No Need to Exhaust Agency Remedies Under Section 1981

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By Kevin McGowan

Dec. 29 — The estate of a deceased black Boston city employee may pursue race discrimination and retaliation claims under the Civil Rights Act of 1866 (42 U.S.C. § 1981), despite the worker's failure to file a timely administrative charge of discrimination, the U.S. Court of Appeals for the First Circuit ruled Dec. 29.

Partly reviving the lawsuit filed by Oswald Hixon's estate, the court said Hixon's failure to file a state agency discrimination charge until nearly three years after he was fired doesn't affect the right to pursue Section 1981 claims.

Unlike Title VII of the 1964 Civil Rights Act, the Reconstruction-era civil rights statute doesn't require claimants to exhaust administrative remedies before filing discrimination lawsuits, the court said. The district court erred by dismissing the estate's Section 1981 claims for failure to file a timely charge with the Massachusetts Commission Against Discrimination, the First Circuit said.

The decision illustrates why Section 1981 sometimes can be a better option than Title VII for race discrimination plaintiffs.

The city argued the estate's race bias and retaliation claims nevertheless must be dismissed for failure to sue within the statute of limitations or because the complaint contains only “conclusory allegations.”

But the First Circuit said the Section 1981 claims challenging Hixon's February 2011 suspension and discharge were filed within the applicable four-year limitations period. The complaint includes “specific and factual” allegations that “plausibly suggest” the estate is entitled to relief under Section 1981, Judge Norman H. Stahl wrote.

No Section 1983 Claim

A mechanic employed by Boston's public works department, Hixon in 2007 was placed on probation for failing a random drug and alcohol test.

On Feb. 4, 2011, two white supervisors gave Hixon a written warning for bringing his personal vehicle into a city garage for repairs. Hixon protested that white employees routinely did so without discipline.

The supervisors suspended Hixon after his outburst and on Feb. 10, they terminated him for a purported violation of the drug and alcohol policy. The supervisors subsequently opposed Hixon's application for unemployment compensation, testifying falsely he had been under the influence of drugs at work.

Hixon eventually obtained the jobless benefits but in December 2013, he filed race bias and retaliation charges with the state anti-discrimination agency.

After Hixon died in 2014, his estate sued, alleging violations of Section 1981 and the Civil Rights Act of 1871 (42 U.S.C. § 1983).

The First Circuit said the Section 1983 claims are untimely as they relate to Hixon's suspension and termination because the lawsuit was filed outside Section 1983's three-year limitations period.

The Section 1983 claims relating to the alleged false testimony against Hixon were timely filed, but the estate failed to allege a plausible due process violation, the court said.

Judges William J. Kayatta and David J. Barron joined in the decision.

Winston Kendall in Roxbury, Mass., represented Hixon's estate. The City of Boston Law Department represented the city and individual defendants.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at