The opinion of the court was delivered by: DUFFY
This action was commenced pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as well as the Civil Rights Act of 1866, 42 U.S.C. §§ 1981, 1983, and the Fifth and Fourteenth Amendments of the Constitution for declaratory, injunctive and monetary relief as a result of allegedly racially discriminatory treatment. The defendants are the Port Authority of New York and New Jersey (the Port Authority), its Commissioners, and Daniel Hahn, a supervisory employee of the Port Authority assigned to the Engineering Department. Plaintiff is a former employee of the Port Authority who was assigned to the Engineering Department, and who essentially claims that he suffered racial discrimination when, at the end of a one-year leave of absence, promised re-employment was denied him.
On September 23, 1974, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (the EEOC), naming the Port Authority and Daniel Hahn as the discriminating parties. The EEOC informed him, by letter dated May 30, 1975 (the Determination Letter), that it had not found reasonable cause to believe that the charge was true. The letter stated, inter alia, that should plaintiff "wish to pursue this matter further, he may do so by filing a private action in Federal District Court within 90 days of his receipt of Notice of Right to Sue which will be issued by the Department of Justice . . ." This "Notice of Right to Sue Within 90 Days" (the Notice) was issued by the Department of Justice on June 23, 1975, and was received by plaintiff allegedly on June 30, 1975. The notice informed plaintiff that he had a right to institute a civil action in a district court "within 90 days of receipt of this Notice." Plaintiff thereafter filed the instant suit on September 26, 1975. Taking the plaintiff's allegation concerning the date of receipt of the Notice as true for the purposes of this motion, the filing date was within 90 days of the receipt of the Notice but more than 90 days after receipt of the Determination Letter.
Defendants have moved to dismiss this action on several grounds. They assert that the Title VII claim is barred since it was not brought within the correct 90 day period as required by 42 U.S.C. § 2000e-5(f)(1), and that, in any event, the Commissioners are not appropriate defendants since they were not named in the charge filed with the EEOC. As to the claims based on 42 U.S.C. §§ 1981 and 1983, defendants argue untimeliness, as well, since such claims were not brought within the one year statute of limitations allegedly applicable to suits against the Port Authority. Defendants further contend that the Port Authority is not an appropriate defendant in this type of case since it is not a "person" within the meaning of those sections, and that, finally, the complaint fails to state a cause of action against the Commissioners and Daniel Hahn. Defendants have alternatively moved to require plaintiff to state separately and number his causes of action. Plaintiff has requested leave to amend the complaint to clarify his claim of Fifth and Fourteenth Amendment violations to recite the jurisdictional predicate of 28 U.S.C. § 1331 and to add the amount in controversy, if necessary.
Because of the impact on EEOC procedures which determination of this motion may involve, the EEOC has requested leave to oppose defendants' motion by submission of a memorandum as amicus curiae. Neither party has opposed such submission; EEOC's participation is accepted.
Defendants initially contend that, notwithstanding EEOC directives, in a case such as this, in which the EEOC has made a no probable cause determination and dismissed the charge, the running of the 90 day period within which to sue, pursuant to 42 U.S.C. § 2000e-5(f)(1), commences not upon the date of receipt of the Notice, but rather upon the date of receipt of the Determination Letter. Such an interpretation would mandate dismissal of plaintiff's Title VII claim as untimely. In support of this proposition, defendants rely on DeMatteis v. Eastman Kodak Co., 511 F.2d 306, mod. on reh. 520 F.2d 409 (2d Cir. 1975), in which the Court of Appeals held, in actions commencing after May 7, 1975, that the 90 day period is triggered by notice from the EEOC dismissing the charges. DeMatteis, however, did not involve a governmental agency as a defendant; whether such a defendant would change the result has not been definitively settled. Indeed, this very issue has been the subject of two recent decisions in this district involving the Port Authority as a defendant. In Brisbane v. Port Authority of New York & New Jersey, et al., 414 F. Supp. 604 (S.D.N.Y. 1976), and Ramos v. Port Authority of New York & New Jersey, F. Supp. (76 Civ. 312, June 21, 1976), the Port Authority's motions to dismiss Title VII claims as untimely, in suits which were filed more than 90 days after receipt of Determination Letters but within 90 days of receipt of Notices, were denied. Although Brisbane concluded that DeMatteis was inapplicable in a suit against a public employer, while Ramos viewed DeMatteis as controlling, both decisions rested on the respective plaintiff's reasonable reliance on the advice of the EEOC in procedurally prosecuting the claims in the absence of prejudice to the defendant. In light of these decisions, it is unnecessary to reach the question of whether, as defendants assert, DeMatteis is dispositive of the instant action. "[There] can be no little doubt that when, as here, the notice informs the complainant that [he] cannot sue until the happening of a future event (receipt of a right to sue letter from the Justice Department), then it does not start the running of the ninety day period." Brisbane v. Port Authority, 414 F. Supp. at 608-09. Consequently, plaintiff's suit, filed within 90 days of the Notice, is timely; defendants' motion to dismiss on this ground is denied.
Defendants further assert that this Court has no jurisdiction over the Port Authority Commissioners since they were not named by plaintiff in the original complaint filed with the EEOC, as required by 42 U.S.C. § 2000e-5(f)(1).
This contention is without merit. The legislation creating the Port Authority states that it "shall consist of twelve commissioners," Cf. N. Y. Unconsolidated Laws § 6405 (McKinney 1961), who, among other things, manage the Port Authority and control all employment decisions. Cf. N.Y. Unconsolidated Laws §§ 6406, 6415. Notification to the Port Authority of a claim of discrimination is, therefore, notification to the Commissioners; the Commissioners are, in a real sense, the Port Authority itself. As plaintiff correctly points out, the outcome of the cases cited by defendants in support of their position apparently turned on the insufficient connection between the plaintiff and defendants sought to be held; that is, notice of the violation to those defendants unnamed in the EEOC charge was lacking. See Scott v. University of Delaware, 385 F. Supp. 937, 942 (D.Del. 1974); Van Hoomissen v. Xerox Corp., 368 F. Supp. 829, 834-35 (N.D.Cal. 1973). Because of this, such cases are inapposite. In the instant situation, the Commissioners, who are the "directors" of the Port Authority, are in a position where they would or should have had notice of plaintiff's claim.
Defendants' next set of contentions involve the causes of action based on 42 U.S.C. §§ 1981 and 1983. They argue that the applicable statute of limitations on such claims is that applicable under State law (Johnson v. Railway Express Agency, 421 U.S. 454, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975) which, as to Port Authority and its Commissioners, is one year. Trippe v. Port of New York Authority, 14 N.Y. 2d 119, 123, 249 N.Y.S.2d 409, 198 N.E.2d 585 (1964); Rao v. Port of New York Authority, 222 F.2d 362 (2d Cir. 1955); Tierney v. Byee, et al., Civ. No. 597-73, (D.N.J. Feb. 20, 1974). Cf. McKinney's Unconsolidated Laws, § 7101, et seq. Plaintiff disputes the applicability, under New York law, of a one year period and maintains that Kaiser adopts the use of the three year period for suits "to recover upon a liability . . . created or imposed by statute." N.Y.C.P.L.R. 214(2) (McKinney 1972). I need not, however, reach the issue, for I have determined that the action was timely brought regardless of which period of time governs.
Although plaintiff was informed on September 12, 1974 that "he could not be reconsidered for reemployment at that time," (Complaint para. 10) and a charge of discrimination was filed with the EEOC on September 23, 1974, plaintiff's leave of absence did not officially expire until September 30, 1974 (See Herr Affidavit para. 4 and Exhibit C thereto). Notwithstanding the filing of the charge on September 23, the Personnel Department of the Port Authority, at the urging of the EEOC, spoke with plaintiff about the possibility of reemployment in a different position. This "negotiation" apparently indicated the willingness of the Port Authority to consider its previous statement, as well as the filing of charges, as non-final acts. Moreover, the Supreme Court has recognized that the filing of a Title VII charge with the EEOC does not toll the applicable statute of limitations, at least in a § 1981 case. Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 44 L. Ed. 2d 295, 95 S. Ct. 1716 (1975). Therefore, plaintiff's discharge was consummated only when his leave of absence terminated. Since suit was brought within a year of such termination, the action is timely under either limitation period.
Dismissal is urged on behalf of defendant Port Authority on the grounds that the Port Authority cannot be sued under 42 U.S.C. §§ 1981 and 1983 because it is not a "person" within the meaning of those statutes.
I will consider each section separately.
Defendant relies on Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961) and City of Kenosha v. Bruno, 412 U.S. 507, 37 L. Ed. 2d 109, 93 S. Ct. 2222 (1973) for the proposition that a municipal corporation is not a "person" as defined in 42 U.S.C. § 1983. Plaintiff contends that the Port Authority is not a municipal corporation but an agency, and thus Forman v. Community Socs., Inc., 500 F.2d 1246 (2d Cir. 1974), rev'd on other grounds sub nom. United Housing Foundation, Inc. v. Forman, 421 U.S. 837, 44 L. Ed. 2d 621, 95 S. Ct. 2051 (1975), distinguishing between municipal corporations and agencies for the purposes of suit under § 1983, is controlling. An examination of the nature of the Port Authority indicates that plaintiff's position must be rejected.
The Port Authority is regarded in the bi-State governing legislation as "the municipal corporate instrumentality of the two states . . . ." Cf. McKinney's Unconsolidated Laws § 6459, and its characterization as a political sub-division has been well recognized. The Port of N.Y. Authority v. Baker, Watts & Co., 129 U.S. App. D.C. 173, 392 F.2d 497, 503 (1968); C.I.R. v. Shamberg's Estate, 144 F.2d 998, 1006 (2d Cir. 1944); Bush Terminal v. City of New York, Port of N.Y. Authority, 282 N.Y. 306, 319, 26 N.E.2d 269 (1940). Thus plaintiff's § 1983 claim as against the Port Authority must fail.
I reach a different result, however, with respect to the § 1981 claim. The applicability of § 1981 to political subdivisions is an open question in this Circuit.
Those courts which have been faced with the issue have reached contrary conclusions. One line of cases holds that the term "person" as utilized in 42 U.S.C. § 1983 applies equally to § 1981. See, e.g., Arunga v. Weldon, 469 F.2d 675 (9th Cir. 1972); Redding v. Medica, 402 F. Supp. 1260 (W.D.Pa. 1975); Black Bros. Combined v. City of Richmond, 386 F. Supp. 147 (E.D.Va. 1974). The apparent reason underlying this view is that "an interpretation of Section 1981 which authorizes damage actions against states and municipalities deprives Section 1983 of its essential significance." Bennett v. Gravelle, 323 F. Supp. 203, 215 (D.Md.), aff'd 451 F.2d 1011 (5th Cir. 1971). A second line of cases, however, distinguishes between § 1981 and § 1983 both as to legislative history and statutory language, and concludes that a municipality, however protected from suit under § 1983, is subject nonetheless under § 1981. See, e.g., Maybanks v. Ingraham, et al., 378 F. Supp. 913 (E.D.Pa. 1974); Robinson v. Conlisk, et al., 385 F. Supp. 529 (N.D.Ill.1974). I believe that this latter view finds more support in logic and legislative history.
The reference to "persons" contained in § 1981 describes those protected by the statute, and not those proscribed from its violation, as in § 1983. Unlike § 1983, which was rooted in § 1 of the Ku Klux Klan Act of 1871, See Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961), § 1981, as well as § 1982, were originally derived from § 1 of the Civil Rights Act of 1866. The Supreme Court has recognized the universal application of this section of the 1866 act, which prohibits "interference from any source whatever, whether governmental or private," Jones v. Mayer Co., 392 U.S. 409, 423-24, 20 L. Ed. 2d 1189, 88 S. Ct. 2186 (1968), and has viewed § 1982 as "an 'absolute' bar to all discrimination, private as well as public, federal as well as state." District of Columbia v. Carter, 409 U.S. 418, 422, 34 L. Ed. 2d 613, 93 S. Ct. 602 (1973). Because of the common genesis of §§ 1981 and 1982, the common language of these two sections have been consistently construed.