medical benefits several months later, and plaintiff's tenacious pursuit of the pending EEOC claim all belie plaintiff's assertion that estoppel is appropriate here. Cf. Cerbone, 768 F.2d at 50 ("On the facts of this case, no reasonable juror could find that [appellant] and his attorney had a basis for believing that the Union's promise of $ 75 for organizing an occasional meeting was offered in settlement of an ADEA claim or in voluntary compliance with the remedial provisions of the ADEA and that, therefore, they need not file a timely charge with the EEOC.").
In sum, plaintiff raises no genuine issue of material fact preventing this court from finding that his failure to file a timely charge with the EEOC bars this action. Consequently, the statute of limitations defense applies, and summary judgment on plaintiff's Title VII claim is appropriate. See Celotex Corp. v. Catrett, 477 U.S. 317, 327, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) ("Rule 56 must be construed with due regard not only for the rights of persons asserting claims and defenses that are adequately based in fact to have those claims and defenses tried to a jury, but also for the rights of persons opposing such claims and defenses to demonstrate in the manner provided by the Rule, prior to trial, that the claims and defenses have no factual basis.").
B. Claims Under § 1981
Section 1981 of Title 42 of the United States Code provides in relevant part:
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.
As mentioned above, the leading Supreme Court case interpreting this statute, Patterson v. McLean Credit Union, 491 U.S. 164, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989), refuses to recognize complaints that rest solely on allegations of discrimination occurring after an employee was hired; therefore, as defendant asserts and plaintiff admits, under the current allegations of the complaint, plaintiff does not state a claim for relief under Section 1981 as formerly written and construed.
Section 101(b) of the 1991 Civil Rights Act ("1991 Act") added a new provision to Section 1981:
the term 'make and enforce contracts' includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.
Whether this and other sections of the 1991 Act apply retroactively has been the subject of much debate. The Second Circuit has yet to give an opinion on the retroactivity question, although several courts in this district have done so to different conclusions. Compare Smith v. Petra Cablevision Corp., 793 F. Supp. 417 (E.D.N.Y. 1992) (Amon, J.) (finding no retroactivity as to Section 101(b)) with Croce v. V.I.P. Real Estate, Inc., 786 F. Supp. 1141 (E.D.N.Y. 1992) (Spatt, J.) (finding retroactivity). For the reasons provided in Hill v. New York City Bd. of Education, 808 F. Supp. 141 (E.D.N.Y. 1992), this court has held that Section 101(b) of the Civil Rights Act of 1991 should be given prospective application only. Accordingly, defendants' motion for summary judgment on this claim is granted.
C. The State Law Claims
Defendants also move for summary judgment on plaintiff's state law claims; these claims include breach of contract, tortious interference with contract, assault and battery, unlawful imprisonment and intentional infliction of emotional distress. The sole ground for this motion is the correct observation that no federal claim remains to which the state claims can be appended. As the discussion above makes clear, plaintiff's state law claims do not have an independent basis of jurisdiction. Accordingly, since this court has granted summary judgment in favor of defendants on all federal claims, plaintiff's state claims -- the fourth, fifth, sixth, seventh and eighth causes of action -- are hereby dismissed without prejudice.
III. Motion to Disqualify Counsel
Plaintiff moves to disqualify Jones Day as attorney for both the corporate and individual defendants, claiming that these defendants' interests conflict and therefore cause their attorney to violate Canon 5 of the Code of Professional Responsibility. Since all claims in this action have been dismissed, plaintiff's disqualification motion is hereby denied.
Defendant's motion for summary judgment on plaintiff's first, second and third cause of action is granted with prejudice; its motion regarding the remaining claims is granted without prejudice. Plaintiff's motions to amend his complaint and for disqualification of defendants' counsel are denied.
Dated: Brooklyn, New York
December 11, 1992
I. LEO GLASSER, U.S.D.J.