The opinion of the court was delivered by: PLATT
With respect to plaintiffs' amended complaint, defendants move for an order pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure "and the inherent power of the Court" dismissing
(i) all claims brought under 42 U.S.C. § 1981 on the ground that said statute is not applicable to national origin discrimination claims;
(ii) the claims of plaintiffs Andres Diaz, Juan del Rosario and Hector G. Millet under Title VII of the Civil Rights Act of 1964 on the ground that said claims are time-barred; and
(iii) the claim of plaintiff of plaintiff Alejo Ramos against George Wilkie, the claims of plaintiff Osvaldo Garcia against defendants William Jones and Tibaldo Rodriguez, the claim of plaintiff Juan del Rosario against defendant George Wilkie, the claim of plaintiff Andres Diaz against defendant George Wilkie, the claims of intervening plaintiff Francia Mendez against defendants George Wilkie and Tibaldo Rodriguez, the claims of intervening plaintiff Hector G. Millet against defendants William Jones, George Wilkie and Tibaldo Rodriguez, and the claims of intervening plaintiff Hilda Santos against defendants William Jones, George Wilkie and Tibaldo Rodriguez, all on the ground that said claims fail to state claims upon which relief may be granted.
Plaintiffs Alejo Ramos, Osvaldo Garcia, Juan del Rosario and Andres Diaz, and intervening plaintiffs Francia Mendez and Hector G. Millet are all former employees of the Sky Chefs Division of defendant Flagship International, Inc. Intervening plaintiff Hilda Santos is still employed by Sky Chefs.
All the plaintiffs and intervening plaintiffs claim that they have been subject to a pattern and practice of harassment and unequal terms and benefits of employment because they are Hispanic and because of race, color and/or national origin in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964.
"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."
In the amended complaint, plaintiffs Juan del Rosario and Andres Diaz and intervening plaintiffs Francia Mendez, Hector G. Millet and Hilda Santos allege that they are "non-white Hispanic[s]" and plaintiffs Alejo Ramos and Osvaldo Garcia allege that they are "Hispanic[s] of Cuban national origin."
Citing Ben-Yakir v. Gaylinn Associates, Inc., 535 F. Supp. 543, 544-45 (S.D.N.Y. 1982); Rios v. Marshall, 530 F. Supp. 351, 360-61 (S.D.N.Y. 1981); Avigliano v. Sumitomo Shoji America, Inc., 473 F. Supp. 506, 514 (S.D.N.Y. 1979), aff'd, 638 F.2d 552 (2d Cir. 1981), vacated on other grounds, 457 U.S. 176, 102 S. Ct. 2374, 72 L. Ed. 2d 765 (1982); Martinez v. Bethlehem Steel Corporation, 78 F.R.D. 125 (E.D. Pa. 1978); Jones v. The United Gas Improvement Corp., 68 F.R.D. 1, 10-15 (E.D. Pa. 1975), defendants argue that plaintiffs' claims are based on their "Hispanic national origin" and that § 1981 is not available for relief from discrimination based on national origin.
As indicated above, only two of the plaintiffs, i.e., Messrs. Ramos and Garcia, fail to allege that they are "non-white." Both of them, however, allege that they are "Hispanic" and ...