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United States District Court, E.D. Pennsylvania

January 29, 2004.


The opinion of the court was delivered by: MICHAEL BAYLSON, District Judge


Derrick Jacobs (herein "Plaintiff) filed a complaint against the City of Philadelphia and Captain Joseph O'Donnell ("Defendants") on February 19, 2003 and an amended complaint on June 5, 2003 alleging racial discrimination under 42 U.S.C. § 1981 and 1983, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII") and the Pennsylvania Human Relations Act, 43 PA. STAT. ANN. § 951 et seq. ("PHRA") for employment discrimination based on race and a racially hosfile work environment. Defendants subsequently filed their Motion to Dismiss on September 2, 2003 and Plaintiffs responded on September 22, 2003.

I. Factual and Procedural Background

  Plaintiff was hired by the City of Philadelphia as a police officer in January 1996 and promoted to the position of Detective in December 1998. Plaintiff alleges that, beginning in January 2001, his supervisors began harassing him and in February of 2001, an official memo written to Defendant O'Donnell referred to Plaintiff as "Brother Jacobs." Plaintiff alleges that he was denied overtime and removed from assignments that earned overtime, while officers with similar seniority remained in such assignments, in several instances in February, May, and June of 2001. On June 22, 2001, when Plaintiff asked Defendant O'Donnell about his removal from Page 2 these assignments, he was told "I'm going to run your black ass out of this division and off the department."

  Plaintiff also makes the following allegations:

1. Plaintiff had vacation time unduly removed in June and July of 2001 and on July 20, 2001 Defendant O'Donnell wrote a memo incorrectly stating that Plaintiff had used six undocumented sick days that year. In July 2001, Plaintiff was unduly suspended for 20 days without pay for making false reports and not signing a police document.
2. On August 23, 2001, Plaintiff injured his knee in the course of employment and was treated by a physician, who told him to stay off of his knee for two weeks. That same week, Plaintiff had sick time unduly taken from him and the next week Plaintiff was put down for two hours absent without leave ("AWOL"), even though he had been at work.
3. On September 10, 2001, Detective Sloan asked Plaintiff and Detectives Hobbs and Anderson, "What's going on at the division? Why is the Captain messing with all the blacks?" On September 16, 2001 a fellow white officer, Detective O'Brien, did not call or report for work, but instead of being listed as AWOL, was marked as taking vacation time. On September 17, 2001, O'Brien reported late for work and was not marked as late.
  4. On September 19, 2001, Plaintiff called in sick due to an intestinal ailment, and was called at home by Lieutenant Bachmayer, who told him he had been "sick checked" (squad cars had been sent to his home to determine if he was in fact there) and told Plaintiff "as far as we are concerned, you are not home." On September 21, 2001, an official memo from Defendant O'Donnell to the Police Finance division directed that Page 3


Plaintiff's vacation on July 3, 2001 should be changed to AWOL and that "disciplinary action is forthcoming."
5. On September 27, 2001, Plaintiff submitted a doctor's note and took a sick leave of absence because of Defendants' ongoing course of harassment, and was marked AWOL rather than on sick leave, even though he had sick leave available. Defendant O'Donnell advised Plaintiff that he would be placed on the sick "abuse" list.
6. On October 24, 2001, Detective Kensey*fn1 was on duty and transporting himself and his child home and was involved in a road rage incident. The next day, Sgt. Terry changed Kensey's time to make the incident "off duty" and paid Kensey three hours overtime.
7. On November 1, 2001, Plaintiff filed a Charge of Discrimination with the EEOC in Philadelphia.
8. On November 16, 2001, Plaintiff was given sick time without pay for his back to work physical. On November 16, 2001, Plaintiff called the Fraternal Order of Police regarding grievances he had filed. Ken Rocks stated to Plaintiff, "it's obvious Captain O'Donnell does not like black detectives."
9. On January 1, 2002, Plaintiff was charged for eight hours of sick time despite working the 8:00 A.M. to 4:00 P.M. shift. On January 7, 2002, Plaintiff was charged with eight hours of vacation time despite working the 4:00 P.M. to 12:00 A.M. shift. On or around May 9 and 10, 2002, Plaintiff was again denied payment of overtime.
  After receiving a right to sue letter from the EEOC on November 20, 2002, Plaintiff filed a complaint in this Court on February 19, 2003 and an amended complaint on June 5, 2003. Page 4

 II. Legal Standard

  When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court may look only to the facts alleged in the complaint and its attachments. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1251, 1261 (3d Cir. 1994). The Court must accept as true all well-pleaded allegations in the complaint and view them in the light most favorable to the plaintiff. Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985). A Rule 12(b)(6) motion will be granted only when it is certain that no relief could be granted under any set of facts that could be proved by the plaintiff. Ransom v. Marrazzo, 848 F.2d 398, 401 (3d Cir. 1988).

 III. Discussion

  In their Motion to Dismiss, Defendants argue that Plaintiffs complaint should be dismissed because he has not exhausted his administrative remedies, because he has not provided a copy of the EEOC right to sue letter, because he incorrectly pleads a claim under § 1981, because punitive damages are inappropriate and because the pendent state claims are incorrectly in federal court if the federal claims are not valid. Each of these arguments will be addressed below. As a preliminary matter, Plaintiff has withdrawn his claim for punitive damages against Defendant City of Philadelphia (Plaintiff's Memorandum of Law Opposing Defendant's Motion to Dismiss at 7, n.2), so Defendants' argument on that count need not be addressed here.

 1. Right to Sue Letter

  Defendants first argue that they were not served with a copy of Plaintiff's right to sue letter from the EEOC. Defendants argue that, since they did not have a copy of this letter, it must be assumed that the date Plaintiff claims the EEOC letter was sent is incorrect and that Plaintiff Page 5

 has not properly sued within the 180-day time limit. Plaintiff responds that the right to sue letter lists Defendants as having received a copy and, in any event, Plaintiff is not required to attach the right to sue letter to his complaint. Plaintiff also attaches a copy of the letter, dated November 20, 2002 that shows a copy to Defendants, to his response.

  Regardless of whether Defendants actually received a copy of the right to sue letter from the EEOC, they now currently have a copy of the letter and the November 20, 2002 date on the letter shows that Plaintiff filed his February 19, 2003 original complaint well within the 180-day time limit. Therefore, Defendants' arguments on this issue are without merit.

 2. Exhaustion

  Defendants further argue that Plaintiff raises facts and a retaliation claim in his Complaint that were not included in the EEOC charge. Plaintiff argues that the allegation in the EEOC charge put the Defendants on notice of the charges against them, namely ongoing racial harassment beginning in January of 2001.

  The "parameters of a civil action in the District Court are defined by the scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination, including new acts which occurred during the pendency of proceedings before the Commission." Anielino v. New York Times Co., 200 F.3d 73, 94 (3d Cir. 1999) citing Oubichon v. North Am. Rockwell Corp., 482 F.2d 569 (9th Cir. 1973). As Plaintiff's EEOC charge alleges racial harassment by the Defendants, naming O'Donnell specifically, and makes the allegations within the same time frame as the Complaint filed in this Court, Defendants' argument that Plaintiff did not raise the facts before this Court in his EEOC charge is without merit. Page 6

  Although the Third Circuit has not ruled directly on the issue, other judges in this district have found that courts can look at the substance of the allegations rather than the specific language of the charge to determine whether a theory was raised. Phillips v. Heydt, 197 F. Supp.2d 207, 217-8 (E.D. Pa. 2002), Williams v. Home Depot, 1999 U.S. Dist. LEXIS 15250, at *16-17 (E.D. Pa. 1999) (both looking at the facts alleged rather than language used to determine whether a continuing violation theory was raised in the EEOC charge). In this case, Plaintiff states in his EEOC Charge that he was subject to unwarranted disciplinary action after complaining about his reassignment and was marked AWOL despite taking a medical absence. In addition, Plaintiff's complaint alleges similar harassment and unwarranted disciplinary action after the filing of his EEOC charge, facts that could not have been alleged in his EEOC charge but can reasonably be expected to grow out of it. These facts are sufficient to put Defendants on notice of a claim of retaliation before this Court. Accordingly, the allegations in Plaintiff's EEOC Charge are sufficient to properly raise the facts and claims in the Complaint before this Court.

 3. § 1981 Claim

  Defendants argue that Plaintiff's claim under 42 U.S.C. § 1981 should be dismissed because 42 U.S.C. § 1983 is the exclusive remedy in this circumstance. Plaintiff argues that the appropriate action is to merge the § 1981 claim into the § 1983 claim. In support of dismissal of Plaintiff's § 1981 claim, Defendants cite Miles v. City of Philadelphia, 1999 WL 274979 (E.D. Pa. May 5, 1999) and note that the Third Circuit Court of Appeals has yet to address this issue, about which there is a circuit split.

  Defendants are correct that there is disagreement among other circuits, as well as within Page 7 the Eastern District of Pennsylvania, over whether § 1983 is the exclusive remedy for § 1981 violations, despite the 1991 amendments to § 1981. However, Defendants misconstrue the position taken in Miles. In Miles, Judge Waldman found that the Supreme Court's holding in Jett v. Dallas Independent School Dist., 491 U.S. 701, 109 S.Ct. 2702 (1989) that "§ 1983 provides the exclusive remedy for violations of § 1981 by state actors" to still be effective despite the 1991 amendments to § 1981. Accordingly Judge Waldman treated the § 1981 claim as merged into the § 1983 claim. Other cases in this district have addressed the issue, as well. See Poli v. SEPTA, 1998 U.S. Dist. LEXIS 9935 (E.D. Pa. July 7, 1998) (following the holding in Jett that § 1983 is the exclusive remedy for § 1981); Watkins v. Penn. Bd. of Probation and Parole, et al., 2002 U.S. Dist. LEXIS 23504 (E.D. Pa. November 25, 2002) (following the 9th Circuit view that there is an individual cause of action under § 1981).

  Although Defendants are correct in asserting that the Third Circuit has not explicitly addressed this issue, in a recent case the Third Circuit stated:

The Court has ruled "that the express action at law provided by § 1983 . . . provides the exclusive federal damages remedy for the violation of the rights guaranteed by § 1981 when the claim is pressed against a state actor . . . Thus, to prevail in his claim for damages [against a state actor], [a claimant] must show that the violation of his right to make contracts protected by § 1981 was caused by a custom or policy within the meaning of Monell and subsequent cases."
Oaks v. City of Philadelphia, 59 Fed. Appx. 502, 503 (2003) (citing Jett, 491 U.S. at 735-6). Although the opinion in Oaks does not directly address the effect of the 1991 amendments to § 1981, it does apply the view that § 1983 is still the remedy for § 1981 claims against state actors to the case before it. This Court will follow the approach taken by the Third Circuit in Oaks and Page 8 Judge Waldman in Miles. Accordingly, Plaintiff's § 1981 will not be dismissed, but will be treated as merged into his § 1983 claim.

 4. Adequacy of Pleadings

  Defendants further argue that Plaintiff has not pled sufficient facts to withstand a Motion to Dismiss, specifically arguing that Plaintiff has not presented any facts showing racial animus. As the present motion is a motion to dismiss, Plaintiff must only have fulfilled the notice pleading requirements of Rule 8 of the Federal Rules of Civil Procedure. Plaintiff has alleged that he experienced lost vacation time, unwarranted discipline, and harassment from his superiors, because of his race. Plaintiff has also presented facts alleging that his superiors made racially disparaging statements. Finally, Plaintiff has presented facts alleging that similarly situated white officers were not subject to this treatment. Plaintiff has pled sufficient facts to withstand Defendants' Motion to Dismiss.

 5. Pendent claim

  As the federal claims remain, Defendants' argument that the pendent state claims should be dismissed from this Court fails.

 IV. Conclusion

  For the reasons set forth above, the Court will deny Defendants' Motion to Dismiss the Amended Complaint.

  An appropriate order follows.


  AND NOW, this day of, 2003, upon consideration of Defendants' Motion to Dismiss it is hereby ORDERED that Defendants' Motion to Dismiss the Amended Complaint (Doc. No. 10) is DENIED.

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