# Foulks v. Ohio Department of Rehabilitation & Correction > Court of Appeals for the Sixth Circuit · August 4, 1983 · 713 F.2d 1229 URL: https://www.frixlaw.com/law-library/cases/8917475 ## Case - **Full name:** Curtis FOULKS, Jr. v. OHIO DEPARTMENT OF REHABILITATION AND CORRECTION, Adult Parole Authority, and Morris DeForge, and John R. Himmelright - **Court:** Court of Appeals for the Sixth Circuit - **Decided:** August 4, 1983 - **Citations:** 713 F.2d 1229; 32 Fair Empl. Prac. Cas. (BNA) 829; 32 Empl. Prac. Dec. (CCH) 33,763; 1983 U.S. App. LEXIS 25191 - **Precedential status:** Published - **Opinion:** Dissent by Keith - **Judges:** Brown, Keith, Merritt - **Cited by:** 4 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8917475 ## Opinion text KEITH, Circuit Judge, dissenting. Over ten years ago, the plaintiff Curtis Foulks was the victim of racial discrimination. His claims of racial discrimination have been sustained by the Ohio Civil Rights Commission, the Franklin County Court of Common Pleas and the Ohio Court of Appeals in Franklin County. The district court below also found discrimination and awarded damages and costs, including attorney’s fees. Today, the majority remands the case for reconsideration of the findings of fact and conclusions of law with respect to the individual defendants, thus further delaying redress of the wrongs plaintiff has suffered. To deny prompt relief gives credence to the age-old maxim, justice delayed is justice denied. I respectfully dissent. I. The majority concludes that the Ohio Department of Rehabilitation and Correction, Adult Parole Authority (APA) cannot be sued for money damages because of the Eleventh Amendment. I agree. Section 1981 was derived from the Civil Rights Act of 1866 (Act). The intended purpose of Section 1981 was to uproot the institution of slavery and eradicate its badges and incidents. Long v. Ford Motor Company, 496 F.2d 500, 504 (6th Cir.1974). See Jones v. Alfred H. Mayer Co., 392 U.S. 409 , 88 S.Ct. 2186 , 20 L.Ed.2d 1189 (1968). It is designed as “an equalizing provision to ensure that rights do not vary according to race.” Long, 496 F.2d at 505 . As Senator Trumbull, the sponsor of the bill, stated: [The Thirteenth Amendment] declared that all persons in the United States *1235 should be free. This measure is intended to give effect to that declaration and secure to all persons within the United States practical freedom. There is very little importance in the general declaration of abstract truths and principles unless they can be carried into effect, unless the persons who are to be affected by them have some means of availing themselves of their benefits. Jones v. Alfred H. Mayer Co., 392 U.S. at 431-2 , 88 S.Ct. at 2199 (1968) (quoting Cong. Globe, 39th Cong., 1st Sess., 43, 474). Given the Act’s purpose to broadly implement the Thirteenth Amendment, it is reasonable to conclude that Congress meant to abrogate the States’ sovereign immunity to the extent necessary to remedy state-sponsored discrimination. In fact, several well-reasoned Supreme Court dissents have argued that Section 1981 was meant to reach only discriminatory state action. Runyon v. McCrary, 427 U.S. 160, 192 , 96 S.Ct. 2586, 2605 , 49 L.Ed.2d 415 (1976) (White, J., dissenting); Jones v. Alfred H. Mayer Co., 392 U.S. at 449 , 88 S.Ct. at 2208 (Harlan, J., dissenting). Unfortunately, Section 1981 does not explicitly and by clear language indicate on its face an intent to sweep away the immunity of the States; nor does it show that Congress considered and firmly decided to abolish the Eleventh Amendment immunity. Quern v. Jordan, 440 U.S. 332, 345 , 99 S.Ct. 1139, 1147 , 59 L.Ed.2d 358 (1979). Hence, Section 1981 cannot meet the Supreme Court’s rigid criterion for finding Congressional intent to abrogate sovereign immunity. Accordingly, I concur in the dismissal of the APA as a party. II. The majority overturns the district court’s award of attorney’s fees against the APA because no injunctive relief was awarded against the APA. However, attorney’s fees could still be awarded against the APA to the extent that defendants DeForge and Himmelright acted on behalf of the APA in discriminating against the plaintiff. This is clear from Hutto v. Finney, 437 U.S. 678, 692 , 98 S.Ct. 2565, 2574 , 57 L.Ed.2d 522 (1978), where the Court affirmed the entry of an award of attorney’s fees to be paid out of the Arkansas State Department of Correction’s budget because of the conduct of state officials. In this case, defendants DeForge and Himmelright acted in their official capacities on behalf of the APA. Attorney’s fees can thus be imposed directly on the APA pursuant to Hut-to v. Finney, supra. I dissent from any suggestion in the majority opinion to the contrary. III. I am at a loss to explain why the majority remands this case. The district court identified specific acts of discrimination by defendants DeForge and Himmelright who were APA officers and the plaintiff’s supervisor. The district court assessed damages against DeForge, Himmelright and the APA jointly. No other defendants or possible defendants were named in the opinion below. Dismissal of the APA does not require reconsideration of the liability finding with respect to DeForge and Himmelright. Since liability has already been established, the district court’s action should be limited to the apportionment of damages. The majority’s remand is particularly distressing because two independent bodies— the Ohio Civil Rights Commission and the United States District Court — have determined that the plaintiff was a victim of racial discrimination. In an employment setting, a violation of Section 1981 exists when an employer places more stringent requirements on employees because of their race. Long, 496 F.2d at 504 . In the present context, such a violation indisputedly occurred when DeForge held the plaintiff to more stringent standards by requiring him to constantly rewrite reports though no similar demands were made of others. Moreover, DeForge’s disparate treatment of the plaintiff was evidenced by his constant denial of plaintiff’s requests to attend training conferences, while the requests of others were routinely granted. Section 1981 also forbids the degradation of individuals because of their race. In addition to denying Mr. Foulks’ request to *1236 attend training seminars, the defendants created an atmosphere charged with racial tension. DeForge openly discussed his lack of confidence in Mr. Foulks’ work, and expressed his belief that Black people are liars and cannot be trusted. His disdain for the race further resounds in his use of the word “Nigger” and his reference to Mr. Foulks as a “Black Fox” and a “Black Gable”. In the midst of this racially charged atmosphere, DeForge allegedly told Mr. Foulks, “My daughter was raped by a Black man, and I know how you feel.” Moreover, Mr. Foulks’ professional advancement was greatly hindered by the manifestations of the defendants’ prejudice. Mr. Foulks testified that his professional activities were largely circumscribed by DeForge’s efforts to minimize his contact with White counterparts. After continuously being denied promotions, Mr. Foulks sought employment elsewhere. His efforts in this regard were effectively thwarted when Mr. Himmelright responded negatively to a request for a recommendation. According to Mr. Himmelright, Mr. Foulks was antagonistic and a troublemaker who displayed a poor relationship with his fellow workers and was generally hard to get along with. As the court below correctly noted, a subsequent investigation revealed that the comments were false and racially motivated. In fact, Mr. Foulks had received several outstanding recommendations, including one from his regional supervisor in the state office. In this case, the record clearly reflects that DeForge subjected the plaintiff to dissimilar treatment. The question the district court was called upon to answer was whether such disparate treatment was motivated by racial animus towards Black people. The district court concluded that it was so motivated. The fact that DeForge called a Black person a Nigger in front of an APA employee is probative of racial animosity and disparate treatment. See Rowe v. Cleveland Pneumatic Co., Numerical Control, 690 F.2d 88, 97 (6th Cir.1982). While there is nothing per se illegal about calling someone a Nigger, Cracker, Spic, Wop or Kike the use of these despicable terms is morally reprehensible, and this court should not in any way sanction their use. I have carefully considered the majority opinion remanding this case for yet another discrimination determination. There is no justification for it. The court’s decision today perpetuates rather than rectifies a long-standing injusticé. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8917475. Public record. Not legal advice.