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November 17, 1981


The opinion of the court was delivered by: Will, District Judge.


In the plaintiff's second amended complaint, he alleges that the conditions of his employment by the Joliet Mass. Transit District and the termination of that employment were racially discriminatory in violation of Title VII and 42 U.S.C. § 1981. As part of the relief for the alleged violation of section 1981, the plaintiff requests an award of punitive damages. The defendant Joliet Mass. Transit District, in a motion to strike that request, argues that punitive damages cannot be awarded under section 1981 against a municipal corporation. For the reasons hereinafter stated, the defendant's motion is granted.


The Supreme Court held recently that "a municipality is immune from punitive damages under 42 U.S.C. § 1983." County of Newport v. Fact Concerts, Inc., ___ U.S. ___, ___, 101 S.Ct. 2748, 2762, 69 L.Ed.2d 616 (1981). In reaching that decision, the Court first determined whether the immunity claimed by the defendant in that case was well established at common law at the time the statute was enacted. Id. at 2755-58. Finding that it was, the Court next examined the legislative history of section 1983 for evidence of congressional intent to abolish that immunity in suits under section 1983. Id. at 2758-59. Finding none, the Court considered the compatibility of the immunity with the purposes of the statute and with public policy. Id. at 2759-62. A similar analysis of "both history and policy," id. at 2755, is appropriate in construing section 1981.


Since section 1981 was enacted only five years before section 1983 became law, the analysis of section 1981 begins in this case at the same point the analysis of section 1983 began in City of Newport: municipal immunity from punitive damages was well established at common law when the statute was passed. See id. at 2756-58. The first relevant factor, therefore, supports a holding that a municipal corporation is immune from damages under section 1981 as well as under section 1983.

Although the plaintiff is correct that the legislative history of section 1983 which was cited in City of Newport is irrelevant to an analysis of section 1981, when the plaintiff also argues that that fact justifies a construction of section 1981 which is different from the Supreme Court's construction of section 1983, he misconceives the role of legislative history in the analysis in City of Newport. While the Court did note that "the limited legislative history relevant to [the issue of punitive damages against municipalities] suggests" that in enacting section 1983 Congress did not intend to abolish municipal common law immunity from punitive damages, id. at 2759, the Court's decision to maintain that immunity in suits under section 1983 was not based on the presence of such evidence in the legislative history but on the absence of any evidence that Congress intended to abolish the immunity.

The plaintiff has not cited any evidence that Congress intended to allow an award of punitive damages against municipal corporations under section 1981, while retaining the immunity under section 1983, nor has our examination of the legislative history revealed any such intent. When an immunity is well established in the common law, the courts presume that, in enacting a statute, "`Congress would have specifically so provided had it wished to abolish the doctrine.'" Id. at 2758, quoting Pierson v. Ray, 386 U.S. 547, 555, 87 S.Ct. 1213, 1218, 18 L.Ed.2d 288 (1967). In light of that presumption, therefore, the silence of Congress and the neutrality of the legislative history of section 1981 on this issue support a conclusion that the immunity of municipal corporations from punitive damages extends to suits under section 1981.


The plaintiff's argument that municipal immunity from punitive damages is contrary to the goals of section 1981 exaggerates both the scope of that statute and the efficacy of an award of punitive damages. In what is apparently the only other case to decide this issue, Boyd v. Shawnee Mission Public Schools, 522 F. Supp. 1115 (D.Kan. 1981), the court held that punitive damages were available against a municipality in a suit under section 1981 because section 1981, unlike section 1983, was enacted pursuant to the thirteenth amendment and had as its goal the total eradication of the badges and incidents of slavery. Those considerations, however, do not necessarily require different constructions of the two statutes. For example, although noting that section 1983 was enacted pursuant to the thirteenth amendment, many courts have held that in section 1981 suits as well as section 1983 suits, the plaintiff must prove discriminatory intent because of the close relationship between section 1981 and the fourteenth amendment. See, e.g., Golden v. Local 55 of the International Association of Firefighters, 633 F.2d 817 (9th Cir. 1980); Craig v. County of Los Angeles, 626 F.2d 659 (9th Cir. 1980), cert. denied, 450 U.S. 919, 101 S.Ct. 1364, 67 L.Ed.2d 345 (1981); Mescall v. Burrus, 603 F.2d 1266 (7th Cir. 1979); Grigsby v. North Mississippi Medical Center, Inc., 586 F.2d 457 (5th Cir. 1978). The cases which hold that neither section 1981 nor section 1983 prohibit unintentional discrimination establish that the different goals and constitutional bases for the two statutes do not necessarily mean that section 1981 must be interpreted more broadly than section 1983.

Furthermore, allowing punitive damages against municipal corporations would not significantly advance the purposes of section 1981 beyond what is already accomplished by allowing awards of compensatory damages against a municipality and awards of compensatory and punitive damages against defendant officials. Punitive damages are awarded to deter a tortfeasor and others from similar conduct and to punish a tortfeasor who acted maliciously. In City of Newport, the Supreme Court rejected the argument that the threat of punitive damages would deter a municipal corporation from future constitutional violations for several reasons. First, it noted that municipal officials, including those at the policymaking level, would probably not be deterred from wrongdoing by the possibility that large punitive damages awards might be assessed against the municipality. 101 S.Ct. at 2760. Second, according to the Court, offending public officials were as likely to be removed from office out of concern for public funds generated by an award of compensatory damages and for the government's integrity than as a reaction to a punitive damage award. Id. at 2761. Third, an award of punitive damages against the offending official is a more direct and effective deterrent than an award against the municipal employer. Id.

The Court in City of Newport also held that the retribution objective of punitive damage awards does not justify such an award against a municipality.

    Under ordinary principles of retribution, it is the
  wrongdoer himself who is made to suffer for his
  unlawful conduct. If a government official acts
  knowingly and maliciously to deprive others of their
  civil rights, he may become the appropriate object of
  the community's vindictive sentiments . . . . A
  municipality, however, can have no malice independent
  of the malice of its officials. Damages awarded for
  punitive purposes, therefore, are not sensibly
  assessed against the government entity itself.

Id. at 2760. Moreover, "punitive damages imposed on a municipality . . . are likely accompanied by an increase in taxes or a reduction of public services for the citizens footing the bill. Neither reason nor justice suggests that such retribution should be visited upon the shoulders of blameless or unknowing taxpayers." Id. According to the Court, what small increase in accomplishing the goals of the statute might be gained by awarding punitive damages against a municipal corporation is outweighed by the serious risk to the financial integrity of municipal ...

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