United States District Court, E.D. Pennsylvania
January 29, 2004.
DERRICK U. JACOBS
CITY OF PHILADELPHIA and CAPTAIN JOSEPH O'DONNELL
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,
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
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
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
Plaintiff's vacation on July 3, 2001 should be
changed to AWOL and that "disciplinary action
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
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
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.
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).
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
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
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.
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.
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
Defendants are correct that there is disagreement among other circuits,
as well as within
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
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
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.
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.