Ortiz v. Bank of America

• Citation: 547 F. Supp. 550
• Decision Date: 09 September 1982
• Docket Number: No. Civ. S-81-298 LKK.,Civ. S-81-298 LKK.
• Parties: Carmen R. ORTIZ, Plaintiff, v. BANK OF AMERICA, Jeanne Lyons, Defendants.
• Court: United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California

547 F. Supp. 550

Carmen R. ORTIZ, Plaintiff, v. BANK OF AMERICA, Jeanne Lyons, Defendants.

No. Civ. S-81-298 LKK.

United States District Court, E. D. California.

September 9, 1982.

Eldora A. Gardner, San Francisco, Cal., for defendants.

M. Armando Enriquez, Carmichael, Cal., for plaintiff.

ORDER

KARLTON, District Judge.

"No argument has ever been advanced by any reasonable man against the fact of differences among men. The whole argument is about what differences exist and how they are to be gauged." Jacques Barzun, Race: A Study in Superstition, 201 (1965).

Plaintiff has filed a modest lawsuit seeking damages for injury she allegedly sustained as a result of defendants' conduct towards her. Among other statutory predicates, she asserts that defendants are liable for injury under 42 U.S.C. § 1981. Defendants assert that section 1981 protects only against "racial" discrimination, and argue that since plaintiff's complaint alleges discrimination based on national origin, it must be dismissed.¹ This unpretentious beginning requires me to consider profound and complex questions of law which have given rise to a widespread debate among the federal courts. This opinion will briefly trace the procedural history of the case, note the standards applicable to a defendant's motion to dismiss, and then undertake an extended examination of the cases. I then determine that neither the Supreme Court nor the Ninth Circuit Court of Appeals has directly ruled on the issues tendered by this motion. Accordingly, I will attempt to find a method of resolving the issue consistent with applicable principles and with due regard to the current scholarship in the fields of study implicated by the issue tendered.

I PROCEDURAL HISTORY

Plaintiff alleges that she was employed for seventeen (17) years by defendant Bank of America as a clerk and that she was denied a promotion to the position of teller, despite being qualified for the position, solely on the basis of her Puerto Rican descent. She also alleges that she was terminated in April of 1979, by defendant Bank of America on the basis of her national origin. Finally, she alleges that the defendants subjected her to harassment due to her national origin and accent. On the basis of these factual allegations plaintiff purports to state causes of action against the defendants for violation of California Labor Code section 1418(a), Title VIII of the California Administrative Code, 42 U.S.C. § 2000e, et seq. (Title VII), 42 U.S.C. § 1981, breach of contract, and negligent and intentional infliction of emotional distress.²

The matter is now before the court on the defendants' motion to dismiss or in the alternative to strike and for a more definite statement. Specifically, defendants move to dismiss on the following grounds: (1) Plaintiff fails to state a cause of action under 42 U.S.C. § 1981; (2) the court lacks jurisdiction over plaintiff's claim in that exclusive jurisdiction over said claim is with the Workers Compensation Appeals Board; (3) plaintiff's emotional distress cause of action is barred by the statute of limitations. In addition, defendants have moved to strike plaintiff's DOE allegations and her claim for compensatory and punitive damages claims on the causes of actions based upon Title VII and the California Fair Employment and Housing Act. Finally, in the alternative defendants move for an order requiring a more definite statement from plaintiff. This published opinion will be limited to a consideration of the motion to dismiss for failure to state a claim under 42 U.S.C. § 1981.³

I begin by enunciating the well established standards by which defendants' motion must be judged.

II MOTION TO DISMISS STANDARD

In considering a motion to dismiss, the allegations of the complaint in question must be accepted as true. Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972); Hospital Building Co. v. Rex Hospital Trustees, 425 U.S. 738, 740, 96 S.Ct. 1848, 1850, 48 L.Ed.2d 338 (1976); Ernest W. Hahn, Inc. v. Codding, 615 F.2d 830, 834 (9th Cir. 1980). Moreover, in evaluating the complaint the court is to construe the complaint in the light most favorable to the pleader and all doubts are to be resolved in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, 89 S.Ct. 1843, 1848, 23 L.Ed.2d 404 (1969); Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980); Amfac Mortgage Corp. v. Arizona Mall of Tempe, 583 F.2d 426, 430 (9th Cir. 1978). Finally, a complaint may not be dismissed for failure to state a claim upon which relief can be granted "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, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101, 2 L.Ed.2d 80 (1957); see also, Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Gillespie v. Civiletti, 629 F.2d at 640; Ernest W. Hahn, Inc. v. Codding, 615 F.2d at 834; Amfac Mortgage Corp. v. Arizona Mall of Tempe, 583 F.2d at 429. In essence, as the Ninth Circuit has stated, "the issue is not whether a plaintiff's success on the merits is likely but rather whether the claimant is entitled to proceed beyond the threshold in attempting to establish his claims." De La Cruz v. Tormey, 582 F.2d 45, 48 (9th Cir. 1978), cert. denied, 441 U.S. 965, 99 S.Ct. 2416, 60 L.Ed.2d 1072 (1979). It is against these procedural standards which defendants' motion must be measured.

III RACE AND SECTION 1981 CLAIMS

As noted above, plaintiff alleges that she was discriminated against in employment by the defendants on the basis of her Puerto Rican descent and accent. Based on this allegation plaintiff seeks relief pursuant to 42 U.S.C. § 1981. Defendants have moved to dismiss plaintiff's section 1981 claim for failure to state a cause of action. Specifically, defendants argue that plaintiff's action is one based upon claims of national origin discrimination and that section 1981's protections are limited to those charging racial discrimination. In sum, defendants assert, plaintiff's claim of national origin discrimination is not within the scope of section 1981 and should be dismissed (see n.1 supra).

Thus, in this respect, the defendants' motion presents the single issue of whether an allegation of discrimination on the basis of Puerto Rican descent and accent is sufficient to state a claim under 42 U.S.C. § 1981. While this issue may appear on first blush to be relatively straightforward, it in fact lies at the heart of an open, and sometimes confusing, debate taking place in the lower federal courts regarding the appropriate scope of section 1981.

A. The Statute

The question tendered is whether 42 U.S.C. § 1981 prohibits discrimination under the allegations of the complaint. Initially then, the court is faced with a question of statutory construction and, accordingly, I must first turn to the text of the statute. Watt v. Alaska, 451 U.S. 259, 266, 101 S.Ct. 1673, 1681, 68 L.Ed.2d 80 (1981). Section 1981 provides as follows:

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.

The statute's language is of extraordinary breadth. It does not speak in terms of race, religion or nationality but, on the contrary, speaks of "all persons." It is hard to imagine what broader language the Congress could have adopted.⁴ Although it is true that "the plain meaning rule is `rather an axiom of experience than a rule of law....' Citation omitted." Watt v. Alaska, 451 U.S. at 266, 101 S.Ct. at 1681, it is also true that "the language of a statute is the best and most reliable index of its meaning, and where the language is clear and unequivocal it is determinative of its construction." Smith v. Califano, 597 F.2d 152, 155 (9th Cir.), cert. denied, 444 U.S. 980, 100 S.Ct. 481, 62 L.Ed.2d 406 (1979) quoting Monte Vista Lodge v. Guardian Life Ins. Co., 384 F.2d 126, 128 (9th Cir. 1967), cert. denied, 390 U.S. 950, 88 S.Ct. 1041, 19 L.Ed.2d 1142 (1968). The statute's apparent breadth and clarity, however, has been clouded by subsequent case law. Moreover, it has been suggested that Congress intended to exclude at least some persons from the ambit of its protection. See Runyon v. McCrary, 427 U.S. 160, 167, 96 S.Ct. 2586, 2592, 49 L.Ed.2d 415 (1976). Under such circumstances it appears wholly appropriate to look to the circumstances of enactment and legislative history for clarification. See e.g. Heppner v. Alyeska Pipeline Service Co., 665 F.2d 868, 871-72 (9th Cir. 1981); Consortium of Community Based Organizations v. Donovan, 530 F.Supp. 520, 527 (E.D.Cal.1982).

B. Background and Legislative History of § 1981

Section 1981, in its original form, was part of section 1 of the Civil Rights Act of 1866. The statute was passed pursuant to Congress' authority to enforce the then recently enacted thirteenth amendment. At the time the authority of Congress to enact the Civil Rights Act of 1866 pursuant to the thirteenth amendment was subject to some doubt. Those doubts lead to a flurry of activity including the eventual passage of the fourteenth amendment and the reenactment of the Civil Rights Act of 1866.⁵

The legislation was enacted in the aftermath of the Civil War. Among the major reasons for its adoption was a desire to nullify the effects of the Black Codes of the southern states and mistreatment of blacks by private individuals. See generally, M. Konvitz, A Century of Civil Rights, 12-17 (1961); Comment, Developments in the Law — Section 1981, 15 Harv.C.R. — C.L.L. Rev. 29, 37-42 (1980); Jones v. Alfred H. Mayer Co., 392...