United States District Court, Southern District of New York
December 17, 1999
DAVID HARTZOG, PLAINTIFF.
REEBOK INTERNATIONAL LTD., ET ANO., DEFENDANTS.
The opinion of the court was delivered by: Kaplan, District Judge.
Plaintiff brings this pro se employment discrimination action
pursuant to 42 U.S.C. § 1981 and Title VII of the Civil Rights
Act of 1964, as amended, against Reebok International, Ltd. and
The Rockport Company, Inc. ("Rockport"). Reebok, which is the
parent company of Rockport, employed plaintiff from 1995 until
some time in 1997. Rockport subsequently employed him as a retail
sales person. He claims that both companies failed to promote him
during his employment with each and that Rockport fired and
otherwise retaliated against him after he filed complaints
against both companies with the EEOC. The Court previously denied
plaintiff's motion for a preliminary injunction.*fn1 The matter
now is presented on
Rockport's motion to dismiss the complaint.*fn2
The Failure to Allege the Elements of a McDonnell Douglas Prima
Rockport's first contention is that plaintiff has failed to
allege each of the elements of a prima facie case of failure to
promote established by McDonnell Douglas Corp. v. Green*fn3
and its progeny. The contention, however, is without merit.
McDonnell Douglas established the standard for evaluating the
sufficiency of a plaintiff's proof in an employment
discrimination case, not the sufficiency of a complaint. As the
Eighth Circuit wrote years ago in rejecting precisely such an
"[T]he prima facie case under [McDonnell Douglas]
is an evidentiary standard — it defines the quantum
of proof plaintiff must present to create a
rebuttable presumption of discrimination that shifts
the burden to defendant to articulate some
legitimate, nondiscriminatory reason for its conduct.
Under the Federal Rules of Civil Procedure, an
evidentiary standard is not a proper measure of
whether a complaint fails to state a claim. [Citation
omitted] `When a federal court reviews the
sufficiency of a complaint . . . [t]he issue is not
whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to
support the claims.'"*fn4
The plaintiff need provide only "a short and plain statement of
the claim showing that the pleader is entitled to relief,"*fn5
and the complaint may not be dismissed unless it is clear that
the plaintiff can establish no facts under the complaint that
would entitle the plaintiff to a remedy.*fn6
Here, the complaint alleges that plaintiff, an African-American
man, was not promoted, that he was subjected to discriminatory
treatment, that he was denied adequate raises, that defendants
treated similarly situated white employees more favorably, and
that defendants retaliated against him for complaining to the
EEOC. The complaint quite plainly alleges a legally sufficient
claim of racial discrimination, assuming arguendo that it is
within the statutes upon which plaintiff relies.
At Will Employment and 42 U.S.C. § 1981
Rockport's second argument is that plaintiff was an at will
employee and, in consequence, that his claim of discriminatory
denial of promotion under Section 1981 is insufficient because
plaintiff "has failed to plead the existence of a written
contract with Rockport . . ."*fn7 This argument too is baseless.
As an initial matter, it is difficult to understand the basis
for the argument. Section 1981, as amended, prohibits
discrimination in the making and enforcement of contracts.*fn8
While an "at will" employment relationship is terminable at any
time by either the employer or the employee, with or without
cause, the relationship indisputably is contractual in
nature.*fn9 Without attempting to define comprehensively the
scope of the rights and obligations of
the parties, the employee covenants to perform services for the
employer and the employer covenants to compensate the employee,
in each case unless and until one of them terminates the
agreement. In consequence, a failure to promote an at will
employee involves a refusal by the employer either to modify the
existing contract of employment or to enter into a new one. It
therefore falls squarely within the term "make and enforce
contracts" as it is defined in Section 1981(b).
Nor does the Court write on a blank slate. Although the Second
Circuit has yet to rule on this point,*fn10 the Fourth and Fifth
Circuits recently have held that at will employees are protected
by Section 1981.*fn11 Judge Sweet only days ago reached the same
result.*fn12 This Court agrees.
For the foregoing reasons, Rockport's motion to dismiss the
complaint is denied in all respects.