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March 30, 1984


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


James Bailey ("Plaintiff") brought this action, under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"), and the Civil Rights Act of 1870, 42 U.S.C. § 1981 ("§ 1981"), against John E. Binyon ("Binyon") and Binyon's Incorporated (collectively "Defendants"), seeking various forms of relief for Defendants' alleged racial discrimination against Plaintiff.*fn1 Jurisdiction is based on 28 U.S.C. § 1331 and 1343, and is not contested. Presently before the court is Defendants' motion, under Fed.R.Civ.P. Rule 12(b)(6), to dismiss Plaintiff's first amended complaint ("complaint") for failure to state a claim upon which relief can be granted. For the reasons set forth below, Defendants' motion is denied.

Factual Background

For purposes of Defendants' motion, we must, of course, accept as true the well-pleaded factual allegations of Plaintiff's complaint. E.g., Reichenberger v. Pritchard, 660 F.2d 280, 282 (7th Cir. 1981). Further, we must view the reasonable inferences to be drawn from those allegations in the light most favorable to Plaintiff. E.g., Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir. 1981). The complaint discloses that Plaintiff, who is black, was employed as a cook by Binyon's Incorporated, which owns and operates a restaurant in Chicago. Binyon is an officer of Binyon's Incorporated.

Plaintiff told Binyon that he objected to the racial epithets and that he wanted to be treated "like a human being," to which Binyon replied, "You're not a human being, you're a nigger." At that point, Plaintiff put down his keys to the restaurant and prepared to leave. Binyon suggested to Plaintiff that, if Plaintiff did not like the manner in which he was being treated, he could file a complaint with the Illinois Department of Human Rights. As Plaintiff left the restaurant, Binyon said to him, "You'd stay if you weren't a sissy. If you were a man, you'd stay." As a result of Binyon's harassment of him, Plaintiff did not return to work at the restaurant. Plaintiff immediately reported the incident to the Illinois Department of Human Rights, and, after exhausting his administrative remedies, Plaintiff filed suit in this court.


Title VII provides, in part, as follows:

    It shall be an unlawful employment practice for an
  employer —
    (1) 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).*fn2 Section 1981 states that:

    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.

Clearly, § 1981 "affords a federal remedy against discrimination in private employment on the basis of race." Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 460, 95 S.Ct. 1716, 1720, 44 L.Ed.2d 295 (1975). For present purposes, Defendants' liability, if any, under Title VII is coextensive with their liability under § 1981. See Flowers v. Crouch-Walker Corporation, 552 F.2d 1277 (7th Cir. 1977); Johnson v. Olin Corporation, 484 F. Supp. 577 (S.D.Tex. 1980). See also T & S Service Associates, Inc. v. Crenson, 666 F.2d 722, 724 (1st Cir. 1981).*fn3 Accordingly, the discussion of Plaintiff's Title VII claim which follows is equally applicable to his § 1981 claim.

The rule is well established, of course, "that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957) (footnote omitted). With that principle in mind, we consider the legal sufficiency of Plaintiff's complaint.

I. Basic Requirements

A claim of racial discrimination in employment may be based either on a theory of "disparate treatment" or on a theory of "disparate impact." See, e.g., International Brotherhood of Teamsters v. United States, 431 U.S. 324, 335 n. 15, 97 S.Ct. 1843, 1854 n. 15, 52 L.Ed.2d 396 (1977). In a disparate treatment case, such as the present one, unlike a disparate impact case, the plaintiff must prove discriminatory intent or motive on the part of the defendants.*fn4 See, e.g., Bryant v. International Schools Services, Inc., 675 F.2d 562, 576 (3d Cir. 1982). In McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-805, 93 S.Ct. 1817, 1824-1825, 36 L.Ed.2d 668 (1973), the Supreme Court explicitly delineated the burdens and order of presentation of proof in a disparate treatment case. The Court later summarized the McDonnell Douglas standards as follows:

  First, the plaintiff has the burden of proving by the
  preponderance of the evidence a prima facie case of
  discrimination. Second, if the plaintiff succeeds in
  proving the prima facie case, the burden shifts to
  the defendant "to articulate some legitimate,
  nondiscriminatory reason for the employee's
  rejection." [411 U.S.] at 802 [93 S.Ct. at 1824].
  Third, should the defendant carry this burden, the
  plaintiff must then have an opportunity to prove by a
  preponderance of the evidence that the legitimate

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