Walker v. Secretary of Treasury, IRS

• Decision Date: 11 May 1989
• Docket Number: No. 1:87-CV-1789-CAM.,1:87-CV-1789-CAM.
• Citation: 713 F. Supp. 403
• Parties: Tracy L. WALKER, Plaintiff, v. SECRETARY OF the TREASURY, INTERNAL REVENUE SERVICE, Defendant.
• Court: U.S. District Court — Northern District of Georgia

713 F. Supp. 403

Tracy L. WALKER, Plaintiff, v. SECRETARY OF the TREASURY, INTERNAL REVENUE SERVICE, Defendant.

No. 1:87-CV-1789-CAM.

United States District Court, N.D. Georgia, Atlanta Division.

May 11, 1989.

Tracy L. Walker, Union City, Ga., pro se.

Sylvia Lark Ingram, Office of U.S. Atty., Atlanta, Ga., for defendant.

ORDER

MOYE, Senior District Judge.

The above-styled action is before the court pursuant to Fed.R.Civ.P. 73(b) on the magistrate's report and recommendation. For the reasons stated below this court adopts in part and sets aside in part the magistrate's recommendation. In so doing this court DENIES in part and GRANTS in part the defendant's motion for summary judgment.

FACTS

The plaintiff, Ms. Walker, was a permanent clerk typist in the Internal Revenue Service's Atlanta office. Ms. Walker is a light-skinned black person. Her supervisor was Ruby Lewis. Ms. Lewis is a dark-skinned black person. The employees in the office in which Ms. Walker and Ms. Lewis worked were predominantly black. In fact, following her termination, Ms. Walker was replaced by a black person. According to the record the working relationship between Ms. Walker and Ms. Lewis was strained from the very beginning— that is, since approximately November of 1985. Ms. Walker contends that Ms. Lewis singled her out for close scrutiny and reprimanded her for many things that were false or insubstantial. Ms. Walker's relationship with her former supervisor, Virginia Fite, was a cordial one. In fact, Ms. Walker received a favorable recommendation from Ms. Fite.

Ms. Walker met with Sidney Douglas, the EEO program manager for the Internal Revenue Service's Atlanta district about the problems she was having with Ms. Lewis. Two weeks later, pursuant to Ms. Lewis's recommendation, Ms. Walker was terminated. The reasons given for her termination were: 1) tardiness to work; 2) laziness; 3) incompetence; and 4) attitude problems. It is Ms. Walker's belief that the reasons were fabricated and were the result of Ms. Lewis's personal hostility towards Ms. Walker because of Ms. Walker's light skin.

Ms. Walker has not presented any direct evidence that Ms. Lewis was prejudiced against light-colored skinned blacks. There is evidence that Ms. Lewis might have harbored resentful feelings towards white people, and therefore by inference, possibly towards light-skinned black people. Ms. Walker maintains that she was treated unfairly prior to her termination for no apparent reason. She would have the court infer that the unfair treatment was due to Ms. Lewis's prejudice of her light skin color.

Following her termination Ms. Walker filed this lawsuit pro se pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.; the Administrative Procedure Act (APA), 5 U.S.C. § 701, et seq.; and 42 U.S.C. § 1981 and § 1983. Walker alleges she was terminated because of invidious discrimination on the part of her supervisor Lewis, and that her termination constituted retaliation due to her complaining to the EEO. Due to the fact this is a Title VII action, the case was initially heard before a magistrate. The magistrate below recommended granting the defendant's summary judgment motion with respect to the claims under § 1981, § 1982, and the Administrative Procedure Act. The magistrate recommended granting the portion of the defendant's summary judgment motion that dealt with the Title VII invidious discrimination claim. The magistrate recommended denying the defendant's summary judgment motion with respect to the retaliation claim.

LEGAL DISCUSSION

A. The Title VII Discrimination Claim

The principal issue in this case is a somewhat novel one: does a light-skinned black person have a cause of action pursuant to Title VII against a dark-skinned black person for an alleged discriminatory termination of employment? The defendant offers two reasons that there should be no such cause of action. First, the defendant contends that "although Title VII includes `color' as one of the bases for prohibited discrimination, that term has generally been interpreted to mean the same thing as race" (Defendant's Memorandum in Support of Motion for Summary Judgment, p. 8). Second, the defendant contends that there simply is no cause of action pursuant to Title VII available to a light-skinned black person against a dark-skinned black person.

1) Discrimination on the basis of color

Title VII is the exclusive remedy for federal employment discrimination lawsuits. Brown v. GSA, 425 U.S. 820, 96 S.Ct. 1961, 48 L.Ed.2d 402 (1976); Newbold v. United States Postal Service, 614 F.2d 46 (5th Cir.1980). The historical predecessor to Title VII is the Civil Rights Act of 1866 and therefore 42 U.S.C. § 1981. In fact, in a suit such as this one, the legal elements and facts necessary to support a claim for relief under Title VII are identical to the facts which support a claim under § 1981. Lincoln v. Board of Regents, 697 F.2d 928 (11th Cir.1983); Caldwell v. Martin Marietta Corporation, 632 F.2d 1184, 1186 (5th Cir.1980).

The stated purpose of § 1981 is the "protection of citizens of the United States in their enjoyment of certain rights without discrimination on account of race, color, or previous condition of servitude." United States v. Cruikshank, 92 U.S. 542, 555, 23 L.Ed. 588 (1875) (emphasis added). In McDonald v. Santa Fe Trail Transportation Company, 427 U.S. 273, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976), the Supreme Court, in an exhaustive study of the legislative history of § 1981, makes repeated references to the fact that the statute was originally enacted to apply to citizens of "every race and color". 427 U.S. at 287 (emphasis added). In what is perhaps the most relevant case to this law suit, Saint Francis College v. Al-Khazraji, 481 U.S. 604, 107 S.Ct 2022, 95 L.Ed.2d 582 (1987)¹, the Supreme Court stated in no uncertain terms that § 1981 "at a minimum reaches discrimination against an individual because he or she is genetically part of an ethnically and physiognomically distinctive subgrouping of homosapiens". 107 S.Ct. at 2028 (emphasis added). In fact, the Supreme Court even goes further by stating that it is not even essential to be physiognomically distinctive. see 107 S.Ct. at 2028. Webster's Seventh New Collegiate Dictionary defines physiognomic as relating to physiognomy or "external aspect".

Title VII was amended in 1972 to provide generally that "all personnel actions affecting employees ... shall be made free from any discrimination based on race, color, religion, sex or national origin". 42 U.S.C. § 2000e-16(a) (emphasis added). The Supreme Court has on at least two occasions stated that the purpose of Title VII is "to assure equality of employment opportunities by eliminating those practices and devices that discriminate on the basis of race, color, religion, sex, or national origin". Alexander v. Gardner-Denver Company, 415 U.S. 36, 44, 94 S.Ct. 1011, 1017, 39 L.Ed.2d 147 (1974) (emphasis added); McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

It has always been the policy of the Supreme Court that the plain meaning of legislation should be conclusive, except in the rare cases in which literal application of a statute will produce results demonstrably at odds with the intention of its drafters. U.S. v. Ron Pair Enterprises, ___ U.S. ___, 109 S.Ct. 1026, 103 L.Ed.2d 290 (1989). Yet the defendant in the instant case contends in its brief that in Title VII cases the word "color" has "generally been interpreted to mean the same thing as race". (Defendant's Memorandum in Support of Motion for Summary Judgment, p. 8). But the statutes and case law repeatedly and distinctly refer to race and color. This court is left with no choice but to conclude, when Congress and the Supreme Court refer to race and color in the same phrase, that "race" is to mean "race", and "color" is to mean "color". To hold otherwise would mean that Congress and the Supreme Court have either mistakenly or purposefully overlooked an obvious redundancy.

The Saint Francis case has definitively spoken on the subject: "we have little trouble in concluding that Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics. Such discrimination is racial discrimination that Congress intended § 1981 to forbid, whether or not it would be classified as racial in terms of modern scientific theory. The Court of Appeals was thus quite right in holding that § 1981 `at a minimum,' reaches discrimination against an individual `because he or she is genetically part of an ethnically and physiognomically distinctive sub-grouping of homo sapiens'. It is clear from our holding, however, that a distinctive physiognomy is not essential to qualify for § 1981 protection." 107 S.Ct. at 2028 (emphasis added) (citations omitted).

A person's color is closely tied to his ancestry and could result in his being perceived as a "physiognomically distinctive sub-grouping of homo sapiens", which in turn could be the subject of discrimination. Notwithstanding that proposition, it is not even required that a victim of discrimination be of a distinctive physiognomical subgrouping, a particularly relevant fact to the case at hand.

The one case that defendant cites as authority for the proposition that the term "color" in Title VII generally means "race" is Felix v. Marquez, 24 EPD ¶ 31,279 (D.D. C.1980). But that case lends itself to the opposite conclusion. As the court in Felix states: "color may be a rare claim, because color is usually mixed with or subordinated to claims of race discrimination, but considering the mixture of races and ancestral national origins in Puerto Rico, color may be the most practical claim to present." 24 EPD ¶ 31,279 (emphasis added). Discrimination against an individual because such individual...