receipt of revenue sharing funds.

This court referred the motion to a Magistrate pursuant to 28 U.S.C. §§ 636 (b)(1)(B), (C), and he recommended that defendants' motions be denied. The state defendants filed timely objections. We have reviewed the Magistrate's recommendations, in light of the objections, and the parties' briefs and for the reasons outlined below we adopt some of the Magistrate's rulings and reject others. In particular, we grant the state defendants' motion to dismiss the private plaintiffs' claims based on the Thirteenth and Fourteenth Amendments, 42 U.S.C. §§ 1981 and 1983, and Title VI, 42 U.S.C. § 2000d, for failure to allege intentional discrimination. We deny state defendants' motion to dismiss the private plaintiffs' Title VII and revenue sharing claims for lack of standing, without prejudice to defendants' renewing their objections in the context of the motion for class certification. And we deny state defendants' motions to dismiss the claims based on the Revenue Sharing Act, 31 U.S.C. § 1242(a).

The standard used to evaluate a motion to dismiss for failure to state a claim is a liberal one:

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Conley v. Gibson, 1957, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80; O'Brien v. DiGrazia, 1 Cir. 1976, 544 F.2d 543, 545. But generous interpretation of a civil rights complaint may not supply an essential element of a claim not appearing in the complaint. With this standard in mind, we turn to a discussion of each of defendants' three arguments.

I. Intent to Discriminate

The requirement of showing purposeful or intentional discrimination as a condition to an equal protection violation had its genesis in the school desegregation cases. See, Keyes v. School District No. 1, 1973, 413 U.S. 189, 208, 93 S.Ct. 2686, 37 L.Ed.2d 548. Thereafter the Supreme Court extended the intent requirement to embrace all claims based on a failure to provide equal protection. Personnel Admin. of Mass. v. Feeney, ___ U.S. ___, 99 S.Ct. 2282, 60 L.Ed.2d 870, 1979; Village of Arlington Heights v. Metropolitan Housing Development Corp., 1977, 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450; Washington v. Davis, 1976, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597. The reach of the intent requirement, however, is limited. It applies to constitutional claims alleging violations of the Fifth and Fourteenth Amendment's guarantees of equal protection. Washington v. Davis, supra. Furthermore, because 42 U.S.C. § 1983 creates no substantive rights but merely authorizes a private cause of action for violations of rights found elsewhere, Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 99 S.Ct. 1905, 60 L.Ed.2d 508, 1979, intent is most certainly an element of plaintiffs' claim under this section insofar as it seeks to redress violations of the Fourteenth Amendment's equal protection clause.

Assuming that there is a private cause of action under Title VI, 42 U.S.C. § 2000d et seq. and that exhaustion of administrative remedies is not required, both open questions, see, University of California Regents v. Bakke, 1978, 438 U.S. 265, 281-84, 98 S.Ct. 2733, 57 L.Ed.2d 750 (Powell, J., 379-87 (White, J.) and 418-21, 98 S.Ct. 2733 (Stevens, J., joined by Burger, Stewart, Rehnquist, JJ.), plaintiffs must prove intent as an essential element of a claim under this section as well. Five of nine Justices in Bakke, supra, explicitly held that Title VI prohibits racial classifications to precisely the same extent as does the Equal Protection Clause of the Fourteenth Amendment. Bakke, supra, at 287, 98 S.Ct. 2733 (Powell, J.), 325 (Brennan, White, Marshall, Blackmun, JJ.). The other four justices expressed no opinion on the issue. Id., at 417-18, 98 S.Ct. 2733 (Stevens, J., joined by Burger, Stewart, Rehnquist, JJ.). It follows then from the majority decision in Bakke that the Davis intent standards apply to Title VI claims.

Plaintiffs' claims based on the Thirteenth Amendment and 42 U.S.C. § 1981 must be treated in like manner. Although § 1981, unlike § 1983, is a source of substantive rights independent of the Fourteenth Amendment's Equal Protection Clause, the great majority of courts have incorporated the Davis intent requirement into a § 1981 claim, e. g., Williams v. DeKalb County, 5 Cir. 1978, 582 F.2d 2, 3 (per curiam); City of Milwaukee v. Saxbe, 7 Cir. 1976, 546 F.2d 693, 705; Croker v. Boeing Co. (Vertol Div.), E.D.Pa.1977, 437 F.Supp. 1138, 1181; and that approach appears to have been adopted by the First Circuit Court of Appeals in Des Vergnes v. Seekonk Water Dist., 601 F.2d 9 at 14, 15-16, 1979. Hence we follow it in this case.

However, it is clear that an intent to discriminate is not an element of a Title VII violation, at least one based on a disparate impact theory. Sweeney v. Board of Trustees of Keene College, 1 Cir. 1978, 569 F.2d 169, 174-75; United States v. City of Chicago, 7 Cir. 1977, 549 F.2d 415, 428, cert. denied 1977, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155; see, International Brotherhood of Teamsters v. United States, 1977, 431 U.S. 324, 335-36, n. 15, 97 S.Ct. 1843, 52 L.Ed.2d 396; Washington, supra, 426 U.S. at 238, 96 S.Ct. 2040. And the great weight of authority supports the use of Title VII standards to decide whether there has been "discrimination", as meant by 31 U.S.C. § 1242(a)(1), in a program funded by revenue sharing funds. City of Chicago, supra, at 440; United States v. City of Buffalo, W.D.N.Y.1978, 457 F.Supp. 612, 619; see, 31 C.F.R. § 51.53(b) (1977). Hence neither the complaint brought by the United States nor the private party's claims based on Title VII and 31 U.S.C. § 1242(a)(1) is subject to dismissal solely because of a missing allegation of intentional discrimination.

The United States Supreme Court has elaborated the concept of discriminatory intent in three key opinions, Washington v. Davis, supra; Village of Arlington Heights, supra, and Personnel Admin. of...