“the substantive - 3 - elements of a claim under section 1981 are generally identical to the elements of an employment discrimination claim under Title VII.”
How later courts described this case
- “the substantive - 3 - elements of a claim under section 1981 are generally identical to the elements of an employment discrimination claim under Title VII.”
Written by the judges who cited it.
The opinion
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
HESHAM ISMAIL, :
CIVIL ACTION NO. 3:19-1305
Plaintiff :
(JUDGE MANNION)
v. :
MCDERMOTT INTERNATIONAL, :
INC., et al.,
Defendants :
MEMORANDUM
Presently before the court is plaintiff’s motion to reconsider the court’s
order adopting a recent report and recommendation issued by Magistrate
Judge Susan E. Schwab, (Doc. 129). The plaintiff has failed to meet the
exacting standards required to succeed on a motion to reconsider and,
therefore, the motion will be DENIED.
I. BACKGROUND
By way of relevant background, the plaintiff’s underlying complaint alleges
he was discriminated against on the basis of his race, religion, and national
origin under Title VII of the Civil Rights Act of 1964 (“Title VII”), and 42 U.S.C.
§1981 (“§1981”). (Doc. 118). On March 3, 2022, this Court adopted Judge
Schwab’s report and recommendation dismissing the plaintiff’s claims. (Doc.
122, Doc. 123). On April 29, 2022, the plaintiff filed the instant, pro se, motion
for reconsideration, (Doc. 129).
The instant motion raises a single claim on which the plaintiff urges the
court to reconsider the nature of his relationship with the defendants. (Doc.
129). The plaintiff suggests that he previously had a contractual relationship
with the defendant and the nature of his alleged adverse employment action
was the defendant’s failure to rehire him, rather than their failure to reopen
an investigation that the Court relied upon. (Doc. 129). The plaintiff alleges
that the Court’s failure to mention his request to be rehired justifies granting
the present motion to reconsider. (Doc. 129).
II. DISCUSSION
To succeed on a motion to reconsider, the moving party must
demonstrate: “(1) an intervening change in the controlling law; (2) the
availability of new evidence that was not available when the court granted
the motion ... or (3) the need to correct a clear error of law or fact or to prevent
manifest injustice.” Howard Hess Dental Laboratories Inc. v. Dentsply
Intern., Inc., 602 F.3d 237, 251 (3d Cir. 2010).
The plaintiff in the instant action fails to demonstrate sufficient grounds for
reconsideration after alleging that his telephone call with the defendant on
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February 13, 2015 demonstrates that there was a present contractual
relationship between the parties. (Doc. 129). All that the telephone call
possibly demonstrates was the plaintiff’s desire to be rehired at the
defendant’s company. Therefore, the plaintiff fails to demonstrate any
change in the controlling law, any new evidence, or the need to correct a
clear error of law or fact or to prevent manifest injustice. See Howard Hess
Dental Laboratories Inc., 602 F.3d at 251.
Section 1981 and Title VII require that an individual be either within an
existing contractual relationship or attempting to enter a contractual
relationship to have a cognizable claim. See Domino’s Pizza, Inc. v.
McDonald, 546 U.S. 470, 476 (2006) (“Section 1981 offers relief when racial
discrimination blocks the creation of a contractual relationship, as well as
when racial discrimination impairs an existing contractual relationship, so
long as the plaintiff has or would have rights under the existing or proposed
contractual relationship.”); §1981(b) (“For purposes of this section, the term
‘make and enforce contracts’ includes the making, performance,
modification, and termination of contracts, and the enjoyment of all benefits,
privileges, terms, and conditions of the contractual relationship.”); see also
Brown v. J. Kaz, Inc., 581 F.3d 175, 181-82 (3d Cir. 2009) (“the substantive
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elements of a claim under section 1981 are generally identical to the
elements of an employment discrimination claim under Title VII.”).
At the time of the February 13, 2015 call, plaintiff had no contractual
relationship with the defendants. (Doc. 129, Ex. 1) (“On February 4, 2015,
Plaintiff was terminated by CB&I citing ‘Loss of Confidence.’”); see also
Domino’s Pizza, Inc., 546 U.S. at 476 (“Any claim brought under §1981,
therefore, must initially identify an impaired ‘contractual relationship,’
§1981(b), under which the plaintiff has rights.”). The relevant part of the
February 13, 2015, call indicates that the plaintiff attempted to convince the
defendants to rehire him and form a new contract, which the defendants
indicated would only be done pending a completed investigation. (Doc. 129,
Ex. 1). Therefore, by attempting to persuade Honeywell to reopen the
investigation against him to get rehired, the only potential adverse
employment action was Honeywell’s alleged refusal to reopen the
investigation. See (Doc. 122); see Domino’s Pizza, Inc., 546 U.S. at 476.
Finally, the failure of the Court to mention the plaintiff’s desire to be rehired
does not warrant modification of the Court’s most recent order. The plaintiff
has not alleged any change in controlling law or specific error in application
by the court. The analysis of the law is the same and there is no clear error
of fact. See Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v. Quinteros, 176 F.3d
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669, 678 (3d Cir. 1999) (holding that, when there is the need to correct a
clear error or law or fact or to prevent manifest injustice, a motion for
reconsideration should be granted when the error constitutes a
“fundamental” element of a party’s claim). Though the plaintiff may disagree
with the court’s ruling, and despite the procedure flaw in the present motion1,
the court has reviewed the prior memorandum and order and finds no error
warranting reconsideration.
III. CONCLUSION
Upon review of the court’s memorandum and order and the challenges
raised in the plaintiff’s motion to reconsider, the court finds no reason to
disturb the prior ruling and will deny the plaintiff’s motion for reconsideration.
An appropriate order will issue.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States District Judge
DATE: July 8, 2022
19-1305-02
1 The plaintiff failed to file a supporting brief within fourteen days of his
motion pursuant to M.D. Pa. Local Rule 7.5. Traditionally, this would result
in the motion being deemed withdrawn.
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