Appeal from the United States District Court for the Eastern District of Pennsylvania, D.C. Civil No. 88-3127.
Sloviter and Greenberg, Circuit Judges, and Clarkson S. Fisher, District Judge.*fn*
This is an appeal from the district court's dismissal of a complaint alleging sexual and racial discrimination based on acts of sexual harassment by a white male supervisor against a black female employee. On appeal, plaintiff Dorenda Matthews does not contest the lower court's dismissal of the counts pled in her complaint. She argues solely that her case should have been allowed to proceed under 42 U.S.C. § 1981, a theory of relief which was not pled in her complaint nor raised in her brief before the district court but which her counsel claims he raised at oral argument before that court. The Supreme Court's recent opinion in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989), precludes use of section 1981 as a theory of relief in cases alleging on-the-job harassment, however, and we therefore will affirm the ruling of the district court on this ground without reaching the issue of whether Matthews raised her section 1981 claim below. We will also grant the appellees' motion for sanctions against Steven M. Kramer, appellant's counsel.*fn1
In reviewing the district court's grant of a motion to dismiss, this court must accept as true all of the factual allegations in the complaint and all reasonable inferences that can be drawn from them, and must refrain from granting a dismissal unless it is certain that no relief could be granted. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).
Matthews alleges that during the course of her employment as a receptionist at defendant McCormick, Taylor & Co., her supervisor, comptroller Darryl Freedman, also a defendant, subjected her to repeated sexual comments, advances, and other forms of harassment. When she rejected these advances, Freedman began to reprimand Matthews for lateness, absences and telephone misuse. Other employees who were absent or late with the same frequency were not reprimanded as severely. Matthews was eventually given a one-day suspension for reporting late to work and thereafter did not return to work, contending that she was compelled to resign from her job because of her distress and frustration over the situation.
Matthews subsequently filed a complaint in the United States District Court for the Eastern District of Pennsylvania alleging violations of Title VII, the Thirteenth Amendment, the Fourteenth Amendment, and several common law theories. The district court held that Matthews' Title VII claim was barred by the applicable statute of limitations; that she failed to allege the state action necessary to sustain a suit under the Fourteenth Amendment; and that she could not bring a direct cause of action under the Thirteenth Amendment. The court declined to exercise pendent jurisdiction over the remaining state law claims and therefore dismissed the complaint in its entirety.
On appeal, Matthews argues that her case should be allowed to proceed as a race discrimination suit under 42 U.S.C. § 1981. In response to the appellees' contention that this claim was never pled in the complaint, Matthews contends it was "made clear at oral argument" before the district court that "the intent was to rely on Sec. 1981." Brief of Appellant at 1. Among other arguments, the defendants assert that Matthews failed to raise section 1981 before the district court and point out that her counsel has provided no portion of the record reflecting presentation of such an argument.
We need not resolve the parties' dispute because the Supreme Court's recent opinion in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989), bars the use of section 1981 in suits alleging on-the-job racial harassment. Following the Court's issuance of this opinion this court by letter of June 28, 1989 requested the parties to submit a letter memorandum discussing the effect of Patterson on the issues in this case. Only appellees filed a response.
The Court in Patterson held that the right to make contracts, protected from interference by private parties under section 1981, does not extend "to problems that may arise later from the conditions of continuing employment" including an employer's "imposition of discriminatory working conditions." Id at 2372-73. The right to enforce contracts, also protected under section 1981, "prohibits discrimination that infects the legal process in ways that prevent one from enforcing contract rights, by reason of his or her race," such as by obstructing access to the courts or nonjudicial methods of adjudicating disputes. Id. The Court held that a claim of racial harassment on the job implicated neither of these rights. Such conduct, though reprehensible, "is not actionable under § 1981 . . . [but] rather is actionable under the more expansive reach of Title VII of the Civil Rights Act of 1964." Id. at 2374.
Here, Matthews' allegations of harassment by her supervisor involve conduct occurring in the course of her employment, not a refusal to make an initial contract of employment or impairment of her ability to enforce her legal rights. She therefore may not sustain a claim under section 1981, regardless of whether or not the claim was properly presented before the district court. Matthews does not appeal from the district court's finding that she failed to comply with the applicable statute of limitations provisions for bringing suit under Title VII, the statute the Patterson Court designated as the appropriate ...