Wiggins v. Philip Morris, Inc., Civ. A. No. 92-0493 (RCL).

• Decision Date: 13 May 1994
• Docket Number: Civ. A. No. 92-0493 (RCL).
• Citation: 853 F. Supp. 470
• Parties: James R. WIGGINS, Jr., Plaintiff, v. PHILIP MORRIS, INC., and Kenneth Nedimyer, Defendants.
• Court: U.S. District Court — District of Columbia

853 F. Supp. 470

James R. WIGGINS, Jr., Plaintiff, v. PHILIP MORRIS, INC., and Kenneth Nedimyer, Defendants.

Civ. A. No. 92-0493 (RCL).

United States District Court, District of Columbia.

May 13, 1994.

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John C. LaPrade, Washington, DC, Frazier Walton, Jr., Alexandria, VA, for plaintiff.

Hadrian R. Katz, Erica Frohman Plave, Arnold & Porter, Washington, DC, for defendants.

MEMORANDUM OPINION

LAMBERTH, District Judge.

This case comes before the court on defendant Philip Morris, Inc.'s motion to dismiss the retaliatory discharge claim in count one, and to dismiss counts two, three, and four of the complaint for failure to state a claim upon which relief can be granted. Fed. R.Civ.P. 12(b)(6).¹ Upon consideration of the filings of counsel and the relevant law, defendant Philip Morris, Inc.'s motion to dismiss is GRANTED in part and DENIED in part in accordance with this memorandum opinion.²

I. Introduction

Defendant characterizes plaintiff's complaint as "vague, confusing, contradictory, and inconsistent." Def.'s Mem.Supp.Mot. Dismiss at 4. Defendant is correct. In essence, plaintiff is searching for a legal basis for a wrongful discharge claim. In his complaint, plaintiff seeks to recover damages for civil rights violations, violations of the Maryland Labor and Employment Code and the Fair Credit Reporting Act, and pendent state-law claims.³

II. Retaliatory Discharge

In order to establish a prima facie case of retaliatory discharge under section 704(a) of Title VII, 42 U.S.C. § 2000e-3,⁴ "a plaintiff must show: 1) that he or she engaged in activity protected by the statute; 2) that the employer ... engaged in conduct having an adverse impact on the plaintiff; and 3) that the adverse action was causally related to the plaintiff's exercise of protected rights." Berger v. Iron Workers Reinforced Rodmen Local 201, 843 F.2d 1395, 1423 (D.C.Cir.1988) (citing Mitchell v. Baldrige, 759 F.2d 80, 86 (D.C.Cir.1985); McKenna v. Weinberger, 729 F.2d 783, 788, 790 (D.C.Cir. 1984)), rehearing en banc 852 F.2d 619 (D.C.Cir.1988), cert. denied sub nom. International Ass'n of Bridge Structural & Ornamental Ironworkers, AFL-CIO v. Berger, 490 U.S. 1105, 109 S.Ct. 3155, 104 L.Ed.2d 1018 (1989).

Title VII protects employees from retaliatory action for involvement in two types of activities. The "opposition" clause of section 704(a) of Title VII prohibits discrimination against a person "because he has opposed any practice made an unlawful employment practice by this subchapter." See supra note 4. This clause prohibits adverse action against an individual who has opposed a practice constituting a violation of Title VII.⁵

Plaintiff engaged in numerous activities protected by the statute, making his opposition to various Philip Morris employment practices well-known.⁶ Plaintiff was fired. The issue is whether these two prongs of the retaliatory action test are "causally related."

In count one, plaintiff states that "there was retaliatory action and illegal termination because of plaintiff's numerous reports and notices to Philip Morris' New York City headquarters, between January 1988 through February 9, 1990." Compl. ¶ 66.

At this stage of the litigation, plaintiff is entitled to the favorable inference that his objections to Philip Morris' employment practices are not wholly unrelated to his termination.⁷ Defendant's motion to dismiss as to count one is denied.

III. Inapplicability of 42 U.S.C. § 1981

Plaintiff claims that he was harassed because of his race during the course of his employment and that this racial animus caused him to be fired. Neither of these claims are cognizable under 42 U.S.C. § 1981.

Plaintiff's allegations were not viable under section 1981 prior to the enactment of the Civil Rights Act of 1991. As the Supreme Court stated in Patterson v. McLean Credit Union, section 1981 "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." Patterson v. McLean Credit Union, 491 U.S. 164, 171, 109 S.Ct. 2363, 2369, 105 L.Ed.2d 132 (1989).

Section 1981 does not protect an employee against discriminatory treatment during the course of his employment, including the imposition of discriminatory working conditions. See Patterson, 491 U.S. at 177, 109 S.Ct. at 2372-73; Gersman v. Group Health Ass'n, 931 F.2d 1565, 1570-72 (D.C.Cir.1991), vacated and remanded ___ U.S. ___, 112 S.Ct. 960, 117 L.Ed.2d 127 (1992). Furthermore, section 1981 does not apply to breach-of-contract or contract-termination claims. See Gersman, 931 F.2d at 1571. Plaintiff's racial harassment and discriminatory discharge claims under section 1981 are dismissed.⁸

To the extent that Mr. Wiggins argues that the Civil Rights Act of 1991 should apply retroactively to his case, the claim is denied. Rivers v. Roadway Express, Inc., ___ U.S. ___, ___ - ___, 114 S.Ct. 1510, 1513, 128 L.Ed.2d 274, 1994 U.S. Lexis 3294, *5-6 (April 26, 1994); Gersman v. Group Health Ass'n, 975 F.2d 886, 889-900 (D.C.Cir.1992) (adopting the decision in Gersman v. Group Health Ass'n, 931 F.2d 1565 (D.C.Cir.1991), vacated and remanded ___ U.S. ___, 112 S.Ct. 960, 117 L.Ed.2d 127 (1992)), cert. denied ___ U.S. ___, 114 S.Ct. 1642, 128 L.Ed.2d 363 (1994); Van Meter v. Barr, 778 F.Supp. 83 (D.D.C.1991); Allen v. McEntee, 1993 WL 121513, 1993 U.S. Dist. LEXIS 4122 (D.D.C. Apr. 2, 1993) (Lamberth, J.).⁹

IV. Maryland Labor and Employment Code

Plaintiff was placed on temporary disability status after he was seriously injured while working on the job for Philip Morris in July 1988. Compl. ¶ 80-81. In count three of his complaint, plaintiff asserts:

In violation of the Maryland Code, Title 9-1105 Maryland Employment and Labor sic, Phillip Morris sic terminated Plantiff sic in March of 1990 with knowledge that Plaintiff had been on temporary partial disability resulting from injuries sustained in 1988 and 1989.

Id. ¶ 83.

Plaintiff maintains that Philip Morris wrongfully terminated him in violation of the Maryland statute prohibiting the discharge of an employee who files a claim for workers' compensation. The Maryland Labor and Employment Code ("the Code") provides that "an employer may not discharge a covered employee from employment solely because the covered employee files a claim for compensation under this title." MD. LAB. & EMPL. CODE ANN. § 9-1105 (1991) (emphasis added).

In his complaint, plaintiff does not allege that he timely filed a claim for worker's compensation.¹⁰ Code § 9-709 expressly states:

Unless excused by the Commission under paragraph (2) of this subsection, failure to file a claim in accordance with subsection (a) of this section bars a claim under this Title.

Id. § 9-709(b). Subsection (a) requires a covered employee to report any accidental personal injury to the State Workers' Commission Committee within 60 days after the date of the accident. Id. § 9-709(a).

In his complaint, plaintiff merely declares that he "reported his injury to the Baltimore, Maryland offices of the Worker's Compensation Board and to the Hartford Insurance Company, Worker's Compensation Board's insurance carrier." Id. ¶ 82. In his opposition to the motion to dismiss, plaintiff states:

Plaintiff states a valid prima facie case against Phillip Morris sic for violation of Maryland Labor and Employment Code § 9-1105. The required filing of the claim was made in a timely fashion by Phillip Morris sic or its carrier, on Plaintiff's behalf in accordance with Maryland State law, and Plaintiff's subsequent discharge was a direct result of such filing of the workers compensation claim.

Plf.'s Opp'n Def.'s Mot. Dismiss at 2.¹¹

However, even if Mr. Wiggins did timely file a workers' compensation claim, he cannot claim that he was fired solely because of any such claim. Kern v. South Baltimore Gen. Hosp., 66 Md.App. 441, 504 A.2d 1154, 1159 (1986) ("To sustain a wrongful discharge action under Maryland's workers' compensation statute, an employee must allege that he or she was discharged solely and directly because of filing for benefits under § 39A...."); see Childers v. Chesapeake & Potomac Tel. Co., 881 F.2d 1259, 1264 (4th Cir.1989) ("A wrongful discharge action lies when an employee is discharged "solely" because he has filed for workers' compensation benefits.").¹² Indeed, Mr. Wiggins expressly states in his complaint that he was fired for racially motivated reasons.¹³

Therefore, count three of plaintiff's complaint is dismissed.

V. The Fair Credit Reporting Act

Count four alleges that defendant unlawfully obtained a false consumer report from Equifax, Inc. and used this report for impermissible purposes in violation of the Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. (hereinafter "the Act" or "the FCRA"). Compl. ¶¶ 47-50, 84-97. None of plaintiff's specific allegations state a cause of action against Philip Morris under the Act.

First, plaintiff alleges that defendant requested an "unauthorized" consumer report on January 16, 1990 pursuant to 15 U.S.C. § 1681(a), "without written instruction required by 15 U.S.C. § 1681(b) sic and in violation of other provisions of the FCRA." Compl. ¶ 87. Taking all of plaintiff's allegations as true,¹⁴ plaintiff fails to state a cause of action under sections 1681(a), 1681a, 1681b, or any other provision of the Act.

Neither section 1681(a) nor section 1681a contain provisions that create liability under the FCRA.¹⁵ In addition, Philip Morris, as an alleged "user" of consumer information,¹⁶ is incapable of violating section 1681b of the Act.¹⁷ Section 1681b does not impose a duty upon a user to obtain written permission from a consumer prior to requesting a report from a consumer reporting agency.¹⁸

Next, defendant allegedly made false and fraudulent representations to Equifax, Inc. in order to procure a consumer report in violation of section 1681b. Compl. ¶ 88-90,...