Partin v. St. Johnsbury Co., Inc.

• Decision Date: 21 March 1978
• Docket Number: Civ. A. No. 75-0148.
• Citation: 447 F. Supp. 1297
• Parties: William PARTIN, on behalf of himself and all other persons similarly situated v. ST. JOHNSBURY COMPANY, INC.
• Court: U.S. District Court — District of Rhode Island

447 F. Supp. 1297

William PARTIN, on behalf of himself and all other persons similarly situated v. ST. JOHNSBURY COMPANY, INC.

Civ. A. No. 75-0148.

United States District Court, D. Rhode Island.

March 21, 1978.

Richard A. Boren, Providence, R. I., for plaintiff.

Abraham Belilove, Providence, R. I., Herbert Burstein, New York City, for defendant.

MEMORANDUM AND ORDER

PETTINE, Chief Judge.

This is an employment discrimination action originally brought under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000e, et seq. and under 42 U.S.C. sec. 1981 (1970). By order and opinion of July 19, 1976, this Court dismissed plaintiff's Title VII count on the ground that plaintiff had failed to file charges with the appropriate commission within the time prescribed by statute. However, this Court explicitly denied the motion to dismiss plaintiff's sec. 1981 action. The Court wrote:

It is firmly established that section 1981 affords a federal remedy independent of Title VII for discrimination in private employment on the basis of race. Johnson v. Railway Express Agency, 421 U.S. 454 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). Defendant offers no reason for dismissing plaintiff's 1981 claim other than a vague argument that the complaint may be too broadly drawn for class action purposes. If there is any merit to this argument, it can be raised later when the Court considers the question of class certification. Slip Op. at 5.

In July, 1977, defendant renewed its motion to dismiss based on Supreme Court decisions of last term, United Air Lines, Inc. v. Evans, 431 U.S. 553, 97 S.Ct. 1885, 52 L.Ed.2d 571 (1977); International Brotherhood of Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977), that defendant claims require dismissal of the sec. 1981 action as well. Whatever import these decisions may have for requirements of a timely filing of charges under Title VII,¹ they have no relevance to time limitations on sec. 1981 actions. Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975), cited in this Court's 1976 Opinion, expressly dictates that sec. 1981 actions are limited by the state statute of limitations applicable to the most analogous state cause of action, not Title VII's time requirements. Sec. 1981 and Title VII remain two distinct causes of action to remedy private employment discrimination. Johnson was controlling authority in 1976 and continues to control in 1977.

Although that Court rejected Title VII's time limitation, it did not decide what limitation period would be appropriate to a sec. 1981 action. Defendant, in his answer and in both motions to dismiss, has urged only that the Title VII limitation period be applied to bar plaintiff's sec. 1981 action. In replying to plaintiff's memorandum in opposition to defendant's first motion to dismiss, defendant conceded that Title VII limitations were not appropriate to sec. 1981 actions. Rather than suggest a limitations period that might bar the 1981 action, defendant opposed the sec. 1981 action on class action grounds. This Court rejected the class challenge as grounds for dismissal and denied defendant's motion to dismiss without discussing whether the sec. 1981 action was barred by an analogous state statute of limitations. In his second motion to dismiss, defendant has repeated its error and urged only that the Title VII limitation be applied to sec. 1981 actions. In response, plaintiff has correctly urged that there is no reason to review that question, decided adversely to defendant in 1976. In the alternative, plaintiff argues that the most analogous state statute of limitations was Rhode Island's six year limitation applicable to contract actions. The Court has received no reply from defendant.

Although defendant's counsel has not proposed an analogous state limitation period, defendant has adequately raised the question of whether the 1981 action is time barred to compel this Court to now examine what is, in fact, the appropriate period of limitation and whether that period bars plaintiff's sec. 1981 action. That question was not decided by this Court in 1976.

To determine the appropriate analogous state statute of limitations, the Court must choose between Rhode Island's statute of limitations for "injuries to the person", R.I. G.L. sec. 9-1-14, and the state's six year statute of limitation for all other actions, R.I.G.L. sec. 9-1-13.² That choice turns upon the characterization of the sec. 1981 action as essentially an action to redress a violation of a tort duty, a contract right or a constitutional right which is not analogous to either tort or contract. If the latter characterization was adopted, Rhode Island's six year limitation period for all actions not "otherwise specially provided" for would apply. See, e. g., Chatman v. United States Steel Corp., 425 F.Supp. 753 (N.D. Cal.1977). However, this alternative is foreclosed by two recent decisions in this Court and the First Circuit that have applied tort limitations to sec. 1983 actions. Graffals Gonzalez v. Garcia Santiago, 550 F.2d 687 (1st Cir. 1977); Saunders v. State of Rhode Island, C.A. No. 76-0376, Slip Op. at n.2 (D.R.I. May 11, 1977). Implicit in these decisions is the conclusion that constitutional wrongs have common law analogues and should not be classed in the catch-all provision for unique actions.

Because both Gonzalez and Saunders involved sec. 1983 actions, neither definitively disposes of whether a tort or contract characterization and limitation period are applicable to sec. 1981 actions. However, these decisions force the Court to focus upon whether sec. 1981 is so fundamentally different from sec. 1983 that the tort characterization applicable to the latter is inappropriate for the former. Sec. 1981 prohibits racial discrimination in the making and enforcement of private contracts. Runyon v. McCrary, 427 U.S. 160, 168, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976); Johnson v. Railway Express Agency, 421 U.S. at 459, 95 S.Ct. 1716. Although sec. 1981 guarantees contract rights, these rights find their source in the thirteenth amendment of the constitution, not by implication or express provision in a private agreement between two parties. The same rationale that convinced the First Circuit in Gonzalez that the discharge of a public employee for political reasons in violation of the first amendment was a violation of a tort duty rather than a breach of contract has equal force in the context of a sec. 1981 employment discrimination action. The First Circuit wrote:

Quoting from Dean Prosser, we have held:

"`The duties of conduct which give rise to tort actions are imposed by the law and are based primarily upon social policy . . ..'" Lexington Ins. Co. v. Abarca Warehouses Corp., 476 F.2d 44, 46 (1st Cir. 1973).

The only clear-cut federal claim stated by appellant's complaint is that he was fired for political reasons. This suggests a claim founded on Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d 547 supra. Elrod imposes on government officers a duty grounded in social policies expressed by the First Amendment. Violations of that duty are torts, not breaches of contract. 550 F.2d at 688.

Examination of the source of the right not to be discriminated against in employment also persuaded the Fifth Circuit that the state's tort statute of limitations applied to sec. 1981 actions for employment discrimination. Ingram v. Steven Robert Corp., 547 F.2d 1260 (5th Cir. 1977); Page v. United States Industries, Inc., 556 F.2d 346 (5th Cir. 1977), cert. denied ___ U.S. ___, 98 S.Ct. 890, 54 L.Ed.2d 796 (1978). Accord Marlowe v. Fisher Body, 489 F.2d 1057 (6th Cir. 1973); Jarvis v. Ebasco, 14 F.E.P. Cases 1069 (D.Conn.1976); Davis v. United States Steel Supply Division of United States Steel, 405 F.Supp. 394 (W.D.Pa.1976); see Gordon v. City of Warren, 415 F.Supp. 556 (E.D.Mich.1976); Smith v. Olinkraft, 404 F.Supp. 861 (W.D.La.1975). Similarly, the Fourth Circuit applied Virginia's "personal injuries" statute of limitations to a sec. 1981 action, McCrary v. Runyon, 515 F.2d 1082, 1097 (4th Cir. 1975). Upon review, although the Supreme Court held that a private school's racially discriminatory admissions policy was actionable under sec. 1981 because the school discriminated in the making of contracts, the Court refused to overturn the Fourth Circuit's preference for the tort statute of limitations. 427 U.S. at 179-82, 96 S.Ct. 2586.

Like the Virginia personal injury statute of limitations, the Rhode Island "injuries to the person" statute covers injuries to personal dignity and is not limited to physical injury. In Commerce Oil Refining Corp. v. Miner, 98 R.I. 14, 199 A.2d 606 (1964), the Rhode Island Supreme Court held that the "injuries to the person" limitation period applied to actions for malicious prosecution. The Court wrote:

It is then our conclusion that the phrase "injuries to the person" as used in the instant statute is to be construed comprehensively and as contemplating its application to actions involving injuries that are other than physical. Its purpose is to include within that period of limitation actions brought for injuries resulting from invasions of rights that inhere in man as a rational being, that is, rights to which one is entitled by reason of being a person in the eyes of the law. Such rights, of course, are to be distinguished from those which accrue to an individual by reason of some peculiar status or by virtue of an interest created by contract or property. Id. at 20-21, 199 A.2d at 610.

Since this Court views the right enforced by sec. 1981 as arising from the Constitution and not from contract, the Rhode Island "injuries to the person" period would clearly apply to actions brought pursuant to that section.³

In conclusion, this Court adopts a tort characterization of sec. 1981 actions for employment discrimination, consistent with the First Circuit's treatment of a sec....