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BUDINSKY v. CORNING GLASS WORKS

January 27, 1977

JOHN J. BUDINSKY, Plaintiff,
v.
CORNING GLASS WORKS, Defendant



The opinion of the court was delivered by: TEITELBAUM

This is an action for employment discrimination brought by plaintiff John J. Budinsky against his former employer, defendant Corning Glass Works.

 Budinsky was employed by defendant from August, 1959 until his discharge in August, 1975. The complaint alleges that plaintiff was subjected by defendant to a policy, practice or custom of employment discrimination based solely on his Slavic national origin.

 The specific discriminatory treatment by Corning averred in the complaint includes: demoting and ultimately discharging plaintiff; assigning plaintiff to a plant location and job position where it was impossible for him to achieve as high an income as if he had been assigned to a more favorable plant location; denying plaintiff the opportunity to transfer to another plant location or job position; failing to promote plaintiff and to raise his wages; attempting to coerce plaintiff to perform unreasonable duties and calling him a derogatory name; imposing upon plaintiff unreasonable and arbitrary conditions which he had to meet to retain his employment; and discriminating against plaintiff in a fashion which deprived him of the opportunity for further employment.

 Plaintiff contends that all of the aforementioned terms and conditions of work and the advantages, benefits and rights allegedly denied him by defendant were available to his similarly situated counterparts who were not of Slavic origin. He asserts jurisdiction for the instant lawsuit under: (1) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ; (2) the Civil Rights Act of 1870, 42 U.S.C. § 1981; and (3) the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.

 The merits of plaintiff's allegations are not now before me. The only matter presently before the Court is a motion to dismiss filed by defendant pursuant to Rule 12(b) of the Federal Rules of Civil Procedure.

 The parties have briefed these questions ably and candidly. After due consideration of their respective positions, I have concluded that defendant's motion should be granted and the complaint dismissed to the extent that it is grounded upon either 42 U.S.C. § 1981 or 28 U.S.C. §§ 2201 and 2202.

 I

 As a general matter, it is noted that consideration of the issues now before this Court is necessarily colored by a natural antipathy towards any form of class-based discrimination. Such activity is hardly to be nourished or ignored; where it is averred, a due regard for the shared ideals of our society impels an initial inclination to foreclose no remedial path to the alleged discriminatee.

 The question here, however, is in large part whether the federal courts need or should open the door to a new remedial alternative in the area of employment discrimination where Congress already has provided a specific, far-reaching remedy in Title VII. *fn1" I think that question must be answered in the negative. The perceived needs that prompted vast judicial expansion of the coverages of §§ 1983 and 1985(3) of Title 42, U.S.C., are not apparent in the area of employment discrimination in post-1964 America. We start from the fundamental premise that plaintiff Budinsky has a full and complete remedy available under Title VII.

 II

 Plaintiff herein asserts that defendant Corning is in violation of 42 U.S.C. § 1981. However, plaintiff alleges a case of discrimination based not on race, but rather solely on his Slavic national origin. Discrimination grounded on national origin -- or, indeed, on anything but "race" (see discussion of the term slip op. at pp. 4-5, infra) -- is not now cognizable under § 1981, and plaintiff has advanced no compelling reason why, in light of Title VII, this Court should expand the ambit of the statute to cover alleged employment discrimination based entirely on non-racial factors.

 Plaintiff does not really dispute the proposition that both the language *fn2" and history of § 1981 reflect an exclusive concern with racial equality, or that the courts have consistently rejected efforts to expand the scope of the statute to cover allegations of other, nonracially-based forms of discrimination. See, e.g., Jones v. United Gas Improvement Corp., 68 F.R.D. 1, 12 FEP Cases 344 (E.D. Pa. 1975); *fn3" Kurylas v. Dept. of Agriculture, 373 F. Supp. 1072, 7 FEP Cases 207 (D.D.C. 1973); *fn4" Gradillas v. Hughes Aircraft, 407 F. Supp. 865, 12 FEP Cases 414 (D.Ariz. 1975). *fn5" See also Schroeder v. State of Illinois, 354 F.2d 561, 562 (7th Cir. 1965); Agnew v. City of Compton, 239 F.2d 226, 230 (9th Cir. 1956); Arnold v. Tiffany, 359 F. Supp. 1034 (C.D. Cal. 1973), aff'd, 9th Cir., 487 F.2d 216.

 Rather, plaintiff proffers, inter alia, a rather sophisticated argument based essentially upon a coupling of those few cases which have cautiously extended the reach of § 1981 with a not uninformative sociological examination of the dubious utility of our traditional definitions of "race." Thus, plaintiff submits, § 1981 should not stand alone among the post-war Civil Rights Acts as frozen by a wording and legislative history written before the great influx of white European immigrants to this country, but should be ...


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