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WIGGINS v. PHILIP MORRIS

May 13, 1994

JAMES R. WIGGINS, JR., Plaintiff,
v.
PHILIP MORRIS, INC., and KENNETH NEDIMYER, Defendants.



The opinion of the court was delivered by: ROYCE C. LAMBERTH

 This case comes before the court on defendant Nedimyer's motion to dismiss 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 Nedimyer's motion to dismiss is granted in part and denied in part in accordance with this memorandum opinion.

 I. Introduction

 In his complaint, plaintiff seeks to recover damages for civil rights violations, violations of the Fair Credit Reporting Act, and pendent state-law claims. Kenneth Nedimyer moves to dismiss the only claim naming him as a defendant, the alleged violations of plaintiff's civil rights under 42 U.S.C. § 1981. *fn1"

 A. Motion to Dismiss

 Plaintiff's factual allegations must be presumed true and liberally construed in favor of the plaintiff when reviewing the adequacy of a complaint for purposes of a Rule 12(b)(6) motion. Phillips v. Bureau of Prisons, 192 U.S. App. D.C. 357, 591 F.2d 966, 968 (D.C. Cir. 1979) (citing Miree v. Dekalb County, Georgia, 433 U.S. 25, 27 n.2, 53 L. Ed. 2d 557, 97 S. Ct. 2490 (1977)). In addition, the plaintiff must be given every favorable inference that may be drawn from his allegations of fact. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974). "However, legal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness." 2A Moore's Federal Practice, § 12.07, at 63 (2d ed. 1986) (footnote omitted); see Haynesworth v. Miller, 261 U.S. App. D.C. 66, 820 F.2d 1245, 1254 (D.C. Cir. 1987) (citing Pauling v. McElroy, 107 U.S. App. D.C. 372, 278 F.2d 252, 254 (D.C. Cir.), cert. denied, 364 U.S. 835, 5 L. Ed. 2d 60, 81 S. Ct. 61 (1960)).

 Dismissal is only appropriate if it appears beyond doubt that no set of facts proffered in support of plaintiff's claim would entitle him to relief. Haynesworth, 820 F.2d at 1254 (citations omitted); Phillips, 591 F.2d at 968. Plaintiff's factual allegations are set out below.

 B. Facts

 Plaintiff's interminable complaint is mired by numerous redundancies and inconsistencies. Wading through this bog, it appears that plaintiff, an African-American employee of Philip Morris, alleges that he was the target of at least one conspiracy motivated by racial animus. Compl. PP 8, 30-50. First, Mr. Wiggins seems to allege that there was a conspiracy within Philip Morris, Inc. to downgrade plaintiff's performance evaluations, providing a basis for terminating him. See id. P 16. Plaintiff alleges that defendant Nedimyer, plaintiff's second-line supervisor, and others agreed that "plaintiff would be discredited, defamed and financially destroyed by defendants' systematically marking down plaintiffs' [sic] performance ratings and transmitting the false results in a fraudulent manner in interstate commerce." Id. P 73(1). According to plaintiff, "the plan's goal was achieved on March 5, 1990." Id. P 36. However, plaintiff claims that he was unlawfully terminated from Philip Morris in violation of his civil rights on February 9, 1990. Compl. PP 13, 78. *fn2"

 II. 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. However, these claims were not cognizable under 42 U.S.C. § 1981 prior to the enactment of the Civil Rights Act of 1991, and these claims fail to state a cause of action upon which relief can be granted today.

 The Civil Rights Act of 1991 became effective on November 21, 1991. See Landgraf v. USI Film Products, 128 L. Ed. 2d 229, 1994 U.S. LEXIS 3292, *10, 114 S. Ct. 1483 (U.S. April 26, 1994); Van Meter v. Barr, 778 F. Supp. 83, 83 (D.D.C. 1991). Prior to this time, the text of the statute read as follows:

 
(a) All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

 Congress enacted the 1991 amendments to section 1981 in response to the Supreme Court decision in Patterson v. McLean Credit Union, 491 U.S. 164, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989). The Court concluded that racial harassment claims related to existing employment conditions were not actionable under section 1981, excluding recovery for conduct occurring after the formation of a contract that did not interfere with the enforcement of the contract.

 With the 1991 amendments, Congress expanded the scope of actions covered by section 1981, adding the following definition for "make and enforce contracts":

 
(b) For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the employment of all benefits, privileges, terms, and conditions of the contractual relationship.
 
(c) The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

 A. Retroactivity of the Civil Rights Act of 1991

 In a recent Supreme Court decision, the Court determined that section 101 of the Civil Rights Act of 1991 does not apply retroactively. Rivers v. Roadway Express, Inc., 114 S. Ct. 1510-6, 128 L. Ed. 2d 274, 1994 U.S. LEXIS 3294, *5, (April 26, 1994). *fn3" Therefore, to the extent that plaintiff contends that the Act should apply retroactively to this case, the claim is denied.

 The complaint in this case was filed after the Civil Rights Act of 1991 became law. However, the conduct that forms the basis of the complaint occurred before the Act became law. *fn4" The application of a new statute to conduct that occurred prior to its passage must be considered a retroactive application of the statute. This court has held that the Civil Rights Act of 1991 does not apply retroactively to pre-Act conduct. See Gersman v. Group Health Ass'n, 298 U.S. App. D.C. 23, 975 F.2d 886, 900 (D.C. Cir. 1992); Allen v. McEntee, 1993 U.S. Dist. LEXIS 4122 (D.D.C. Apr. 2, 1993). *fn5" Accordingly, to the extent that plaintiff contends that the Act was intended to include preenactment conduct, his claim is denied.

 Thus, plaintiff's claim is only cognizable if it would survive under pre-1991 Amendment section 1981. "The rights of the parties must be adjudicated as they were under the law prevailing at the time of the conduct." Gersman, 975 F.2d at 900.

 B. The Patterson, Pre-Act Standard

 Plaintiff's allegations were not viable under 42 U.S.C. § 1981 prior to the enactment of the Civil Rights Acts of 1991. Mr. Wiggins contends that defendant Nedimyer subjected him to racial harassment during his employment. Compl. P 73. Plaintiff maintains that this racial animus led to his termination. Id. PP 70-78. Mr. Wiggins also asserts that he was denied training and that defendant deliberately obstructed plaintiff's rights to participate in the grievance procedures of Philip Morris.

 Pre-Act section 1981 protects two rights: the right to enter into contracts and the right to enforce contracts. The facts as alleged by plaintiff do not implicate either right. 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 cannot be construed as a general proscription of racial discrimination in all aspects of contract relations . . ..").

 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). Moreover, section 1981 does not apply to breach-of-contract or contract-termination claims. See Gersman, 931 F.2d at 1571 ("A termination necessarily arises after the contract is already made, and, like a breach of contract, is more appropriately dealt with under ...


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