Count II of the Amended Complaint must be dismissed.
Plaintiff's Thirteenth Amendment claim, made as part of Count I, must also be dismissed. The Thirteenth Amendment does not give rise to an independent cause of action; plaintiffs in discrimination suits must confine themselves to remedies such as 42 U.S.C. 1981 adopted pursuant to Section 2 of that amendment. Westray v. Porthole, Inc., 586 F. Supp. 834, 839 (D. Md. 1984).
Unlike plaintiff's other claims, however, the Court finds that plaintiff's claim under Section 1981 survives a Rule 12(b)(6) motion to dismiss. The defendant argues, Motion to Dismiss at 11, that under Patterson v. McLean Credit Union, 491 U.S. 164, 171, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989), racial discrimination occurring during a contractual term of employment does not violate Section 1981, but is controlled instead by the contractual relationship itself, and is thus governed by state contract law and by Title VII. As already stated, however, the gravamen of plaintiff's complaint is that, despite adequate performance in his job and repeated assurances of permanent placement over a number of years, he was precluded from contracting for a permanent position while "every comparably situated African-American received permanent placement," and that this disparate treatment resulted from racial animus manifested in "a pattern or continuous set of activities by the personnel arm of Defendant acting to interfere with his permanent placement." See Amended Complaint para. 12-18, 23, 31-36. In sum, "plaintiff argues that if there was no racial discrimination, he would have been granted permanent status, which would have materially altered his employment relationship with defendant." Opposition at 12. Thus it is clear that plaintiff's allegations on this point, while inartfully stated, charge interference with formation of a particular type of employment contract, i.e., one for "permanent" as opposed to "acting" status, and the Court finds that such a claim is not precluded simply because the interference allegedly occurred following commencement of "acting" status employment.
As to the sufficiency of plaintiff's pleading, the same analytical framework applies to claims of race discrimination in employment brought under both under Title VII and Section 1981. Dougherty v. Barry, 607 F. Supp. 1271, 1281 (D.D.C. 1985), modified on other grounds, 869 F.2d 605 (D.C. Cir. 1989). A plaintiff must allege facts sufficient to make out a prima facie case of race discrimination; such prima facie case requires proof (1) that plaintiff belongs to a protected group, (2) that he was qualified for and applied for a promotion, (3) that he was considered for and denied the promotion, and (4) that a similarly-qualified employee from outside the protected group was promoted at the time plaintiff was denied promotion. Id. As to element (1), the protections afforded by Section 1981 are available to white persons. Torre v. Barry, 661 F.2d 1371, 1372 n.1 (D.C. Cir. 1981) (citing McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 295, 49 L. Ed. 2d 493, 96 S. Ct. 2574 (1976)). Therefore, based on the factual assertions outlined above and all reasonable inferences to be drawn therefrom, the Court is satisfied that plaintiff's complaint meets the minimum requirements for pleading a Section 1981 claim.
For the foregoing reasons, it is
ORDERED that defendant District of Columbia's Motion to Dismiss is GRANTED IN PART and DENIED IN PART. COUNTS II and III of plaintiff's amended complaint are DISMISSED IN THEIR ENTIRETY; COUNT I is DISMISSED IN PART as to plaintiff's Thirteenth Amendment claim.
Judge George H. Revercomb