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BODDORFF v. PUBLICKER INDUS.

March 25, 1980

HERBERT E. BODDORFF, JOHN M. BARLEY, ISABELLA JOHNSON, as Executrix of the Estate of JOHN A. JOHNSON, GORDON B. LANE, HOWARD E. REIGHARD, JR., HAROLD W. REINERT
v.
PUBLICKER INDUSTRIES, INC. and its subsidiary CONTINENTAL DISTILLING CORP. and JOHN DOE and JIM DOE



The opinion of the court was delivered by: TROUTMAN

MEMORANDUM AND ORDER

The Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 623 (ADEA), generally proscribes arbitrary discrimination based on age in hiring and discharging workers. Lorillard v. Pons, 434 U.S. 575, 98 S. Ct. 866, 55 L. Ed. 2d 40 (1978). Claiming violations of this statute, plaintiffs instituted this action to recover for defendants' allegedly discriminatory and willful termination of their employment. Specifically, plaintiffs assert that defendants discriminatorily terminated them because of their age and replaced them with younger individuals *fn1" , even though they, plaintiffs, were performing their jobs satisfactorily and had exemplary work records *fn2" As recompense plaintiffs seek back pay with full retirement and pension benefits, liquidated damages and compensatory and punitive damages for "physical, emotional and mental injury and humiliation" which plaintiffs suffered as consequences of defendants' actions. The corporate defendants now move to dismiss part of the complaint.

 First, defendants move to dismiss Count Two, in which plaintiffs claim that defendants' actions also violated the Civil Rights Act of 1866, 42 U.S.C. § 1981, which states, in pertinent part, that

 Enacted by virtue of the Thirteenth Amendment, the Civil Rights Act of 1866, from which § 1981 devolved, Ex parte Virginia, 100 U.S. 339, 25 L. Ed. 676 (1879), seeks to implement the Fourteenth and Fifteenth Amendments as well, Siegel v. Ragen, 180 F.2d 785 (6th Cir.), cert. denied, 339 U.S. 990, 70 S. Ct. 1015, 94 L. Ed. 1391 (1950), by conferring equality in civil rights before the law in all respects for all persons within its provisions. *fn3" Basista v. Weir, 340 F.2d 74 (3d Cir. 1965). See also United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1875). Passed by Congress immediately following the Civil War, the Act, as a statutory analog to the Thirteenth Amendment, clearly intended to afford blacks a civil status equivalent to white people. Valle v. Stengel, 176 F.2d 697 (3d Cir. 1949). The standard of comparison, "as enjoyed by white persons", speaks directly to race and does not concern disparity in treatment on the basis of religion, sex or national origin. Similarly, 42 U.S.C. § 1982 grants to all citizens "the same right" to purchase and lease property "as is enjoyed by white citizens". The Supreme Court has construed this language as "deal(ing) only with racial discrimination". Jones v. Alfred H. Mayer Co., 392 U.S. 409, 413, 88 S. Ct. 2186, 2189, 20 L. Ed. 2d 1189 (1968). In fact, the operative language of both § 1981 and § 1982 evolved from the original Act of 1866 and can be construed similarly. Tillman v. Wheaton-Haven Recreational Association, 410 U.S. 431, 93 S. Ct. 1090, 35 L. Ed. 2d 403 (1973).

 One of the original Act's proponents hailed the measure as a bellwether which would "break down all discrimination between black men and white men". Cong.Globe, 39 Cong., 1st Sess., 599 (Remarks of Sen. Trumbell of Illinois) (emphasis added). Consistently, the Supreme Court has interpreted § 1981 in terms of race. For example, in Jones v. Alfred H. Mayer Co., supra, the Court noted that

 
when the House passed the . . . Act, it did so on the same assumption that had prevailed in the Senate: It was believed that it was approving a comprehensive statute forbidding all racial discrimination affecting the basic civil rights enumerated in the Act.

 392 U.S. at 435, 88 S. Ct. at 2200-2201 (emphasis added and footnote omitted). Later the Court remarked that

 
(t)he legislative history of the 1866 Act clearly indicates (a Congressional intention) to protect a limited category of rights, specifically defined in terms of racial equality. As originally proposed in the Senate, § 1 of the bill that became the 1866 Act did not contain the phrase "as is enjoyed by white citizens". That phrase was later added in committee in the House, apparently to emphasize the racial character of the rights being protected.

 Georgia v. Rachel, 384 U.S. 780, 791, 86 S. Ct. 1783, 1789, 16 L. Ed. 2d 925 (1966) (emphasis added and footnote omitted). Finally, in Johnson v. Railway Express Agency, 421 U.S. 454, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1975) the Supreme Court wrote that the Act

 
on its face relates primarily to racial discrimination . . . § 1981 affords a federal remedy against discrimination in private employment on the basis of race.

 Id. at 459, 95 S. Ct. at 1720 (emphasis added). *fn4" To hold that § 1981 embraces claims of age discrimination would contradict not only decisions of virtually every circuit court of appeals, *fn5" but also the district courts in every circuit, *fn6" districts within this circuit, *fn7" and the judges within this district. *fn8" Because § 1981 is limited to claims of racial discrimination, plaintiffs' claims under this section must be dismissed for failure to state a claim upon which relief may be granted. Fed.R.Civ.P. 12(b) (6).

 In Count Three plaintiffs accuse their former employers and two fictional defendants of

 
intentionally, deliberately and invidiously act(ing) in concert and embark(ing) upon and pursu(ing) a course of conduct, the goal of which was to deny plaintiffs . . . (of) ...

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