The opinion of the court was delivered by: Buckwalter S. J.
Currently pending before the Court is a Motion by Plaintiff Anthony Jackson to file a Second Amended Complaint, and the Response thereto of Defendant Southeastern Pennsylvania Transportation Authority ("SEPTA"). For the following reasons, the Motion is granted.
The crux of Plaintiff's proposed Second Amended Complaint challenges Defendant's "Criminal Record Policy," which effectively prohibits SEPTA, and all of its paratransit service providers, from hiring any person with a criminal record, including felony or misdemeanor convictions, without allowing any inquiry into the circumstances of the conviction. (Sec. Am. Compl. ¶ 29.) Plaintiff alleges that, for many years, Defendant SEPTA has "intentionally imposed [these] screening standards and practices on applicants for jobs as drivers with SEPTA and its paratransit subcontracting companies . . . that have had a disparate impact on African American job applicants and employees with older criminal offenses that have no bearing on the ability of the individual in question to safely and appropriately carry out the responsibilities of a SEPTA bus driver or a paratransit driver." (Id. ¶ 4.) The resulting disparate impact from this policy was purportedly "brought to light" by a prior judicial ruling challenging the identical policy. (Id. ¶ 7 (citing Douglas El v. SEPTA, 418 F. Supp. 2d 659 (E.D. Pa. 2005).) Nonetheless, over the years SEPTA has "intentionally selected, instituted and reaffirmed" this "Criminal Record Policy" precisely because of its adverse effects on African-Americans. (Id. ¶ 7.)
According to the facts alleged in the Amended Complaint, Plaintiff Anthony Jackson, at the time relevant to this litigation, was a forty-four year old African-American male with a five-year employment history driving vans, trucks, and paratransit vehicles. (Id. ¶ 20.) Jackson had a criminal history consisting of: (1) misdemeanor convictions for indecent assault and exposure stemming from a November 1993 incident, and resulting in three years probation; (2) an arrest for an incident occurring in 2000, for which the charges were dismissed; and (3) an arrest for an incident occurring in 2001, for which the charges were nolle prossed. (Id.)
In 2002, Plaintiff first applied for a position as a bus driver with SEPTA. (Id. ¶ 21.) Although he passed all required testing, he was denied employment based solely on his past criminal history. (Id.) Subsequently, in early 2003, Plaintiff accepted employment with Triage, Inc. ("Triage"), a paratransit provider who contracts with SEPTA. (Id. ¶¶ 9, 22.) In late 2004, during his employment with Triage, Plaintiff again applied for a position with SEPTA as a bus driver. (Id. ¶ 33.) After again passing the required testing, he was not hired due to his past criminal record. (Id.) Plaintiff remained employed with Triage until 2005, when he was laid off due to the company's financial difficulties. (Id. ¶ 22.)
In August 2005, Plaintiff began working as a paratransit driver for SEPTA paratransit subcontractor First Transit. (Id. ¶ 34.) As part of his employment application, Plaintiff revealed the full extent of his criminal history. (Id. ¶ 35.) Despite his background, Plaintiff was hired and worked for First Transit without incident until 2006, when a SEPTA supervisor informed him of a change in SEPTA's policy that barred persons with criminal convictions from employment. (Id. ¶ 36.) The supervisor told Plaintiff, however, that under a "grandfather clause" and because he was an active employee in good standing, he would not be terminated. (Id.)
In 2007, during his employment with First Transit, Plaintiff applied a third time for a position with SEPTA as a bus driver and was again denied employment based on his past criminal record. (Id. ¶ 37.) Thereafter, on December 13, 2007, Plaintiff received a call from his supervisor at First Transit, informing him that, due to a change in SEPTA's employment policy, Plaintiff was being terminated, at SEPTA's directive, solely because of his prior criminal record. (Id. ¶ 38.) Since that date, Plaintiff has remained unemployed. (Id. ¶ 41.)
On September 19, 2008, Plaintiff filed a class action complaint challenging the disparate impact of SEPTA's Criminal Record Policy under 42 U.S.C. § 1981, but including scant reference to any intentional discrimination by SEPTA. Following SEPTA's November 19, 2008, motion to dismiss on the ground that the disparate impact theory of discrimination is not available under 42 U.S.C. § 1981, Plaintiff filed an Amended Complaint dated December 15, 2008. In that Amended Complaint, Plaintiff included a single count, under 42 U.S.C. § 1981, alleging intentional discrimination by SEPTA against Africa-Americans.
On December 31, 2008, Defendant moved to dismiss the Amended Complaint, asserting that Plaintiff had failed to properly plead a cause of action for intentional discrimination. Plaintiff responded on January 14, 2009, and Defendant filed a reply brief on January 26, 2009. Before this Court had the opportunity to rule on the motion, the Third Circuit handed down its decision in McGovern v. City of Philadelphia, 554 F.3d 114 (3d Cir. 2009). In that opinion, the court held that "the express cause of action for damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units." Id. at 121 (quoting Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 733 (1989)). By way of letter dated February 16, 2009, Defendant requested that the Court dismiss Plaintiff's Amended Complaint on the basis of the McGovern decision.
Four days later, on February 20, 2009, Plaintiff, apparently acknowledging the import of McGovern, submitted the current Motion for Leave to File a Second Amended Complaint. The sole count in the proposed Second Amended Complaint asserts a violation of 42 U.S.C. § 1981, which Plaintiff seeks to enforce pursuant to 42 U.S.C. § 1983, as follows:
56. Defendant SEPTA violated the provisions of the Civil Rights Act of 1871, as amended, 42 U.S.C. § 1983, in that Defendant, acting under color of law, deprived Jackson and all other similarly situated African American job applicants, of the privileges and immunities secured to them by the Constitution and laws of the United States and the Commonwealth of Pennsylvania, and, in particular, that they deprived them of property without due process by, inter alia, maintaining a criminal record policy that mandates terminating the employment and/or denying employment to individuals based solely on their criminal records without allowing any inquiry into when the conviction occurred, the circumstances surrounding the conviction, or whether the conviction has any relationship to the responsibilities of the position sought.
57. Defendant SEPTA further violated the provisions of the 42 U.S.C. § 1981 in that they discriminated against Plaintiff on account of his race and interfered with Plaintiff's rights to make an enforce contracts, based on his race, as evidenced by, inter alia:
(a) Defendant SEPTA committed intentional, purposeful, deliberate, repeated, and ongoing violations of 42 U.S.C. § 1981 by requiring its paratransit providers to deny employment to all persons with criminal records, including misdemeanor or felony convictions, arrest or diversionary program resolutions, without considering how long ago the criminal behavior occurred, the circumstances surrounding the criminal behavior, the relation between the criminal behavior and the position sought (or held);
(b) Defendant SEPTA committed intentional, purposeful, deliberate, repeated, and ongoing violations of 42 U.S.C. § 1981 through the termination and/or denial of Plaintiff's employment pursuant to Defendant SEPTA's uniform employment policies and practices;
(c) Defendant SEPTA created and imposed its uniform employment policies and practices both knowing and intending that it would work to exclude anyone with a prior criminal record from being able to secure employment with any paratransit ...