Buntin v. City of Boston et al
Judge Richard G. Stearns: ORDER entered granting in part 37 Motion for Summary Judgment; denying 44 Motion for Summary Judgment; denying 46 Motion for Summary Judgment; finding as moot 49 Motion for Leave to File Document. "For the foregoing reasons, defendants' motion for summary judgment is ALLOWED with respect to plaintiff's § 1981 claim. Plaintiff's motion for summary judgment is DENIED. Plaintiff's motion to amend the Complaint, concerning the alleged custom and/or practice of the DPW, is DENIED AS MOOT. Having dismissed the foundational federal law claims, the Clerk will remand plaintiff's state law claims to the Superior Court. (RGS, int2)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 15-10556-RGS
CITY OF BOSTON, JAMES MCGONAGLE
and SCOTT ALTHER
ORDER ON CROSS MOTIONS FOR
September 16, 2016
In February of 2015, Jeannette Buntin, the administratrix for the estate
of her late father, Oswald Hixon, sued the City of Boston and two supervisors
in the Department of Public Works (DPW), alleging, inter alia, that the
February of 2011 termination of her father’s employment as a DPW heavy
equipment repairman was motivated by racial discrimination and retaliation
in violation of the Federal Civil Rights Act, 42 U.S.C. §§ 1981 and 1983.1 By
way of background, the court had previously dismissed Buntin’s § 1981 claim
because of her failure to timely file a charge with the Massachusetts
The factual basis of Buntin’s civil rights claims is set out in the court’s
opinion on defendants’ earlier motion to dismiss. See Buntin v. City of
Boston, 2015 WL 2165938, at *1 (D. Mass. May 8, 2015) (Buntin I).
Commission Against Discrimination. The court further ruled that the § 1983
claim, to the extent it was premised on Hixon’s termination, was barred by
the applicable three-year statute of limitations, and that Buntin had failed to
plead sufficient facts to support a § 1983 claim based on defendants’ alleged
failure to provide Hixon a “name-clearing” hearing. Buntin I, 2015 WL
2165938, at *3-4. On appeal, the First Circuit affirmed the dismissal of the §
1983 claim, see Buntin v. City of Boston, 813 F.3d 401, 406-407 (1st Cir.
2015) (Buntin II), but reversed the dismissal of the § 1981 claim, holding that
§ 1981 does not contain an administrative exhaustion requirement. Id. at
405. Discovery having been concluded, the parties now cross move for
As a threshold matter, defendants contend that § 1981 does not
authorize a private right of action against state actors. Buntin, for her part,
counters that this argument has been foreclosed by the First Circuit’s reversal
of this court’s dismissal of her claim. However, neither this court, nor the
First Circuit, addressed the issue of whether § 1981 authorizes a private
remedy. Although the First Circuit rejected defendants’ contention that
Buntin’s factual allegations were too conclusory, it went no further. Id. at
406-407. As this case was removed to this court on the basis of federal
question jurisdiction, see Dkt. # 1, the availability of a private right of action
under federal law is crucial to this court’s exercise of subject matter
jurisdiction. See Templeton Bd. Of Sewer Comm’rs v. Am. Tissue Mills of
Mass., Inc., 352 F.3d 33, 36-37 (1st Cir. 2003).
jurisdiction, because it involves a court’s power to hear a case, can never be
forfeited or waived.” Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006)
(citation omitted). “The objection that a federal court lacks subject-matter
jurisdiction, see Fed. Rule Civ. Proc. 12(b)(1), may be raised by a party, or by
a court on its own initiative, at any stage in the litigation, even after trial and
the entry of judgment.” Id. at 506.
42 U.S.C. § 1981(a) provides that
[a]ll 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.
Section 1983, separately, authorizes the remedy to bring a “[c]ivil action for
deprivation of rights.”
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, subjects, or causes to be subjected, any
citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other
proper proceeding for redress . . . .
42 U.S.C. § 1983. In Jett v. Dallas Independent School District, 491 U.S. 701
(1989), the Supreme Court held that because Congress in § 1983 had
authorized an express remedy for violations of civil rights by state actors, the
courts could not superimpose an overlapping implied cause of action rooted
in § 1981.
That we have read [§ 1981] to reach private action and have
implied a damages remedy to effectuate the declaration of rights
contained in that provision does not authorize us to do so in the
context of the “state action” portion of § 1981, where Congress
has established its own remedial scheme. In the context of the
application of § 1981 and § 1982 to private actors, we “had little
choice but to hold that aggrieved individuals could enforce this
prohibition, for there existed no other remedy to address such
violations of the statute.” Cannon [v. Univ. of Chi.], 441 U.S.
[677,] 728 [(1979)] (WHITE, J., dissenting) (emphasis added;
footnote omitted). That is manifestly not the case here, and
whatever the limits of the judicial power to imply or create
remedies, it has long been the law that such power should not be
exercised in the face of an express decision by Congress
concerning the scope of remedies available under a particular
Id., at 731-732.
Two years after Jett, Congress amended § 1981 to add subsections (b)
and (c). Subsection (b) defines the “[m]ake and enforce contracts” language
of the original statute (renamed subsection (a)) to include “the making,
performance, modification, and termination of contracts, and the enjoyment
of all benefits, privileges, terms, and conditions of the contractual
relationship.” Civil Rights Act of 1991, Pub. L. No. 102–166, 105 Stat. 1071.
Subsection (c), entitled “Protection Against Impairment,” provides that
“[t]he rights protected by this section are protected against impairment by
nongovernmental discrimination and impairment under color of State law.”
Id. Of the nine Circuit Courts of Appeal that have considered the issue, all
but one has interpreted the insertion of subsection (c) as not creating a cause
of action against state actors.2 Compare Brown v. Sessoms, 774 F.3d 1016,
1021 (D.C. Cir. 2014) (“We . . . join our sister circuits (minus the Ninth
Circuit) in concluding that the Act’s amendments to section 1981 did not
nullify Jett.”); Campbell v. Forest Pres. Dist. of Cook Cty., 752 F.3d 665, 671
(7th Cir. 2014) (“We now join the overwhelming weight of authority and hold
that Jett remains good law, and consequently, § 1983 remains the exclusive
remedy for violations of § 1981 committed by state actors.”), cert. denied, 135
S. Ct. 947 (2015); McGovern v. City of Philadelphia, 554 F.3d 114, 120-121
(3d Cir. 2009) (“In sum, because Congress neither explicitly created a
remedy against state actors under § 1981(c), nor expressed its intent to
overrule Jett, we hold that ‘the express cause of action for damages created
by § 1983 constitutes the exclusive federal remedy for violation of the rights
guaranteed in § 1981 by state governmental units.’” (citation omitted));
The First Circuit has yet to rule on the issue.
Arendale v. City of Memphis, 519 F.3d 587, 599 (6th Cir. 2008) (“[N]o
independent cause of action against municipalities is created by § 1981(c).”);
Bolden v. City of Topeka, 441 F.3d 1129, 1137 (10th Cir. 2006) (“We therefore
conclude that even after the 1991 amendments to § 1981, damages claims
against state actors for § 1981 violations must be brought under § 1983.”);
Oden v. Oktibbeha County, 246 F.3d 458, 464 (5th Cir. 2001) (“Because
Congress neither expressed its intent to overrule Jett, nor explicitly created
a remedy against state actors in addition to § 1983, we are not willing to
deviate from the Supreme Court’s analysis of § 1981 in Jett.”); Butts v.
County of Volusia, 222 F.3d 891, 894 (11th Cir. 2000) (“Accordingly, we
conclude Jett still governs this case.”); Dennis v. County of Fairfax, 55 F.3d
151, 156 n.1 (4th Cir. 1995) (“We do not believe that this aspect of Jett was
affected by the Civil Rights Act of 1991.”); with Fed’n of African Am.
Contractors v. City of Oakland, 96 F.3d 1204; 1213-1214 (9th Cir. 1996).
This court agrees with the Circuit majority that § 1981(c) does not
overrule the holding of Jett and that § 1983 therefore remains the exclusive
remedy for civil rights violations by state actors. The language of subsection
(c) defines the scope of a right, and not a remedy.
See Chelentis v.
Luckenbach S.S. Co., 247 U.S. 372, 384 (1918) (“The distinction between
rights and remedies is fundamental.
A right is a well founded or
acknowledged claim; a remedy is the means employed to enforce a right or
redress an injury.”). It is also telling that Congress has never expressed an
intent to abrogate Jett. Although the 1991 Act and its legislative history
overturned several Supreme Court precedents, see Pub. L. No. 102–166
(overruling portions of Wards Cove Packing Co. v. Atonio, 490 U.S. 642
(1989); H.R. Rep. 102-40, pt. I, at 89-92 (overruling Patterson v. McLean
Credit Union, 491 U.S. 164 (1989)), Congress made no mention of Jett, an
opinion that issued during the same year as Wards Cove and Patterson.
Congress’s silence with respect to Jett cannot under settled rules of
construction amount to a “clear and manifest” intent to repeal Jett by
implication. See Posadas v. Nat’l City Bank of N.Y., 296 U.S. 497, 503
Finally, pragmatic considerations also weigh against interpreting §
1981 to imply a supplemental remedy against state actors. As the First
Circuit held in Buntin II, § 1981 has a four-year statute of limitations, 813
F.3d at 405, while in Massachusetts, § 1983 has a three-year statute of
limitations, id. at 406. To permit a claim under § 1981, where the same claim
is time-barred under § 1983, would effectively abrogate the § 1983
For the foregoing reasons, defendants’ motion for summary judgment
is ALLOWED with respect to plaintiff’s § 1981 claim. Plaintiff’s motion for
summary judgment is DENIED. Plaintiff’s motion to amend the Complaint,
concerning the alleged custom and/or practice of the DPW, is DENIED AS
MOOT. Having dismissed the foundational federal law claims, the Clerk will
remand plaintiff’s state law claims to the Superior Court.
/s/ Richard G. Stearns
UNITED STATES DISTRICT JUDGE
Plaintiff cannot circumvent the unavailability of a claim against the
City by naming individual City officials as defendants. “[A] suit against a
state official in his or her official capacity is not a suit against the official but
rather is a suit against the official’s office.” Will v. Mich. Dep’t of State Police,
491 U.S. 58, 71 (1989). As Buntin has not identified any alleged
discriminatory acts by individual defendants Alther and McGonagle outside
of the scope of their supervisory roles at the DPW, the claims against them
merge with the claim against the City, and will also be dismissed. Cf. Fantini
v. Salem State Coll., 557 F.3d 22, 30 (1st Cir. 2009) (“[T]here is no individual
employee liability under Title VII.”).
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