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VON ZUCKERSTEIN v. ARGONNE NATL. LAB.

March 25, 1991

IVAN VON ZUCKERSTEIN, DEVABHAKTUNI RAMASWAMI, POLING CHANG, Executrix of the Estate of Han Chang, DR. MOHAN JAIN, and JOSIP VRESK, Plaintiffs,
v.
ARGONNE NATIONAL LABORATORY, Defendant


James B. Moran, Chief United States District Judge.


The opinion of the court was delivered by: MORAN

MORAN, District Judge

 Nearly five years ago, plaintiffs Ivan Von Zuckerstein ("Von Zuckerstein"), Devabhaktuni Ramaswami ("Ramaswami"), Han Chang ("Han Chang"), Mohan Jain ("Jain"), and Josip Vresk ("Vresk") filed this action against defendant Argonne National Laboratory ("Argonne"), their former (or, in the case of Vresk, present) employer, under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1988) ("Title VII"), and 42 U.S.C. § 1981 (1988) ("section 1981"). With trial two months away, Argonne filed the motions now before this court, seeking to dismiss the section 1981 claim against all plaintiffs and moving separately for summary judgment against plaintiff Poling Chang ("Poling Chang"), executrix of the estate of the now deceased Han Chang. For the following reasons, the motion for summary judgment is denied, and the motion to dismiss is granted in part and denied in part.

 DISCUSSION

 I. Motion to Dismiss Section 1981 Claim

 A. Nature of Alleged Discrimination: Race vs. National Origin

 Section 1981, which draws from the Civil Rights Act of 1866 and the Voting Rights Act of 1970, "prohibits racial discrimination in the making and enforcement of private" as well as public contracts. Runyon v. McCrary, 427 U.S. 160, 168 n.8, 49 L. Ed. 2d 415, 96 S. Ct. 2586 (1976). *fn1" In Saint Francis College v. Al-Khazraji, 481 U.S. 604, 95 L. Ed. 2d 582, 107 S. Ct. 2022 (1987), the Supreme Court, after examining the legislative history of section 1981 and the nineteenth century understanding of the term "race," concluded that Congress intended, through section 1981's proscription of racial discrimination, "to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics." 481 U.S. at 613. While establishing this expansive definition of racial discrimination, however, the Court also noted that certain claims -- those based "solely on the place or nation of [the plaintiff's] origin, or his religion," id., are not actionable under section 1981. Relying on this latter language, Argonne asserts that plaintiffs' section 1981 claims should all be dismissed because the discrimination alleged in the complaint is based on plaintiffs' national origin. We disagree.

 We begin with an analysis of plaintiffs' third amended complaint. Two paragraphs complain generally of discrimination on the basis of "national origin, race and color" (Complaint paras. 1, 8). Paragraph 3 characterizes each of the five plaintiffs as "immigrants from non-English speaking countries" and identifies them individually:

 
Plaintiff Von Zuckerstein is of Central European Jewish origin. Plaintiffs Ramaswami and Jain are of East Indian origin and non-white complexion. Plaintiff Chang is an Asian of Chinese origin and non-white complexion. Plaintiff Vresk is of Yugoslav origin.

 Argonne discriminated against Ramaswami, Jain, and Chang, the complaint asserts at paragraph 12, "on the basis of national origin, race and color" and against Von Zuckerstein and Vresk "on the basis of their national origin." In paragraph 9, the complaint describes in general terms the manifestations of Argonne's discrimination; the subparagraphs are couched in terms of discrimination against "immigrants" in favor of "native born Americans." The complaint proceeds in paragraph 10 to enumerate the specific discriminatory conduct that has injured the individual plaintiffs, asserting in some of the subparagraphs that "native born employees" were treated more favorably. The repeated reference to discrimination against employees "who immigrated to the United States from non-English speaking countries" in favor of "native born Americans," Argonne argues, demonstrates that the "heart and soul" of plaintiffs' case is discrimination on the basis of national origin.

 Argonne's argument with respect to Chang, Jain, and Ramaswami is clearly untenable. Quoting paragraph 8 of the complaint, Argonne observes in its memorandum, underscoring for emphasis, that the plaintiffs allege discrimination against its employees who immigrated to the United States from non-English speaking countries. But the cited paragraph goes on to observe that this discrimination is based on the foreign-born employee's "national origin, race and color." (Emphasis added). Paragraph 12, moreover, explicitly asserts that Argonne discriminated against Chang, Jain, and Ramaswami "on the basis of national origin, race and color." These express allegations of racial discrimination are sufficient to defeat Argonne's motion to dismiss. See Sajous v. First National Bank, No. 87 C 3564, 1989 U.S. Dist. LEXIS 4808 (N.D. Ill. Dec. 21, 1987) (section 1981 claim not dismissed where plaintiff alleged discrimination based on his race and his national origin); Adames v. Mitsubishi Bank, Ltd., 751 F. Supp. 1548, 1560 (E.D.N.Y. 1990) (plaintiff "clearly stated an actionable claim under section 1981" by "alleging racial as well as national origin discrimination").

 That the complaint refers in several paragraphs to discrimination against immigrants in favor of native-born Americans is of no moment. Despite the clear theoretical distinction between discrimination based on national origin and discrimination based on ancestry or ethnic characteristics (the former is actionable under section 1981, the latter is not), in practice, the line between these two concepts "is not a bright one." Saint Francis, 481 U.S. at 614 (Brennan, J., concurring); Korpai v. A.W. Zengeler's Grande Cleaners, No. 85 C 9130, 1987 U.S. Dist. LEXIS 10905 (N.D. Ill. Nov. 24, 1987). To the extent that it is clear from the complaint that a plaintiff "is not only alleging discrimination on the basis of [his] place of origin without regard for [his] ethnic background," Cuello-Suarez v. Autoridad de Energia Electrica, 737 F. Supp. 1243, 1248 (D.P.R. 1990), the claim is cognizable under section 1981. Paragraphs 1, 3, and 12 all suggest a racial animus behind Argonne's discrimination against Chang, Jain, and Ramaswami, and paragraph 8 makes clear that the term "discrimination against immigrants" incorporates discrimination on the basis of race and color as well as national origin. In light of these references to race and ethnicity, it is apparent that the allegations of discrimination in those paragraphs that do not explicitly mention race or ethnicity were made with regard for the ethnic backgrounds of the plaintiffs. It is improper for this court, moreover, on motion to dismiss, to sift through the various allegations of the complaint to determine the true "heart and soul" of the plaintiffs' case; we must construe the allegations and reasonable inferences that can be drawn from them in the light most favorable to the plaintiff. See Powe v. Chicago, 664 F.2d 639, 642 (7th Cir. 1981).

 Von Zuckerstein's section 1981 claim stands on slightly wobblier legs. In paragraph 12 of the complaint, after alleging that Argonne discriminated against Ramaswami, Chang, and Jain on the basis of national origin, race, and color, plaintiffs assert that the discrimination against Von Zuckerstein was based only on national origin. Von Zuckerstein is entitled to proceed under a section 1981 theory, however, so long as "an allegation of racial animus [is] explicit or reasonably inferable from the pleadings." Anooya v. Hilton Hotels Corp., 733 F.2d 48, 50 (7th Cir. 1984) (emphasis added); see also Cuello-Suarez, 737 F. Supp. at 1247-48 (allegation of racial discrimination inferred even though plaintiff claimed in her pleadings that "she had been discriminated against because of the fact that she was a ' Dominican national ' and ' on the basis of her place of birth '") (emphases in original). In paragraph 3, Von Zuckerstein characterizes himself as "of Central European Jewish origin"; this representation suggests that he identifies himself for the purpose of this lawsuit by his ethnic rather than national heritage. The references to discrimination based on his immigrant status or nationality, then, cannot be said to have been made without regard for his ethnic background. The juxtaposition in paragraph 12 of the basis of the discrimination against Von Zuckerstein (national heritage) with the basis of the discrimination against Chang, Jain, and Ramaswami (national origin, race, and color) might appear to create a negative implication that racial concerns did not motivate Argonne in discriminating against Von Zuckerstein, but we find it significant that the complaint was filed not long after Saint Francis, which broadened the purview of "race" to include "ethnicity," was decided. Before Saint Francis, the ethnic group in which Von Zuckerstein claims membership may not have been considered a separate "race," see Budinsky v. Corning Glass Works, 425 F. Supp. 786, 788 (W.D. Pa. 1977), and therefore "racial discrimination" would have been a misnomer when applied to Von Zuckerstein.

 Argonne's argument is strongest with respect to Vresk, who, like Von Zuckerstein, alleges discrimination in paragraph 12 only on the basis of national origin but who identifies himself in paragraph 3 as "of Yugoslav origin." Characterization as a Yugoslav inherently emphasizes nationality over ethnicity, for the concept of Yugoslavia is a political one; as recent events have illustrated, Yugoslavia is not coextensive with any ethnicity but rather comprises a multitude of them (Serb, Croat, Bosnian Moslem, Slovene, Macedonian, and Albanian). There is simply no such thing as an ethnic Yugoslav. That Vresk's four co-plaintiffs have validly stated claims based at least in part on racial discrimination, however, permits an inference that Vresk, too, is complaining of an ethnicity-based animus and certainly puts Argonne on notice of a claim of racial discrimination. Moreover, the four others will shortly be going to trial on this case, including the section 1981 claims, and we see no point in making a precise distinction with respect to this plaintiff now, on the eve of trial. Each plaintiff, ...


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