This case comes before the court on defendant Philip Morris, Inc.'s motion to dismiss the retaliatory discharge claim in count one, and to dismiss counts two, three, and four of the complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
Upon consideration of the filings of counsel and the relevant law, defendant Philip Morris Inc.'s motion to dismiss is GRANTED in part and DENIED in part in accordance with this memorandum opinion.
Defendant characterizes plaintiff's complaint as "vague, confusing, contradictory, and inconsistent." Def.'s Mem. Supp. Mot. Dismiss at 4. Defendant is correct. In essence, plaintiff is searching for a legal basis for a wrongful discharge claim. In his complaint, plaintiff seeks to recover damages for civil rights violations, violations of the Maryland Labor and Employment Code and the Fair Credit Reporting Act, and pendent state-law claims.
II. Retaliatory Discharge
In order to establish a prima facie case of retaliatory discharge under section 704(a) of Title VII, 42 U.S.C. § 2000e-3,
"a plaintiff must show: 1) that he or she engaged in activity protected by the statute; 2) that the employer . . . engaged in conduct having an adverse impact on the plaintiff; and 3) that the adverse action was causally related to the plaintiff's exercise of protected rights." Berger v. Iron Workers Reinforced Rodmen Local 201, 269 U.S. App. D.C. 67, 843 F.2d 1395, 1423 (D.C. Cir. 1988) (citing Mitchell v. Baldrige, 245 U.S. App. D.C. 60, 759 F.2d 80, 86 (D.C. Cir. 1985); McKenna v. Weinberger, 234 U.S. App. D.C. 297, 729 F.2d 783, 788, 790 (D.C. Cir. 1984)), rehearing en banc 852 F.2d 619 (D.C. Cir. 1988), cert. denied sub nom. International Ass'n of Bridge Structural & Ornamental Ironworkers, AFL-CIO v. Berger, 490 U.S. 1105, 104 L. Ed. 2d 1018, 109 S. Ct. 3155 (1989).
Title VII protects employees from retaliatory action for involvement in two types of activities. The "opposition" clause of section 704(a) of Title VII prohibits discrimination against a person "because he has opposed any practice made an unlawful employment practice by this subchapter." See supra note 4. This clause prohibits adverse action against an individual who has opposed a practice constituting a violation of Title VII.
Plaintiff engaged in numerous activities protected by the statute, making his opposition to various Philip Morris employment practices well-known.
Plaintiff was fired. The issue is whether these two prongs of the retaliatory action test are "causally related."
In count one, plaintiff states that "there was retaliatory action and illegal termination because of plaintiff's numerous reports and notices to Philip Morris' New York City headquarters, between January 1988 through February 9, 1990." Compl. P 66.
At this stage of the litigation, plaintiff is entitled to the favorable inference that his objections to Philip Morris' employment practices are not wholly unrelated to his termination.
Defendant's motion to dismiss as to count one is denied.
III. Inapplicability of 42 U.S.C. § 1981
Plaintiff claims that he was harassed because of his race during the course of his employment and that this racial animus caused him to be fired. Neither of these claims are cognizable under 42 U.S.C. § 1981.
Plaintiff's allegations were not viable under section 1981 prior to the enactment of the Civil Rights Act of 1991. As the Supreme Court stated in Patterson v. McLean Credit Union, section 1981 "does not apply to conduct which occurs after the formation of a contract and which does not interfere with the right to enforce established contract obligations." Patterson v. McLean Credit Union, 491 U.S. 164, 171, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989).
Section 1981 does not protect an employee against discriminatory treatment during the course of his employment, including the imposition of discriminatory working conditions. See Patterson, 491 U.S. at 177; Gersman v. Group Health Ass'n, 289 U.S. App. D.C. 332, 931 F.2d 1565, 1570-72 (D.C. Cir. 1991), vacated and remanded 112 S. Ct. 960 (1992). Furthermore, section 1981 does not apply to breach-of-contract or contract-termination claims. See Gersman, 931 F.2d at 1571. Plaintiff's racial harassment and discriminatory discharge claims under section 1981 are dismissed.
To the extent that Mr. Wiggins argues that the Civil Rights Act of 1991 should apply retroactively to his case, the claim is denied. Rivers v. Roadway Express, Inc., 114 S. Ct. 1510-6, 128 L. Ed. 2d 274, 1994 U.S. LEXIS 3294, *5 (April 26, 1994); Gersman v. Group Health Ass'n, 298 U.S. App. D.C. 23, 975 F.2d 886, 889-900 (D.C. Cir. 1992) (adopting the decision in Gersman v. Group Health Ass'n, 289 U.S. App. D.C. 332, 931 F.2d 1565 (D.C. Cir. 1991), vacated and remanded 112 S. Ct. 960 (1992)), cert. denied, 114 S. Ct. 1642 (1994); Van Meter v. Barr, 778 F. Supp. 83 (D.D.C. 1991); Allen v. McEntee, 1993 U.S. Dist. LEXIS 4122 (D.D.C. Apr. 2, 1993) (Lamberth, J.).
IV. Maryland Labor and Employment Code
Plaintiff was placed on temporary disability status after he was seriously injured while working on the job for Philip Morris in July 1988. Compl. P 80-81. In count three of his complaint, plaintiff asserts:
In violation of the Maryland Code, Title 9-1105 Maryland Employment and Labor [sic], Philip Morris [sic] terminated Plantiff [sic] in March of 1990 with knowledge that Plaintiff had been on temporary partial disability resulting from injuries sustained in 1988 and 1989.