on October 27, 1982. In addition, Mr. Rogers mailed a complimentary copy of the complaint to defendant's counsel on October 27. Accordingly, the defendant had actual notice of the complaint within the statutory period, and was not prejudiced by the clerk's action.
Additionally, this court finds that the clerk's rejection of the initial complaint, although mandated by the local rules of this jurisdiction, addressed technical deficiencies in the complaint, that should not operate to bar this claim from proceeding. Plaintiff's counsel, a New York attorney, was unfamiliar with the local rules of this jurisdiction. In his complaint, he inadvertently failed to include several facts needed by the Clerk's Office in order to process complaints efficiently. However, none of these defects implicate considerations that should bar this claim. Generally, statutes of limitations are enforced to insure fairness to defendants. See Burnett v. New York Central Railroad, 380 U.S. 424, 428, 13 L. Ed. 2d 941, 85 S. Ct. 1050 (1965). The defects at issue here do not operate to create unfairness to the defendant. The defendant will not suffer surprise if this action proceeds. Plaintiff has not slept on his rights, but has inadvertently submitted a technically deficient complaint within the statutory period. The court finds that the fundamental purpose underlying the 90-day period was satisfied under these facts, and equitable considerations support the tolling of the 90-day period.
Defendant's motion to dismiss on grounds of untimeliness is denied, and plaintiff may proceed with this action.
B. The defendant argues, in addition, that plaintiff's § 1981 claim should be rejected because it is a retaliation claim and accordingly, not cognizable under 42 U.S.C. § 1981. In making this argument, the defendant refers the court to instances in which other jurisdictions have barred retaliation claims brought under 42 U.S.C. § 1981, asserting that § 1981 applies only to discrimination on the basis of race and color. See e.g., Walton v. Rockwell International, 24 F.E.P. Cases 955 (C.D. Cal. 1980); Tramble v. Converters Ink Co., 343 F. Supp. 1350 (N.D. Ill. 1972). The plaintiff argues that his retaliation claim is nevertheless cognizable under § 1981 for two reasons. First, plaintiff disputes defendant's characterization of the claim. The plaintiff states that the § 1981 claim encompasses not only retaliation for filing an EEO complaint, but also other discriminatory actions set forth in, or referenced in, the complaint. Second, plaintiff argues that even if the § 1981 claim is simply a retaliation claim, such claims are cognizable under § 1981 provided the underlying complaint giving rise to retaliation was one of race discrimination.
This court finds both of plaintiff's arguments convincing. Plaintiff's complaint is, admittedly, inartfully drawn. Nevertheless, a careful review of the complaint reveals that plaintiff's § 1981 claim is not grounded in a single allegation of retaliation, but encompasses other alleged actions as well. Plaintiff's claim under § 1981 is set forth in count two of his complaint and provides simply:
Plaintiff alleges that the defendant has subjected him to discrimination in employment because of race in violation of Title 42 U.S.C. § 1981.
Complaint para. 38. In plaintiff's "Statement of the Claim", plaintiff makes reference to EEOC Charges 031800377 and 63181093. These charges contain plaintiff's particularized claims which include, in addition to retaliation: harassment, threatened discharge, denial of equal terms and conditions of employment, and unlawful denial of promotion. These claims allege race discrimination and are cognizable under 42 U.S.C. § 1981. See Complaint para. 16, 17, 21.
Although the plaintiff has properly alleged race discrimination under 42 U.S.C. § 1981 with respect to the non-retaliation claims referenced in his complaint, the defendant alleges that the retaliation claim itself may not be heard under § 1981. Defendant contends that there is no necessary racial connection between an EEO complaint and retaliation, and therefore no jurisdiction under § 1981.
Whatever the merits of defendant's argument in a case in which no racial animus underlines the original complaint, this court does not find that a retaliatory action against an employee for attempting to enforce rights under § 1981 cannot be based on race discrimination. Two recent decisions by United States Courts of Appeal reinforce this court's conclusion that § 1981 can support a retaliation claim, at least where the original EEOC complaint was based upon race discrimination. In Setser v. Novack Investment Co., 638 F.2d 1137, 24 F.E.P. Cases 1793 (8th Cir. 1981) the court considered whether a cause of action for retaliation could be sustained under 42 U.S.C. § 1981. The court determined that a retaliatory response made against an employee who brought a race discrimination complaint would inherently be in the nature of a race complaint. Id. at 1146. The court continued, "to deny appellant a cause of action for retaliatory acts resulting from pursuing a claim under § 1981 would have the effect of giving 'impetus to the perpetuation of racial discrimination.'" Id. citations omitted. The court held that § 1981 encompasses allegations of retaliatory conduct by an employer following the employee's filing of a claim for race discrimination with the EEOC.
Similarly, the Fifth Circuit, in Goff v. Continental Oil Co., 678 F.2d 593, 29 F.E.P. Cases 79 (5th Cir. 1982) considered whether an employee's claim of retaliation is cognizable under § 1981. That court also concluded that § 1981 will entertain a retaliation action. The court stated:
We hold that § 1981 does encompass claims of retaliation when an adverse action is taken in response to a person's filing of an EEOC charge or civil rights lawsuit in which racial discrimination is alleged. The ability to seek enforcement and protection of one's rights to be free of racial discrimination is an integral part of the right itself. A person who believes he has been discriminated against because of his race should not be deterred from attempting to vindicate his rights because he fears his employer will punish him for doing so. Were we to protect retaliatory conduct, we would in effect be discouraging the filing of meritorious civil rights suits and sanctioning further discrimination against those persons willing to risk their employer's vengeance by filing suits. Section 1981 would become meaningless if an employer could fire an employee for attempting to enforce his rights under that statute.