pursuant to § 1981. Id. at 185.
Plaintiff argues that his claim that he should have been promoted in April, 1991, instead of Sherry Miller, falls within Patterson's scope. For purposes of § 1981, a new and distinct relationship is created by a promotion when "the terms of the contract as to duties, tenure, compensation or essential function" would change with the promotion. Bennun v. Rutgers State University, 941 F.2d 154, 169 (3d Cir. 1991), cert. denied, 502 U.S. 1066, 112 S. Ct. 956, 117 L. Ed. 2d 124 (1992). Examples of valid § 1981 claims include changing from a non-supervisory to a supervisory position, id. at 169, and moving from hourly compensation to a salary, Sitgraves v. Allied-Signal, Inc., 953 F.2d 570, 574 (9th Cir. 1992).
Defendant does not challenge plaintiff's representation that Miller's PIQ involved similar responsibilities to those plaintiff had before his transfer.
While Khair's duties, essential function, and tenure might not have changed, plaintiff insists that a level 30 designation not only involves a higher salary and bonus-eligibility, but it also confers a different stature on that employee. Elements such as prestige and public perception were discounted by Bennun, which held that promotion from tenured associate professor to tenured full professor was insufficient for a § 1981 claim.
Plaintiff also directed us to Harper v. Godfrey Co., 45 F.3d 143 (7th Cir. 1995). Harper involved a strike in which replacement workers were utilized. After the strike, a hierarchy was created in which the striking workers resumed as regular full-time employees and the replacement workers became "casuals" or part-time workers. The Seventh Circuit held that because the elevation from casual to regular employee provided "increased job security, seniority rights, better salary, and more fringe benefits," there were "disputed material issues of fact that require[d] submission to a jury." Id. at 147. This Court agrees with Harper but finds the instant case not analogous. Here the only difference beyond prestige is salary, and an increase in pay does not reach the level of change required by Patterson. Taylor v. Western and Southern Life Insurance Co., 966 F.2d 1188, 1200 (7th Cir. 1992) (quoting Harrison v. Associates Corp. of North America, 917 F.2d 195, 198 (5th Cir. 1990)). Plaintiff's discriminatory transfer/failure to promote claim under § 1981 is dismissed.
Plaintiff's two remaining § 1981 claims, the failure to promote claim for his rejection in late 1992 for the position of Manager-Centralized General Ledger and the retaliation claims, are viable under § 1981 since they arose after the enactment of the Civil Rights Act on November 21, 1991. See Lex K. Larson, Employment Discrimination § T88A.14, at 1570 (2d ed. 1995) (§ 1981 "extends to the same broad range of employment actions and conditions as in the case of Title VII."). Defendant moves for summary judgment on these claims because Campbell asserts that plaintiff only alleges national origin discrimination, not race discrimination.
In Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613, 95 L. Ed. 2d 582, 107 S. Ct. 2022 (1987), the Supreme Court held that a claim was cognizable under § 1981 if a plaintiff could show that she was subjected to intentional discrimination solely because of her ancestry or ethnic origin, rather than solely because of the place or nation of her origin. The respondent in Al-Khazraji was a United States citizen born in Iraq. Because Arabs are Caucasians, the petitioners in Al-Khazraji contended that § 1981 did not encompass claims of discrimination by one Caucasian against another. The Court rejected this argument since Arabs were not considered Caucasians when § 1981 was enacted in 1870.
Thus the Supreme Court refused to narrowly define the concept of race. Several Circuit Courts of Appeal have likewise noted that it is difficult to draw a bright line between national origin discrimination and racial discrimination. Daemi v. Church's Fried Chicken, Inc., 931 F.2d 1379, 1387 n.7 (10th Cir. 1991) (the concept of race extends to matter of ancestry); Alizadeh v. Safeway Stores, Inc., 802 F.2d 111, 114-15 (5th Cir. 1986) (even though Caucasian, Iranians protected under § 1981); Hussein v. Oshkosh Motor Truck Co., 816 F.2d 348, 352 (7th Cir. 1987) (§ 1981 claim viable when plaintiff alleges he belongs to a group distinct from white citizens).
Khair asserts that Shimrak has made unnecessary and disdainful references to his Egyptian heritage such as Shimrak's remarks regarding camels and Egyptian curses. In Hussein, the Seventh Circuit reinstated a § 1981 claim where the plaintiff had alleged that his supervisors and co-employees had called him a "dirty Black" and a "camel jockey." 816 F.2d at 352 n.3. Thus the Seventh Circuit found that if Hussein had been discriminated against, § 1981 could be the basis for that claim. We hold that if a jury found that Khair was the victim of discriminatory animus, that jury could also find that the source of the defendant's discriminatory animus was plaintiff's ancestry or ethnic origin, rather than his place of birth.
E. Exclusive Remedy of Workers' Compensation
Defendant argues that the tort bar of the Worker's Compensation Act ("WCA") prohibits plaintiff's personal injury claims under the NJLAD. This argument is directed at plaintiff's supplemental state law claims, and thus the Court must examine the law of the state of New Jersey.
The exclusive remedy provision of the WCA states:
If an injury or death is compensable under this article, a person shall not be liable to anyone at common law or otherwise on account of such injury or death for any act or omission occurring while such person was in the same employ as the person injured or killed, except for intentional wrong.