The court finds that plaintiff’s Section 1981 retaliation claim failed when he was unable to demonstrate an underlying race discrimination claim.

Plaintiff alleged that he complained that four swastikas were graffitied on the wall of a janitor’s closet at a client’s location and that his employment was terminated in retaliation for his complaint. The court, however, rejected plaintiff’s claims and determined that a prior decision in the Third Circuit mandates that in “a retaliation case [under Section 1981], a plaintiff must demonstrate that there has been an underlying section 1981 violation.” In so holding, the court rejected the plaintiff’s argument that every other circuit court has determined that there is no need for demonstrating an underlying discrimination claim in order to establish a retaliation claim. The court further rejected plaintiff’s arguments that the Third Circuit’s Model Jury Instruction for section 1981 claims do not provide the requirement for demonstrating an underlying violation of section 1981—reasoning that the Model Jury Instructions are not binding on the court and that the Third Circuit’s prior decision controls the claims in the case. As many plaintiffs’ attorneys are now skipping the administrative process (for Title VII claims) altogether and relying on the four-year statute of limitations available for section 1981 claims, this decision should be used by employers in order to defend section 1981 retaliation claims.

Case Law Alerts, 1st Quarter, January 2015