Jordan v. US West Direct Co., 88-C-1982.
Decision Date | 21 July 1989 |
Docket Number | No. 88-C-1982.,88-C-1982. |
Citation | 716 F. Supp. 1366 |
Parties | Timothy JORDAN, Plaintiff, v. U.S. WEST DIRECT COMPANY, et al., Defendants. |
Court | U.S. District Court — District of Colorado |
Clifford L. Beem and Stuart D. Mann, Denver, Colo., for plaintiff.
John M. Husband and Judith A. Biggs, Denver, Colo., for defendants.
In this employment discrimination case, the plaintiff has filed an amended complaint in which his First and Second Claims are based exclusively on Title VII, 42 U.S.C. §§ 2000e et seq., while his Third and Fourth Claims are based on Title VII and 42 U.S.C. § 1981. Defendants have filed two motions to dismiss. One motion addresses the Fourth Claim's Title VII basis, and the other motion addresses the Third and Fourth Claims asserted under § 1981. Plaintiffs have responded by opposing the motions. Jurisdiction is based on 42 U.S.C. § 2000e-5, and 28 U.S.C. §§ 1331 and 1343.
In their motion filed May 22, 1989, the defendants contend that the Title VII basis for the Fourth Claim asserting retaliatory demotion cannot survive dismissal because the plaintiff has failed to exhaust his administrative remedies regarding that claim. In response, the plaintiff asserts that he was retaliated against because he spoke out against discrimination and instigated an internal investigation at the defendant U S West, both of which are protected activities. According to the plaintiff, he stated in his "Discrimination Statement" to the Colorado Civil Rights Commission that the internal EEO (Equal Employment Opportunity) investigator intentionally misrepresented the plaintiff and others in her investigation of the plaintiff's discrimination charges.
As emphasized by the defendants, a Title VII claim may not be filed in federal court unless the claim first has been presented to the appropriate administrative agencies. Johnson v. General Electric, 840 F.2d 132, 139 (1st Cir.1988). However, unexhausted claims may proceed if they sufficiently relate to the claims presented for administrative review, and if they fall within the scope of those claims or arise from the investigation of those claims. Waiters v. Parsons, 729 F.2d 233 (3d Cir. 1984).
On July 7, 1987, the plaintiff filed a discrimination charge with the Colorado Civil Rights Commission ("CCRC") against the defendant U S West. Based on the information contained in the plaintiff's response, I cannot find with assurance that the plaintiff's retaliation claim does not relate to the discrimination charge that he filed with the CCRC. Defendants' motion to dismiss the Fourth Claim for retaliation based on Title VII is denied without prejudice.
In their other motion to dismiss, filed June 23, 1989, the defendants contend that the § 1981 aspects of the Third and Fourth Claims should be dismissed based on Patterson v. McLean Credit Union, ___ U.S. ___, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). The Supreme Court there held that "racial harassment relating to the conditions of employment is not actionable under § 1981 because that provision does not apply to conduct which occurs after the formation of a contract and which does not interfere with the right to enforce established contract obligations." Id. at ___, 109 S.Ct. at 2369.
In his Third Claim, the plaintiff alleges that he was demoted to a non-managerial position on February 16, 1987, and that the defendants' actions in this demotion amount to purposeful discrimination. Amended Complaint, paras. 28 and 29. Paragraphs 30 through 34 allege incidents of workplace harassment against the plaintiff. In his Fourth Claim, the plaintiff asserts several incidents that allegedly amount to retaliation, including the alleged wrongful demotion mentioned in the Third Claim.
In Patterson, the Supreme Court determined that § 1981, by its plain terms, protects the right "to make contracts" and "to enforce contracts." In discussing the meaning of these rights, the Supreme Court stated:
Patterson clearly holds that racial harassment in the workplace, actionable under Title VII, is no longer actionable under § 1981. I thus find and conclude that the plaintiff's allegations of harassment, including the purposeful...
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Berry v. General Motors Corp.
...are not actionable under section 1981. Guliford v. Beech Aircraft Corp., 768 F.Supp. 313, 320 (D.Kan.1991); Jordan v. U.S. West Direct Co., 716 F.Supp. 1366, 1368 (D.Colo.1989). GM is also entitled to summary judgment to the extent that the plaintiffs' claims can be read to assert causes of......
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Hicks v. Brown Group, Inc.
...Dev. Corp., 717 F.Supp. 628, 632-33 (N.D.Ill.1989) (Patterson leaves retaliatory discharge action intact); Jordan v. U.S. West Direct Co., 716 F.Supp. 1366, 1368-69 (D.Colo.1989) (retaliation claims actionable after Patterson under right to enforce contract). But see Sherman v. Burke Contra......
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Stradford v. Rockwell Intern. Corp.
...Penn and in this case, i.e., whether a claim of retaliation is cognizable under section 1981 after Patterson. In Jordan v. U.S. West Direct Co., 716 F.Supp. 1366 (D.Colo.1989), the court held that such a claim could be maintained: The right to enforce contracts extends to private efforts to......
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Coleman v. Domino's Pizza, Inc., Civ. A. No. 89-0073-BH.
...after Patterson); Overby v. Chevron USA, Inc., 884 F.2d 470 (9th Cir.1989) (retaliatory discharge); Jordan v. United States West Direct Co., 716 F.Supp. 1366 (D.Colo.1989) (discriminatory demotion); Williams v. National RR Passenger Corp., 716 F.Supp. 49 (D.D.C. 1989) (retaliatory demotion)......
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Recent Developments in the District of Colorado Under 42 U.s.c. Section 1981
...case. The court's statement may be read reasonably as simply a refusal to apply Patterson retroactively. 22. Supra, note 1 at 2369. 23. 716 F.Supp. 1366 (D.Colo. 1989). 24. Id. at 1367-68. 25. Id. at 1368. 26. No. 88-C-1423 (D.Colo., Nov. 15, 1989) [reported in Colo. Bench Trial Reporter (M......