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rejecting argument that plaintiffs must allege their specific nation of origin in order to state a claim for national origin discrimination under Title VI
Summary of this case from Kanaji v. Children's Hosp. of Phila.Opinion
Case No. 3:00CV7524
December 3, 2002
ORDER
Plaintiffs Ela C. Almendares, Tomas G. Juvier, Maria Neria, and Jesus Saenz bring this class action on behalf of themselves and others similarly situated against the Lucas County Department of Job and Family Services (LCDJFS) and Isaac Palmer in his official capacity as director of LCDJFS (county defendants), and the Ohio Department of Job and Family Services (ODJFS) and Tom Hayes in his official capacity as director of the ODJFS (state defendants). Plaintiffs claim defendants violated federal law and regulations by failing to ensure the adequate provision of bilingual program informational materials and notices and bilingual staff or interpreters under the state food stamp program. Plaintiffs also claim defendants violated federal law by intentionally discriminating against plaintiffs on the basis of national origin. This court has jurisdiction pursuant to 28 U.S.C. § 1331 and 1343.
Pending is state defendants' motion to dismiss plaintiffs' complaint pursuant to Fed.R.Civ.P. 12(b)(6). For the following reasons, defendants' motion shall be granted in part and denied in part.
BACKGROUND
Plaintiffs are low-income Spanish-speaking, or "limited English proficient," recipients of food stamps. They are residents of Lucas County, Ohio. Their food stamps are administered by LCDJFS.
Plaintiffs contend that notices, applications, and written communications from the ODJFS and LCDJFS are almost exclusively in English. Plaintiffs further claim they are reluctant to call LCDJFS or to walk into LCDJFS because, in their experience, LCDJFS does not have employees available who can speak to plaintiffs in Spanish about their cases. As a result, plaintiffs contend that their rights to participate fairly and equally in the food stamp program have been denied.
Plaintiffs' complaint has six claims. The first claim is under 42 U.S.C. § 1983. Plaintiffs allege defendants LCDJFS, Palmer, and Hayes, acting under color of state law or custom, have deprived plaintiffs of their rights to bilingual information and assistance guaranteed by § 2020(e)(1)(B) of the Food Stamp Act, 7 U.S.C. § 2011 et. seq., and its implementing regulations, 7 C.F.R. § 272.4(b) and 7 C.F.R. § 272.5(b)(3).
Plaintiffs' second claim is based on Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d. Plaintiffs allege ODJFS and LCDJFS have violated this statute by using criteria or methods of program administration that intentionally discriminate on the basis of national origin.
Plaintiffs third and fourth claims have been withdrawn.
Plaintiffs' fifth claim alleges that the Food Stamp Act provides an implied cause of action. Therefore, plaintiffs are suing defendants LCDJFS, Palmer, and Hayes for violation of § 2020(e)(1)(B) and its implementing regulations, 7 C.F.R. § 272.4(b) and 272.5(b).
Plaintiffs' sixth claim is solely against county defendants for violating Ohio law.
State defendants move to dismiss claims one, two, and five. For the following reasons, state defendants' motion to dismiss claims one and five is granted. State defendants' motion to dismiss claim two is denied.
STANDARD OF REVIEW
No complaint shall be dismissed unless the plaintiff has failed to allege facts in support of plaintiffs' claim that, construed in plaintiffs' favor, would entitle the plaintiff to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957). When deciding a motion brought pursuant to Fed.R.Civ.P. 12(b)(6), the inquiry is essentially limited to the content of the complaint, although matters of public record, orders, items appearing in the record, and attached exhibits also may be taken into account. See Yanacos v. Lake County, 953 F. Supp. 187, 191 (N.D.Ohio. 1996). The court must accept all the allegations stated in the complaint as true, Hishon v. King Spalding, 467 U.S. 69, 73 (1984), while viewing the complaint in the light most favorable to the plaintiff. Sheuer v. Rhodes, 416 U.S. 232, 236 (1974). A court, however, is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).
DISCUSSION I. Claim One: § 1983
Section 1983 imposes liability on anyone who, under color of state law, deprives a person "of any rights, privileges, or immunities secured by the Constitution and laws."
In Maine v. Thiboutot, 448 U.S. 1 (1980), the Supreme Court held that § 1983 actions may be brought against state actors to enforce rights created by federal statutes. The Supreme Court has made clear, however, that to seek redress through § 1983, a plaintiff must assert the violation of a federal right, not merely a violation of federal law. Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 106 (1989) (emphasis added).
The typical remedy, however, for state noncompliance with federally imposed conditions "is not a private cause of action for noncompliance but rather action by the Federal Government to terminate funds to the State." Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 28 (1981).
Traditionally, the Supreme Court looked at three factors when determining whether a particular statutory provision gave rise to a federal right:
First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so "vague and amorphous" that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory rather than precatory terms.
Blessing v. Freestone, 520 U.S. 329, 340-341 (1997) (citations omitted).
Plaintiff demonstration that a federal statute creates an individual right only gives rise to a rebuttable presumption that the right is enforceable under § 1983. Whether a statute creates a federal right depends on congressional intent: "dismissal is proper if Congress `specifically foreclosed a remedy under § 1983.'" Id. at 341 (citing Smith v. Robinson, 468 U.S. 992, 1005 n. 9 (1984)). Congress may foreclose a § 1983 remedy by expressly "forbidding recourse to § 1983 in the statute itself, or impliedly, by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983." Blessing, 520 U.S. at 341.
The Supreme Court has only found spending legislation to give rise to enforceable rights in two cases. In Wright v. Roanoke Redevelopment and Hous. Auth., 479 U.S. 418 (1987), the Court allowed a § 1983 suit by tenants to recover past overcharges under a rent-ceiling provision of the Public Housing Act. The Court found that the provision unambiguously conferred a mandatory benefit for the individual families. Id. at 430. The key to the Court's inquiry was that Congress spoke clearly and conferred entitlements "sufficiently specific and definite to qualify as enforceable rights. . . ." Id. at 432. The Court noted, moreover, that the federal agency charged with administering the Public Housing Act had never provided a procedure by which tenants could complain to it about the alleged failures of the state welfare agency to abide by the Act's rent-ceiling provision. Id. at 426.
In the other case, Wilder v. Virginia Hosp. Assn., 496 U.S. 498 (1990), the Court allowed a § 1983 suit brought by health care providers to enforce a reimbursement provision of the Medicaid Act on the ground that the provision explicitly conferred specific monetary entitlements on the plaintiffs. As in Wright, Congress had left no doubt of its intent for private enforcement because the provision required states to pay an "objective" monetary entitlement to individual health care providers, with no sufficient administrative means of enforcing the requirement against States that failed to comply. Id. at 522-23.
More recently, the Court has rejected attempts to infer enforceable rights from federal statutes. See Suter v. Artist M., 503 U.S. 347 (1992) (finding that Congress did not unambiguously confer an enforceable right under the "reasonable efforts" clause of the Adoption Assistance and Child Welfare Act of 1980); Blessing, 520 U.S. at 343 (finding that the Social Security Act Title IV-D did not give individuals a federal right to force a state agency to substantially comply with the law).
In Gonzaga Univ. v. Doe, ___ U.S. ___, 122 S.Ct. 2268 (2002), the Court clarified any confusion about what is required to sustain a cause of action under § 1983. The Court stated:
Some language in our opinions might be read to suggest that something less than an unambiguously conferred right is enforceable by § 1983. Blessing, for example, set forth three "factors" to guide judicial inquiry into whether or not a statute confers a right. . . . This confusion has led some courts to interpret Blessing as allowing plaintiffs to enforce a statute under § 1983 so long as the plaintiff falls within the general zone of interest that the statute is intended to protect. . . .
We now reject the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983. Section 1983 provides a remedy only for the deprivation of "rights, privileges, or immunities secured by the Constitution and laws" of the United States. Accordingly, it is rights, not the broader or vaguer "benefits" or "interests," that may be enforced under the authority of that section.
Id. at 2275.
In Gonzaga, the issue was whether a student may sue a private university for damages under § 1983 to enforce provisions of the Family Educational Rights and Privacy Act of 1974, (FERPA), 20 U.S.C. § 1232g. That statute prohibits federal funding of educational institutions that have a policy or practice of releasing education records to unauthorized persons. The Court found that the relevant portions of FERPA did not create a personal enforcement right under § 1983. The Court concluded: "FERPA's nondisclosure provisions [1] contain no rights-creating language, [2] they have an aggregate, not individual, focus, and [3] they serve primarily to direct the Secretary of Education's distribution of public funds to education institutions." Id. at 2280. Furthermore, the Court found Congress chose to provide a mechanism in the statute for enforcing its provisions. Id. at 2278-79.
In this case, plaintiffs urge this court to use the three factors stated in Blessing to allow a § 1983 claim enforcing § 2020(e)(1)(B) of the Food Stamp Act. After Gonzaga, however, the key inquiry is whether Congress unambiguously created a private cause of action in § 2020(e)(1)(B). As stated in Gonzaga, "where the text and structure of a statue provide no indication that Congress intends to create new individual rights, there is no basis for a private suit. . . ." Id. at 2277.
The relevant portion of the Food Stamp Act states:
(e) Requisites of State plan of operation. The State plan of operation required under subsection (d) of this section shall provide, among such other provisions as may be required by regulation —
(1) that the State agency shall. . . .
(B) use appropriate bilingual personnel and printed material in the administration of the program in those portions of political subdivisions in the State in which a substantial number of members of low-income household speak a language other than English;
§ 2020(e)(1)(B).
As in Gonzaga, the language of the Food Stamp Act lacks "rights-creating" language manifesting congressional intent to create private rights. Section 2020(e)(1)(B) simply imposes conditions on recipients of federal funds. The statute requires state plans to provide bilingual personnel and printed material in certain areas. The statute does not confer individual entitlement enforceable under § 1983.
Examples of rights-creating statutes were explained in Touche Ross Co. v. Redington, 442 U.S. 560 (1979). In that case, the Supreme Court found individual rights under Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 because those statutes are phrased with an "unmistakable focus on the benefitted class." Id. at 576. Title VI provides: "No person in the United States shall . . . be subjected to discrimination under any program or activity receiving Federal financial assistance" on the basis of race, color, or national origin. 42 U.S.C. § 2000d (1994) (emphasis added). Title IX provides: "No person in the United States shall, on the basis of sex . . . be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a) (emphasis added).
As the Court concluded in Gonzaga: "Where a statute does not include this sort of explicit `right-or-duty-creating language' we rarely impute to Congress an intent to create a private right of action." 122. S.Ct. at 2276 n. 3 (citations omitted).
As the Supreme Court stated in Cannon v. Univ. of Chicago, 441 U.S. 677 (1979):
There would be far less reason to infer a private remedy in favor of individual persons if Congress, instead of drafting Title IX with an unmistakable focus on the benefitted class, had written it simply as a ban on discriminatory conduct by recipients of federal funds or as a prohibition against the disbursement of public funds to education institutions engaged in discriminatory practices.441 U.S. at 690-93; see also Alexander v. Sandoval, 532 U.S. 275, 289 (2001) ("Statutes that focus on the person regulated rather than the individuals protected create `no implication of an intent to confer rights on a particular class of persons.'" (citations omitted).
Also, like the provisions of FERPA, this provision of the Food Stamp Act has an "aggregate" focus. It is not concerned with whether the needs of any particular person has been satisfied; it therefore cannot give rise to individual rights.
Any "right" created in § 2020(e)(1)(B) is, moreover, too vague to be enforceable. In concluding that FERPA's language could not confer an individual right, the Court in Gonzaga explained:
Recipient institutions can further avoid termination of funding so long as they "comply substantially" with the Act's requirements. This, too, is not unlike Blessing, which found that Title IV-D failed to support a § 1983 suit in part because it only required "substantial compliance" with federal regulations.
In Blessing, five mothers in Arizona, whose children were eligible to receive child support services from the state pursuant to Title IV-D of the Social Security Act, sued the director of Arizona's child support agency under § 1983 to enforce Title IV-D. Title IV-D requires states to "substantially comply" with the requirements of Title IV-D or the Secretary may penalize the state by reducing its federal grant. 42 U.S.C. § 609(a)(8). Plaintiffs claimed they had an individual right, enforceable by § 1983, to have the state's program achieve substantial compliance with the requirements of Title IV-D. The Court concluded:
[T]he requirement that a State operate its child support program in "substantial compliance" with Title IV-D was not intended to benefit individual children and custodial parents, and therefore it does not constitute a federal right. Far from creating an individual entitlement to services, the standard is simply a yardstick for the Secretary to measure the systemwide performance of a State's Title IV-D program.
Id. at 343.
Like the "substantial compliance" language in those cases, § 2020(e)(1)(B) requires the State plan to provide for "appropriate bilingual personnel and printed material in the administration of the program in those portions of the . . . the State in which a substantial number of members of low-income households speak a language other than English." This language does not suggest, much less mandate, an individual entitlement to bilingual services. This provision is simply intended to ensure that the State plan of operation include provisions to deal with counties with high populations of low income households whose language is other than English.
The mechanism that Congress chose to provide for enforcing § 2020(e)(1)(B) confirms the conclusion that the Food Stamp Act confers no enforceable rights. Congress specifically selected the Secretary of the Department of Agriculture to handle violations of the Food Stamp Act. Under § 2020(g), if the Secretary finds that a state or political subdivision of a state is not in compliance, the Secretary must "immediately inform such State agency of such failure and shall allow the State agency a specified period of time for the correction of such failure." If the state agency fails to make the corrections, "the Secretary may refer the matter to the U.S. Attorney General to initiate injunction proceedings against the state." Id. After a showing that noncompliance has occurred, "the Secretary shall proceed to withhold from the State such funds authorized" under the Food Stamp Act. Id.
The administrative scheme is only evidence of Congress' intent not to create an individually enforceable private right. The administrative scheme in the Food Stamp Act is not the type of remedial scheme sufficiently comprehensive to supplant a § 1983 claim. See e.g., Smith v. Robinson, 468 U.S. 992 (1984); Middlesex County Sewerage Auth. v. Nat'l Sea Clammers Assn., 453 U.S. 1 (1984).
Plaintiffs contend that § 2020(e)(1)(B) is a "specific right" because it is fleshed out by detailed implementing regulations. Plaintiffs further argue that, in the Sixth Circuit, regulations have the force of law, and, therefore, can create enforceable rights under § 1983. See Loschiavo v. City of Dearborn, 33 F.3d 548, 551 (6th Cir. 1994) ("As federal regulations have the force of law, they likewise may create enforceable rights.")
For example, 7 C.F.R. § 272.4(b), entitled "Bilingual requirements," extensively explains what the state agency shall provide to non-English language food stamp recipients in terms of bilingual information, notices, materials, and interpreters.
As the Supreme Court recently concluded in Alexander v. Sandoval, 532 U.S. 275 (2001), however, regulations cannot be used as a basis for an individual right that Congress has not established by statute:
Both the Government and respondents argue that the regulations contain rights-creating language and so must be privately enforceable, but that argument skips an analytical step. Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not. Thus, when a statute has provided a general authorization for private enforcement of regulations, it may perhaps be correct that the intent displayed in each regulation can determine whether or not it is privately enforceable. But it is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized by Congress. Agencies may play the sorcerer's apprentice but not the sorcerer himself.
Id. at 291.
Therefore, because § 2020(e)(1)(B) does not create a private right, the regulations may not be used to create such right.
Plaintiff further cites cases where courts have found a private right of action under § 1983 to remedy violations of the Food Stamp Act. See e.g., Haskins v. Stanton, 621 F. Supp. 622 (N.D.Ind. 1985) aff'd, 794 F.2d 1273 (7th Cir. 1986). In Haskins, the district court found that the plaintiffs "established a great likelihood of success on the merits of their claim that the defendants have violated 7 U.S.C. § 2020(e)(1)(B) by failing to use appropriate bilingual personnel in administering the Federal Food Stamp Program in Lake County." 621 F. Supp. at 628.
The decision in Haskins assumes, without explanation, that § 2020(e)(1)(B) creates an individual right enforceable under § 1983. On review, the appellate court stated:
[I]t is apparent that Congress intended to permit a private right of action for violations of the Act. In 1977, Congress amended the provisions of the Act that provided the Department of Agriculture with means to enforce compliance with the Act by state officials. After reviewing the remedies, the House of Representatives Agricultural Committee Report stated:
The administrative remedies against the state contained in section 11(f) and elsewhere should not be construed as abrogating in any way private causes of action against states for failure to comply with federal statutory regulatory requirements.
H.R. REP. NO. 464, 95th Cong., 1st Sess. 398 reprinted in 1977 U.S. CODE CONG. AD. NEWS 1978, 2327.794 F.2d at 1275.
The decision in Haskins is not persuasive for two reasons. The appellate court did not conduct a proper analysis to determine if the statutory text of § 2020(e)(1)(B) shows an unambiguous congressional intent to create an enforceable right. The Seventh Circuit concluded that the Food Stamp Act, analyzed in its entirety, was intended to permit a private right of action. This approach was rejected in Blessing, 520 U.S. at 344 ("The Court of Appeals erred not only in finding that individuals have an enforceable right to substantial compliance, but also in taking a blanket approach to determining whether Title IV-D creates rights."). Enforceable rights, if any, must be identified with particularity.
Second, following Gonzaga and Alexander, the Food Stamp Act's legislative history cannot be used to create a private right of action. The holding in Haskins is precisely what the Supreme Court was referring to when it stated: "We now reject the notion that our cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983." Gonzaga, 122. S.Ct. at 2275.
Because § 2020(e)(1)(B) does not create a private enforceable right under § 1983, plaintiffs have failed to state a claim on which relief can be granted. Therefore, defendants' motion to dismiss claim one shall be granted.
II. Claim Two: Title VI
Title VI was intended to "halt federal funding of entities that violate a prohibition of racial discrimination similar to that of the Constitution." Regents of the Univ. of California v. Bakke, 438 U.S. 265, 284 (1978).
Section 601 of Title VI, 42 U.S.C. § 2000d et. seq., provides that no person shall, "on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity" covered by Title VI. 42 U.S.C. § 2000d-1. Section 602 authorizes federal agencies "to effectuate the provisions of [§ 601] . . . by issuing rules, regulations, or orders of general applicability." 42 U.S.C. § 2000d-1. The U.S. Department of Justice, in an exercise of this authority, promulgated a regulation forbidding funding recipients to "utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin. . . ." 28 C.F.R. § 42.104(b)(2).
After the Supreme Court's decision in Alexander, three aspects of Title VI must be taken as given. First, "private individuals may sue to enforce § 601 of Title VI and obtain both injunctive relief and damages." Alexander 532 U.S. at 279; Cannon, 441 U.S. at 699. Second, "§ 601 prohibits only intentional discrimination." Alexander, 532 U.S. at 280. Third, "regulations promulgated under § 602 of Title VI may validly proscribe activities that have a disparate impact on racial groups, even though such activities are permissible under § 601." Id. at 281. These disparate impact regulations, however, do not imply a private right of enforcement. Id. at 291 (finding that there is "no evidence anywhere in the text to suggest that Congress intended to create a private right to enforce regulations promulgated under § 602 ").
State defendants argue plaintiffs' Title VI claim should be dismissed because plaintiffs have not met the conditions precedent to a Title VI claim and because they have not alleged the essential elements of an intentional discrimination claim.
A. Conditions Precedent
State defendants claim plaintiffs have failed to allege satisfaction of two conditions precedent to a Title VI claim. Plaintiffs contend Title VI does not require exhaustion of administrative remedies.
Defendants describe 42 U.S.C. § 2000d-1 as imposing conditions precedent to any action at law. Plaintiffs describe the section as imposing a requirement that administrative remedies be exhausted. For purposes of this opinion, the nomenclature does not matter.
Defendants argue that before plaintiffs are permitted to enforce Title VI, they must satisfy the provisions of § 2000d-1, which state in part:
Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made and, shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found, or (2) by any other means authorized by law: Provided, however, That no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means.
42 U.S.C. § 200d-1.
Defendants argue that, pursuant to subsection (2), the statute imposes two conditions precedent to initiating a suit. First, the federal granting agency must advise the recipient of federal funds that there is a violation of a Title VI regulation. Second, the federal agency must determine that it cannot cause the violator to comply voluntarily with the Title VI regulation.
Defendants apparently analogize the conditions precedent in § 2000d-1 with obtaining a "Right to Sue" letter from the Equal Employment Opportunity Commission (EEOC) before initiating a Title VII action. Because plaintiffs have not alleged these conditions precedent, defendants claim their Title VI claims must be dismissed.
The Sixth Circuit, however, has concluded that litigants need not exhaust administrative remedies prior to bringing a Title VI claim in federal court. Neighborhood Action Coalition v. City of Canton, 882 F.2d 1012, 1015 (6th Cir. 1989).
In Neighborhood Action, defendants filed a motion to dismiss because plaintiffs did not invoke the elaborate enforcement mechanism of § 2000d-1 prior to pursuing their private cause of action in federal court. The Sixth Circuit concluded that, because Title VI does not provide a mechanism by which the class protected by the statue can actively participate in the administrative process, "requiring litigants to exhaust administrative remedies would impose an undue hardship and delay upon their attempts to vindicate their rights." Id.
Defendants seem to argue that the Supreme Court somehow changed this holding in Alexander. The portion of the Alexander opinion on which defendants rely states:
Section 602 empowers agencies to enforce their regulations either by terminating funding to the "particular program, or part thereof," that has violated the regulation or "by any other means authorized by law." No enforcement action may be taken, however, "until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means."532 U.S. at 289 (citing § 2000d-1).
Contrary to defendants' interpretation, this language merely paraphrases § 2000d-1. The Court referred to § 2000d-1 in explaining why Congress did not intend to create a private right of action to enforce the regulations promulgated under § 602. The Court did not interpret § 2000d-1 as incorporating an exhaustion of remedies requirement.
Thus, defendants' exhaustion or precondition argument is rejected in view of the Sixth Circuit's Neighborhood Action decision.
B. Intentional Discrimination
As noted above, § 601 of Title VI prohibits only intentional discrimination. Alexander, 532 U.S. at 280. Defendants claim plaintiffs have failed to state a claim for which relief can be granted because plaintiffs improperly plead a disparate impact claim as one for intentional discrimination and they fail to plead the essential elements of an intentional discrimination claim.
Defendants first note that plaintiffs' allegation in their complaint that ODJFS uses "criteria or methods of program administration that intentionally discriminate on the basis of national origin." Fourth Amended Complaint at 31. This, according to defendants, states a claim of disparate impact similar to the regulations to Title VI that prohibit policies with a disparate impact on protected classes. See 7 C.F.R. § 15.3(b)(2) ("A recipient, . . . may not, . . . utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin . . . .").
Plaintiffs' complaint, however, alleges that Title VI prohibits defendants from purposefully implementing criteria or methods that exclude limited English proficient persons from benefits or services on the basis of national origin. Plaintiffs further allege that state defendants have intentionally violated this prohibition with respect to plaintiffs, who are all Spanish-speaking recipients of food stamps. Reading in the light most favorable to the plaintiffs, plaintiffs have not pled a claim of disparate impact.
Defendants next argue that plaintiffs have not alleged the essential elements of an intentional discrimination claim.
First, defendants argue plaintiffs have not alleged discrimination based on national origin. Defendants argue plaintiffs must allege their national origins — meaning the country or countries where they were born or from which their ancestors came. Because plaintiffs have only identified their class as limited English proficient and persons whose primary language is Spanish, defendants argue plaintiffs have failed to allege their national origin.
Defendants rely on a statement by the Supreme Court generally defining "national origin." In Espinoza v. Farah Mfg. Co., 414 U.S. 86, 88 (1973), the Court noted: "[t]he term `national origin' on its face refers to the country where a person was born, or, more broadly, the country from which his or her ancestors came."
This statement, however, must be viewed in its context. In Espinoza, the issue was whether the term "national origin" embraces a U.S. citizenship requirement. Id. at 89. The Court held that national origin discrimination under Title VII does not include discrimination on the ground of alienage generally.
The issue of whether a group of Spanish-speakers can share the same national origin, as that term is used in Title VI, was not before the Court in Espinoza. Subsequent litigation, as well as EEOC guidelines, demonstrate that they can.
The EEOC has defined "national origin discrimination," as opposed to "national origin":
The Commission defines national origin discrimination broadly as including, but not limited to, the denial of equal employment opportunity because of an individual's, or his or her ancestor's, place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group.29 C.F.R. § 1606.1
As explained in the EEOC's Guidelines on Discrimination Because of National Origin, § 1606.1 was amended in 1980 to broaden the definition of "national origin discrimination." 45 Fed. Reg. 85,633 (Dec. 29, 1980). The phrase "country of origin" was changed to "place of origin" because "country of origin" was implying a reference to a sovereign nation — which is not required. Id.
Also, the phrase "particular national origin" was changed to "national origin group." The Guidelines stated:
In order to have a claim of national origin discrimination under Title VII, it is not necessary to show that the alleged discriminator knew the particular national origin group to which the complainant belonged. To prove a national origin claim, it is enough to show that the complainant was treated differently than others because of his or her foreign accent, appearance or physical characteristics.
Id.
Recent cases have likewise used a broader definition of national origin. See e.g., Bennun v. Rutgers State Univ., 941 F.2d 154, 173 (3d Cir. 1991) ("We think unlawful discrimination must be based on [plaintiff's] objective appearance to others, not his subjective feeling about his own ethnicity."); Harel v. Rutgers, 5 F. Supp.2d 246, 269 (D.N.J. 1998) (rejecting a technical definition of national origin and finding that a Czechoslovakian-born plaintiff may be considered an Israeli); Janko v. Illinois State Toll Highway Auth. 704 F. Supp. 1531, 1532 (N.D.Ill. 1989) (finding that persons of "Gypsy" descent fit within the definition of national origin — even if the term "Gypsy" is not related to some particular nation or region — because Congress intended Title VII to prevent discrimination against people "based upon ethnic distinctions commonly recognized at the time of discrimination").
Because plaintiffs have linguistic characteristics of a particular national origin group — as required in the EEOC's definition of "national origin discrimination" — they have sufficiently pled a claim of national origin discrimination. Plaintiffs' Spanish-speaking characteristics reflect their national origin.
Defendants next argue that because the pleading requirements for a Title VI claim are the same as those for an equal protection claim, plaintiffs must allege that the state, in adopting or employing the challenged practice, intended to treat similarly-situated persons differently on the basis of national origin.
Defendants claim plaintiffs have failed to identify the persons to whom they are "similarly situated" and that plaintiffs have not alleged they have been treated "differently." According to defendants, plaintiffs claim they have been harmed, but not because they were treated differently. Plaintiffs allege they were treated the same as English-speaking recipients of food stamps. Thus, they have failed to allege an intentional discrimination claim.
It is true that Title VI's coverage mirrors that of the Equal Protection Clause. Alexander, 532 U.S. at 282; Grutter v. Bollinger, 288 F.3d 732, 742 (6th Cir. 2002). Plaintiffs' complaint, however, alleges that they are being treated differently. Plaintiffs allege that they are being discriminated against on the basis of their Spanish language — thus, their ethnic origin — due to the failure to implement programs mandated by federal law. The existence of the mandate and the defendants' alleged knowing and long-term noncompliance shows, arguably, an intent to treat Spanish-speaking recipients of food stamps differently than English-speaking recipients. Basically, plaintiffs claim Spanish-speakers do not have the same access to food stamps as English speakers do.
Thus, plaintiffs have alleged the essential elements of a Title VI claim based on national origin discrimination. Defendants' motion is, therefore, denied.
III. Claim Five: Implied Right of Action
Plaintiffs claim a private cause of action against defendants LCDJFS, Palmer, and Hayes, is implied under § 2020(e)(1)(B) of the Food Stamp Act and its implementing regulations. Plaintiffs argue the factors stated in Cort v. Ash, 422 U.S. 66 (1975) — the factors used to determine whether a private remedy is implicit in a statute not expressly providing one — are met for § 2020(e)(1)(B).
The Supreme Court in Gonzaga, however, rejected the notion that implied right of action cases are separate and distinct from § 1983 cases:
[T]he inquiries overlap in one meaningful respect — in either case we must first determine whether Congress intended to create a federal right. Thus we have held that "the question whether Congress . . . intended to create a private right of action [is] definitely answered in the negative" where "a statute by its terms grants no private rights to any identifiable class."
Gonzaga, 122 S.Ct. at 2275 (citations omitted).
Because § 2020(e)(1)(B) does not create an individual federal right, as explained in the analysis for claim one, plaintiffs cannot infer a private cause of action under the statute. Therefore, defendants' motion to dismiss claim five is granted.
CONCLUSION
Therefore, it is hereby
Ordered that
1. State defendants' motion to dismiss claim one be, and hereby is, granted.
2. State defendants' motion to dismiss claim two be, and hereby is, denied.
3. State defendants' motion to dismiss claim five be, and hereby is, granted.
So Ordered.