United States District Court, Northern District of Illinois, E.D
March 14, 1984
MICHAEL D. THOMAS, ET AL., PLAINTIFFS,
ROHNER-GEHRIG & CO., ET AL., DEFENDANTS.
The opinion of the court was delivered by: Grady, District Judge.
This is an employment discrimination class action*fn1 brought
under 42 U.S.C. § 1981, 1982 and 1985, and Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title
VII"). The matter is now before the court on defendants' motion
to dismiss the complaint or for summary judgment, Fed.R.Civ.P.
Plaintiffs are former employees of the corporate defendants,
Rohner-Gehrig & Co., Inc. ("Rohner") and Panalpina Air Freight,
Inc. ("Panalpina").*fn2 Panalpina was, until late 1982, a
subsidiary of Rohner. Both corporations were engaged in the
business of international freight forwarding, and apparently were
Swiss-owned and incorporated in New York.*fn3 The ownership and
structure of the corporations were identical. Affid. of H.D.
Seidel, ¶ 2. According to plaintiffs, most or all of the
corporate officers were Swiss or German.
In 1982 and 1983, defendants discharged several individuals,
including the named plaintiffs. According to the complaint, the
discharged individuals were all born in the United States, and
were all replaced by individuals born in Switzerland or Germany.
Plaintiffs assert that they were discharged because they were
born in the United States rather than in Switzerland or Germany,
and that the discharges therefore violated various
anti-discrimination statutes. We will address the statutes
42 U.S.C. § 1981 and 1982
Plaintiffs first claim that the discharges violated 42 U.S.C. § 1981
These sections provide:
§ 1981. Equal rights under the law
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.
§ 1982. Property rights of citizens
All citizens of the United States shall have the
same right, in every State and Territory, as is
enjoyed by white citizens thereof to inherit,
purchase, lease, sell, hold, and convey real and
Defendants argue that plaintiffs' claims under the above sections
do not state a cause of action on which relief can be granted.
Defendants state that §§ 1981 and 1982 apply solely to claims of
racial discrimination, and do not encompass plaintiffs' claims of
national origin discrimination.
It is well-established that while §§ 1981 and 1982 encompass
claims of racial discrimination, they do not protect against
claims of discrimination based on national origin. Jones v.
Alfred H. Mayer Co., 392 U.S. 409, 413, 88 S.Ct. 2186, 2189, 20
L.Ed.2d 1189 (1968); Masel v. Industrial Com'n of Illinois,
541 F. Supp. 342, 344 (N.D.Ill. 1982); Carrillo v. Bell Tel. Co.,
538 F. Supp. 793, 795 (N.D.Ill. 1982). To the extent that plaintiffs'
claims are based on national origin discrimination, then, it is
clear that §§ 1981 and 1982 afford them no remedy.*fn4
Plaintiffs additionally assert, however, that their claim is
one of racial discrimination. Arguing that "race" is a vague and
relative term, they contend that the national origin
discrimination of which they complain is actually race
discrimination; i.e., individuals of the American "race" were
discharged and replaced by individuals of the Swiss-Germanic
"race." Plaintiffs state that
the notion of race is a taxonomic device that exists
in the human mind, not as a division in the objective
universe . . . today much of modern science's
thoughts about the meaning of race are tied to
geographic distribution and culture . . . So it seems
fair to say that no meaningful distinction can be
drawn between "race" and "national origin." The
notion of race is as variable as man's
prejudice. . . .
Plaintiffs conclude that "there can be no distinction between
race and national origin in the application of § 1981."
Plaintiffs' Memorandum of Law In Opposition To Defendants' Motion
To Dismiss And/Or For Summary Judgment, at pp. 15-17.*fn5
We decline to accept plaintiffs' argument. Aside from its
untoward practical implications,*fn6 we simply cannot accept
this theory as a conceptual matter. We agree with Judge
Teitelbaum of the Western District of Pennsylvania, who noted in
rejecting a similar argument: "The terms `race' and `racial
discrimination' may be of such doubtful sociological validity as
to be scientifically meaningless, but these terms nonetheless are
subject to a commonly-accepted, albeit sometimes vague,
understanding." Budinsky v. Corning Glass Works, 425 F. Supp. 786,
788 (W.D.Pa. 1977) (rejecting § 1981 claim based on
discrimination allegedly due to plaintiff's Slavic origin).
Thus, we do not consider this complaint to raise a question of
racial discrimination. Our understanding of the concept of "race"
leads us to conclude that plaintiffs, who apparently are white
and were replaced by other whites, have not stated a racial
discrimination claim under §§ 1981 or 1982.
While it appears, therefore, that we must dismiss those
portions of the complaint resting on 42 U.S.C. § 1981 and 1982,
one last point must be addressed. In Takahashi v. Fish and Game
Commission, 334 U.S. 410, 419-20, 68 S.Ct. 1138, 1142-43, 92
L.Ed. 1478 (1948), the Supreme Court stated that § 1981 also
provides a remedy for discrimination based on alienage. Numerous
courts have since held or stated that § 1981 does indeed
encompass claims of alienage discrimination. See, e.g., Ramirez
v. Sloss, 615 F.2d 163, 167 n. 5 (5th Cir. 1980); Guerra v.
Manchester Terminal Corporation, 498 F.2d 641, 653-54 (5th Cir.),
reh. denied en banc, 503 F.2d 567 (5th Cir. 1974); Carrillo v.
Illinois Bell Tel. Co., supra, 538 F. Supp. at 795. Recently,
however, some courts have challenged the continued vitality of
the notion that § 1981 applies to citizenship or alienage
discrimination. See, e.g., Ben-Yakir v. Gaylinn Associates, Inc.,
535 F. Supp. 543, 545 (S.D.N.Y. 1982); De Malherbe v. Intern.
Union of Elevator Constructors, 438 F. Supp. 1121, 1125, 1139-42
(N.D.Cal. 1977) (holding that § 1981 does not reach private
discrimination against aliens). See also Patel v. Holley House
Motels, 483 F. Supp. 374, 382-83 (S.D.Ala. 1979). Although the
Court of Appeals for the Seventh Circuit has stated in passing
that "§ 1981 applies only to discrimination on the basis of
Movement for Opportunity, Etc. v. General Motors, 622 F.2d 1235,
1250 (7th Cir. 1980) (adopting district court opinion), other
decisions of that court indicate that a broader interpretation
may be appropriate. See Inada v. Sullivan, 523 F.2d 485, 489 (7th
Cir. 1975); Roberto v. Hartford Fire Ins. Co., 177 F.2d 811, 814
(7th Cir. 1949), cert. denied, 339 U.S. 920, 70 S.Ct. 622, 94
L.Ed. 1343 (1950).
Plaintiffs' complaint does not allege that plaintiffs were
American citizens, or that their replacements were not American
citizens. Were that in fact the case, and if § 1981 does prohibit
alienage discrimination, we could have a situation amounting to
reverse alienage discrimination, and redress might be available
under § 1981. Thus, we believe the appropriate action with regard
to plaintiffs' § 1981 claim is to dismiss with leave to amend.
42 U.S.C. § 1985(3)
Plaintiffs next allege that defendants' actions violated
42 U.S.C. § 1985(3). That section provides, in pertinent part:
Depriving persons of rights or privileges
If two or more persons in any State or Territory
conspire or go in disguise on the highway or on the
premises of another, for the purpose of depriving,
either directly or indirectly, any person or class of
persons of the equal protection of the laws, or of
equal privileges and immunities under the laws; . . .
[and] do, or cause to be done, any act in furtherance
of the object of such conspiracy, whereby another is
injured in his person or property, or deprived of
having and exercising any right or privilege of a
citizen of the United States, the party so injured or
deprived may have an action for the recovery of
damages occasioned by such injury or deprivation,
against any one or more of the conspirators.
Defendants argue that the complaint also fails to state a claim
under this section. For a number of reasons, we agree.
First, § 1985(3) expressly refers to and requires a finding of
conspiracy. Thus, in order to state a § 1985(3) claim, a
plaintiff must demonstrate that a conspiracy existed. We find
that there are no allegations sufficient to assure the court that
the § 1985(3) claim has any basis in fact. Plaintiffs merely
recite conclusory allegations that "Defendants, or some of them,
did invidiously conspire, with an intent to discriminate. . . ."
Complaint, ¶¶ 5-12. We have held that a bare averment of
conspiracy, without factual allegations supporting it, is
insufficient to state a claim under § 1985. Barr v. Hardiman,
583 F. Supp. 1, 6 (N.D.Ill. 1982) (Grady, J.). Because the complaint
fails to meet the specific pleading rule, it must be dismissed.
Shah v. MetPath Corp., 470 F. Supp. 158, 161-62 (E.D.Pa. 1979)
Second, insofar as plaintiffs are complaining of deprivations
of equal protection of the laws, their failure to allege state
action is fatal to this claim. Any violation of the Fourteenth
Amendment sought to be redressed through 42 U.S.C. § 1985(3) must
be predicated on state action. See, e.g., Cohen v. Illinois
Institute of Technology, 524 F.2d 818, 828-29 (7th Cir. 1975),
cert. denied, 425 U.S. 943, 96 S.Ct. 1683, 48 L.Ed.2d 187 (1976);
Bianco v. American Broadcasting Companies, 470 F. Supp. 182, 184
(N.D.Ill. 1979) (Grady, J.). Cf. United Broth. of Carpenters &
Joiners v. Scott, ___ U.S. ___, 103 S.Ct. 3352, 3357, 77 L.Ed.2d
Third, we doubt that a conspiracy is possible in this case,
given that the defendants are two interrelated corporations and
certain of their corporate officers. According to the affidavit
of an assistant to the corporate president, the defendant
corporations were, for all intents and purposes, interchangeable.
Affid. of H.D. Seidel, ¶ 2. See Dombrowski v. Dowling,
459 F.2d 190, 196 (7th Cir. 1972) (if conduct is essentially single act of
single entity, court will not find conspiracy).
Finally, if 42 U.S.C. § 1981 is inapplicable to this case,*fn7
it seems clear that plaintiffs are seeking redress only for
alleged violations of Title VII. In Great American Federal
Savings & Loan Association, et al. v. Novotny, 442 U.S. 366,
375-76, 99 S.Ct. 2345, 2350-51, 60 L.Ed.2d 957 (1979), however,
the Supreme Court held that violations of Title VII cannot be
asserted through § 1985(3). See also Wright v. Methodist Youth
Services, Inc., 511 F. Supp. 307 (N.D.Ill. 1981).
For all of the above reasons, we dismiss plaintiffs'
42 U.S.C. § 1985(3) claim.*fn8
42 U.S.C. § 2000e et seq. (Title VII)
Plaintiffs finally contend that defendants' actions violated
Title VII, which provides that it is unlawful for employers "to
fail or refuse to hire or to discharge any individual, or
otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin." 42 U.S.C. § 2000e-2(a)(1) (emphasis added).
Plaintiffs' complaint alleges that they were discharged on
account of their national origin, which they label "native born
American," and thus are entitled to the protection of Title
VII.*fn9 Defendants, on the other hand, assert that national
origin discrimination would only encompass claims based on "a
person's ancestry, heritage, background or possession of
characteristics which are typically identified with ancestral
groups." Defendants' Memorandum Of Law In Support Of Motion To
Dismiss The Complaint And For Summary Judgment, at 5.
("Defendants' Memorandum"). Defendants argue that national origin
discrimination does not include discrimination based solely on
"the mere fact of place of birth." Defendants' Memorandum, at 18.
This appears to be a case of first impression; no federal court
has directly considered whether individuals who allegedly are
discriminated against solely because they were born in the United
States fall within the "national origin" language of Title
There is a dearth of authority regarding the meaning of
"national origin." In Espinoza v. Farah Mfg. Co., 414 U.S. 86,
88, 94 S.Ct. 334, 336, 38 L.Ed.2d 287 (1973), the Supreme Court
stated, "[t]he term `national origin' on its face refers to the
country where a person was born, or, more broadly, the country
from which his or her ancestors came." See also Garcia v. Gloor,
618 F.2d 264, 269 (5th Cir. 1980), cert. denied, 449 U.S. 1113,
101 S.Ct. 923, 66 L.Ed.2d 842 (1981) ("national origin" defined
as "place of birth [or] place of birth of [one's] forebears").
Thus it appears from these references that a plaintiff
discriminated against because of birth in the United States has a
Title VII cause of action.
Moreover, the legislative history regarding the meaning of
"national origin," though "quite meager," Espinoza, supra, 414
U.S. at 88, 94 S.Ct. at 336, also indicates that discrimination
based solely on birthplace, American or otherwise, is prohibited.
Congressman Roosevelt, Chairman of the House Subcommittee which
reported the bill, defined "national origin" as "the country from
which you or your forebears
came . . . You may come from Poland, Czechoslovakia, England,
France, or any other country." 110 Cong.Rec. 2549 (1964)
Finally, Title VII was enacted to ensure that all American
citizens have equal employment opportunities, and to prevent
arbitrary employment discrimination. Franks v. Bowman
Transportation Co., 424 U.S. 747, 763, 96 S.Ct. 1251, 1263, 47
L.Ed.2d 444 (1976). These purposes cannot be accomplished if
employers are allowed to discriminate against employees on the
basis of immutable characteristics or factors over which
individuals have no control, such as country of birth. Garcia v.
Gloor, supra, 618 F.2d at 269.
Thus, employment discrimination against American citizens based
merely on country of birth, whether that birthplace is the United
States or elsewhere, contradicts the purpose and intent of Title
VII, as well as notions of fairness and equality. Plaintiffs'
complaint alleges that plaintiffs were discharged solely because
they were born in the United States. We believe this is
sufficient to state a Title VII cause of action based on national
origin discrimination. Accordingly, we deny defendants' motion to
dismiss plaintiffs' Title VII claim for relief.
For the reasons above, and with the qualifications set forth in
the opinion, we dismiss plaintiffs' 42 U.S.C. § 1981, 1982 and
1985(3) claims. We give plaintiffs fourteen days to amend their
complaint. We deny defendants' motion to dismiss plaintiffs'
Title VII claim.*fn11