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SAAD v. BURNS INTL. SEC. SERVS.

March 15, 1978

Mohamed H. SAAD, Plaintiff,
v.
BURNS INTERNATIONAL SECURITY SERVICES, INC., Defendant



The opinion of the court was delivered by: GREEN

MEMORANDUM OPINION

Plaintiff, an Arabian, brings this action against his former employer, Burns International Security Services, Inc., alleging that Burns discriminated against him in his employment on the basis of race, color, religion, sex and national origin. Plaintiff seeks relief pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e Et seq. (hereinafter Title VII); the 13th Amendment and 42 U.S.C. § 1981; the 14th Amendment and 42 U.S.C. § 1983; 42 U.S.C. § 1985; 42 U.S.C. § 1988; 29 U.S.C. § 151 Et seq.; and the Fair Labor Standards Act of 1938, 29 U.S.C. § 201 Et seq., as amended by the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (1970).

 Defendant Burns is a Delaware corporation with its principal place of business in New York and branch offices in numerous cities including Washington, D.C. Plaintiff was employed in defendant's Washington, D.C. office from May 21, 1974 through December 10, 1976; first as a security guard and later as a timekeeper in the payroll department. In October of 1976, defendant dissolved its Washington, D.C. payroll branch office and consolidated it with its Philadelphia office. Defendant alleges that it offered plaintiff the opportunity to transfer to Philadelphia at an increase in salary. The offer was declined and plaintiff was terminated on December 10, 1976.

 Plaintiff filed a complaint with the EEOC and received a "right to sue" letter on May 10, 1977. He also filed a complaint with the District of Columbia Office of Human Rights on February 8, 1977. *fn1" He filed the instant action on June 21, 1977.

 Title VII Claims

 Defendant argues that plaintiff's EEOC complaint, as well as that filed with the District of Columbia Office of Human Rights, alleges only discrimination based on national origin. Therefore, plaintiff has failed to exhaust his administrative remedies with respect to his claims based on sex, race, color or religion. 42 U.S.C. § 2000e-5(e). Defendant further contends that plaintiff's claims of national origin discrimination should be dismissed since he has failed to exhaust his administrative remedies as to all allegations except that regarding promotions. *fn2" The additional allegations include discrimination in job classification; denial of pay raises, overtime pay, vacation pay and sick leave; failure to transfer and discharge. *fn3"

 The Court concludes that under Title VII, plaintiff may not raise in Court a Basis for discrimination which was not included in his EEOC complaint. Lamont v. Forman Bros., 410 F. Supp. 912, 917 (D.D.C.1976); EEOC v. New York Times Broadcasting Service, Inc., 364 F. Supp. 651 (W.D.Tenn.1973); Matyi v. Beer Bottlers, Local 1187, 392 F. Supp. 60 (E.D.Mo.1974). Thus, plaintiff's claims of discrimination under Title VII based on race or color, religion and sex, which constitute separate and distinct categories from national origin, and which were not raised during the administrative process, must be dismissed.

 The second aspect of defendant's contention seeks to dismiss all Issues arising out of the same basis for discrimination, here, national origin, which were not raised in plaintiff's EEOC complaint. In Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970), the Court held that where the complaint contained claims differing from those raised in the EEOC complaint, the claims could nonetheless be litigated in court if they could "reasonably be expected to grow out of the charge of discrimination." Id. at 466; Arey v. Providence Hospital, 55 F.R.D. 62 (D.D.C.1972); Lamont, supra, 410 F. Supp. at 917; Kinsey v. Legg, Mason & Co., Inc., 60 F.R.D. 91 (D.D.C.1973).

 Applying this rule to the instant case, the Court will permit plaintiff to pursue those allegations based on national origin which bear a reasonable relationship to his claim of discriminatory promotions, *fn4" but only if he first files a more definite statement of his claims. Rule 12(e) Fed.R.Civ.P. "Mere allegations of systematic discrimination . . . do not suffice to state a claim . . . ." Lamont, supra, 410 F. Supp. at 915. At a minimum, he must specify which promotions he was denied, who received them in his place and when the denial occurred. He must provide similar information with regard to his claims of denial of pay raises, vacation pay and sick leave, as well as discrimination in job classification. Failure to do so within 10 days of the date of this memorandum and accompanying order may result in dismissal of plaintiff's claims based on national origin.

 The Thirteenth Amendment and 42 U.S.C. § 1981 Claims

 The 13th Amendment and 42 U.S.C. § 1981 are directed solely at discrimination based on race and color. McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 285-296, 96 S. Ct. 2574, 49 L. Ed. 2d 493 (1976); Runyon v. McCrary, 427 U.S. 160, 167-74, 96 S. Ct. 2586, 49 L. Ed. 2d 415 (1976). Section 1981 cases usually concern the right "to make and enforce contracts," including employment contracts. See, e.g., Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 95 S. Ct. 1716, 44 L. Ed. 2d 295 (1975). Furthermore, ". . . the filing of a Title VII charge and resort to Title VII's administrative machinery are not prerequisites for the institution of a § 1981 action." Id. at 460, 95 S. Ct. at 1720. However, plaintiff's claim of national origin discrimination is not cognizable under § 1981. Nat. Ass'n of Government Employees v. Rumsfeld, 413 F. Supp. 1224, 1228 (D.D.C.1976); Kurylas v. United States Department of Agriculture, 373 F. Supp. 1072, 1076 (D.D.C.1974), Aff'd. without opinion, 169 U.S.App.D.C. 58, 514 F.2d 894 (1975). Nor does § 1981 provide a remedy for sex or religious discrimination. Runyon v. McCrary, supra, 427 U.S. at 160, 96 S. Ct. 2586.

 Thus, if plaintiff in the instant suit is to have a cause of action based on § 1981, it must be based on race or color. As his complaint is currently constituted, plaintiff has alleged neither his race nor his color. If he wishes to pursue this basis for his claims, he must provide this information as a part of the aforementioned more definite statement. It is not sufficient to merely say that he is "non-Caucasian", as his ...


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