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SHAH v. METPATH CORP.

April 30, 1979

Saleem SHAH, a/k/a Bernard Thomas
v.
MetPATH CORPORATION and Alan Robbin



The opinion of the court was delivered by: LUONGO

MEMORANDUM

Plaintiff, a former employee of defendant MetPath Inc., filed the original complaint in this civil rights action on April 11, 1978. He alleged that his employment was wrongfully terminated on the basis of his race (black) and/or his religion (Islamic or "Black Muslim"), and he sought relief under the Civil Rights Act of 1866, 42 U.S.C. § 1981 (1976) and the Civil Rights Act of 1871, 42 U.S.C. § 1985(c) (1976). Defendants filed their answer and then moved for summary judgment. I denied the motion, and I gave plaintiff thirty days in which to amend his complaint so as to meet the several objections raised by defendants. Plaintiff filed his amended complaint on January 31, 1979; defendants answered and then renewed their motion for summary judgment. For the reasons hereafter stated, I conclude that plaintiff's section 1981 claim is sufficient, albeit barely so, to withstand the motion at this time, but that plaintiff's section 1985(c) claim should be dismissed without prejudice for insufficiently specific pleadings.

 The amended complaint alleges the following facts. Plaintiff was hired on March 11, 1976, to work as a driver at MetPath's Philadelphia office. On April 28, 1976, plaintiff had with him at work a copy of the Bilalian News, which is "the publication of the so-called "Black Muslims' in the United States." Amended Complaint (Document No. 12) P 5. Defendant Robbins, plaintiff's senior supervisor, who is white, asked to see the Bilalian News, and "read and perused" plaintiff's copy. Id. P 6. Two days later, on April 30, 1976, "without prior notice or warning to plaintiff, he was discharged from his employment by defendant." Id. P 7. Plaintiff had received no "formal criticism" of his job performance since April 9, and was, at the time of his discharge, performing his job satisfactorily. Id. P 9. At the time he was discharged, plaintiff was the only black employed by defendant MetPath, and his position was "immediately" filled by a white person, "thereby making defendant's entire workforce Caucasian." Id. P 8. Plaintiff was discharged "in whole or in part" because of his race. Id. P 10. Plaintiff and other black employees "were discharged and/or disciplined for reasons which were not equally applied to or invoked against Caucasian employees, and for alleged violation (Sic ) of rules which were not equally applied to or invoked against its Caucasian employees." Id. P 12. In addition, defendant MetPath "restricted the number of its employees who were black" and maintained "a policy of restricting the employment opportunities of blacks" at the company. Id. P 11.

 Based on the foregoing allegations, plaintiff asserts claims under section 1981 and under section 1985(c). Defendants challenge the sufficiency of both claims, and I shall consider these issues in turn.

 SECTION 1981

 Section 1981 provides in pertinent part:

 
"All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens . . . ."

 Section 1981 "affords a federal remedy against discrimination in private employment on the basis of race." Johnson v. Railway Express Agency, 421 U.S. 454, 460, 95 S. Ct. 1716, 1720, 44 L. Ed. 2d 295 (1975); See, e.g., McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 96 S. Ct. 2574, 49 L. Ed. 2d 493 (1976).

 To begin with, the amended complaint pretty clearly alleges Racial discrimination in employment, although defendants have focused only on the "Bilalian News incident." Defendants reason that if Robbins' perusal of the Black Muslim newspaper in any way precipitated plaintiff's discharge, then that discharge was motivated by religious, rather than racial, discrimination and, because section 1981 does not proscribe religious discrimination by private employers, defendants seek summary judgment on the § 1981 claim. I need not determine at this time whether an employer who discharges a black employee solely because the latter is a Black Muslim would incur liability under section 1981. Suffice it to say that the amended complaint amply alleges racial, rather than religious, discrimination, as is shown by the allegations quoted earlier. Thus, defendants may not seize upon the "Bilalian News incident" in order to transform plaintiff's claim into a claim of religious discrimination. Should it appear upon a fuller record that plaintiff's claim of racial discrimination rests in part on the suggestion that defendant Robbins harbored some antipathy toward Black Muslims, that will be time enough to determine whether such an animus might amount to racial discrimination prohibited by section 1981.

 Defendants also argue that Intentional discrimination is an essential element of a section 1981 claim, and that plaintiff has nowhere alleged the requisite intent. The first half of this argument is well-taken: I have held on several occasions that liability under section 1981 requires intentional discrimination. See, e.g., Milburn v. Girard, 441 F. Supp. 184, 188 (E.D.Pa.1977). But it does not follow that a section 1981 plaintiff must plead the legal conclusion that "defendants intentionally discriminated on the basis of race" in order to survive a motion to dismiss. Instead, it is sufficient if the complaint contains allegations from which the requisite intent may reasonably be inferred. Here, for example, plaintiff alleges that MetPath "restricted the number of its employees who were black" and maintained "a policy of restricting the employment opportunities of blacks" at the company. Amended Complaint (Document No. 12) P 11. These allegations, liberally read, describe a practice of intentional discrimination, as opposed to negligent or inadvertent discrimination. Accordingly, plaintiff's failure to specifically plead intentional discrimination is not fatal to his section 1981 claim.

 Finally, defendants argue that the entire section 1981 claim is pleaded in such a vague and conclusory fashion that it fails to satisfy the specific pleading rule adopted by the Court of Appeals for the Third Circuit in civil rights cases. See generally Kedra v. City of Philadelphia, 454 F. Supp. 652, 675 & n.24 (E.D.Pa.1978) (collecting cases). I have previously set forth my understanding of the rule in these terms:

 
"The specific pleading rule does not require the plaintiff to plead all the evidence in support of (his) claim; it merely requires the pleading of allegations sufficient to assure the court that the claim has some basis in fact. If the claim merely parrots the language of the Civil Rights Act or sets forth a theory of recovery with no factual allegations in its support, dismissal is proper."
 
Flesch v. Eastern Pa. Psychiatric Inst., 434 F. Supp. 963, 973 (E.D.Pa.1977) ...

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