RULING GRANTING PARTIAL MOTION TO DISMISS
Plaintiff Deborah Smith brings this action against Defendants Metropolitan District Commission (“MDC”) and Chief Financial Officer of the MDC John Zin-zarella in his individual and official capacities, alleging violations of 42 U.S.C. § 1981, the First and Fourteenth Amendments to the United States Constitution (brought via 42 U.S.C. § 1983), and
I. Facts Alleged
On September 24, 1979, Plaintiff began work at the MDC аs a Customer Service Representative. (Am. Compl. ¶ 6.) Thereafter, she became an Accounting Administrator, a position classified at the salary grade of EE-6. (Id. ¶¶ 6-7.) After 29 years working at the MDC at grade EE-6, on January 29, 2008, Ms. Smith sought to have her job reclassified to EE-10 or EE-12 on the, grounds that during the course of her career, she had taken on many added responsibilities, and that оther employees with comparable positions were classified as EEr-10 or EE-12. (Id. ¶7.) Her request was denied on July 7, 2008 with little explanation. (Id. ¶ 8.) When Plaintiff subsequently asked the MDC’s Director of Human Resources to compare her responsibilities to other comparable positions at the MDC, she received no response. (Id. ¶¶9-10.) On September 17, 2008, Ms. Smith emailed the MDC’s Diversity Officer Doris Poma, alleging race discrimination, but Ms. Poma reported finding no discrimination. (Id. ¶¶ 11-12.) Ms. Smith also met with the MDC’s then-Chief Administrative Officer Robert Moore,' who promised to look into Ms. Smith’s request for ' job reclassification. (Id. ¶ 12.)
On January 2, 2009, having not received the requested reclassification, Ms. Smith filed a complaint with the Connecticut Commission on Human Rights and Opportunities (“CHRO”), claiming that the MDC was discriminating against her on the basis of race and color. (Id. ¶¶ 13-14.) As a result- of the complaint, the MDC agreed to give Plaintiff a $10.00/week raise, which would put her in the EE-8 salary grade. (Id. ¶ 15.)
• Several years later, on April 29, 2011, the MDC issued- the “MDC Affirmative Action Policy Statement,” and notified employees that they would have an opportunity to review and comment on the MDC’s Affirmative Action Plan (“AAP”). (Id. ¶¶ 17-18.) In response, in August 2011, Plaintiff submitted written comments to the MDC’s Affirmative Action Officer Erin Ryan and the MDC Commissioners. (Id. ¶ 19.) In her letter, Ms..Smith questioned the objectives of the AAP and the MDC’s commitment to it. (Id. ¶¶ 20-24.)
On August 8, 2011, Ms. Ryan presented the final version of the AAP to the MDC’s Personnel, Pension & Insurance Committee, noting that she had incorporated into the final version “the few comments” she had recеived. (Id. ¶ 25.) In mid-September 2011, the MDC’s CEO asked Plaintiff to meet with him and interim Affirmative Action Officer Carl Nasto about Plaintiffs concerns'. (Id. ¶26.) Two weeks later, Plaintiffs position with the MDC was eliminated as. part of the October 7, 2011 Reduction in Force. (Id. ¶ 27.) Plaintiff alleges that the individual principally responsible for selecting her for job elimination was Defendant John Zinzarella. (Id. ¶ 28.)
II. Discussion
Defendants’ motiоn to dismiss is limited to the* narrow issue of whether Plaintiffs Amended Complaint sufficiently states her
As Plaintiff notes, however, Jett was decided-prior to the enactment of the 1-991 Amendments to the Civil Rights Act. Those Amendments added two new subsections to § 1981. Subsection (b), intended to overrule the Supreme Court’s holding in Patterson v. McLean Credit Union,
Subsection (c), designed at least in part to codify Runyon v. McCrary,
There is a split in authority, however, on the question of whether, in adding subsection (c), Cоngress intended not just to codify Runyon but also to overrule Jett
A. The Ninth Circuit’s Reasoning in Federation
Federation relies on the four factors outlined by the Supreme Court in Cort v. Ash,
(1) Is the plaintiff one of the class for whosе ‘especial benefit’ the statute was enacted; that is, does the statute create a federal right in favor of the plaintiff?
(2) Is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one?
(3) Is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?
(4) Is the cause of action one traditionally relegated to state law, so that it would-be inappropriate to infer a cause of action based solely on federal law?
Federation,
Examining the language of subsection (c), the Ninth Circuit found that “the statute, by its plain terms, creates federal civil rights in favor of a class of persons that includes [the plaintiff in Federation ],” and thus the first Cort factor favors implying a right of action. Id. at 1211. In аddition, although it acknowledged that the reports of the House Education and Labor Committee and House Committee on the Judiciary cite Runyon and “do not address the amendment’s potential effect on Jett,” the court nonetheless concluded that implying a cause of action against state actors is consistent with Congress’s intent. Id. at 1212-13. The court explained:
These Committee reports ... clearly contemplate that § 1981 rights are to recеive parallel protections against state actors and private actors.... [B]y including language that explicitly protects § 1981 rights from “impairment” by both private and governmental entities, the amendment makes clear that Congress intended a comparable scope of protection against each type of defendant. ... To achiеve parallel protection against private and governmental entities, comparable remedies against each type of defendant appear necessary.... [In addition,] we note that Congress did not add language explicitly recognizing a private cause of action against private actors, and yet this principle, tоo, was contained in the Supreme Court’s decision in Runyon.... Because § 1981(c)affords identical protection against “impairment by nongovernmental discrimination” and “impairment under color of State law,” and because § 1981(c) implicitly codifies an implied cause of action against private defendants, we infer that § 1981(c) also contains an implied cause of action against state actors who “imрair” a claimant’s § 1981 rights.
Id. at 1213 (emphases in original). Under the Ninth Circuit’s analysis, the second Cort factor thus also favors an implied right.
Turning to the third Cort factor, the court wrote that “[i]n our view, the implication of a direct cause of action against municipalities under 42 U.S.C. § 1981 advances Congress’s general purpose of remedying civil rights violations and its particular purpose in enacting § 1981(c): ensuring that the well-established rights contained in the statute are guaranteed against both private parties and state actors.” Id. at Í214. Finding that the fourth Cort factor also favors implying a right of action, the court “conclude[d] that the amended 42 U.S.C. § 1981 contains an implied cause of action against state actors, thereby overturning Jett’s holding that 42 U.S.C. § 1983 provides the exclusive federal remedy against state aсtors for the violation of rights under 42 U.S.C. § 1981.” Id.
B. The Majority’s Reasoning
Although some district courts have followed the Ninth Circuit’s approach, the majority of courts, including every other circuit court to have considered the issue, has held that the 1991 Amendments to the Civil Rights Act did not overrule Jett. See Brown v. Sessoms,
Many of the courts that have rejected the Ninth Circuit’s reasoning emphasized the distinction between rights and remedies. Thus, whüe acknowledging that “ § 1981(c)’s express language does indeed establish that individuals possess equal rights under § 1981 against both private and state discrimination,” the Sixth Circuit noted that “such rights-creating language does not answer the question of whether civil rights plaintiffs enjoy the same remedy regardless of the identity of the defendant.” Arendale,
Many courts also found it significant that although “[t]he Civil Rights Act and its legislative history name several Supreme Court decisions which the Act is intended to overrule, ... Jett was not identified even though it was decided less than two years before Congress acted,” Brown,
Finally, several courts have found support for the conclusion that § 1981(c) does not contain an implied right of action in “[t]he .fact that, Congress has created a specific remedy against state actors under § 1983,” Campbell,
C. Analysis
Since Federation was decided, “the Supreme Court has reduced the importance of the Cort factors other than legislative intent, first by characterizing them as mere tools for detеrmining legislative intent and then by subordinating them to statutory text .as interpretive sources.” Olmsted v. Pruco Life Ins. Co. of New Jersey,
In Alexander v. Sandoval,
Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress. The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Statutory intent on this latter point is determinative. Without it, a cause of action does not exist and courts may not create one, no matter how desirable that might be as a policy matter, or how compatible with the statute.
Sandoval,
As the majority of courts to address this issue have noted, there is nothing in the text of § 1981(c) that suggests that Congress intended to create a right of action. Although the statute plainly contemplates the creation of substantive rights protecting individuals against discrimination by governmental and nongovernmental' actors, it is silent on the question of how those rights will' be enforced. In -the Court’s view, Congressional intent to create a private right of action against state' actors in § 1981(c) should not be inferred from the peculiar and obscure form of expression that Plaintiff urges.
The Ninth Circuit inferred from the fact that the statute creates “parallel protection against private and governmental entities” the need for “comparable remedies against each type of defendant.” Federation,
The Court also finds significant the fact that while' Congress" made its intent' to overrule Patterson and codify Runyon clear, the legislative history of thé 1991 Amendments makes no mention at all of Jett, a decision reached just a week after Patterson. As the Third Circuit stated in McGovern, “[g]iven the lóng-favored rule
Mindful of Sandoval’s admonition against finding an implied right of action in the absence of a clear statement from Congress that such a right was intended, this Court joins the majority of courts in ruling that § 1981(c) does not create a private right of actiоn against governmental entities and Jett remains good law.
III. Conclusion
For the foregoing reasons, Defendants’ Motion to Dismiss [Doc. # 24] is GRANTED. Counts One and Two of the Amended Complaint are dismissed.
IT IS SO ORDERED.
Notes
. "To survive a motion to dismiss, a complaint must contain sufficient factual matter,
.Under § 1981, "[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” [defined as "the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship,” 42 U.S.C. § 1981(c) ] ... 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,” 42 U.S.C. § 1981(a).
. Plaintiff stated expressly’ at oral argument that she does not seek to have the Court construe her claim under § 19.81 as having ’ be.en brought via § 1983.
. Under Monell, ."a local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its .lawmakers or by those whose edicts or acts may fairly said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983.”
. In Patterson, the Supreme Court "considered overruling Runyon, and a majority of the Court even suggested that Runyon was on life-support, kept alive only by the doctrine of stare decisis.” Arendale v. City of Memphis,
. The Second Circuit has not weighed in on this issue.
. At oral argument, Defendants advanced an additional argument-that § 1981 does not create substantive rights for plaintiffs seeking to sue governmental actors. However, this claim, fоr which Defendants have cited no authority, is belied by the plain language of the statute. Section 1981(c) unambiguously creates a right “protected against ... impairment under color of State law.” Indeed, it is this distinction between rights and remedies that underlies many of the decisions finding that§ 1981(c) was not overruled by Jett. Jett itself involved a claim against a state actor, and the Court held only that the claim had to be brought via § 1983 and that it could not be a claim of respondeat superior; the Court did not hold that § 1981 created no substantive rights that could be enforced against state actors.