The opinion of the court was delivered by: LAWRENCE M. MCKENNA
By this Order, the Court decides motions by defendants Ulltra East Parking Corporation ("Ulltra East" or the "Company"), L.P.S. Management Corporation ("L.P.S."), and Alan Tretin ("Tretin") (collectively "Defendants") for summary judgment in the above-captioned actions pursuant to Rule 56(a) of the Federal Rules of Civil Procedure. On January 9, 1992, plaintiff Leroy Ladson ("Ladson") commenced the 92-0147 action which alleges that Ulltra East and Lerner Management Corporation discriminated against him in violation of §§ 704(a) and 706 of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000s-3(a) and 2000e-5, and § 7(b) of the Age Discrimination in Employment Act of 1967 (the "ADEA"), 29 U.S.C. § 626(b). On January 17, 1992, Ladson commenced the 92-0440 action, which alleges violations by, inter alia, the Defendants of the Civil Rights Act of 1870, 42 U.S.C. § 1981(a), and the Civil Rights Acts of 1861 and 1871, 42 U.S.C. §§ 1983, 1985, and 1986. Ladson commenced the 92-4894 action on July 1, 1992, and alleges therein that Ulltra East violated § 301 of the Labor Management Relations Act of 1947 ("LMRA"), 29 U.S.C. § 1985. These actions all arise out of alleged job discrimination by Ulltra East, Ladson's employer.
On March 29, 1993, the Court decided cross motions for summary judgment filed by Plaintiff and defendants no longer parties to this matter. Familiarity with the facts as set out in the Court's prior decision is presumed. The remaining Defendants filed the instant motions on January 14, 1994. For the reasons set forth below, Defendants' motions are granted in part and denied in part.
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only where "there is no genuine issue as to any material fact" and a party is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case . . ." Celotex Corp., v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmoving party's "evidence . . . is to be believed, and all justifiable inferences are to be drawn in [its] favor." Eastman Kodak Co. v. Image Technical Services, Inc., 119 L. Ed. 2d 265, U.S. , 112 S. Ct. 2072, 2076 (1992) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986)). A summary judgment motion must be denied if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248.
In addition, as the Second Circuit has often noted, "special solicitude should be afforded pro se litigants generally, when confronted with motions for summary judgment." Graham v. Lewinski, 848 F.2d 342, 344 (2d Cir. 1988); accord, e.g., Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988); Beacon Enters., Inc. v. Menzies, 715 F.2d 757, 767 (2d Cir. 1983).
Plaintiff's Complaint in action 92-0440 alleges causes of action under the provisions of the Reconstruction Era civil rights statutes, 42 U.S.C. §§ 1981, 1983, 1985 and 1986. Defendants' motions for summary judgment with respect to each of these provisions are considered below.
Section 1981 of the Civil Rights Act of 1870 provided, at the time relevant to the events underlying the instant litigation:
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 the laws and proceedings for the security of persons and property as is enjoyed by white citizens. . .
In their motions for summary judgment, Defendants argue that because any alleged discrimination against Ladson took place during the course of Ladson's employment contract, and not with respect to its formation, the protections of § 1981 are unavailable to Plaintiff. Defendant Triter additionally argues that because he is not and was not Ladson's employer, relief under § 1981 is foreclosed as to him.
Defendants have accurately stated the law only insofar as they assert that § 1981 provides no grounds for contesting discriminatory actions occurring subsequent to the formation of a contract; indeed, discriminatory treatment in the course of or in the termination of employment is instead to be adjudicated under the statutory scheme created by the Civil Rights Act of 1964. As the Supreme Court has made clear:
The first of [§ 1981's] protections extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment. . . . The right to make contracts does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions. Such postformation conduct does not involve the right to make a contract, but rather implicates the performance of ...