Opinion
Civil Action No. DKC 2000-930
February 5, 2001
MEMORANDUM OPINION
Plaintiff Joseph Santiago asserts that his employer, Defendant Giant Food Inc. ("Giant"), discriminated against and harassed him in violation of Title VII of the Civil Rights Act of 1964, 2000e, et seq. ("Title VII") and 42 U.S.C. § 1981 (2000). Presently pending and ready for resolution in this employment discrimination case is Defendant's motion to dismiss. The issues have been fully briefed and no hearing is deemed necessary. Local Rule 105.6. For the following reasons, the court shall grant Defendant's motion to dismiss in part and deny it in part.
I. Background
Plaintiff Joseph Santiago identifies himself as a Filipino American. He asserts that his employer, Giant, not only discriminated against and racially harassed him, but also in response to his complaint, retaliated against him. The incidents he relates occurred between June 1, 1982, the date of his hiring, and the present. During his employment with Defendant, Santiago claims to have experienced racially derogatory remarks, as well as observed racist symbols and graffiti which were written on the company trailers. Additionally, he alleges that between 1987 and 1995, he repeatedly complained to management and his union. However, neither entity took action against this discriminatory treatment.
The specific instances of discrimination Santiago asserts range from denial of bereavement pay, lack of scheduling control, to a supervisor's harassing behavior. In 1984, Santiago's father died, and his supervisor, Tom Phillips, stated that he would not be paid the five days of bereavement pay customarily given to union employees. Even though Plaintiff ultimately received the bereavement pay, he still claims management treated him differently.
In 1987, a Caucasian manager, Tom Bresnahan, openly wore a swastika in the workplace. Plaintiff was offended, and signed a petition noting his complaint. From that point, Plaintiff asserts that the work environment exuded hostility. Moreover, Bresnahan gave the better store assignments to the Caucasian employees, relegating the minority employees to the less desirable stores.
In January 1995, Santiago's mother had a stroke, and he requested a personal holiday. Roy Henderson, a Caucasian manager, refused to grant Santiago this request in an attempt to force him to take emergency leave. Santiago produced documentation from the hospital to prove the legitimacy of his request. The complaint does not reflect whether Henderson actually allowed Santiago to take a personal holiday.
In May 1995, Santiago filed a discrimination complaint asserting that his employer had unfairly accused him of taking too long to complete his sixth loading ticket. Disciplinary measures were levied against Santiago and he received a written warning notice. However, another Caucasian employee informed Santiago that he had taken as long, if not longer, to complete his seventh loading ticket. Believing he had been treated unfairly, Santiago filed a grievance which subsequently resulted in a hearing.
Plaintiff does not provide a definition for the term "loading ticket."
Additionally, a Caucasian employee, Greg Latimore, easily obtained a personal holiday on the exact day Santiago had requested and been refused, February 28, 1998. Even though he had personal time available, Santiago took emergency leave.
Finally, on December 27, 1998, Santiago informed his manager, Tom Phillips, that his mother had passed away and he needed to take his bereavement leave. Despite the existence of Santiago's union contract which guaranteed union members five days of bereavement pay, Phillips denied Santiago's request. Ultimately, Santiago received four, but not five days, of bereavement pay.
Santiago completed and submitted the Equal Employment Opportunity Commission's Charge Information Form on July 9, 1999. Paper No. 12, Plaintiff's Exhibit 2, EEOC Charge Information Form. On October 21, 1999, Defendant received a Notice of Charge Discrimination from the EEOC. Paper No. 6, Defendant's Exhibit A, Notice of Charge Discrimination. The notice states "[o]n October 15, 1999, EEOC received documentation constituting a minimally sufficient charge. Within 45 to 60 days, a perfected charge will be mailed to you." Id. On January 5, 2000, Defendant and Plaintiff received correspondence stating that the EEOC was closing the file on this charge because Plaintiff had been "given 30 days to respond" but "failed to provide information, failed to appear or be available for interviews/conferences, or otherwise failed to cooperate to the extent that it was not possible to resolve your charge." Paper No. 6, Defendant's Exhibit B, EEOC Dismissal and Notice of Rights ("Notice of Rights"). Defendant seeks dismissal of Plaintiff's Title VII claims for failure to exhaust administrative remedies pursuant to 12(b)(1) and the § 1981 claims pursuant to the 12(b)(6) standard.
There is no basis for converting the motion to summary judgment as Plaintiff contends. In the Fourth Circuit, it is clear that, in ruling upon a 12(b)(1) motion, unlike a 12(b)(6) motion, a court may properly consider evidence outside the pleadings. Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999); Richmond, Fredericksburg Potomac R. Co. v. United States, 945 F.2d 765 (4th Cir. 1991); see also Sharafelding v. Maryland Dept. of Public Safety Correctional Services, 94 F. Supp.2d 680 (D.Md. 2000) (when a defendant challenges subject matter jurisdiction on a motion to dismiss, the court may consider evidence outside the pleadings without converting the motion to summary judgment).
II. Standard of Review
There are two ways to present a 12(b)(1) motion to dismiss.Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). A defendant may either contend (1) that the complaint fails to allege facts upon which subject matter can be based, or (2) that the jurisdictional facts alleged in the complaint are untrue. If the first type of challenge is made, then the allegations in the complaint are assumed to be true, and the court will view the motion as it would one brought under 12(b)(6). Higgins v. United States, 894 F. Supp. 232, 234 (M.D.N.C. 1995). For the second type of challenge, the Fourth Circuit has said:
When a Rule 12(b)(1) motion challenge is raised to the factual basis for subject matter jurisdiction, the burden of proving subject matter jurisdiction is on the plaintiff. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). In determining whether jurisdiction exists, the district court is to regard the pleadings' allegations as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment. Id.; Trentacosta v. Frontier Pacific Aircraft Indus., 813 F.2d 1553, 1558 (9th Cir. 1987). The district court should apply the standard applicable to a motion for summary judgment, under which the nonmoving party must set forth specific facts beyond the pleadings to show that a genuine issue of material fact exists. Trentacosta, supra, 813 F.2d at 1559 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986)). The moving party should prevail only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law. Trentacosta, supra, 813 F.2d at 1558.
Richmond, Fredericksburg Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
III. Analysis
A. Title VII and Exhaustion of Administrative Remedies
Giant asserts that Plaintiff's Title VII claims should be dismissed because Santiago never filed a perfected, verified complaint. In order to bring a Title VII suit, a plaintiff must file a verified complaint with the EEOC that "shall be in writing under oath and affirmation and shall contain such information and be in such form as the Commission requires." 42 U.S.C. § 2000e-5(b) (2000). Moreover, in the Fourth Circuit, "failure to comply with this statute is fatal to an action seeking relief under Title VII." Balazs v. Liebenthal, 32 F.3d 151, 156 (4th Cir. 1994) (citing EEOC Applachian Power, 568 F.2d 354, 355 (4th Cir. 1978)).
As discussed earlier, in a 12(b)(1) motion Plaintiff bears the burden to substantiate his claim of jurisdiction by establishing that he actually filed a verified complaint. In the case at hand, Plaintiff has not provided the original EEOC complaint. At most, Plaintiff submitted his charge information form ("CIF"), dated October 15, 1999, as his verified complaint. Although Santiago signed the CIF, this signature was not verified or, in other words, was not signed under oath or penalty of perjury.
The critical question is whether Santiago's CIF constitutes a verified complaint. Because the Fourth Circuit has not directly addressed this issue, this court looks to the decisions of other circuit courts. The Eighth Circuit has held that intake questionnaires do not satisfy the statutory requirements of an administrative charge. Lawrence v. Cooper Communities, Inc., 132 F.3d 447, 449 (8th Cir. 1998). By contrast, the Seventh and Tenth circuit courts have held intake questionnaires to be adequate administrative charges under certain circumstances. See Philbin v. General Elec. Capital Auto Lease, Inc., 929 F.2d 321, 323 (7th Cir. 1991) (per curiam) (holding that a timely filed intake questionnaire, which was later verified, "may be sufficient to constitute a charge in some circumstances."); Peterson v. City of Wichita, Kan., 888 F.2d 1307, 1308 (10th Cir. 1989) (finding that plaintiff's unverified yet timely filed discrimination complaint was sufficient to allow him to relate his verified charge back to his timely filed unverified complaint); Lane v. Wal-Mart Stores East, Inc., 69 F. Supp.2d 749, 753 (D.Md. 2000) (finding that the verified complaint relates back to the timely filed, yet unverified ADA Information Form).
As detailed above, in this circuit the verification requirement is strictly observed. Moreover, among the cases finding an exception to the requirement, the common fact pattern is that the plaintiff ultimately filed a verified complaint and was attempting to relate it back to the timely filed CIF. These extenuating circumstances are not present in this case. Santiago does not assert that he filed a verified complaint subsequent to his CIF and is attempting to relate back; rather, he claims that the CIF alone is a verified complaint. Under the existing law, this simply is not enough.
Plaintiff also argues that he should be excused from the jurisdictional prerequisite of filing a perfected, verified charge with the EEOC because of alleged errors made by the EEOC. He, however, does not allege that the EEOC prevented him from filing a timely charge or that the EEOC made any misrepresentations to Plaintiff concerning the charge. In fact, Santiago does not make any allegations identifying the supposed errors of the EEOC. Accordingly, Plaintiff's Title VII claims are dismissed for failure to exhaust administrative remedies.
All of the cases Plaintiff relies on have factual scenarios where the EEOC's actions or misrepresentations somehow prevented the plaintiff from being able to file a timely charge of discrimination. See Early v. Banker's Life Cas. Co., 959 F.2d 75, 79 (7th Cir. 1992) (EEOC field investigator erroneously told the plaintiff that he had done everything he needed to do at the administrative level); Watson v. Gulf W. Indus., 650 F.2d 990, 992-993 (9th Cir. 1981) (EEOC failed to properly process the charge after plaintiff mailed it in); Tyler v. Reynolds Metal Co., 600 F.2d 232, 234 (9th Cir. 1979) (EEOC failed to follow 42 U.S.C. § 2000e-5 (c)); Miller v. Int'l Paper Co., 408 F.2d 283, 290 (5th Cir. 1969) (EEOC's failure to attempt to conciliate the case does not bar plaintiff from litigating the case). Plaintiff's reliance on these cases is misplaced because he has not alleged a single act or misrepresentation of the EEOC that prevented him from filing a verified complaint.
Santiago does assert that the EEOC's characterization of his participation, or lack thereof, in the Notice of Rights is false. He does not explain, however, why he failed to interview or submit more information. Santiago also asserts the EEOC ignored their own guidelines, yet he does not allege the specific guidelines that the agency failed to follow.
B. § 1981 Claims
1. Statute of Limitations
a. § 1658
Before analyzing the § 1981 claims under the 12(b)(6) motion to dismiss standard, the court must first address the applicable statute of limitations in this case. With respect to the claims under § 1981, Defendant argues that Plaintiff is bound by the Maryland statute of limitations for civil actions, three years. Burnett v. Grattan, 468 U.S. 42, 46 (1984) (recognizing that in § 1981 action courts should apply the applicable state statute of limitations); see also MD. CODE ANN. CTS. JUD. PROC. § 5-101 (2000) ("A civil action at law shall be filed within three years from the date it accrues."). Plaintiff, arguing for a longer limitations period, asserts that 28 U.S.C. § 1658, in combination with the Civil Rights Act of 1991, supercedes the holding of Burnett, creating a four-year limitations period for his claims.
This court analyzed this question before and provided in pertinent part, as follows:
In 1990, Congress created a uniform federal statute of limitations: Except as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of enactment of this section [December 1, 1990] may not be commenced later than 4 years after the cause of action accrues.28 U.S.C. § 1658. Under § 1658, any Act of Congress enacted after December 1, 1990 will carry a four-year statute of limitations, absent contrary language. Plaintiffs argue that § 1658 applies to § 1981 because, although originally enacted in 1866, § 1981 was substantially amended by Congress in 1991 to broaden its scope under two new subsections. Plaintiffs would have this court deem the creation of the additional subsections an "enactment" within the meaning of § 1658. None of the Courts of Appeals have addressed the question of § 1981's limitations period in the wake of the Civil Rights Act of 1991. The district courts are divided with respect to whether the re-enactment of § 1981 triggered the application of § 1658. Compare Rodgers v. Apple South, Inc., 35 F. Supp.2d 974 (W.D.Ky. 1999) (applying § 1658 to § 1981); Miller v. Federal Express Corp., 56 F. Supp.2d 955, 965 (W.D.Tenn. 1999) (same); Alexander v. Precision Mach., Inc., 990 F. Supp. 1304 (D.Kan. 1997) (same); and Stewart v. Coors Brewing Co., 1998 WL 880462 (D.Colo. 1998) (same) with Zubi v. ATT Corp., 1999 U.S. Dist. LEXIS 4766, at *10 (D.N.J. 1999) (finding § 1658 inapplicable to § 1981); Davis v. California Dep't of Corrections, 1996 WL 271001, at *20 (E.D.Cal. 1996) (same); Lasley v. Hershey Foods Corp., 35 F. Supp.2d 1319, 1322 (D.Kan. 1999) (same); Williams v. Home Depot, Inc., 1999 WL 788597, at *4 (E.D.Pa. 1999) (same); Chawla v. Emory Univ., 1997 WL 907570, at *14 (1997) (same); Jackson v. Motel 6 Multipurposes, Inc., 1997 WL 724429, at *2 (M.D.Fla. 1997) (same); Mohankumar v. Dunn, 59 F. Supp.2d 1123, 1132 (D.Kan. 1999) (same); Lane v. Ogden Entertainment, Inc., 13 F. Supp.2d 1261, 1269 (M.D.Ala. 1998) (same); and Jones v. R.R. Donnelly Sons Co., 1999 U.S. Dist. LEXIS 1592, at *29 (N.D.Ill. 1999) (same).
There is no clear authority for this court to rely upon with respect to the limitations period under § 1981. The legislative history of the Civil Rights Act of 1991 suggests that Congress believed that § 1658 did not affect the prior rule for determining the limitations period. See H.R. REP. NO. 102-40(I), at 63, reprinted in 1991 U.S.C.C.A.N. 549, 601 ("But under 42 U.S.C. § 1981, which bars intentional race discrimination in employment as well as other contractual relations, victims have a longer period of time to commence suits. In the absence of an express limitations period in § 1981, courts applying the statute have looked to analogous state statutes of limitations.
Derrickson v. Circuit City Stores, Inc. 84 F. Supp.2d 679, 686-687 (D.Md. 2000). Just as in Derrickson, this court does not have to reach this issue because it is not dispositive of this motion. Whether the statute of limitations is three of four years, the outcome for Plaintiff is the same.
Plaintiff filed his Complaint in this case on March 31, 2000. The only claims surviving the statute of limitations are those based upon conduct occurring during the period from March 31, 1996 to the date of the filing. Plaintiff alleges two incidents of discrimination, harassment, and retaliation during this period: 1) the denial of his personal leave request in February of 1998 and 2) Defendant's initial denial and eventual recognition of four rather than the allocated five bereavement days. The other incidents related by the Plaintiff are barred by the statute of limitations.
Whether the period begins on March 31, 1996 or March 31, 1997 is irrelevant because the Plaintiff did not describe any incidents occurring within this one year period between 1996 and 1997. At this time, the court will assume the longer limitations period applies.
b. Continuing Violation
However, Plaintiff also argues violations falling outside of the limitations period should be considered within his § 1981 claims because Defendant has perpetuated a continuing violation of the law. "Incidents outside of the statutory window are time barred unless they can be related to a timely incident as a series of separate but related acts amounting to a continuing violation." Beall v. Abbott Laboratories, 130 F.3d 614, 620 (4th Cir. 1997) (citing Jenkins v. Home Ins. Co., 635 F.2d 310, 312 (4th Cir. 1980) (per curiam)); see also Derrickson, 84 F. Supp.2d at 687 ("A continuing violation may be found where there is either an ongoing practice or pattern of discrimination or a series of related acts emanating from the same discriminatory animus."). Moreover, the Supreme Court has stated, the "critical question" in a continuing violation case is whether any present violation exists. United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977).
Defendant correctly asserts that Plaintiff cannot state a claim for relief under § 1981 for a pattern or practice of discrimination because the Fourth Circuit has held that such a cause of action is not available to private, non-class claimants. Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 759 (4th Cir. 1998), vacated on other grounds, 527 U.S. 1031 (1999). However, the face of Plaintiff's complaint does not reflect such a claim. Rather, Plaintiff contends that because he has made allegations of a pattern and practice of discrimination, he should be able to avail himself of the longer statute of limitations under the continuing violation doctrine. An individual employee may use evidence of an employer's pattern or practice of discrimination to meet his ultimate burden. See Lowery, 158 F.3d at 761. Thus, even though Plaintiff is prohibited from bringing a separate § 1981 action seeking relief solely for Defendant's pattern and practice of discrimination, Plaintiff can utilize this information to substantiate his other claims.
Although the Fourth Circuit has not "delineated what constitutes a continuing violation", Emmert v. Runyon, No. 98-2027, 1999 WL 253632, at * 4 (4th Cir. 1999), other circuit courts have developed different tests for determining whether a claimant is suffering from a continuing violation, see, e.g., DeNovellis v. Shalala, 124 F.3d 298, 307 (1st Cir. 1997) (finding continuing violation in case in which violation is systemic or serial); Malholtra v. Cotter Co., 885 F.2d 1305, 1310 (7th Cir. 1989) (finding continuing violation whenever "plaintiff had no reason to believe he was a victim of discrimination until a series of adverse actions established a visible pattern of discriminatory mistreatment"); Berry v. Board of Supervisors, 715 F.2d 971, 981 (5th Cir. 1983) (finding continuing violation when three-prong test involving type of conduct, frequency of alleged acts, and degree of permanence of acts is satisfied).
Santiago fails to establish a continuing violation under any of these tests. Plaintiff argues that he has pled "a systemic violation of a hostile work environment and Giant's maintenance of discriminatory policies and practices." However, the six specific incidents Plaintiff alleges occurred over a sixteen year range, from 1984 to 1999. Plaintiff's incidents are simply too infrequent and widely separated in time to reflect a series of separate but related acts. Moreover, not all of these incidents were either directed at Plaintiff or adverse to him. For example, in 1984 Plaintiff's supervisor threatened to deny him bereavement leave, but it never came to fruition. Santiago received his full bereavement pay. Also, in 1987 a manager wore a swastika to work, but Plaintiff does not allege that this action was directed or even related to him. Additionally, Plaintiff does not allege he was unaware and had to endure 16 years of discrimination and harassment in order to recognize that he was a victim of racial discrimination. In fact, Santiago alleges that he experienced derogatory racial remarks from the first day he began working for Defendant in 1982. Santiago could have brought a corresponding legal action much earlier. Accordingly, the court does not find that Santiago has established a continuing violation.
2. Standard of Review
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) ought not be granted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). All that the Federal Rules of Civil Procedure require of a complaint is that it contain "`a short and plain statement of the claim' that will give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Id. at 47; Comet Enters. Ltd. v. Air-A-Plane Corp., 128 F.3d 855, 860 (4th Cir. 1997). In reviewing the complaint, the court accepts all well-pled allegations of the complaint as true and construes the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff. Ibarra v. United States, 120 F.3d 472, 473 (4th Cir. 1997). The court must disregard the contrary allegations of the opposing party. A.S. Abell Co. v. Chell, 412 F.2d 712, 715 (4th Cir. 1969). The court need not, however, accept unsupported legal conclusions, Revene v. Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as factual allegations, Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual allegations devoid of any reference to actual events, United Black Firefighters v. Hirst, 604 F.2d 844, 847 (4th Cir. 1979).
3. § 1981 Prima Facie Case
Santiago asserts § 1981 claims of hostile work environment, discrimination, and retaliation. Title 42, § 1981, of the United States Code states in pertinent part:
a) All people within the same jurisdiction of the United States shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens . . . .
b) For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.42 U.S.C. § 1981(a),(b). Generally, courts analyze § 1981 claims of discrimination by employing the same statutory scheme used in cases brought under Title VII. Hawkins v. Pepsico, Inc., 203 F.3d 274, 278 (4th Cir. 2000) (§ 1981 claims are reviewed under the burden shifting scheme of McDonnell Douglas, 411 U.S. 792 (1973)) (citing Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989)). The McDonnell Douglas framework requires that (1) a plaintiff establish a prima facie case of discrimination; (2) a defendant articulate a non-discriminatory reason for its actions; and (3) a plaintiff then show the reason given by defendant was pretext. Hawkins, 203 F.3d at 278 (citing O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311, 116 S.Ct. 1307, 134 L.Ed.2d 433 (1996); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). For the more limited purpose of surviving a motion to dismiss in a discrimination claim, a plaintiff need only allege facts sufficient to state a claim regarding its prima facie case. Bobbitt v.Rage, Inc., 19 F. Supp. 2 d 512, 516 (W.D.N.C. 1998).
a. Hostile Work Environment
Before the court analyzes the Plaintiff's hostile work environment claim, the preliminary question of standing must be resolved. Defendant contends that Plaintiff does not have standing to assert a hostile environment claim because Plaintiff's allegations arise from harassment directed toward others. In Childress v. City of Richmond, 134 F.3d 1205, 1206-1207 (4th Cir. 1998) (en banc), the Fourth Circuit held that Caucasian police officers did not have standing to pursue a hostile work environment claim against a supervisor who repeatedly made disparaging remarks to and about female and black members of the police force. Similarly, in this case, Santiago does not have standing to assert a hostile work environment claim based on Defendant's alleged employment practices against African-Americans.
Plaintiff counters by stating he himself experienced racial harassment. However, his complaint undercuts the notion that this harassment results from his being Filipino. In the complaint, Plaintiff asserts "the chief issue and allegation of this case is . . . [Giant's] pervasive, systemic, and institutionalized pattern and practice of racial harassment (hostile work environment) and discrimination against Blacks." Paper No. 1, Complaint, 5. Santiago does not allege experiencing severe and pervasive harassment over his being Filipino. Rather, his examples of harassment reference Defendant's alleged institutionalized racism against African-Americans, in terms of derogatory remarks and racist graffiti. Santiago may have experienced firsthand a hostile working environment because of the supposed severe and pervasive harassment against blacks. However, that is not equivalent to Santiago alleging a hostile work environment arising from harassment over his Filipino background. The court finds that Plaintiff does not have standing to assert a § 1981 hostile work environment claim based on Defendant's alleged racism against blacks.
b. Racial Discrimination: Disparate Treatment
Santiago asserts that Defendant denied him personal leave and bereavement pay because of his race whereas his non-Filipino coworkers did not have the same hardship. "A successful disparate treatment claim requires plaintiff to establish that he has been subjected to some negative employment action or to unequal terms and conditions of employment, on the basis of race or national origin, when compared with the treatment of other employees of a different race or national origin." Bodoy v. N. Arundel Hospital, 945 F. Supp. 890, 895 (D.Md. 1996), aff'd., 112 F.3d 508 (4th Cir. 1997) (plaintiff alleging he was subject to unequal work conditions and negative employment actions like verbal and written counselings)l. "It shall be an unlawful employment practice for an employer . . . to discriminate against an individual with respect to his compensation, terms, conditions, or or privileges of employment, because of such individual's race . . . ." 42 U.S.C. § 2000e-2(a). Moreover, "To establish a § 1981 claim, the plaintiff must show that 1) he or she is a member of a racial minority; 2) the defendant had the intent to discriminate on the basis of race; and 3) the discrimination concerned one or more of the activities enumerated in the statute. Bobbitt, 19 F. Supp. 2 d at 517.
In this case, Santiago, a Filipino American, offers examples in which he experienced unequal work conditions resulting in a loss of pay. Section 1981 protects "the enjoyment of all benefits, terms, and conditions of the contractual relationship" including pay and benefits for which an employee is entitled. 42 U.S.C. § 1981. Santiago alleges that his supervisor forced him to take emergency leave rather than allowing him to take a personal holidayl. Presumably, an employee receives no payment on emergency leave; thus, he lost wages. Moreover, a Caucasian coworker easily obtained a personal holiday for the same date which Santiago had been refused. Additionally, Santiago alleges he was contractually entitled to five days bereavement pay but was only granted four. Again, Santiago alleges he failed to receive the full pay and benefits for which he was entitled whereas other non-Filipino employees did not have the same experiencel. At this stage in the litigation, Santiago has alleged the prima facie case of disparate treatment discrimination under § 1981 and is entitled to discovery procedures to develop this claim. Moreover, Defendant has not articulated a non-discriminatory reason for its actions.
c. Retaliation
"Title VII prohibits an employer from discriminating against an employee in retaliation for that employee's opposition to, or complaint about, an unlawful employment practice." 42 U.S.C. § 2000e-3 (a) (2000). The standard for a retaliation claim brought pursuant to § 1981 mirrors the Title VII standard. Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989). "To establish a prima facie case of retaliation", Santiago "must show that 1) [he] was engaged in a protected activity; 2) [his] employer took adverse employment action against [him]; and 3) a sufficient causal connection existed between the protected activity and the employer's adverse employment action." Hopkins v. Balt. Gas Electric Co., 77 F.3d 745, 754 (4th Cir. 1996) (citing to McNairn v. Sullivan, 929 F.2d 974, 980 (4th Cir. 1991)).
Plaintiff claims that in response to his testimony at many union grievance hearings, Defendant took retaliatory action against him. However, Santiago fails to allege the adverse employment action Defendant took in retaliation. Throughout his complaint, Santiago asserts that Defendant retaliated against him but he never specifies in what manner. Thus, even if participation in union grievance proceedings is a protected activity, Santiago has not alleged the Defendant's adverse employment action taken in response to his testimony. Accordingly, Defendant's motion to dismiss is granted with respect to Plaintiff's § 1981 retaliation claim.
IV. Conclusion
For the foregoing reasons, this court shall grant Defendant's motion to dismiss in part and deny it in part. A separate Order will be entered.
ORDER
In accordance with the accompanying Memorandum Opinion, IT IS this day of February, 2001, by the United States District Court for the District of Maryland, ORDERED that:
1. The motion by Defendant, Giant Food, Inc., to Dismiss BE, and the same hereby IS, GRANTED in part and DENIED in part;
2. Plaintiff's Title VII claims BE, and the same hereby ARE, DISMISSED;
3. Plaintiff's § 1981 hostile environment and retaliation claims BE, and the same hereby ARE, DISMISSED;
4. A scheduling order is also being entered; and
5. The Clerk is directed to transmit a copy of this Order and the accompanying Memorandum Opinion to counsel for the parties.