claim, as it has been pled and pursued throughout this four-year-old matter," summary judgment must be granted. Def. Reply Br. at 3.
In Von Zuckerstein v. Argonne Nat. Lab., defendants moved for dismissal, similarly arguing that the "heart and soul" of plaintiffs' Section 1981 claim was discrimination on the basis of national origin. 760 F. Supp. 1310, 1312 (N.D. Ill. 1991). The court held that because the complaint included allegations of racial, as well as national origin, discrimination, plaintiffs stated an actionable claim under Section 1981. Id.
Chandoke alleges not only national origin discrimination, but racial discrimination as well. He alleges that ABI "treated [him] differently than certain other applicants because of his race and national origin." Complaint, P 18. Chandoke also contends that ABI's "acts and practices set forth [in the complaint] constitute intentional race and national origin discrimination against [him]." Id. at P 23.
Such allegations are sufficient to state a claim for racial discrimination under Section 1981. See Von Zuckerstein, 760 F. Supp. at 1313; see also Adames v. Mitsubishi Bank, Ltd., 751 F. Supp. 1548, 1560 (E.D.N.Y. 1990) (plaintiff "clearly stated an actionable claim under section 1981" by "alleging racial as well as national origin discrimination."). Nonetheless, ABI argues that Count II is untenable, because Brink did not know Chandoke's race when he rejected Chandoke's application.
Under Section 1981, a plaintiff must prove that the defendant intentionally discriminated against him on the basis of race. Goodman v. Lukens Steel Co., 482 U.S. 656, 665 n.10, 96 L. Ed. 2d 572, 107 S. Ct. 2617 (1987); Robinson v. Adams, 847 F.2d 1315, 1316 (9th Cir. 1988), cert. denied, 490 U.S. 1105, 104 L. Ed. 2d 1018, 109 S. Ct. 3155 (1989). Logically, "an employer cannot intentionally discriminate against a job applicant based on race unless the employer knows the applicant's race." Robinson, 847 F.2d at 1316.
Chandoke's resume did not indicate his race.
Moreover, neither Brinks nor any other ABI employee ever met Chandoke face to face. However, plaintiff argues that Brinks knew he was Indian after speaking to him on the telephone. Allegedly, plaintiff speaks with a "thick, distinctly Indian, accent." Chandoke dep. at 202; Complaint, P 10. In addition, plaintiff allegedly told Brinks that all of his previous experience in the brewing industry before coming to America was in India. Chandoke dep. at 182.
Construing the facts in the light most favorable to the non-movant, the court finds that ABI could have known that Chandoke was from India, his place of origin.
The question remains whether such evidence establishes knowledge of race. Defendant argues that it does not.
Relying on an unpublished case, Korpai v. A.W. Zengeler's Grande Cleaners, 1987 U.S. Dist. LEXIS 10905, 1987 WL 20428 (N.D. Ill. Nov. 24, 1987), defendant argues that evidence of an accent supports only claims of national origin, rather than racial, discrimination.
In Korpai, the court emphasized that "a careful analysis of specific allegations of discrimination is necessary in this case to determine whether the discrimination [plaintiff] alleges is based upon more than birthplace alone." Id. at *1 (emphasis added). In addition to "mocking plaintiff's accent," plaintiff's fellow employees allegedly taunted her with statements including "Stupid foreigner, you come over here and take over the country," "stinky foreigner," "you dirty pig," and "go back where you came from." Id. Within that context, the court found that plaintiff's accent related only to national origin discrimination. Id.
However, in other contexts an accent would support a claim of discrimination based on race, as well as national origin.
As Justice Brennan noted in St. Francis College,
the line between discrimination based on 'ancestry or ethnic characteristics' and discrimination based on 'place or nation of . . . origin' is not a bright one. It is true that one's ancestry -- the ethnic group from which an individual and his or her ancestors are descended -- is not necessarily the same as one's national origin -- the country 'where a person was born, or, more broadly, the country from which his or her ancestors came. Often, however, the two are identical as a factual matter: one was born in the nation whose primary stock is one's own ethnic group."
481 U.S. at 614 (Brennan, J., concurring) (citations omitted).
ABI does not dispute plaintiff's claim that Indians are ethnically homogeneous. Accordingly, if Brinks assumed that Chandoke was from India, he might also have assumed that Chandoke was Indian.
At trial, if Chandoke can prove that he was subjected to intentional discrimination based on the fact that he was born an [Indian], rather than solely on the place or nation of his origin, . . . he will have made out a case under § 1981." St. Francis College, at 613; see also Von Zuckerstein, 760 F. Supp. at 1314 ("Plaintiff . . . will have to prove at [trial] that the discrimination against him was based on his ethnicity and not on his nationality, and to the extent [he] fails to make such a showing, that deficiency can be addressed at the end of plaintiff's case.")
The court finds that material issues of fact exist as to (1) whether ABI knew that Chandoke was from India; and, (2) whether any discrimination, if it occurred, was based solely on his place of birth or on his ethnic background as well.
The motion for partial summary judgment of defendant ABI is denied. An appropriate order will be entered.
STANLEY S. BROTMAN
UNITED STATES DISTRICT JUDGE
ORDER DENYING MOTION FOR PARTIAL SUMMARY JUDGMENT - February 2, 1994, Filed
This matter having come before the Court on the motion of defendant Anheuser-Busch, Inc., for partial summary judgment; and
Having considered the submissions of the parties;
For the reasons set forth in the Court's opinion of this date;
IT IS on this 1st day of February, 1994 hereby ORDERED that defendant's motion for partial summary judgment is DENIED.
STANLEY S. BROTMAN
UNITED STATES DISTRICT JUDGE