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VERA v. BETHLEHEM STEEL CORP.

March 23, 1978

MIGUEL A. VERA and MARTIN C. LaBOY, Plaintiffs
v.
BETHLEHEM STEEL CORPORATION, et al., Defendants


Herman


The opinion of the court was delivered by: HERMAN

Plaintiffs, persons of Puerto Rican background, brought this civil rights action against their employer, Bethlehem Steel Corporation, and against both the United Steelworkers of America and Local 1688 of that union. Presently before us are motions by both Defendant unions and Defendant Bethlehem Steel, to dismiss the claim based upon 42 U.S.C. § 1981, and also motions by Defendant Bethlehem Steel for a more definite statement and for a dismissal of the claim based upon 42 U.S.C. § 2000e, et seq., Title VII of the Civil Rights Act of 1964. The Defendants' motions will be granted in part and denied in part.

 Claim Under § 1981

 Section 1981 of Title 42, United States Code, provides that "(all) persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens". Challenges to racial discrimination in private employment are properly brought under 42 U.S.C. § 1981. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 459-60, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1975); Young v. International Telephone and Telegraph, 438 F.2d 757, 759 (3d Cir. 1971). Plaintiffs alleged they have been discriminated against based on the fact that they are of Puerto Rican background, and have attempted to sue under 42 U.S.C. § 1981.

 The Defendants have moved to dismiss this claim for failure to state a claim upon which relief can be granted pursuant to Rule 12 of the Federal Rules of Civil Procedure. Defendants' position is that alleged discrimination against Puerto Ricans states a cause of action for discrimination based on national origin and not for racial discrimination. The question becomes whether an allegation of discrimination based upon Puerto Rican background states a cause of action for racial discrimination under 42 U.S.C. § 1981. If the allegation amounts to discrimination based upon national origin, rather than race, the Plaintiffs have failed to state a cause of action under 42 U.S.C. § 1981. In Budinsky v. Corning Glass Works, 425 F. Supp. 786 (W.D. Pa. 1977) a white employee's allegation of discrimination based on his Slavic national origin failed to state a cause of action under 42 U.S.C. § 1981. Likewise in Kurylas v. United States Department of Agriculture, 373 F. Supp. 1072 (D.D.C. 1974), an allegation of discrimination against a Polish American failed to state a cause of action under 42 U.S.C. § 1981. Allegations of sex discrimination have also been held not covered by 42 U.S.C. § 1981. See, e.g., Abshire v. Chicago & E.I.R. Co., 352 F. Supp. 601 (N.D. Ill. 1974); Olson v. Rembrandt Printing Co., 375 F. Supp. 413 (E.D. Mo. 1974).

 The United States Supreme Court has held in Jones v. Alfred H. Mayer Co., 392 U.S. 409, 20 L. Ed. 2d 1189, 88 S. Ct. 2186 (1968) that 42 U.S.C. § 1982, which has a similar legislative history to that of 42 U.S.C. § 1981, deals only with racial discrimination and not discrimination based upon religion or national origin. *fn1" The Plaintiff's complaint appears to be relying on an assertion of national origin discrimination. Paragraphs 2 and 3 speak of "Puerto Rican origin", paragraph 8 refers to "classification because of their national origin", paragraph 9 refers to "foreign ethnic origin", and paragraphs 10 and 11 speak of "ethnic origin".

 There has been a sharp split in the various district court opinions as to whether an allegation of discrimination based on Hispanic background, either Mexican, Cuban or Puerto Rican involves racial discrimination. In Jones v. U.G.I. Corporation, 68 F.R.D. 1, 11-15 (E.D. Pa. 1975), the Court provided an exhaustive review of the legislative history of 42 U.S.C. § 1981 and concluded that discrimination against Spanish surnamed individuals of Puerto Rican background were claims based on national origin discrimination and dismissed their claim under 42 U.S.C. § 1981. *fn2"

 We believe that several cases which have been cited as authority for the proposition that Puerto Ricans can bring an action for racial discrimination under 42 U.S.C. § 1981 do not provide strong support for that proposition. In Sabala v. Western Gillette, Inc., 362 F. Supp. 1142, 1147 (S.D. Tex. 1973), the Defendant had stipulated to jurisdiction under 42 U.S.C. § 1981, and in Hernandez v. Erlenbusch, 368 F. Supp. 752, 755 (D. Ore. 1973), the applicability of 42 U.S.C. § 1981 was uncontested. In Miranda v. Clothing Workers, Local 208, 10 FEP 557 (D.C.N.J.), Maldonado v. Broadcast Plaza, Inc., 10 FEP 839 (D. Conn. 1974), and Puerto Rican Council v. Metromedia, Inc., 10 FEP 1009 (S.D.N.Y. 1975), the courts relied on the Sabala and Hernandez holdings although they were not adversary determinations. In addition, Plaintiff has cited three Fifth Circuit cases which we find to be inapposite. Herrera v. Yellow Freight Systems, Inc., 505 F.2d 66 (5th Cir. 1974), and Resendis v. Lee Way Motor Freight, 505 F.2d 69 (5th Cir. 1974) were decided under Title VII of the Civil Rights Act of 1964. In Sagers v. Yellow Freight Systems, Inc., 529 F.2d 721 (5th Cir. 1976) the suit involved a class action by black employees under Title VII and 42 U.S.C. § 1981. Brief mention is made of Hispanics as possible class members and victims of racial discrimination in footnote 28 which contains the statement "although Mexican Americans have often been the victims of racial discrimination . . . (citing Herrera and Resendis) there is no legal requirement that every class include all victims of racial discrimination".

 In a recent case involving a Cuban-American in the Eastern District of Pennsylvania, Cubas v. Rapid American Corp., Inc., 420 F. Supp. 663 (E.D. Pa. 1976), the court avoided the determination as to whether discrimination against Hispanics constituted racial discrimination by stating:

 
"National origin discrimination is actionable only to the extent that it is motivated by, or indistinguishable from racial discrimination . . . Hispanic Americans claiming that they have been discriminated against in violation of § 1981 are entitled to introduce evidence to prove that the alleged discrimination was racial in character. Maldonado v. Broadcast Plaza, Inc., 10 FEP cases 839 (D. Conn. 1974); Miranda v. Clothing Workers Local 208, 10 FEP cases 557 (D.N.J. 1974). We cannot find, as a matter of law, that the alleged discrimination against the plaintiff as a Cuban-American did not contain elements of racial discrimination." (footnote omitted)
 
420 F. Supp. 663, 665, 666.

 Recognizing that Puerto Rican-Americans, Cuban-Americans, Mexican-Americans, and other Hispanic peoples have at times undergone a discrimination like unto racial discrimination, this Court is not prepared to hold that Plaintiffs, being of Puerto Rican background, have stated a cause of action for racial discrimination as required under 42 U.S.C. § 1981. As we noted earlier, the complaint seems to rest on allegations of national origin discrimination. Title VII prohibits discrimination based on national origin, 42 U.S.C. § 2000e-2, and as stated in Espinoza v. Farah Mfg. Co., 414 U.S. 86, 38 L. Ed. 2d 287, 94 S. Ct. 334 (1973), national origin as used in Title VII refers to the country where a person was born or more broadly, the country from which his or her ancestors came 414 U.S. at 88, n.5, 94 S. Ct. 336, 38 L. Ed. 2d 287.

 We agree with the holding in Jones v. United Gas Improvement Corp., 68 F.R.D. 1, 11-15 (E.D. Pa. 1975) in which the Plaintiffs asserted that 42 U.S.C. § 1981 was applicable to Spanish surnamed persons. The court said, "a careful examination of the wording of the statute, its legislative history, and the most persuasive judicial authority convinces us that this contention is without merit".

 For the above reasons, the action based on 42 U.S.C. § 1981 will be dismissed for failure to state a claim upon which relief can be granted. It is therefore unnecessary to reach the Defendants' contention that 42 U.S.C. § 1981 requires an allegation of state action, although we do note that it has been held by the Third Circuit that no such averment is necessary. Young v. International Telephone and Telegraph Company, 438 F.2d 757 (3d Cir. 1971). *fn3" Because this portion of the complaint is dismissed, it is unnecessary to reach Defendant Bethlehem ...


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