54 F.3d 115, 117 (2d Cir. 1995). The Supreme Court "made it clear that its holding in Gilmer simply applied to contracts made by employees individually. Consequently, Gilmer does not alter or undermine the protection established in Gardner-Davis against waiver of individual statutory rights through collective-bargaining agreements." Claps v. Moliterno Stone Sales, Inc., 819 F. Supp. 141, 147 (D. Conn. 1993).
The Supreme Court has not directly addressed the issue of arbitration's effects on § 1981 claims. However, the reasoning of Barrentine and Gardner-Denver applies equally to suits brought under § 1981 as to those brought under Title VII. Wilmington v. J.I. Case Co., 793 F.2d 909, 918 (8th Cir. 1986); Rodgers v. Fisher Body Division, 739 F.2d 1102, 1105 (6th Cir. 1984), cert. denied, 470 U.S. 1054, 84 L. Ed. 2d 821, 105 S. Ct. 1759 (1985); Strozier v. General Motors Corp., 635 F.2d 424, 425-26 (5th Cir. 1981) (per curiam); Green v. United States Steel Corp., 481 F. Supp. 295, 302 (E.D. Pa. 1979); McMiller v. Bird & Son, Inc., 376 F. Supp. 1086, 1088 (W.D. La. 1974).
Thus, Defendant's arguments that Humphrey's causes of action that have been decided adversely in arbitration should be barred from being brought in federal court and should thus be dismissed have no merit. Humphrey's negative arbitration awards do not preclude him from bringing an action in federal court involving the identical set of facts and issues. Therefore, this Court has subject matter jurisdiction over Plaintiff's Title VII doctor's appointment allegation and over the entirety of Plaintiff's second cause of action (§ 1981).
3. Section 1981's Scope After 1991 Amendment
The only issue left is whether Plaintiff has stated a claim upon which relief can be granted regarding the allegations under § 1981. Section 1981 states that all people "shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . ." 42 U.S.C. § 1981(a). In Patterson v. McLean Credit Union, 491 U.S. 164, 105 L. Ed. 2d 132, 109 S. Ct. 2363 (1989), the Supreme Court narrowly interpreted this clause and ruled that it only applies to discrimination in contract formation. Id. at 179. Two years following this decision, Congress responded and amended § 1981. The amendment provided that for the purposes of the section, "the term 'make and enforce contracts' includes the making, performance, modification, and termination of contract, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." 42 U.S.C. § 1981(b) (emphasis added).
The initial interpretive question for the courts regarding this amendment was whether it applied retroactively. The Supreme Court resolved this question by deciding that the amendment does not apply retroactively. Rivers v. Roadway Express, Inc., 128 L. Ed. 2d 274, 114 S. Ct. 1510 (1994); Landgraf v. USI Film Prods., 128 L. Ed. 2d 229, 114 S. Ct. 1483 (1994). Because this holding means that the amendment applies only to alleged acts of discrimination occurring after November 21, 1991, not many cases have been decided interpreting the language of the amendment.
The few cases that have been decided shed some light on the issue -- enough to resolve whether Humphrey has stated a claim here. Congress enacted the 1991 amendment with the specific intent to broaden the scope of § 1981 after the Supreme Court's decision in Patterson. Pub. L. No. 102-166, § 3(4) (1991). The Second Circuit has detailed that in order to establish a claim under § 1981, "a plaintiff must allege facts in support of the following elements: (1) the plaintiff is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) discrimination concerning one or more of the activities enumerated in the statute . . . ." Mian v. Donaldson, Lufkin & Jenrette Secs. Corp., 7 F.3d 1085, 1087 (2d Cir. 1993). Under the amendment, the plain language states that § 1981 applies to the performance of contracts. 42 U.S.C. § 1981(b).
This court has even ruled that a § 1981 "claim based on alleged employment discrimination is evaluated in the same manner as a Title VII claim. . . . To the extent that plaintiff has stated a valid cause of action under Title VII, he has sufficiently alleged a violation of the substantive portion of Section 1981." Philippeaux v. North Cent. Bronx Hosp., 871 F. Supp. 640, 654 (S.D.N.Y. 1994). Thus, section 1981 now covers acts of discrimination which occur in the performance of a contract and not just those that result in a change in the contract relationship. Plaintiff's allegations -- that he was not paid properly under his employment contract for appearances at an arbitration proceeding, that he received highly negative performance evaluations, that he was harassed by being required to perform tasks outside his job description, that he received shorter notice of his termination than other employees, and that his termination was in retaliation for his EEOC complaint -- all relate to performance of the employment contract between Plaintiff and Defendant. Thus, the second cause of action does state a claim upon which relief can be granted under § 1981 and is properly before this Court.
Accordingly, Defendant's motion to dismiss the second cause of action is DENIED in its entirety.
For the reasons stated above, the motion to dismiss the two causes of action contained in the Complaint is hereby DENIED in its entirety.
Nothing in this Memorandum should be interpreted to preclude a motion for summary judgment, partial or otherwise, that might be appropriate at a later juncture.
Counsel shall appear for a status conference before the Court on November 3, 1995 at 3:00 p.m.
DATED: New York, New York
October 16, 1995
DEBORAH A. BATTS