heretofore set forth, and for the further reason that he has not shown that he was terminated for discriminatory or retaliatory reasons.
There is a compelling reason to strike Mr. Gordon's § 1981 claim -- the legal standards and remedies of § 1981 are significantly different than those of Title VII. See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975) (Title VII and § 1981 remedies are distinct but not mutually exclusive). Under these circumstances it would be unfair to require Amtrak to defend against these claims pleaded so late in the litigation unless a continuance were granted to permit further discovery. In the instant case, where the new legal questions injected into the case by the plaintiff on the eve of trial are so distinct from those pleaded in the complaint, the Court would be well within the bounds of its discretion to refuse to allow plaintiff to present these legal issues, even if defendant were granted additional time to prepare its case.
As the cases make clear, "Title VII and Section 1981 are not identical. . . . The proof is different, at least as to discriminatory intent." Manzanares v. Safeway Stores, Inc., 593 F.2d 968, 971 (10th Cir. 1979). To prove liability under Section 1981, a plaintiff must show a racially discriminatory purpose in the defendant's actions. See Washington v. Davis, 426 U.S. 229, 238-39, 48 L. Ed. 2d 597, 96 S. Ct. 2040 (1976). A defendant may be liable under Title VII, "solely on the racially different impact of the challenged hiring or promotion practices." Id. at 238-39. While disparate impact is admissible evidence in a Section 1981 claim ( Id. at 239), disparate impact standing alone will not create liability under Section 1981 and the Fourteenth Amendment of the Constitution. Furthermore, the reach of Title VII liability is greater. Section 1981 does not apply to discrimination on the basis of gender, religion, or national origin, as does Title VII. See Manzanares, supra, 593 F.2d at 971.
Although Title VII liability is broader than Section 1981 liability, the remedies available to the successful litigant are greater under Section 1981 than under Title VII. Back pay awards are available to victims of job discrimination under both Title VII and Section 1981, but under Title VII, the award may not exceed two years back pay. See Johnson v. Railway Express, supra, 421 U.S. at 460. Punitive damages are available under Section 1981 where the defendant's conduct has been outrageous, but Title VII permits recovery only of compensation in the equitable form of back pay and attorney's fees. Id. at 460. Attorney's fees are available under both statutes since the 1976 enactment of 42 U.S.C. § 1988, but prior to that Title VII contained a counsel fees provision. As originally enacted, Title VII did not apply to federal government discrimination. This was changed by amendment in 1972 (see 42 U.S.C. § 2000e-16). Section 1981 has applied to government discrimination for more than a century. In addition, Title VII not only creates a cause of action but also establishes an involved administrative scheme for combating discrimination while Section 1981 creates only a private right of action for unconstitutional discrimination.
Thus, the differences in the statutes require that a plaintiff seeking recovery under both laws plead both statutes in his complaint or seek to amend the complaint to include both bases of relief as soon as possible. This Court will not permit litigants to attempt to add Section 1981 claims to a Title VII case so late in the litigation as the filing of the pretrial order, which often is submitted by the parties only a week prior to the trial. In this case, if Gordon had shown discrimination, his remedies would have been defined by Title VII and not both Title VII and Section 1981. However, since Mr. Gordon has shown no such discrimination, he is not aggrieved by counsel's untimely attempt to add Section 1981 and 43 P.S. § 951 into the case. Under the facts as found by this Court, Mr. Gordon has not shown he is entitled to relief under Title VII, Section 1981, or 43 P.S. § 951. An appropriate order will be accordingly entered.
AND NOW, this 11th day of May, 1983, trial having been held in this matter pursuant to Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq. on April 18 and 19, 1983 before this Court sitting as a finder of fact, defendant having moved to strike from the pretrial order plaintiff's claims for relief pursuant to 42 U.S.C. § 1981 and 43 P.S. § 951, et seq., for the reasons set forth in this Court's Memorandum of May 11th, 1983,
IT IS HEREBY ORDERED:
1. Defendant's motion to strike plaintiff's claims pursuant to 42 U.S.C. § 1981 and 43 P.S. § 951 from the pretrial order is GRANTED.
2. Judgment is entered in the Title VII action in favor of defendant National Railroad Passenger Corporation a/k/a/ Amtrak and against plaintiff Reynold Gordon.
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