Horn v. Southern Union Co.

SUTTELL, J., with whom FLAHERTY, J., joins, dissenting.

The question certified to us by the United States District Court requests that we determine “the statute of limitations applicable to an employment discrimination claim asserted under the Rhode Island Civil Rights Act (‘RICRA’), R.I. Gen. Laws § 42-112-1 et seq.” The imposition of a statute of limitations is fundamentally a matter of policy, because it “inevitably reflects a value judgment concerning the point at which the interests in favor of protecting valid claims are outweighed by the interests in prohibiting the prosecution of stale ones.” Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 463-64, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975). As such, it is more appropriately resolved by the General Assembly than by this Court. The RICRA, however, is silent concerning the appropriate time within which to file a suit seeking vindication of a perceived civil rights violation. With respect to alleged discriminatory practices in the workplace, a claimant may choose to file a charge under the Rhode Island Fair Employment Practices Act, G.L.1956 chapter 5 of title 28 (FEPA), file a civil action under the RICRA, or indeed, as is common practice, file under both the FEPA and the RICRA. Nevertheless, the two statutes stand as distinct and independent avenues of redress, each with a related, yet differing, focus. Because I am of the opinion that in the absence of clear legislative direction, both state and federal precedent weigh in favor of a uniform limitations period for all claims filed under the RICRA, I do not believe that the importation of the FEPA’s one-year limitations period to claims asserted under the RICRA is warranted. Accordingly, I respectfully dissent.

As the majority addressed, the RICRA was enacted in response to Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), in which the Supreme Court narrowly interpreted 42 U.S.C. § 1981, The Civil Rights Act of 1866, by holding that that statute afforded protection against race discrimination in contract formation only.13 See *298Ward v. City of Pawtucket Police Department, 689 A.2d 1379, 1381 (R.I.1994). Although the General Assembly incorporated nearly identical language to that used in 42 U.S.C. § 1981 in its enactment of the RICRA, the statute adopted a more expansive definition of contractual rights than its federal counterpart did under the Patterson Court’s interpretation. Compare 42 U.S.C. § 1981 (1988) (language employed by RICRA drafters) and Patterson, 491 U.S. at 164-65, 109 S.Ct. 2363 (interpreting language of 42 U.S.C. § 1981 as applying to contract formation only) with G.L.1956 § 42-112-l(b) (defining language borrowed from federal counterpart to expand protection afforded).14 The Rhode Island statute defines those rights to include “the making, performance, modification and termination of contracts * * * and the enjoyment of all benefits, terms, and conditions of the contractual and other relationships.” Section 42-112-l(b). Additionally, the RICRA surpassed its federal counterpart by expanding protection to “instances of discrimination based on age, sex, religion, disability, and national origin.” Rathbun v. Autozone, Inc., 361 F.3d 62, 67 (1st Cir.2004). As a result, the RICRA “provides broad protection against all forms of discrimination * * *,” Ward, 639 A.2d at 1381, and defines the rights to which all persons are entitled:

“(a) All persons within the state, regardless of race, color, religion, sex, disability, age, or country of ancestral origin,' have, except as is otherwise provided or permitted by law, the same rights to make and enforce contracts, to inherit, purchase, to lease, sell, hold, and convey real and personal property, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property, and are subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”
“(b) For the purposes of this section, the right to ‘make and enforce contracts, to inherit, purchase, to lease, sell, hold, and convey real and personal property’ includes the making, performance, modification and termination of contracts and rights concerning real or personal property, and the enjoyment of all benefits, terms, and conditions of the contractual and other relationships.” Section 42-112-1.15

As the First Circuit Court of Appeals has observed, “The contours of the RICRA plainly reveal the General Assembly’s overarching intent to craft a broad civil rights act that would both complement and *299supplement federal civil rights protections.” Rathbun, 361 F.3d at 67.

In light of the statute’s avowedly remedial purpose, I would apply the statute of limitations set forth in G.L.1956 § 9-1-14(b), which provides “[a]ctions for injuries to the person shall be commenced and sued within three (3) years next after the cause of action shall accrue, and not after.” This Court has held that the legislative intent behind § 9 — 1—14(b) was to enact a comprehensive statute that included “all actions that reasonably could be viewed as arising out of injuries to the person.” Commerce Oil Refining Corp. v. Miner, 98 R.I. 14, 19, 199 A.2d 606, 609 (1964) (Commerce Oil). In that case we stated that:

“the phrase ‘injuries to the person’ * * * is to be construed comprehensively and as contemplating its application to actions involving injuries that are other than physical. Its purpose is to include within that period of limitation actions brought for injuries resulting from invasions of rights that inhere in man as a rational being, that is, rights to which one is entitled by reason of being a person in the eyes of the law. Such rights, of course, are to be distinguished from those which accrue to an individual by reason of some peculiar status or by virtue of an interest created by contract or property.” Id. at 20-21, 199 A.2d at 610.

Since the Commerce Oil decision, we have had the opportunity to more specifically articulate injuries that fall under the umbrella of § 9 — 1—14(b) on multiple occasions. In Lyons v. Town of Scituate, 554 A.2d 1034, 1036 (R.I.1989), we noted that:

“ ‘Injuries to the person’ * * * encompasses actions for written defamation or libel, Mikaelian v. Drug Abuse Unit, 501 A.2d 721 (R.I.1985); actions for injuries to personal dignity, Partin v. St. Johnsbury Co., 447 F.Supp. 1297 (D.R.I. 1978); civil rights actions under 42 U.S.C. § 1983, Walden, III, Inc. v. State of Rhode Island, 576 F.2d 945 (1st Cir.1978), and grievance suits by a union member for failure of the union to represent him fairly, McDonald v. Rhode Island General Council, 505 A.2d 1176 (R.I.1986).”

Of particular significance is our adoption in Lyons of the principles espoused in the federal case, Partin v. St. Johnsbury Co., 447 F.Supp. 1297 (D.R.I.1978). In Partin, the United States District Court for the District of Rhode Island addressed the issue of the appropriate limitations period applicable to the plaintiffs federal 42 U.S.C. § 1981 employment discrimination claim. Partin, 447 F.Supp. at 1298-99. Utilizing our holding from Commerce Oil, the court acknowledged that the phrase “injuries to the person” was not limited strictly to physical injuries; rather, § 9-1-14(b) was held to cover “injuries to personal dignity” as well. Partin, 447 F.Supp. at 1300. The court went on to adopt a tort characterization for 42 U.S.C. § 1981 employment discrimination actions, concluding that § 9-l-14(b) was the appropriate limitations period for plaintiffs action. Partin, 447 F.Supp. at 1301.

This Court unquestionably has declared that federal civil rights violations constitute an injury to the person. See, e.g., Paul v. City of Woonsocket, 745 A.2d 169, 171-72 (R.I.2000) (§ 9-1-14(b) appropriate limitations period for civil rights violation brought in accordance with 42 U.S.C. § 1983); Lyons, 554 A.2d at 1036 (accepting violation of 42 U.S.C. § 1981 constitutes an injury to personal dignity subject to § 9-l-14(b)’s limitations period); Church v. McBurney, 513 A.2d 22, 25-26 (R.I.1986) (acknowledging federal case law holding violations of §§ 1981 and 1983 constitute an injury to the person); Mikaelian, 501 A.2d at 724 (equating right to be *300free from defamatory statements with rights protected under §§ 1981 and 1983, which are considered injuries to the person). It follows then that a violation of rights protected under the RICRA — which employs language almost identical to that of its federal counterpart — also would constitute an injury to the person. Because the General Assembly is “presumed to know the state of existing relevant law when it enacts or amends a statute,” Narragansett Food Services, Inc. v. Rhode Island Department of Labor, 420 A.2d 805, 808 (R.I.1980); see also Aust v. Marcello, 112 R.I. 381, 387, 310 A.2d 758, 761 (1973), it is reasonable to impute to the General Assembly knowledge of § 9-l-14(b)’s applicability to § 1981 claims when it enacted the RICRA in 1990.

In the same respect, it is also “reasonable to presume that the RICRA’s drafters, who modeled the statute after section 1981, must have been aware of the precedents interpreting the federal statute and must have intended the state law to trigger the same limitations period.” Rathbun, 361 F.3d at 67; see also Narragansett Electric Co. v. Rhode Island Commission for Human Rights, 118 R.I. 457, 459-60, 374 A.2d 1022, 1023 (1977) (acknowledging persuasive authority of federal decisions interpreting statutes with language similar to Rhode Island statutes). In Goodman v. Lukens Steel Co., 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987), the United States Supreme Court squarely held that § 1981 claims were subject to the relevant state statute of limitations governing personal injury claims. Goodman, 482 U.S. at 660-62, 107 S.Ct. 2617 (reasoning that § 1981 is part of a federal law barring racial discrimination, which is a “fundamental injury to the individual rights of a person”), superseded by 28. U.S.C. § 1658(a) (2000) (adopting a uniform four-year statute of limitations period for causes of action or claims created by an Act of Congress after December 1, 1990); see also Burnett v. Grattan, 468 U.S. 42, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984) (borrowing the statute of limitations associated with a state’s administrative employment discrimination statute inappropriate for claims brought under the Civil Rights Act).

Although the certified question now before this Court involves the appropriate limitations period solely for employment discrimination claims brought under the RICRA, by importing the FEPA’s one-year limitations period to these claims, the Court now has created precedent for dividing the RICRA into subclasses in which different rules of timeliness may apply, depending on the context of the claim. Cf. Rathbun, 361 F.3d at 69 n. 2 (“In the face of a silent statute, it would be surpassingly difficult to presume an intent to divide RICRA claims into subclasses so that different rules of timeliness would apply depending on the context.”). This division conflicts with this Court’s previous ac-knowledgement that “it was the intent of the legislature that all injuries to the person be subjected to the same period of limitations.” Paul, 745 A.2d at 172 (quoting Nappi v. John Deere & Co., 717 A.2d 650, 651 (R.I.1998) (mem.)). In Paul, this Court looked to federal precedent to determine that the three-year limitations period in § 9-l-14(b) applied to claims filed under 42 U.S.C. § 1983. Paul, 745 A.2d at 171-72. We noted that the Supreme Court previously had “concluded that § 1983 confers ‘a general remedy for injuries to personal rights.’ ” Paul, 745 A.2d at 171 (quoting Wilson v. Garcia, 471 U.S. 261, 278, 105 S.Ct. 1938, 85 L.Ed.2d 254 (1985), superseded by 28 U.S.C. § 1658(a) (2000)).

In Wilson, the Supreme Court discussed the importance of uniformity and certainty in the application of a statute of limitations *301to all § 1983 actions, and concluded that “a simple, broad characterization of all § 1983 claims best fits the statute’s remedial purpose.” Wilson, 471 U.S. at 272, 105 S.Ct. 1938. The Supreme Court eschewed an approach in which the applicable limitations period depended on “the particular facts or the precise legal theory of each claim.” Id. at 274, 105 S.Ct. 1938. For reasons identical to those stated in Wilson, the Supreme Court later held that a single state statute of limitations governing personal injury actions was also appropriate for all § 1981 claims. Goodman, 482 U.S. at 662, 107 S.Ct. 2617. Considering the plentiful authority that supports the application of § 9-l-14(b)’s three-year limitations period to civil rights violations in Rhode Island,161 believe that the Court, in the absence of express direction from the General Assembly, should not impose a limitations period that applies only to a subset of claims under the RICRA.

Further, I believe there is a significant functional distinction between the two statutory means of redress provided under the FEPA and the RICRA. The FEPA establishes an administrative process that by its very nature is informal, investigatory, and conciliatory. Section 28-5-17. Contrariwise, the RICRA contemplates a civil action. Section 42-112-2. Under the FEPA, an aggrieved person may not proceed initially in court, but must first present an administrative charge to the Rhode Island Commission for Human Rights (commission) within one year of the alleged wrongful employment act. Section 28-5-17(a). The commission then is required to investigate and “endeavor to eliminate the unlawful employment practices by informal methods of conference, conciliation, and persuasion * * *.” Section 28-5-17(b). If the commission fails to obtain voluntary compliance, it may issue a complaint against a respondent within two years of the original charge, and proceed to an evidentiary hearing. Section 28-5-18. If the commission determines that the respondent did engage in an unlawful employment practice, remedies may include an order to cease the unlawful practice, reinstatement, back pay, and “[i]n appropriate circumstances” attorneys’ fees and other litigation expenses. Section 28-5-24. The opportunity to proceed in court arises only if the commission is unable to secure a settlement agreement from the parties and hearings before the commission have not already commenced. Section 28-5-24.1(a). A temporal limitation further restricts the right to sue: “[a] complainant may ask for a right to sue in state court if not less than one hundred and twenty (120) days and not more than two (2) years have elapsed from the date of filing of a charge.” Id.

Alternatively, § 42-112-2 of the RICRA provides in pertinent part that “[a] person whose rights under the provision of § 42-112-1 have been violated may commence a civil action for injunctive and other appropriate equitable relief, and for the award of compensatory and exemplary damages.” A prevailing plaintiff may also receive the costs of the litigation and reasonable attorneys’ fees. Section 42-112-2. Significantly, § 42-112-2 contains “no language requiring, or even suggesting, that a plaintiff must first exhaust any or all administrative remedies before filing a civil action [under the RICRA].” Ward, 639 A.2d at 1382. Any action, therefore, brought under the RICRA, including employment actions, requires clearance of none of the *302administrative hurdles required under the FEPA. See id.

Finally, I disagree with the Court’s conclusion that harmonization of the RICRA and the FEPA, as the principle of in pari materia instructs, is best accomplished by applying the FEPA’s one-year limitations period to employment discrimination claims brought under the RICRA. To support this proposition, the majority indicates that on several occasions this Court has articulated certain policy considerations that validate the brief limitations period associated with the FEPA. See, e.g., Roadway Express, Inc. v. Rhode Island Commission for Human Rights, 416 A.2d 673, 676 (R.I.1980); Ferguson Perforating and Wire Co. v. Rhode Island Commission for Human Rights, 415 A.2d 1055, 1056 (R.I.1980). The FEPA, however, is not the only legislative enactment that articulates a limitations period for employment discrimination claims. The Rhode Island Whistleblowers’ Protection Act, G.L.1956 chapter 50 of title 28, which provides a cause of action for discrimination against employees who participate in certain employment related activities, specifies a three-year statute of limitations. See §§ 28-50-3 and 28-50-4. In fight of the question now before this Court, it is particularly noteworthy that a claimant (in specific instances) can seek redress for an employer’s discriminatory conduct under the FEPA, which specifies that a claimant file a charge within one year of the employer’s alleged wrongful conduct, and also under the Whistleblower’s Protection Act, which gives a claimant three years to file a civil action for this same conduct. Compare § 28-5-7(5) (protecting employee who has testified or assisted in an investigation or hearing under G.L.1956 chapter 5 of title 28) and § 28-5-17 (requiring an aggrieved employee to file charge with commission within one year) with § 28-50-3 (protecting employee who participates in an investigation or hearing held by a public body) and § 28-50-4 (requiring a person alleging violation of act to bring action within three years).

Rather than harmonize the two statutes, the application of the FEPA’s one-year limitations period to claims filed under the RICRA might well undermine and frustrate the FEPA’s laudatory goals of conciliation and settlement. In construing the relationship between Title VII, the federal analogue to the FEPA, and an action under § 1981, the federal counterpart to the RICRA, the Supreme Court said:

“We recognize, too, that the fifing of a lawsuit might tend to deter efforts at conciliation, that lack of success in the legal action could weaken the Commission’s efforts to induce voluntary compliance, and that a suit is privately oriented and narrow, rather than broad, in application, as successful conciliation tends to be.” But these are the material effects of the choice Congress has made available to the claimant by its conferring upon him independent administrative and judicial remedies. The choice is a valuable one. * * * We are disinclined, in the face of congressional emphasis upon the existence and independence of the two remedies, to infer any positive preference for one over the other, without a more definite expression in the legislation Congress has enacted
“We generally conclude, therefore, that the remedies available under Title VII and under § 1981, although related, and although directed to most of the same ends, are separate, distinct, and independent.” Johnson, 421 U.S. at 461, 95 S.Ct. 1716.

Any discussion of a statute of limitations necessarily involves a balancing of interests: the societal and individual interest in *303the vindication of substantive rights against the like interest in the prompt resolution of all claims. I readily acknowledge the compelling reasons favoring a relatively short limitations period in the employment arena. When, as here, the General Assembly has failed to provide a specific statute of limitations, however, the question for the Court to resolve is one of statutory construction. In its reasoned analysis, the majority has used the doctrine of in pari materia, a reliable and trusted canon of statutory construction, to discern legislative intent to engraft the FEPA’s one-year limitations period onto employment discrimination actions filed under the RICRA. I come to a contrary conclusion because, in my opinion, both state and federal precedent weigh heavily in favor of a uniform and certain limitations period for all claims under the RI-CRA. In the employment context, the FEPA and the RICRA may coexist with distinct timeliness requirements, yet without any undue dissonance, each serving its expressed purpose: i.e., with respect to the FEPA, “to foster the employment of all individuals in this state in accordance with their fullest capacities * * * and to safeguard their right to obtain and hold employment without * * * discrimination,” § 28-5-3; and under the RICRA, to provide compensatory and/or injunctive relief to those people “whose civil rights have been violated.” Rathbun, 361 F.3d at 69 (quoting Burnett, 468 U.S. at 53, 104 S.Ct. 2924). In the absence of clear direction from the General Assembly, therefore, I would apply the residual limitations period set forth in § 9 — 1—14(b).

Accordingly, I would answer the certified question of the United States District Court by stating that the three-year limitations period set forth in § 9 — 1—14(b) applies to employment discrimination claims asserted under the RICRA.

. At the time the Supreme Court decided Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), 42 U.S.C. § 1981 (1988) read:

"All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white *298citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.''

In 1991, Congress amended § 1981 to include subsections (b) and (c). Pub.L. 102-166, § 101 (1991). Subsection (b), as it reads today, addresses the Patterson decision: "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.” 42 U.S.C. § 1981(b) (2000).

. General Laws 1956 § 42-112-1 also incorporated language from 42 U.S.C § 1982 (1988).

. Section 42-112-1 contains two additional subsections:

"(c) Nothing contained in this chapter shall be construed to affect chapter 14.1 of title 37, chapter 5.1 of title 28 or any other remedial programs designed to address past societal discrimination.”
"(d) For the purposes of this section, the terms ‘sex’, ‘disability’ and ‘age’ have the same meaning as those terms are defined in § 28-5-6, the state fair employment practices act.”

. See also Rathbun v. Autozone, Inc., 361 F.3d 62, 66 (1st Cir.2004) ("When a rights-creating statute is silent as to what limitations period should apply, the Rhode Island Supreme Court’s practice has been to look first to residual statutes of limitations.”).