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HARRIS v. PERINI CORP.

December 4, 1996

ELBERT HARRIS, JR., Plaintiff
v.
PERINI CORPORATION, Defendant.



The opinion of the court was delivered by: KESSLER

 This matter is before the Court on Defendant's Motion for Dismissal pursuant to Fed. R. Civ. P. 12(b)(6). Plaintiff Elbert Harris, Jr. filed a four count Complaint for Relief from Deprivation of Equal Rights, Race Discrimination in Employment, and Intentional Infliction of Emotional Distress on April 26, 1996. Defendant moved to dismiss all four counts of the Complaint on October 23, 1996. Plaintiff, in his Opposition to Defendant's Motion for Dismissal, indicated that he would voluntarily dismiss Counts I, III, and IV. *fn1" Thus, the only issue before the Court relates to Count II of Plaintiff's Complaint. Upon review of Defendant's Motion, Plaintiff's Opposition, Defendant's Reply, and the entire record herein, the Defendant's Motion is denied.

 I. Background2

 Plaintiff Harris is an African American man currently residing in Georgia. Compl. P 3. Defendant Perini Corporation is a construction company headquartered in Massachusetts with an office in the District of Columbia. Defendant manages the construction of the Federal Triangle Project in D.C. Compl. P 4.

 In response to an advertisement in the Washington Post, Plaintiff applied for a position with Defendant. At the time of his application, Plaintiff was employed in New Jersey. Plaintiff was hired for a full time, permanent position by Defendant. Plaintiff resigned from his position in New Jersey and moved to the Washington, D.C., area to begin work on June 20, 1994. Compl. P 5-6.

 On April 18, 1995, Plaintiff's supervisor, Mr. Robert Ryan, informed Plaintiff that his position was being eliminated in a restructuring and that they would lay Plaintiff off in two weeks. Mr. Ryan also indicated that Plaintiff's production was slow. Plaintiff's last day of employment was April 28, 1995. Compl. P 7.

 Plaintiff's production rate was equal to or greater than that of similarly situated non-African American employees. Defendant had never expressed any dissatisfaction with Plaintiff's work prior to Plaintiff's termination. Further, Defendant had allowed non-African American employees the opportunity to improve performance and/or to transfer to other work sites instead of being terminated or laid off. Compl. P 8.

 On April 23, 1995, Defendant advertised in the Washington Post to fill two positions which were substantially equal to the position from which Plaintiff was terminated. Plaintiff met the advertised qualifications for these positions. Compl. P 9.

 Defendant's supervisory employees have used racial slurs and Defendant has been notified of that behavior. Despite such notice, Defendant has taken no action to stop such behavior. Compl. P 10.

 Count II of Plaintiff's complaint alleges that Defendant deprived Plaintiff of his right to make and enforce contracts in violation of 42 U.S.C. § 1981. Defendant allegedly violated Plaintiff's rights by inducing him to quit a permanent position in New Jersey to accept employment at Defendant's Washington D.C. work site and by terminating Plaintiff's employment on the false pretense of a layoff. Plaintiff seeks reinstatement, back pay, compensatory and punitive damages, and attorney's fees.

 II. Analysis

 Defendant contends that Plaintiff's Section 1981 claim is time-barred. Defendant argues that a one-year statute of limitations governs Section 1981 claims and, as Plaintiff's Complaint was filed 8 days after that limitation period expired, Plaintiff cannot maintain his cause of action. Plaintiff contends that the appropriate statute of limitations period for Section 1981 claims filed in the District of Columbia is three years.

 Section 1981 does not contain its own statute of limitations period. Federal courts are guided in their choice of the appropriate statute of limitations to be applied to a Section 1981 action by the provisions of a companion statute, 42 U.S.C. § 1988. Section 1988 directs federal courts to examine federal law and, where federal law provides no applicable rule of decision, to examine state law. *fn3" Section 1988 applies to claims brought under Section 1981. See Runyon v. McCrary, 427 U.S. 160, 180-82, 49 L. Ed. 2d 415, 96 S. Ct. 2586 (1976).

 Application of this borrowing principle initially led courts to search for the "most appropriate" or "most analogous" state statute of limitations. See Board of Regents v. Tomanio, 446 U.S. 478, 488, 64 L. Ed. 2d 440, 100 S. Ct. 1790 (1980); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 462, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975). However, this led to confusion over which state statute of limitations is "most analogous." That confusion also affected this jurisdiction until our Court of Appeals held that the District's three-year personal injury statute, D.C. Code § ...


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