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WHITNEY v. GREATER NEW YORK CORP.

September 30, 1975

Charlene WHITNEY, Plaintiff,
v.
GREATER NEW YORK CORPORATION OF SEVENTH-DAY ADVENTISTS, Defendant



The opinion of the court was delivered by: LASKER

LASKER, District Judge.

 Charlene Whitney sues Greater New York Corporation of Seventh-Day Adventists (Adventists), alleging unlawful employment practices in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and denial of equal rights in violation of 42 U.S.C. § 1981.

 On or about December, 1967 Whitney was hired by Adventists to be a typist-receptionist. In addition, "but not incidental to her employment," (Complaint, para. V, B) she rented an apartment in a multiple dwelling owned and operated by Adventists. According to her complaint, Whitney, a white woman, was discharged on April 21, 1969 and evicted on June 17, 1969 solely because she was maintaining a casual social relationship with one Samuel Johnson, a black man. She alleges that these actions were racially motivated and were the culmination of a series of threats and warnings to discontinue the friendship which began in September of 1968. She seeks compensatory and punitive damages in the amount of $300,000.

 Pursuant to Rule 12, Federal Rules of Civil Procedure, the defendant moves to dismiss all or part of the complaint on the grounds that: 1) Whitney lacks standing to bring this action under either Title VII or § 1981 and the complaint fails to state a claim upon which relief can be granted; 2) the application of either statute in the circumstances of this case would violate the defendant's rights under the Free Exercise Clause of the First Amendment; 3) compensatory and punitive damages are not recoverable under either statute; 4) the allegation in para. V, K of a "reprisal action" must be stricken because it has not been presented to the Equal Employment Opportunity Commission (EEOC), as required by § 706, 42 U.S.C. § 2000e-5; and 5) the claim under § 1981 is time barred. *fn1"

 I. Plaintiff's Standing and Claim for Relief under Title VII

 A. The Discharge

 Section 703(a)(1) of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (1974) makes it an unlawful employment practice for an employer

 
"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."

 Adventists contends that the complaint is defective because it does not allege that Whitney was discharged because of her race but, rather because of the race of her friend, Samuel Johnson, and that the law is settled that white plaintiffs cannot maintain a Title VII action because of alleged discrimination against a minority group member. *fn2" It is argued that the plaintiff therefore "lacks standing" *fn3" to assert a claim under Title VII and fails to state a claim upon which relief can be granted.

 The argument is unpersuasive. Manifestly, if Whitney was discharged because, as alleged, the defendant disapproved of a social relationship between a white woman and a black man, the plaintiff's race was as much a factor in the decision to fire her as that of her friend. Specifying as she does that she was discharged because she, a white woman, associated with a black, her complaint falls within the statutory language that she was "discharge[d] . . . because of [her] race."

 This reading of the statute is consistent with the administrative construction of the Act, a consideration which is entitled to "great weight." Trafficante v. Metropolitan Life Ins. Co., 409 U.S. 205, 210, 93 S. Ct. 364, 34 L. Ed. 2d 415 (1972). In EEOC Decision No. 71-909, 3 Fair Empl. Prac. Cas. (BNA) 269 (1970), the Commission found reasonable cause to believe a Title VII violation had occurred where a white employee was discharged because of his friendly associations with black employees. The Commission stated that "Inasmuch as Charging Party was distinguished from other employees only to the extent that he fraternized with employees whose race was not the same as his, we regard it as reasonable to infer that the treatment afforded him was based, at least in part, upon his race." 3 FEP Cases at 269. Accord EEOC Decision No. 71-1902, 3 Fair Empl. Prac. Cas. (BNA) 1244 at 1244 (1971); EEOC Decision No. 71-969 (1970), CCH, EEOC Decisions (1973) P6193; Gutwein v. Easton Publishing Co., 8 E.P.D. P9728 (Md. Oct. 8, 1974).

 The cases cited by the defendant to support its contention are, with one exception, not on point. They deal with situations in which white persons attempted to use Title VII to solve employment problems where no racial discrimination of any kind was alleged, Rios v. Enterprise Association Steamfitters Local Union No. 638, 520 F.2d 352 (2d Cir. 1975); Patterson v. Newspaper and Mail Deliverers' Union of New York and Vicinity, 514 F.2d 767 (2d Cir. 1975); Marshall v. Plumbers and Steamfitters Local Union 60, 343 F. Supp. 70 (E.D.La.1972); or where courts held that white employees have no standing to charge their employers with racial discrimination against minorities. EEOC v. National Mine Service Co., 8 FEP Cases 1233 (E.D.Ky. Nov. 8, 1974); Waters v. Heublein Inc., 8 FEP Cases 908 (N.D.Cal.1974). The decisions of the United States Court of Appeals for the Second Circuit in Rios and Patterson, supra, focus on the rights of non-minority workers where Title VII actions have been brought against their employers by minority group co-workers. In both instances, the white employees attempted to intervene and take advantage of the Title VII actions to rectify perceived injustices in their employment conditions, but made no allegations that they had been the object of race discrimination themselves. The court simply held that no Title VII rights exist, absent an allegation of the discrimination proscribed by § 703(a). Rios, supra, 520 F.2d at 355-356; Patterson, supra, 514 F.2d at 772. Nothing in either of these decisions supports the proposition that a white person cannot maintain a Title VII action when he does allege that he has been a victim of racial discrimination. The language in Patterson that, "[Title VII] creates no rights or benefits in favor of non-minority persons or groups," supra at 773, is not to be read literally, since to do so would grossly distort the context in which it appears. The court observed that:

 
"This case arises under a statute which by its terms is limited to protection against employment discrimination based on an individual's 'race, color, religion, sex or national origin.' [The non-minority intervenor] does not allege discrimination against him based on any of these factors. . . . Any past denial of promotion rights to [the non-minority ...

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