Ingram Equipment Company, Inc. McGinnis Brief Amici Curiae in Support of Plaintiff-Appellee

    IN THE UNITED STATES COURT OF APPEALS 
FOR THE ELEVENTH CIRCUIT

88-7596

INGRAM EQUIPMENT COMPANY, INC. 
Defendant-Appellant,

vs.

TERRELL MCGINNIS, 
Plaintiff-Appellee.

On Appeal from the United States District Court 
for the Northern District of Alabama, Southern Division

BRIEF OF
NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 

AMERICAN CIVIL LIBERTIES UNION 
CIVIL LIBERTIES UNION OF ALABAMA 

MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND, 
PUERTO RICAN LEGAL DEFENSE AND EDUCATION FUND, INC., AND 

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW 
AS AMICI CURIAE

IN SUPPORT OF PLAINTIFF-APPELLEE TERRELL MCGINNIS

JOHN A  POWELL 
STEVEN R. SHAPIRO 

American Civil Liberties 
Union Foundation 
132 West 43rd Street 
New York, NY 10036 
(212) 944-9800 

and
Civil Liberties Union of 
Alabama Foundation 
37 Molten Street 
Montgomery, AL 36104 
(205) 262-0304

RUBEN FRANCO 
KENNETH KIMERLING 

Puerto Rican Legal Defense and 
Education Fund, Inc.
99 Hudson Street 
New York, NY 10013 
(212) 219-3360

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON 
RONALD L. ELLIS 
CORNELIA T.L. PILLARD 

NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street, Suite 1600 
New York, NY 10013
(212) 219-1900

BARBARA R. ARNWINE 
RICHARD T. SEYMOUR 
STEPHEN L. SPITZ 

Lawyers’ Committee for 
Civil Rights Under Law 
1400 Eye Street, N.W.
Suite 400
Washington, DC 20005 
(202) 371-1212

ANTONIA HERNANDEZ 
E. RICHARD LARSON 

Mexican American Legal 
Defense and Educational Fund 
634 S. Spring Street, 11th Floor 
Los Angeles, CA 90014
(213) 629-2512

Attorneys for Amici Curiae



TABLE OF CONTENTS

TABLE OF A U TH O RITIES.................................................................................................  ii

ISSUE P R E S E N T E D ..............................................................................................................  vi

INTERESTS OF A M IC I......................................................................................................  vii

STATEMENT OF THE CASE .........................................................................................  1

Statement of the F a c ts ..............................................................................................  1

Course of Proceedings in the District Court and Court of Appeals .............  3

SUMMARY OF ARGUMENT .........................................................................................  6

ARGUMENT ........................................................................................................................  7

I. INGRAM’S DISCHARGE OF MR. MCGINNIS ON THE BASIS OF
RACE VIOLATES 42 U.S.C. § 1981...............................................  7

A. The Supreme Court’s Decision in Patterson v. McLean Credit Union
Does Not Preclude Mr. McGinnis’ Section 1981 Discharge Claim . . .  8

B. Ingram’s Racially Motivated Discharge of Mr. McGinnis Violated His
Right to "Make and Enforce Contracts" Free From Racial 
Discrimination.................................................................................................  14

C. Congress Intended Section 1981 To Prohibit Racially Discriminatory
Contract T erm ination ....................................................................................  19

CONCLUSION ......................................................................................................................  20



TABLE OF AUTHORITIES- 

CASES

Anderson v. Bessemer City.
470 U.S. 564 (1985) ...................................................................................................  1

Asare v. Svms. Inc..
51 Empl. Prac. Dec. (CCH) (E.D.N.Y. 1989).......................................................  15

Baylor v. Jefferson Ctv. Bd. of Ed..
733 F.2d 1527 (11th Cir. 1 9 8 4 )...............................................................................  1

Birdwhistle v. Kansas Power and Light Co..
723 F. Supp. 570 (D. Kan. 1989) .........................................................................  19

Black v. Akron.
831 F.2d 131 (6th Cir. 1987) ............................................................................... 9

Carroll v. Elliott Personnel Services.
51 Fair Empl. Prac. Cas. 1173 (BNA) ...............................................................  14

Comeaux v. Uniroval Chemical Corp..
849 F.2d 191 (5th Cir. 1988) ............................................................................... 9

Edwards v. Jewish Hosp. of St. Louis.
855 F.2d 1345 (8th Cir. 1988) ............................................................................... 9

Foster v. Atchison. Topeka and Santa Fe Railway Co..
1990 U.S.Dist. LEXIS 1338 (D. Kan. Jan. 11, 1990) (attached) ..................  15

Gairola v. Commonwealth of Virginia Dept, of Gen’l Svcs.,
753 F.2d 1281 (4th Cir. 1985) .......................... ...................................................  9

Gamboa v. Washington.
716 F. Supp. 353 (N.D.I11. 1989) .........................................................................  15

Goodman v. Lukens Steel Co..
482 U.S. 656 (1987) ................................................................................................. 10, 18

Hall v. County of Cook.
719 F. Supp. 721 (N.D.I11. 1989) .........................................................................  15

li



Hicks v. Brown Group, Inc.,
Civil Action Nos. 88-2769/2817, slip op.
(8th Cir, April 16, 1990) (attached).............................' ................... 11, 12, 13, 15, 20

Jackson v. Albuquerque.
890 F.2d 225 (10th Cir. 1990) ............................................................................... 11

Jett v. Dallas Independent School District.
491 U .S .___, 105 L. Ed. 2d 598 (1989) ............................................................  9

Johnson v. Railway Express Agency.
421 U.S. 454 (1975) ................................................................................................. 10

Jones v. Pepsi-Cola General Bottlers. Inc..
1989 U.S.Dist. LEXIS 10307
(W.D.Mo. August 29, 1989) (attached) ...............................................................  16

Kelley v. TKY Refractories Co..
860 F.2d 1188 (3d Cir. 1988) .................................................................................  9

Lavender v. V & B Transmissions and Auto Repair. 1990 U.S.
App. LEXIS 4975 (5th Cir. April 6, 1990) (attached) .......................................  12, 13

Lytle v. Household Manufacturing. Inc..
58 U.S.L.W. 4341 (Mar. 20, 1990) ....................................................................  9, 10

Malhotra v. Cotter & Co..
885 F.2d 1305 (7th Cir. 1989) ............................................................................... 14, 16

McDonald v. Santa Fe Trail Transportation Co..
427 U.S. 273 (1976) ................................................................................................. 10

McGinnis v. Ingram Equipment Co..
888 F.2d 109 (11th Cir. 1989) ............................................................................... 4, 5

McGinnis v. Ingram Equipment Co.,
685 F. Supp. 224 (N.D. Ala. 1988) ....................................................................... passim

Meade v. Merchants Fast Motorline. Inc.. 
820 F.2d 1124 (10th Cir. 1 9 8 7 )........... 9



Overby v. Chevron USA. Inc.,
884 F.2d 470 (9th Cir. 1989) .................................................................................  12, 13

Padilla v. United Air Lines.
716 F. Supp. 485 (D. Colo. 1989) ....................................................................... 14, 16

Patterson v. McLean Credit Union.
491 U .S .___, 105 L. Ed. 2d 132 (1 9 8 9 )...............................................................  passim

Patterson v. McLean Credit Union.
805 F.2d 1143 (4th Cir. 1986) ............................................................................... 9

Ramseur v. Chase Manhattan Bank.
865 F.2d 460 (2d Cir. 1989) .................................................................................  9

Rick Nolan’s Auto Body Shop, Inc, v.
Allstate Insurance Co..
718 F. Supp. 721 (N.D.I11. 1989) .........................................................................  16

Rowlett v. Annheuser-Busch. Inc..
832 F.2d 194 (1st Cir. 1987) .................................................................................  9

Sengupta v. Morrison-Knudsen Co.. Inc..
804 F.2d 1072 (9th Cir. 1986) ............................................................................... 9

Sherman v. Burke Contracting. Inc..
891 F.2d 1527 (11th Cir. 1990)............................................................................ 6, 12, 13

St. Francis College v. Al-Khazraii.
481 U.S. 604 (1987) ................................................................................................. 10

Teamsters v. United States.
431 U.S. 324 (1977) ................................................................................................. 17

Vance v. Southern Bell Tel, and Tel. Co.,
863 F.2d 1503 (11th Cir. 1989) ............................................................................  9

Yarbrough v. Tower Oldsmobile, Inc..
789 F.2d 508 (7th Cir. 1986) .................................................................................  9

Zaklama v. Mt. Sinai Medical Center.
842 F.2d 291 (11th Cir. 1988) ............................................................................... 9

IV



STATUTES

Fed. R. Civ. P. 52(a) ...................................................................................................  1

42 U.S.C. § 1981 ...........................................................................................................  passim

42 U.S.C. § 2000e et seg. (Title VII) ....................................................................... 3, 12

MISCELLANEOUS

Analysis by NAACP Legal Defense Fund on Impact of Supreme 
Court’s Decision in Patterson v. McLean Credit Union,

Daily Labor Report (BNA) No. 223,
(November 21, 1989) (attached) .........................................................................  11

Eisenberg & Schwab, The Importance of Section 1981.
73 Cornell L. Rev. 596 (1988) ..............................................................................  11

Report of the Joint Committee on Reconstruction,
39th Cong., 1st Sess. (1865) ............. ...................................................................  19

v



STATUTES

Fed. R. Civ. P. 52(a) ...................................................................................................  1

42 U.S.C. § 1981 ...........................................................................................................  passim

42 U.S.C. § 2000e et seg. (Title VII) ....................................................................... 3, 12

MISCELLANEOUS

Analysis by NAACP Legal Defense Fund on Impact of Supreme 
Court’s Decision in Patterson v. McLean Credit Union,

Daily Labor Report (BNA) No. 223,
(November 21, 1989) (attached) .........................................................................  11

Eisenberg & Schwab, The Importance of Section 1981.
73 Cornell L. Rev. 596 (1988) ............................................................................... 11

Report of the Joint Committee on Reconstruction,
39th Cong., 1st Sess. (1865) .................................................................................  19

v



ISSUE PRESENTED

Whether Ingram Equipment Company’s discharge of Terrell McGinnis on the basis 

of his race violated 42 U.S.C. § 1981.

vi



INTERESTS OF AMICI

The NAACP Legal Defense and Educational Fund, Inc., is a non-profit corporation 

formed to assist blacks to secure their constitutional and civil rights by means of litigation. 

For many years, attorneys of the Legal Defense Fund have represented parties in litigation 

before the United States Supreme Court and the federal courts of appeals and district 

courts involving a variety of race discrimination and remedial issues, including questions 

involving the proper scope of 42 U.S.C. § 1981 and other federal civil rights laws. The 

Legal Defense Fund represented the plaintiff in Patterson v. McLean Credit Union, the 

most recent decision of the United States Supreme Court interpreting section 1981. The 

Legal Defense Fund believes that its experience in this area of litigation and the research 

it has done will assist the Court in this case.

The American Civil Liberties Union (ACLU) is a nationwide, nonprofit, nonpartisan 

organization with over 275,000 members dedicated to the principles of liberty and equality 

embodied in the Constitution and our nation’s civil rights laws. The Civil Liberties Union 

of Alabama is a state-wide affiliate of the ACLU. The ACLU and its affiliates have 

frequently challenged acts of racial discrimination by relying on 42 U.S.C. §1981. Any 

decision by this Court addressing the scope of §1981 thus directly affects the ongoing work 

and central concerns of the ACLU.

The Mexican American Legal Defense and Educational Fund, Inc. (MALDEF), 

established in 1967, is a national civil rights organization. Its principal objective is to 

secure, through litigation and education, the civil rights of Hispanics living in the United 

States. In order to increase equal employment opportunities for Hispanics, MALDEF is

vii



currently pursuing nearly fifty employment discrimination cases. Since many of these cases 

include claims under 42 U.S.C. §1981, the judicial construction of this important civil rights 

statute will certainly affect the fair employment rights of Hispanics.

The Puerto Rican Legal Defense and Education Fund, Inc. is a national civil rights 

organization established in 1972. Its principal objective is to secure, through litigation and 

education, the civil rights of Puerto Ricans and other Latinos living in the United States. 

Because of the continued discrimination suffered by Puerto Ricans and other Latinos in 

contractual relationships, particularly in employment, Puerto Ricans and other Latinos 

continue to place extensive reliance on the Civil Rights Act of 1866 to vindicate their civil 

rights.

The Lawyers’ Committee for Civil Rights Under Law is a nonprofit organization 

established in 1963 at the request of the President of the United States to involve leading 

members of the bar throughout the country in the national effort to insure civil rights to 

all Americans. For the past 27 years, it has represented, and assisted other lawyers in 

representing, numerous persons in administrative proceedings and lawsuits under Title VII 

and 42 U.S.C. § 1981 throughout the country, including before the Court of Appeals for 

the Eleventh Circuit. The Lawyers’ Committee has also represented parties and 

participated as an amicus in many § 1981 cases before the Supreme Court and the Courts 

of Appeals, including Patterson v. McLean Credit Union.

The parties have consented to the filing of this brief and letters of consent are filed 

herewith.

vm



STATEMENT OF THE CASE

This case is before the Court for rehearing en banc of the panel’s decision to vacate 

and remand Mr. McGinnis’ section 1981 damages award in light of Patterson v. McLean 

Credit Union. The parties disagree whether the district court made clearly erroneous 

findings of fact, whether Patterson should be applied to this case, and whether, if applied, 

Patterson bars plaintiffs claims of discriminatory terms of employment, denial of 

promotion, demotion, and discharge. Amici address here only the question whether, if 

applied, Patterson precludes Mr. McGinnis from recovering for his discriminatory 

discharge. We conclude that it does not.1 

Statement of the Facts

H.D. Ingram, manager and owner of Ingram Equipment Company ("Ingram," "the 

Company"), harshly mistreated his only black employee, Terrell McGinnis, on the basis of 

his race for four and a half years, and then fired Mr. McGinnis on racial grounds. Mr. 

McGinnis "suffered many more racial indignities at the hands of the Company than any 

one citizen should be called upon to bear in a lifetime." McGinnis v. Ingram Equipment 

Co.. 685 F. Supp. 224, 228 (N.D. Ala. 1988).2

^In presenting this question, amici do not endorse the panel majority’s decision that 
Ingram has not waived defenses based on Patterson, nor do we express any opinion on 
Mr. McGinnis’ other section 1981 claims.

2This Court must accept the facts as found by the district court unless they are shown 
to be clearly erroneous. Fed. R. Civ. P. 52(a); Anderson v. Bessemer City. 470 U.S. 564 
(1985); Bavlor v. Jefferson Ctv. Bd. of Ed.. 733 F.2d 1527, 1532 (11th Cir. 1984). Ingram 
argues that the district court’s findings of fact should be reversed, but its analysis of the 
findings in light of the record evidence at best shows that the factual issues were disputed 
at trial, not that the findings are erroneous or unsupported by the evidence that the

1



Mr. McGinnis was hired as a mechanic helper for the Company, which refurbishes 

and sells garbage trucks, but because Mr. McGinnis is black, Ingram used him as a "janitor 

and general flunky." Id- at 225. Mr. Ingram repeatedly called Mr. McGinnis "nigger," or 

"black s-o-b." Id. at 225-26. When he found fault with Mr. McGinnis, he often lashed out 

violently, brutally kicking Mr. McGinnis to the point where the pain and swelling required 

medical attention, and threatening him with a gun. Id. at 226. Although the Company 

expanded quickly and many people were hired during Mr. McGinnis’ tenure there, Ingram 

refused to consider black applicants for employment. Id. at 227?

In March of 1986, when Mr. McGinnis returned late from making an unavoidably 

delayed delivery of some equipment, Mr. Ingram accosted him and pointed a gun to his 

head, using racial epithets and threatening Mr. McGinnis until he threw up his hands in 

fear and said "Yes sir, yes sir." Id. at 226. When Mr. Ingram asked him to run another 

errand a couple of days later, Mr. McGinnis protested that he was hired as a mechanic 

helper rather than a truck driver, but performed as Mr. Ingram directed him. Id at 226. 

Upon Mr. McGinnis’ return from the errand, Ingram suspended him for having displayed 

a "bad attitude" and ostensibly abusing the company truck. Id. at 226-27. Two days later, 

when Mr. McGinnis came back to work after the suspension, Ingram fired him for the

district judge credited. See infra note 3.

■^Testimony at trial showed that Ingram hired Mr. McGinnis because Mr. Ingram 
believed that if he had a black employee, the Company would be more likely to be 
perceived as an equal opportunity employer eligible for contracts with the City of 
Birmingham. (Tr. 40-41, 43).

2



same reasons. Id. at 227. Mr. Ingram then fabricated false "Report[s] of Work Incidents" 

and placed them in Mr. McGinnis’ personnel file. Id. But for Ingram’s discrimination, 

Mr. McGinnis would have remained shop foreman at the company. ]&*

Course of Proceedings in the District Court and Court of Appeals

Plaintiff sued under 42 U.S.C. § 1981 (section 1981) and 42 U.S.C. § 2000e et seq. 

(Title VII). The district court held Ingram liable under section 1981 for discrimination in 

the terms and conditions of Mr. McGinnis’ employment, and for discriminatory discharge. 

Id. at 224, 227, 228. The court awarded $156,164.41 in damages, and permanently 

enjoined Ingram from discriminating. The court dismissed the Title VII claim because the 

statute does not apply to businesses such as Ingram which do not employ at least fifteen 

workers. Id. at 224 n.l.

4 Notwithstanding defendant’s challenge to the district court’s factual findings, 
defendant concedes that there was testimony that Mr. Ingram "called him nigger twice on 
the day McGinnis was discharged." Appellant’s En Banc Brief at 9. Defendant purports 
to explain this away by stating that it was said "in anger over the circumstances that had 
just occurred," and protests that all other times Mr. Ingram called Mr. McGinnis "nigger" 
were behind Mr. McGinnis’ back. Id. Defendant also challenges the district court’s 
finding that Mr. McGinnis alone had to clean the bathrooms. Defendant admits, however, 
that Mr. McGinnis "may have cleaned the restroom more" than other employees, but 
insists that others, too, had to clean them on occasion. Id. at 7. Defendant contends that 
the judge’s findings with respect to Mr. Ingram’s use of a gun are erroneous as well, yet 
concedes that "[t]he trial testimony was that the gun was pulled on one occasion." Id at 
8.

The differences that defendant points to are conflicts in testimony that the district 
judge resolved in plaintiffs favor, and which this Court cannot now disturb. Even if 
defendant’s view of the facts were relevant at this stage, however, Ingram’s version would 
nonetheless support the district court’s conclusion that the company discriminated. It is 
hardly a material distinction whether Ingram called Mr. McGinnis racist names and pointed 
a loaded gun at him few times or many, and whether white employees on occasion also 
performed some of the menial tasks that were routinely assigned to Mr. McGinnis.

3



Ingram appealed, attacking the district court’s factual findings of discrimination, and 

arguing that the district court had "impermissibly interjected itself into the proceedings in 

favor of McGinnis." Appellant’s Initial Brief, at 9 (Statement of the Issues). At oral 

argument of the appeal, Ingram for the first time urged the Court to reverse on the basis 

of the decision of the United States Supreme Court in Patterson v. McLean Credit Union, 

491 U .S .___, 105 L. Ed. 2d 132 (1989).

In Patterson, the Supreme Court held that 42 U.S.C. § 1981 did not apply to a claim 

of racial harassment on the job. 105 L. Ed. 2d at 151-53. The Court confirmed, however, 

that racial discrimination in the formation of contracts is still actionable under section 

1981, jd. at 150-151, and that discrimination in certain promotions remains actionable as 

well. Id. at 156. The opinion did not address whether section 1981 continues to prohibit 

discriminatory termination of a contract.

After oral argument, the appellate panel requested further briefing in light of

Patterson, and reversed the district court’s decision and remanded the case for further

analysis pursuant to Patterson. McGinnis v. Ingram Equipment Co.. 888 F.2d 109, 111

(11th Cir. 1989) (per curiam). The majority held that although Ingram had not raised its

defense based on Patterson until oral argument, it was not too late because the defense

was jurisdictional and therefore not subject to waiver. Id. The majority suggested that

[bjecause claims of harassment and discriminatory work conditions are no 
longer actionable under section 1981, the district court should have the 
opportunity to reconsider its judgment and award of damages. . . .  In 
particular, the district judge should determine whether any promotion 
opportunity "rises to the level of an opportunity for a new and distinct relation 
between the employer and the employee. . . ."

4



Id- The panel opinion did not comment on the portion of the district court’s award that 

was based on its finding of discriminatory discharge.

Judge Cox, in dissent, contended that Patterson should not be applied to this case 

because section 1981 is not a jurisdictional statute and the Patterson decision construing 

it did not involve jurisdictional issues. Any potential defense based on the scope of 

section 1981 arises under Federal Rule of Civil Procedure 12(b)(6), and therefore was 

waived when it was not preserved in the district court nor properly raised in the court of 

appeals. Id. at 111-12.

Mr. McGinnis suggested rehearing en banc. The full Court granted rehearing on 

February 6, 1990.

5



SUMMARY OF ARGUMENT

Ingram Equipment Company’s discriminatory termination of Mr. McGinnis’ 

employment contract violated his right under 42 U.S.C. § 1981 "to make and enforce 

contracts" on racially neutral terms, because by firing Mr. McGinnis, Ingram refused on 

racial grounds to engage in a contractual relationship with him. The district court’s award 

of damages to Mr. McGinnis for racially discriminatory discharge should be affirmed 

notwithstanding the decision of the Supreme Court in Patterson v. McLean Credit Union. 

105 L. Ed. 2d 132 (1989). Patterson did not address whether section 1981 prohibits 

discriminatory discharge, and the decision in Sherman v. Burke Contracting. Inc.. 891 F.2d 

1527, 1534 (11th Cir. 1990) (per curiam), construing Patterson as barring all claims "based 

on post-contractual events," including discharge claims, is erroneous and should be 

reversed. Affording no section 1981 rights to employees discharged on racial grounds, 

in contrast to applicants turned away at the outset for the same reasons, would be 

anomalous and would permit subversion of all section 1981 contract rights. The Supreme 

Court in Patterson explicitly held that employers are barred by section 1981 from 

discriminating in hiring: if they may lawfully fire employees because of race, they can 

discriminate in hiring merely by hiring all qualified applicants and then discharging their 

black employees. The section 1981 right to "make" contracts should be interpreted as a 

right to have a contractual relationship, not merely to enter into one. The 1866 Congress 

that enacted section 1981 clearly intended the law to be so construed, and any other 

reading of section 1981 would produce illogical and unjust results.

6



ARGUMENT

I. INGRAM’S DISCHARGE OF MR. MCGINNIS ON THE 
BASIS OF RACE VIOLATES 42 U.S.C. § 1981

The district court found that Ingram fired Mr. McGinnis for racially discriminatory 

reasons, and rejected Ingram’s work-related defense as pretextual. On the basis of the 

district court’s finding that Ingram fired Mr. McGinnis for discriminatory reasons, that 

court’s decision with respect to Mr. McGinnis’ discharge should be affirmed. Immediately 

preceding Mr. McGinnis’ discharge, Mr. Ingram repeatedly used racial slurs and 

threatened Mr. McGinnis with a gun. When Mr. McGinnis protested Mr. Ingram’s 

directions that he run errands on the ground that he was hired to work as a mechanic, 

Mr. Ingram accused Mr. McGinnis of insubordination, suspended him for two days, and 

then fired him. Ingram placed fraudulent Reports of negative work performance in Mr. 

McGinnis’ personnel file in an attempt to justify the discharge. 685 F. Supp. at 227. 

Ingram replaced Mr. McGinnis with a white male. In the absence of racial discrimination, 

Mr. McGinnis would have continued to work as shop foreman for Ingram.

Ingram’s conduct violates section 1981 as that statute has long been interpreted prior 

to Patterson.-* Patterson did not address section 1981’s applicability to claims of racially

Section 1981 states:

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 
citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, 
and exactions of every kind, and to no other.

7



motivated discharge. Because section 1981 is properly construed according to its language, 

logic, purpose, and history as prohibiting discriminatory discharge, the district court’s 

discharge holding should stand.

A. The Supreme Court’s Decision in Patterson v. McLean Credit 
Union Does Not Preclude Mr. McGinnis’ Section 1981 Discharge 
Claim

The Supreme Court and courts of appeals have consistently interpreted section 1981 

to prohibit termination of a contract on the basis of race. This aspect of section 1981’s 

coverage was not before the Supreme Court in Patterson, and the Patterson decision did 

not disturb it. The Supreme Court in Patterson decided only that section 1981 does not 

prohibit harassment on the basis of race. No claim of discriminatory discharge was before 

the Supreme Court.6

In affirming the decision of the Fourth Circuit with respect to racial harassment 

claims, the Supreme Court never questioned the common-sense distinction the Circuit 

court drew between termination and harassment claims. The court of appeals contrasted 

"[c]laims of racially discriminatory hiring, firing, and promotion," with racial harassment 

claims on the ground that the former "go to the very existence and nature of the 

employment contract and thus fall easily within § 1981’s protection." Patterson v. McLean

6Justice Brennan, in his separate opinion in Patterson, asserted that the 39th Congress 
intended section 1981 "to go beyond protecting the freedmen from refusals to contract . . . 
and from discriminatory decisions to discharge" to reach racial harassment as well. 105 
L. Ed. 2d at 169. Although the majority expressly disagreed with Brennan’s view regarding 
harassment, it conspicuously avoided any comment about discharges.

8



Credit Union, 805 F.2d 1143, 1145 (4th Cir. 1986). On the basis of the Fourth Circuit’s 

reasoning in Patterson, this Court in Vance v. Southern Bell Tel, and Tel. Co.. 863 F.2d 

1503 (11th Cir. 1989), confirmed that a constructive discharge "impair[ed] [plaintiffs] 

ability to make and enforce her employment contract," and was therefore actionable under 

section 1981. Id. at 1509 n. 3.7

The Supreme Court has subsequently verified that its decision in Patterson does not 

bar section 1981 claims of discriminatory contract termination. A week after the Court 

decided Patterson, it "assumefd], without deciding," that an employee’s section 1981 rights 

were violated by his removal from his job for allegedly racial reasons. Jett v. Dallas

Independent School District. 491 U .S .___, 105 L. Ed. 2d 598, 611 (1989). The Patterson

majority joined the opinion in Jett. Nine months later, in a unanimous decision in Lytle 

v. Household Manufacturing. Inc., 58 U.S.L.W. 4341 (Mar. 20, 1990), the Court stated that 

Patterson had not foreclosed discriminatory discharge claims, and remanded the case to 

give the Fourth Circuit an opportunity to consider the issue. Id. at 4343, n. 3 (majority 

opinion); id. at 4344 (opinion of O’Connor, J., concurring) (commenting that "the question

7Prior to Patterson, the Courts of Appeals, including this Court, were unanimous in 
the view that section 1981 forbids racially motivated contract termination. See, e.g., 
Zaklama v. Mt. Sinai Medical Center, 842 F.2d 291, 293 and n. 1 (11th Cir. 1988); see, 
also. Rowlett v. Annheuser-Busch, Inc.. 832 F.2d 194 (1st Cir. 1987); Ramseur v. Chase 
Manhattan Bank, 865 F.2d 460 (2d Cir. 1989); Kelley v. TKY Refractories Co.. 860 F.2d 
1188 (3d Cir. 1988); Gairola v. Commonwealth of Virginia Dept, of Gen’l Svcs., 753 F.2d 
1281 (4th Cir. 1985); Comeaux v. Uniroyal Chemical Corp., 849 F.2d 191 (5th Cir. 1988); 
Black v. Akron, 831 F.2d 131 (6th Cir. 1987); Yarbrough v. Tower Oldsmobile, Inc., 789 
F.2d 508 (7th Cir. 1986); Edwards v. Jewish Hosp. of St, Louis. 855 F.2d 1345 (8th Cir.
1988); Sengupta v. Morrison-Knudsen Co., Inc., 804 F.2d 1072 (9th Cir. 1986); Meade v. 
Merchants Fast Motorline. Inc.. 820 F.2d 1124 (10th Cir. 1987).

9



whether petitioner has stated a valid claim under § 1981 remains open").

Prior to Patterson, the Supreme Court had consistently applied section 1981 to 

prohibit racially motivated contract termination. In Johnson v. Railway Express Agency. 

421 U.S. 454, 459-60 (1975), the Court upheld the right of a black railway driver to sue
o

his former employer for race discrimination, including discharge on the basis of race. In 

McDonald v. Santa Fe Trail Transportation Co.. 427 U.S. 273, 275 (1976), the Court 

applied section 1981 to white workers’ claims that their discharge for theft was motivated 

by racial discrimination. In St. Francis College v. Al-Khazraii. 481 U.S. 604, 606 (1987), 

a unanimous Court held that an Arab college professor could sue under section 1981 for 

having been denied tenure and forced out of his job. And in Goodman v. Lukens Steel 

Co.. 482 U.S. 656, 659-60 (1987), the Court upheld application of a two-year statute of 

limitations to section 1981 challenges to discriminatory employment practices, including 

discharges. In the absence of a holding from the Supreme Court that discriminatory 

discharge claims are no longer covered, this Court should not ignore the long line of 

Supreme Court precedent on the most important right section 1981 confers.9 Patterson’s

o
The Court in Johnson commented that section 1981 is not coextensive with title VII 

insofar as title VII is applicable only to certain employers, and section 1981 does not 
provide for assistance with such matters as investigation and conciliation of claims. Id. at 
460. Patterson clearly reversed Johnson to the extent that harassment claims, while 
actionable under title VII, can no longer be brought under section 1981. Except as 
specifically reversed by Patterson, however, Johnson remains the law.

9 Although section 1981 prohibits discrimination in the making and enforcement of all 
kinds of contracts, and bans discrimination in other areas as well, the statute is most 
frequently used in the employment context to redress discriminatory discharge. See 
generally Eisenberg & Schwab, The Importance of Section 1981. 73 Cornell L. Rev. 596, 
599-601 (1988), cited in Hicks, slip op. at 15. Among section 1981 claims dismissed by

10



own emphasis on the weight of stare decisis requires as much. See Patterson. 105 L. Ed. 

2d at 147-50.

Since the Supreme Court’s decision in Patterson, the courts of appeals have divided 

over whether the Supreme Court’s reasoning in that case should be extended to bar 

section 1981 claims of discriminatory discharge. The Eighth Circuit is the only appellate 

court to have analyzed the issue in detail. In Hicks v. Brown Group. Inc.. Civil Action 

Nos. 88-2769/2817, slip op. (8th Cir, April 16, 1990) (attached), a reverse discrimination 

case brought by a discharged white employee, the court held that section 1981 still covers 

discriminatory contract termination. In light of the scope and purpose of Patterson, as 

well as the language and logic of the statute and the Congressional intent behind it, the 

Eighth Circuit rejected the argument that Patterson precludes section 1981 claims of 

discriminatory discharge/0

The court in Hicks decided that Patterson’s reasoning does not apply to discharge 

claims: "postformation discharge continues to be actionable under the right to make

contracts when it totally deprives the victim of the fundamental benefit the right to make 

contracts was intended to secure -- the contractual relationship itself." Id- at 19.

lower courts since Patterson, the largest category is claims of discriminatory discharge. See 
Analysis by NAACP Legal Defense Fund on Impact of Supreme Court’s Decision in 
Patterson v. McLean Credit Union. Daily Labor Report (BNA) No. 223, at D-2 
(November 21, 1989) (attached).

10 See also Jackson v. Albuquerque. 890 F.2d 225, 236 n. 15 (10th Cir. 1990) 
(holding that the decision in Patterson ”do[es] not affect either the analysis or the outcome 
of this [section 1981 discriminatory discharge] case").

11



Discharge is thus distinct from harassment, which Patterson held is not actionable, because 

"[a]n employee who is harassed still receives the fundamental benefit of his or her 

employment contract," whereas discharge "completely deprives the employee of his or her 

employment, the very essence of the right to make employment contracts." Id- at 16-

11.11 Hicks is by far the most extensive and well reasoned opinion on the application of 

section 1981 to discharges after Patterson, and offers substantial guidance to this Court.

Some Circuit courts prior to Hicks, however, including a panel of this Court, read 

Patterson broadly to bar discharge claims. See Sherman v. Burke Contracting. Inc,. 891 

F.2d 1527 (11th Cir. 1990) (per curiam): Lavender v. V & B Transmissions and Auto 

Repair. 1990 U.S. App. LEXIS 4975 (5th Cir. April 6, 1990) (attached) ; Overby v. 

Chevron USA. Inc.. 884 F.2d 470 (9th Cir. 1989). These holdings depend exclusively on 

the dictum in Patterson that the right to make contracts "extends only to the formation 

of a contract, but not to problems that may arise later from the conditions of continuing 

employment." 105 L. Ed. 2d at 150. In Sherman, a panel of this Court raised the 

discharge issue sua sponte. without benefit of briefing or argument on the point. It 

determined that after Patterson, "suits based on post-contractual events cannot be brought 

under section 1981," 891 F.2d at 1534, and accordingly concluded that the plaintiffs claim 

of retaliatory discharge was no longer covered. To the extent that the panel in Sherman

11 Hicks correctly points out that application of section 1981 to discriminatory 
discharge will not undermine the Title VII procedures for mediation and conciliation, 
which were a major concern of the Supreme Court in Patterson. See 105 L. Ed. 2d at 
154 and n.4. Procedures for conciliation are helpful in the context of an ongoing 
employment relationship in a way that they cannot be after discharge, where "there is no 
longer an employment relationship to salvage." Hicks, slip op. at 20.

12



read Patterson broadly to preclude all section 1981 claims based on conduct occurring 

after the formation of an initial contract between the parties — including Mr. McGinnis’ 

claim that Ingram fired him because he is black — it was wrongly decided and should be 

reversed.72

Contrary to Sherman’s analysis, the Supreme Court did not hold that everything that 

happens after the contract-formation stage is not actionable. For example, the Supreme 

Court remanded Patterson on the ground that some discriminatory promotion denials 

remain actionable under section 1981 even though denial of promotion, like termination, 

occurs after the employment contract is formed. Both discriminatory refusal to promote 

and discriminatory termination relate to the making of a contract, which Patterson held 

is still covered by section 1981, 105 L.Ed.2d. at 150, rather than to the "conditions of 

continuing employment" that Patterson held are no longer covered. Id. at 150-51. As the 

continued vitality of some section 1981 discriminatory-promotion claims shows, see.

12 The Fifth and Ninth Circuits relied on the same rationale invoked in Sherman 
to hold that section 1981 no longer covers contract termination. In Lavender, the Fifth 
Circuit affirmed the district court’s dismissal of the section 1981 claims of two white males 
who alleged that the defendant, a minority-owned business, discharged them on the basis 
of their race. The court concluded that "[b]ecause the contract here was already 
established, the termination amounted to postformation conduct. As such, it is not 
actionable under section 1981." 1990 U.S. App. Lexis 4975, at *9.

The plaintiff in Overby contended that he was fired for refusing to allow his 
employer to search his person and wallet where the search was allegedly in retaliation 
against plaintiff for having questioned corporate practices on issues of race and employee 
privacy. The court affirmed the dismissal of plaintiffs "opaque" section 1981 claim on the 
ground that "Overby does not claim that Chevron prevented him from entering into a 
contract. . . . Rather, he complains of post formation conduct: retaliatory discharge. 
Overby’s right ’to make’ a contract is therefore not implicated." 884 F.2d at 473.

13



Malhotra v. Cotter & Co., 885 F.2d 1305, 1311 (7th Cir. 1989), Patterson does not 

immunize defendants from section 1981 discrimination claims merely because one contract 

has been formed.

B. Ingram’s Racially Motivated Discharge of Mr. McGinnis Violated 
His Right to "Make and Enforce Contracts" Free From Racial 
Discrimination

The section 1981 right "to make and enforce" contracts on racially neutral terms 

includes a right to be free from discriminatory discharge. Discriminatory termination of 

a contract relates to the employer’s willingness to engage in or "make" contracts, rather 

than to the conditions of continuing employment. Consistent with this reasoning, several
t

courts have held that Patterson does not affect sectiofi 1981’s prohibition on racially 

motivated discharge. The Eighth Circuit in Hicks held that "protection from racially 

motivated deprivations of contracts is essential to the full enjoyment of the right to make 

contracts." Slip op. at 16. In Carroll v. Elliott Personnel Services. 51 Fair Empl. Prac. 

Cas. 1173 (BNA) (D. Md. 1989), the court denied defendant’s motion to dismiss plaintiffs 

claim of discriminatory discharge because the "claim of racially discriminatory firing went 

to the very existence and nature of an employment contract and thus fell easily within § 

1981’s protection." In Padilla v. United Air Lines. 716 F. Supp. 485, 490 (D. Colo. 1989), 

the court similarly held in light of Patterson that "termination is part of the making of a 

contract. A person who is terminated because of his race, like one who was denied an 

employment contract because of his race, is without a job. Termination affects the 

existence of the contract, not merely the terms of its performance." In Asare v. Svms,

14



Inc.. 51 Empl. Prac. Dec. (CCH) H 39,437 (E.D.N.Y. 1989), the court sustained a claim

of racially motivated termination, explaining that:

During section 1981’s long history it has never been seriously contended that 
its prohibition against racially discriminatory employment practices does not 
embrace racially motivated dismissals such as those alleged here. . . . This is 
because claims of racially motivated discharge go to the very existence of the 
employment contract . . . and thus fall naturally within the statute’s protection 
of the right to contract.

Id. at 39,438 (citations om itted)/5

Termination is akin to refusal to contract, because, where work is available, the 

discharge of an employee is legally indistinguishable from a refusal to continue to employ 

him. If a black mechanic helper who had never worked at Ingram applied to work there 

in March, 1986 on the day Mr, McGinnis was discharged, and was turned away because
I

Ingram discriminates against blacks, he would have a section 1981 claim for discriminatory 

refusal to hire. If Mr. McGinnis himself upon his discharge asked to be rehired, and were 

rejected on racial grounds, he would by the same token have a section 1981 claim of 

discriminatory refusal to hire. See Jones v. Pepsi-Cola General Bottlers. Inc.. 1989 

U.S.Dist. LEXIS 10307 (W.D.Mo. August 29, 1989) (attached) (stating that, where plaintiff 

requests a new job upon his discharge, defendant violates section 1981 "in refusing on the

u  See also. Foster v. Atchison. Topeka and Santa Fe Railway Co.. 1990 
U.S.Dist. LEXIS 1338 (D. Kan. Jan. 11, 1990) (attached) ; Gamboa v. Washington. 716 
F. Supp. 353, 358, 359 (N.D.I11. 1989) (plaintiff who alleged he was "transferred, demoted 
and disciplined because he is Hispanic" could sue under section 1981, while he "cannot 
recover for discipline or harassment not amounting to a demotion or a constructive 
discharge"). But see e.g.. Hall v. County of Cook. 719 F. Supp. 721, 723 (N.D.I11. 1989) 
(dismissing plaintiffs claim of discriminatory contract termination on the ground that, 
under Patterson, "once an individual has secured employment, the statute’s protection of 
the right to make a contract is at an end").

15



basis of race to make a new contract"); cf. Malhotra v. Cotter, 885 F.2d 1305, 1311 (7th 

Cir. 1989) (interpreting section 1981 to cover all promotions where a stranger to the firm 

would be eligible for the position at issue in order to avoid anomaly of stranger who is not 

hired having greater rights than employee who is denied promotion to same position)/'* 

Firing on the basis of race constitutes a refusal from that time forward to engage in 

contractual relations with that particular employee. Thus, when an employer ends an 

employment contract, it also constructively refuses to enter into another employment 

contract with that employee. Cf. Padilla. 716 F. Supp. at 490 n.4 (noting that employer’s 

assignment of "Ineligible for Rehire" status to terminated employee was actionable 

discrimination in the "making of contracts").
t
The district court found not only that Ingram specifically refused on the basis of Mr. 

McGinnis’ race to continue to engage in a contractual relationship with him, but also that 

Ingram had a policy of refusing to make employment contracts with blacks. Thus, it is 

clear from the court’s opinion that Ingram would not have re-contracted with Mr. 

McGinnis on racially neutral terms. The fact that Mr. McGinnis did not make a futile 

request to be re-hired after he was fired for overtly racist reasons does not negate the fact

14 But see Rick Nolan’s Auto Body Shop. Inc, v. Allstate Insurance Co.. 718 F. 
Supp. 721, 722 (N.D.I11. 1989), in which the court rejected as "disingenuous" the allegation 
that defendant violated section 1981 in refusing to re-contract with plaintiff after 
termination of prior contract. The court interpreted section 1981 to prohibit discrimination 
only once, in the formation of the first contract between a given set of parties. Even if 
those parties conclude their first contract and later initiate another, under the holding in 
this case the second contract, and any subsequent ones, would not be subject to section 
1981 scrutiny even for formation-stage discrimination, the precise discrimination that 
Patterson held was covered by section 1981.

16



that a discriminatory discharge amounts to a refusal to enter into a racially neutral 

contract of employment. Cf. Teamsters v. United States. 431 U.S. 324, 363-64 (1977) 

(holding that plaintiffs claiming discriminatory denial of transfers and promotions need not 

have actually applied for the positions at issue if discriminatory practices deterred them 

from doing so).ls

Construing section 1981 to bar discharge claims would completely undermine the 

contracts clause of section 1981. An employer unwilling to have members of a certain 

race or ethnic group in its work force could subvert section 1981 not by refusing to hire, 

which would leave the employer vulnerable to section 1981 claims, but by hiring and then 

firing the unwanted employees. Similarly, if a new manager who had a policy against 

employing members of racial minorities entered a company that had minority staff 

members, the new manager could fire them all on racial grounds with impunity. In order 

to protect section 1981 rights "to make and enforce contracts," section 1981 must be 

construed to cover all racially motivated refusals of race to contract, regardless of the 

particular means through which they are achieved.

n  Ingram’s discharge of Mr. McGinnis also violates his section 1981 right to 
make contracts free from discrimination because it resulted from the discriminatory terms 
of the parties’ initial contract. Although Mr. Ingram hired Mr. McGinnis as a mechanic 
helper, he consistently treated him as a menial laborer, assigning him the dirtiest and most 
degrading tasks. It was Mr. Ingram’s insistence that Mr. McGinnis perform in the 
degraded role that Mr. Ingram hired him, Ingram’s apparent dissatisfaction with that 
performance, and McGinnis’ protest against the work he was improperly assigned that led 
to Mr. McGinnis’ discharge. Where, as here, "the employer, at the time of the formation 
of the contract, in fact intentionally refused to enter into a contract with the employee on 
racially neutral terms," Patterson. 105 L. Ed. 2d at 155, the employer has violated section 
1981.

17



Mr. McGinnis’s discharge also violated his right to enforce his employment contract, 

because Mr. Ingram fired him for attempting to enforce his contractual right to work as 

a mechanic — the job for which he was hired -  rather than as a driver and general flunky 

to run every errand and clean any mess at Mr. Ingram’s bidding. See 685 F. Supp. at 226. 

As the Supreme Court reaffirmed in Patterson, the section 1981 right to enforce contracts 

is impaired by even "wholly private efforts" to "obstruct nonjudicial methods of adjudicating 

disputes about the binding force of obligations." 105 L. Ed. 2d at 151, (emphasis in 

original deleted), citing with approval Goodman v. Lukens Steel Co.. 482 U.S. 656. Mr. 

McGinnis had a dispute with Mr. Ingram regarding the binding force of Mr. McGinnis’ 

employment contract to work for Ingram as a mechanic helper. He attempted to enforce 

the terms of his employment contract through the only "nonjudicial method" available to 

him: informal, one-on-one negotiation with his employer/6 Yet his initial effort to raise 

the issue of the scope of his job description met with retaliatory suspension and discharge. 

685 F. Supp. at 226-27. Retaliation against an employee for attempting to enforce his 

contract rights, whether through a union as in Goodman or without the assistance of a 

formal representative, as in this case, violates section 1981 as construed in Patterson/ 7

10 Mr. McGinnis was not represented by any labor union, nor was his dispute 
with Ingram within the jurisdiction of the EEOC or other formal, non-judicial body.

17 See Birdwhistle v. Kansas Power and Light Co.. 723 F. Supp. 570, 575 (D. 
Kan. 1989) (holding that "discharge is directly related to contract enforcement and thus 
is still actionable under section 1981 in light of Patterson"!.

18



C. Congress Intended Section 1981 To Prohibit Racially 
Discriminatory Contract Termination

The legislative history of section 1981 makes clear that Congress intended the law

to prohibit racially motivated discharge. Section 1981 was passed during Reconstruction,

when plantation owners who employed freed slaves attempted to reintroduce slavery in

practice by ignoring the contract rights of their new employees. The hearings of the Joint

Committee on Reconstruction, which investigated conditions in the South and provided the

factual foundations for section 1981, were replete with references to discriminatory

discharges of black workers. For example, when plantation owners determined they no

longer had use for their black workers, they drove them off the plantations by the

thousands without paying them. See Report of the Joint Committee on Reconstruction,

39th Cong., 1st Sess. (1865), pt. ii, at 52, 188, 222, 225, 226, 228; pt. iii, at 142, 173-74; pt.

iv, at 64, 66, 68. Such illegal firing often bore more harshly on the freed slaves than

imposition of unequal employment terms on workers when they were hired. Congress was

aware of that particular hardship, and enacted the Civil Rights Act of 1866 to redress it.

Id- See Hicks, slip op. at 23-37 (extensively discussing legislative background of section

1981). As the Supreme Court itself stated in Patterson:

Neither our words nor our decisions should be read as signaling one inch of 
retreat from Congress’ policy to forbid discrimination in the private, as well as 
the public sphere.

This Court should not negate Congress’ clear intent that section 1981 extend to claims of 

racially motivated discharges, nor should it stray from the long history of application of the 

statute to reach a result that is at odds with the Supreme Court’s own admonition.

19



CONCLUSION

For the reasons stated in the foregoing Brief of Amici Curiae, this Court should 

affirm the district court’s holding that Ingram discharged Mr. McGinnis on the basis of his 

race in violation of 42 U.S.C. § 1981.

Respectfully submitted,

CORNELIA T.L. PILLARD 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, NY 10013 
(212) 219-1900

Attorneys for Amicus Curiae 
NAACP Legal Defense and 
Educational Fund, Inc.

JOHN A. POWELL 
STEVEN R. SHAPIRO 
American Civil Liberties 
Union Foundation 
132 West 43rd Street 
New York, NY 10036 
(212) 944-9800

Attorneys for Amici Curiae 
American Civil Liberties Union 
and Civil Liberties Union of 
Alabama

20



ANTONIA HERNANDEZ 
E. RICHARD LARSON 
Mexican American Legal Defense 

and Educational Fund 
634 South Spring Street 
11th Floor
Los Angeles, CA 90014

Attorneys for Amicus Curiae 
Mexican American Legal Defense 
and Educational Fund

RUBEN FRANCO 
KENNETH KIMERLING 
Puerto Rican Legal Defense and 

Education Fund, Inc.
99 Hudson Street 
Suite 1400
New York, NY 10013

Attorneys for Amicus Curiae 
Puerto Rican Legal Defense 
and Education Fund, Inc.

BARBARA R. ARNWINE 
RICHARD T. SEYMOUR 
STEPHEN L. SPITZ 
Lawyers’ Committee for 

Civil Rights Under Law 
1400 Eye Street, N.W.
Suite 400
Washington, DC 20005 
(202) 371-1212

Attorneys for Amicus Curiae 
Lawyers’ Committee for 
Civil Rights Under Law

Dated: New York, New York 
April 20, 1990

21



CERTIFICATE OF SERVICE

This will certify that I have this date served counsel 
for both parties in this action with true and correct copies of 
the foregoing Brief of NAACP Legal Defense and Educational Fund, 
Inc., American Civil Liberties Union, Civil Liberties Union of 
Alabama, Mexican American Legal Defense and Education Fund,
Puerto Rican Legal Defense and Education Fund, Inc., and Lawyers' 
Committee for Civil Rights Under Law as Amici Curiae In Support 
of Plaintiff-Appellee Terrell McGinnis, by placing the copies in

New York, First Class postage thereon 
follows: &

& Childs

day of April, 1990 at New York, New

the U.S. Mail at New York,
fully prepaid addressed as
A. Eric Johnston, Esq. 
Hayes D. Brown 
Seier, Johnston and Trippe 
2100 Southbridge Parkway 
Suite 376
Birmingham, AL 35209
Mr. Robert L. Wiggins. Jr. 
Gordon, Silberman, Wiggins 
Suite Two
100 Washington Street 
Huntsville, Alabama 35801

Executed this
York.



UNPUBLISHED SLIP OPINIONS



United States Court of Appeals
F O R  T H E  E I G H T H  C I R C U I T

NOS. 88—2769/2817

Kenneth G. Hicks,
Appellee/cross-appellant,
v.

Brown Group, Inc., d/b/a Brown Shoe Company, Inc.,
Appellant/cross-appellee.

*

*
★

* Appeals from the United States
* District Court for the* Eastern District of Missouri
*

*
*

Submitted: September 13, 1989
Filed: April 16, 1990

Before McMILLIAN, Circuit Judge, HEANEY, Senior Circuit Judge 
and FAGG, Circuit Judge.

McMILLIAN, C i rcu it Judge.

Brown Group, Inc., d/b/a Brown shoe Company, Inc. (Brown 
Group) , appeals from a final judgment entered by the United States 
District court’ for the Eastern District of Missouri upon a jury 
verdict finding that it violated 42 U.S.C. § 1981 (1982) (Section 
1981) , by discharging Kenneth G. Hicks (Hicks) on the basis 
race. The jury found that Hicks was entitled to no actual damages, 
but awarded him $10,000 in punitive damages on the ground that 
Brown Group's action was willful. The district court modified the 
actual damages to $1.00 and awarded Hicks attorneys' fees and

’The Honorable David D. Noce, United st£ * s * * £ * “ £ * 5o? District of Missouri, to whom the matter was rererrea
trial and entry of judgment by consent of the parties pursuan
28 U.S.C. § 636(c) (1982 & Supp. V 1987).



costs. On appeal, Brown— Group raises four major issues for 
reversal: (1) the judgment cannot stand because discriminatory dis­
charge is not cognizable under Section 1981; (2) the district court 
erred in denying its motion for a judgment notwithstanding the 
verdict (JNOV) because the jury's finding of discrimination was 
clearly erroneous and not supported by sufficient evidence; (3) the 
district court erred in submitting jury instructions and special 
interrogatories which permitted the jury to find a Section 1981 
violation without proof of intentional discrimination; and (4) the 
district court erred in denying its motion for a JNOV on the 
punitive damages award. Brown Group also claims that the punitive 
damage award was not supported by sufficient evidence. On cross­
appeal, Hicks alleges that the district court erred in denying his 
post-trial motion for reinstatement and related equitable relief 
after he had successfully proven that he would not have been 
discharged except for his race. For the reasons discussed below, 
we affirm the judgment of the district court.

h

I. Facts

Brown Group is a New York corporation engaged in the business 
of manufacturing and selling shoes.2 In the early 1970s, Brown 
Group owned and operated approximately 35 manufacturing plants 
located in Missouri, Illinois, Tennessee, Kentucky and Arkansas. 
Until the early 1980s, Brown Group's warehouse facilities and raw 
materials terminals were located in St. Louis. Because of 
declining sales caused by foreign competition, Brown Group was 
forced to gradually close ten of its northernmost factories by 
1982.

In 1982, Brown Group relocated its raw materials terminal from 
St. Louis to Benton, Missouri (Benton terminal) in order to better

Brown
zBrown Group is well known for its production of the "Buster 
" line of children's shoes.

- 2 -

".-
I??

 
w

 •



service its southern factories.3 Because of delivery delays and 
operational problems at the Benton terminal, Brown Group decided 
to hire CMR Parcel Service, an outside trucking company, to presort 
raw materials and take over some of the delivery routes. As a 
result, the amount of work at the Benton terminal decreased 
significantly. Brown Group decided that the loss of work required 
a reduction of force at the Benton terminal. Neil Page, Brown 
Group's assistant director of distribution, directed Rich Williams, 
the Benton terminal superintendent, to decrease the number of 
hourly union employees by five, from 17 to 12, and reduce the 
supervisory staff by one, from three to two. Page gave Williams 
no guidelines concerning who should be terminated or what factors 
should be considered in making the decision. This action arises 
from Brown Group's decision to terminate Hicks, a 51-year-old white 
male supervisor, and retain Alvin Chester, a 36-year-old black male 
supervisor.4

Hicks started working for Brown Group in February 1948 as a 
16-year-old. He worked for Brown Group for 34 years, until he was 
discharged at age 51 in 1982. Hicks began working as an order 
clerk in the finished goods warehouse, and held that position for 
25 years. On December 4, 1972, Hicks was promoted to a foreman 
position at the Gustine Avenue warehouse in St. Louis. While at 
Gustine Avenue, Hicks supervised every department in the warehouse, 
overseeing the filling and packing of finished good orders. 
Between late 1977 and May 1980, Hicks held the evening utility

3The Benton terminal is designed to increase efficiency and 
facilitate distribution. Drivers transport raw materials from the 
Benton terminal to Brown Group factories, and transport finished 
goods -from the factories back to Benton. Finished goods are not 
warehoused at the Benton terminal.

4The third supervisor was Robert Carbrey, a white male 
approximately 55 years of age. Carbrey was the assistant terminal 
superintendent at Benton and had more responsibility than Hicks and 
Chester. He was not a candidate for discharge. Hicks does not 
challenge the retention of Carbrey.

- 3 -



foreman position at the austine Avenue warehouse, where e 
in for 15 to 20 other foremen who were absent from work 
illness, vacation, or personal reasons. During this peno ' 
obtained experience supervising the manufacturing or « «  material 
dock m  May 1980, the Gustine Avenue warehouse closed, and the 
raw material! dock was moved to the Chouteau Avenue warehouse m
St. Louis.

in June 1980 Hicks was assigned to supervise the evening shift 
on the raw materials dock at the Chouteau Avenue warehouse. When 
Hicks began working this new position, he was briefly traine y 
Alvin Chester, who held the evening supervisor position at th 
Chouteau Avenue warehouse prior to Hicks' arrival After Hick 
was trained, Chester was assigned to supervise the day shift, 
the Chouteau Avenue warehouse closed, Hicks was assigned to 
supervise the evening shift at the Benton terminal. Chester, who 
began working at the Benton terminal about a month and a half 
before Hicks/ briefly trained Hicks and again transferred 
day shift when Hicks took over the evening shift.

in July 1968 Chester began working on the raw materials dock
as an hourly union employee at Brown Group's Gravois
facturin, plant in St. Louis. He was promoted to dock foreman in 5 * 7

5The parties dispute how hii/with the
Chouteau. Hicks testlfie about eight hours over a two
5 S &  p 2 i o ^ eSCh^tePrr t?stTAed that he trained Hicks for two to 
three weeks.

‘Chester did not begin working at the B-nt°" ^ i n a l j n t i l
w t-7 1 0 0 1  hpcause he obtained company approval
needed'hernia operation before transferring to Benton.

71he parties v^thVim
fo? “ r \h?ee daVsf^erefs Chester testified that he trained 
Hicks over a two week period.

- 4 -



January 1973,8 where he supervised four or five employees. When 
the Gravois Avenue plant closed in 1975, Chester was transferred 
to the Gustine Avenue warehouse, where he supervised between eight 
and ten employees on the raw materials dock. When the Gustine 
Avenue warehouse closed in 1980, Chester was assigned to the 
Chouteau Avenue warehouse, where he supervised operations on the 
raw materials dock until the facility closed in April 1982. 
Chester was transferred to the Benton terminal in April 1982.9

Rich Williams, the Benton terminal superintendent, made the 
decision to terminate Hicks and retain Chester. At the time he was 
terminated, Hicks had worked for Brown Group for more than 34 
years, the last nine and a half years as a supervisor. At the time 
Chester was retained, he had 14 years service for Brown Group, and 
about the same supervisory experience as Hicks.10 Williams testi­
fied that he decided to retain Chester because Chester was better 
qualified to supervise the raw material operation at the Benton 
terminal. Hicks claimed that Chester was retained because he was 
black, and that he (Hicks) was terminated in violation of a company 
policy to make employment decisions based on seniority.

Williams notified his supervisor, Neil Page, that he had 
decided to terminate Hicks, and Page agreed with the decision. On 
June 28, 1982, Hicks was summoned to Brown Group's corporate 
offices for a meeting with Page and Williams. Page informed Hicks 
that he was chosen to be terminated as a result of the changes in

gAlthough Brown Group claims that Chester has been a full- 
fledged supervisor since January 1973, Chester's performance 
evaluations listed his position as "Assistant Supervisor" as 
recently as September 1978.

’Chester was promoted to the position of terminal 
superintendent at Benton in 1985.

10Hicks had been a supervisor about one month longer than 
Chester. Hicks was promoted to supervisor in December 1972, 
followed by Chester in January 1973.

- 5 -



operation at the Benton terminal. Page told Hicks that Chester was 
being retained because he had more experience on the raw materials 
dock, knew more about the Benton terminal operation, and was better 
able to handle the job.

After his June 28, 1982 meeting with Page and Williams in 
Clayton, Hicks returned that same afternoon to the Benton terminal 
to gather his personal belongings and say good-bye to his co­
workers on the night shift. While he was at the terminal, Hicks 
asked Williams whether he had been terminated because he was white 
and Chester was black. Hicks testified that although Williams 
heard and understood his question, Williams did not deny that race 
was a consideration, instead replying "Ken, you said that> not me." 
Hicks did not understand this response, so he asked Williams a 
second time whether race made a difference. Hicks testified that 
Williams looked at him with a side smirk, and said, "Again, you 
said that, not me."11 After Hicks' termination, Williams trans­
ferred Chester to the evening shift, and Page ordered that Chester 
be given a $25.00 raise. Brown Group did not hire another 
supervisor to replace Hicks.

Hicks exhausted his administrative remedies and filed suit in 
federal district court, alleging that Brown Group's decision to 
discharge him violated Section 1981 and the Age Discrimination in 
Employment Act, 29 U.S.C. §§ 621-634 (1982 & Supp. V 1987). The 
case was tried before a jury on October 3-5, 1988. The jury

11Williams admitted that he had a conversation with Hicks on 
the afternoon of June 28, 1982, but testified he told Hicks that 
race was not a factor in his termination. Williams testified that 
he answered Hicks's question directly the first time Hicks asked 
it, and that he did not smirk at Hicks. Brown Group argued to the 
jury that Hicks's description of this conversation was inconsistent 
and had been embellished over time. The jury evidently chose to 
reject Brown Group's contention that Hicks' testimony on this 
incident was fabricated or inconsistent.

- 6 -



rejected Hicks' age discrimination claim,12 Special Interrogatories 
Nos. 1-3, but found that Brown Group had intentionally discrimi­
nated against Hicks on the basis of his race "in that his race was 
a discernible or motivating factor in his termination from employ­
ment," Special Interrogatory No. 7. The jury also found that Brown 
Group "intentionally discriminated against . . . Hicks on account
of his race in that his race was a determining factor in his 
termination from employment," Special Interrogatory No. 5. The 
jury found that Hicks was entitled to no compensatory damages, but 
awarded him $10,000 in punitive damages after finding that Brown 
Group "acted out of evil motive or intent, or acted with callous 
indifference to [Hicks'] federally protected rights," Special 
Interrogatory No. 8. Finally, in response to Special Interrogatory 
No. 10, the jury found that Brown Group would have terminated Hicks 
even if his race or age had "not been a discernible or motivating 
factor or a determining factor in the decision to terminate." The 
jury was not requested to consider the question of nominal damages.

After modifying the jury verdict through a grant of additur 
in the amount of $1.00 nominal damages, the district court enforced 
the jury verdict by awarding Hicks $10,000 in punitive damages. 
Brown Group's motion for a JNOV and Hicks' motion for post-trial 
equitable relief were denied. The district court subsequently 
awarded Hicks $18,562.50 in attorneys' fees and $2,189.00 in costs. 
This timely appeal and cross-appeal followed. After the United
States Supreme Court decision in Patterson v._McLean Credit Union,
491 U.S. ___, 109 S. Ct. 2363 (1989), this court granted leave for
the parties to file supplemental briefs.

12Hicks has not cross-appealed the jury verdict on the age 
discrimination claim.

- 7 -



-U-r—Section 1981

The threshold question we must address in this reverse race 
discrimination case is whether racially discriminatory discharge 
is actionable under Section 1981. Section 1981 provides as
follows:

All persons within the jurisdiction of the 
United States shall have the same rl9ht ^  every State and Territory to make and enforc
contracts, to sue, be parties, _ “ aSs and to the full and equal benefit of all laws and proceedings for the security of persons 
and property as is enjoyed by white and Pshall be subject to like Pu^ h m e n t ^  
pains, penalties, taxes 1.̂ ê . s ' and eXaC tions of every kind, and to no other.

42 U.S.C. § 1981.

in n,tt.rsnn V. Morgan Credit Union, 109 S. Ct. 2363 (1989)
(Patterson), the United States Supreme Court limited the scope o 
Section 1981. The Court interpreted the meaning and scope of the 
rights "to make and enforce contracts," and held that neither right 
extended to prohibit racial harassment in the employment relation­
ship. Id. at 2373-74. The Patterson decision did not addre 
whether discriminatory discharge falls within the ambit of the 
rights to make and enforce contracts. Based on our examination o 
the nature of discharge and our interpretation of Section 1981 as 
well as the legislative history of Section 1981, we conclude that 
a claim for discriminatory discharge continues to be cognizable
under Section 1981.

A.

We must first determine whether a fair reading of Patterspn 
requires us to find that discriminatory discharge is no longer 
actionable under Section 1981. A careful analysis of Patterson

- 8 -



demonstrates that discharge was not at issue or discussed, and 
nothing in that opinion requires us to overrule the numerous and 
long—settled cases in this circuit which hold that discriminatory 
discharge is actionable under Section 1981. See, e.g. , Estes—y_*_ 
Dick Smith Ford. 856 F.2d 1097, 1100-01 (8th Cir. 1988); Williams 
v. Trans World Airlines. Inc.. 660 F.2d 1267, 1268 (8th Cir. 1981); 
Person v. J.S. Alberici Constr. Co., 640 F.2d 916, 918-19 (8th Cir. 
1981).

We first examine the facts and procedural history of Patterson 
in order to better understand its analysis of the rights to make 
and enforce contracts. In Patterson, the plaintiff was a black 
woman who was employed as a teller and file coordinator for ten 
years before being laid off. She brought an action in the United 
States District Court for the Middle District of North Carolina, 
alleging that her employer had harassed her, failed to promote her, 
and discharged her because of her race in violation of Section 
1981.13 109 S. Ct. at 2368-69. The district court submitted the
Section 1981 discharge and promotion claims to the jury, which 
returned a verdict for the employer. The district court .deter­
mined that Patterson's claim for racial harassment was not 
actionable under Section 1981, and granted a directed verdict in 
favor of the employer.

On appeal,14 the Fourth Circuit affirmed. Patterson v. McLean

13The plaintiff also raised a pendent state law claim for the 
intentional infliction of emotional distress. The district court 
granted a directed verdict for the employer on this issue, and the 
Fourth Circuit affirmed. See Patterson v. McLean Credit Union, 805 
F.2d 1143, 1146 (4th Cir. 1986).

uThe plaintiff appealed the district court's award of directed 
verdicts in favor of the employer on the Section 1981 racial 
harassment claim and the pendent state law claim for intentional
infliction of emotional distress. Patterson_v.— McLean Credit
Union. 805 F.2d 1143, 1145-46 (4th Cir. 1986). The plaintiff also 
appealed the exclusion of proffered testimony by two witnesses, one 
in support of her harassment claim and the other in support of her

- 9 -



rrgdit Union. 805 F.2d 1143-(4th Cir. 1986). The court held that 
racial harassment was not cognizable under Section 1981, but noted 
that evidence of racial harassment may implicate the terms and 
conditions of employment under Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. § 2000e (1982), or be probative of the discrimi­
natory intent required to prove a Section 1981 violation. Id. at 
1145. In discussing its ruling on the harassment claim, the Fourth 
Circuit expressly noted that a claim of discriminatory discharge 
goes to the very essence of the employment contract, and thus falls 
easily within Section 1981's protection. Id.

The Supreme Court granted certiorari, see 484 U.S. at 814 
(1987), to decide two questions: (1) whether Patterson's racial 
harassment claim was actionable under Section 1981, and (2) whether 
a jury instruction requiring her to prove that she was better 
qualified to establish her Section 1981 promotion claim was erro­
neous. Patterson. 109 S.Ct. at 2369. After initial oral 
argument, the Court requested the parties to brief and argue 
whether or not the Court should reconsider the interpretation of 
Section 1981 adopted in Runyon v. McCrary, 427 U.S. 160 (1976) 
(Runyon), which held that Section 1981 prohibited discrimination 
in the making and enforcement of private contracts. See 485 U.S. 
at 617 (1988).

The Court unanimously agreed that Runyon should not be over­
ruled. Justice Kennedy, writing for a 5-4 majority, held that 
Runvon should not be overruled because no special justification was 
shown to warrant departure from the principle of stare decisis, the 
decision had not proved unworkable, and "Runyon [was] entirely 
consistent with our society's deep commitment to the eradication

promotion claim. Id. at 1147. Finally, ^^vre'^that sheaDDealed a jury instruction which required her to prove that sn was more qualified than the person promoted in order to prevaj 
her Section 1981 promotion claim. Id. The plaint .appeal the jury verdict rejecting her Section 1981 discharge claim.

- 1 0 -



of discrimination based on a person's race or the color of his or 
her skin." Patterson. 109 s. Ct. at 2371. The Court then 
considered whether Patterson's racial harassment and failure to 
promote claims fell within either of the two enumerated contract 
rights protected by Section 1981. The Court noted that the most 
obvious feature of Section 1981 is that it forbids discrimination 
only in the making and enforcement of contracts, and that it could 
not be construed as a general proscription of racial discrimination 
in all aspects of contract relations. Id. at 2372.

The two enumerated contract rights protected by Section 1981 
are the rights to make and enforce contracts. The first of these 
rights, the right to make contracts, prohibits the discriminatory 
refusal to enter into a contract with someone, as well as the offer 
to make a contract only on discriminatory terms. Id. at 2372. The 
Court held that -the right to make contracts does not extend, as 
a matter of either logic or semantics, to conduct by the employer 
after the contract relation has been established, including breach 
of the terms of the contract or imposition of discriminatory work­
ing conditions." Id. at 2373. The Court noted that such postfor- 
mation conduct is more naturally governed by state contract law 
and Title VII. Id. The second contract right protected by Section 
1981, the right to enforce contracts, prohibits racial discrimi­
nation in the legal process which prevents individuals from enforc­
ing their contract rights. Id. The right to enforce contracts 
covers statutory and "wholly private efforts to impede access to 
the courts or obstruct nonjudicial methods of adjudicating dis 
putes" to enforce the terms of a contract. Id. (emphasis in

"justice Brennan, concurring in thejudgment in part and 
dissenting in part, joined by4?J7usutlsceS16f ^ ^  *Sf0u!d n T l e  
ao?rr^ l S a\ r K r i ^ V e ^ n US'Stba1n°th<e9ma6̂ rrty. Justice 
Brennan aigued that Runyon should not be o vemied because 
correctlv decided. See Patterson, 109 S. Ct.because Congress effectively ratified the interpretation of Section 
1981 adopted in Runyon. See id. at 2385-88.

- 1 1 -



original). The Court held that interpreting Section 1981 as 
protecting enumerated rights rather than as a general proscription 
of racial discrimination also "preserve[d] the integrity of Title 
VII's procedures without sacrificing any significant coverage of 
the civil rights laws." Id. at 2375.

Applying these principles to the issues raised by the plain­
tiff, the Court held that her racial harassment claim was not 
actionable under Section 1981 because it involved postformation 
conduct relating to the terms and conditions of continuing employ­
ment, rather than a refusal to make a contract or an impairment of 
her ability to enforce her established contract rights. Id. at 
2374. in contrast, the Court held that the plaintiff's failure to 
promote claim was actionable if the denied promotion -rises to the 
level of an opportunity for a new and distinct relation between the 
employee and employer." Id. at 2377. The Supreme Court affirmed 
the Fourth Circuit's dismissal of Patterson's Section 1981 racial 
harassment claim, but vacated its judgment as it related to 
Patterson's discriminatory promotion claim and remanded the case 
for further proceedings.’6 Id. at 2377. The opinion does not 
discuss whether discharge is encompassed within the rights to make 
or enforce contracts.

16The Court held that the district court erred in requiring the 
plaintiff to prove she was betterpromoted in order to establish her section is ^ P ^  that
establishing^she was better" gullif ied’ was only one of several ways 
that the plaintiff could prove that the employer s stated r 
for its failure to promote her was pretextual.

"several post-Patterson cases have noted that Patterpn did
not decide whether alscharge_actionSg^  51
Section 1981. See e.ck_, --;, „7— —  ^  ia«cn • Padilla v.Fair Empl Prac. CM. (BNA, 1173 1175 (D Md »89); £  ^
M ^ ^ . J ^ r s t - %  ^1 P 3 e , >  (. D Mo. septem-

55 (s.'d.19̂ :  i ^ i ^ H S u S i S f e S k T T -  -  ***■ 721>723
(N.D. 111. 1989) .

- 1 2 -



The Supreme Court's decision in Jett v. Dallas Independent 
School District. 109 S. Ct. 2702 (1989) (Jett), decided one week 
after Patterson. clarifies that Patterson did not resolve whether 
discriminatory discharge continues to be actionable under Section 
1981. In Jett. the Supreme Court considered the Section 1981 and 
42 U.S.C. § 1983 (1982) due process, First Amendment, and reverse 
discrimination claims of a white male teacher and football coach 
who had been removed from his coaching duties, reassigned to 
another teaching position at a different school, and constructively 
discharged from his employment. Id. at 2708. Before addressing 
whether a municipality could be held liable for the Section 1981 
violations of its employees under respondeat superior, the Court 
noted that at no stage of the proceedings had the school district 
argued that the right to make contracts did not reach the injuries 
suffered by the petitioner. Id. at 2709. Accordingly, the Court 
"assume[d] for purposes of these cases, without deciding, that 
petitioner's rights under § 1981 have been violated by his removal 
and reassignment.” Id. at 2710. The Supreme Court recently reaf­
firmed that Patterson did not resolve whether discriminatory dis­
charge is actionable under Section 1981. See Lvtle v. Household 
Mfq.. Inc.. 58 U.S.L.W. 4341, 4343 n.3, 4344 (O'Connor, J., con­
curring) (Mar. 20, 1990).

We believe the fact that the Patterson Court did not intend 
to reach the discharge question is conclusively established by the 
failure of that decision to make any reference, favorable or un­
favorable, to the substantial body of Supreme Court Section 1981 
jurisprudence developed in cases involving Section 1981 discharge 
claims. See. e.q. . Goodman v. Lukens Steel Co. . 482 U.S. 656 
(1987) (case involving discriminatory discharge claims where 
Supreme Court held that state statute of limitations for personal 
injury actions governs Section 1981 claims, and union that inten­
tionally fails to assert discrimination claims violates Section 
1981); Saint Francis College v. Al-Khazraii. 481 U.S. 604 (1987) 
(discriminatory discharge case where Supreme Court held that Arab

- 1 3 -



national is entitled to the protections of Section 1981 if he can 
show that he was subjected to intentional discrimination because 
of his Arab birth); netware State rol lege v- Ricks, 449 U.S. 250 
(1980) (discharge case in which Supreme Court held that the Section 
1981 statute of limitations begins running on the date the 
allegedly discriminatory act-the denial of tenure-occurred); 
Mononaid V. Santa Fe Trail Transp. Co,̂, 427 U.S. 273, 275 (1976)
(employer who discharges a white employee because of his race 
violates section 1981); Johnson v. Railway Express Agency. 421 U.S. 
454 459-60 (1975) (Supreme Court cites lower court Section 1981
discharge cases to support its holding that Section 1981 affords 
a federal remedy in wrongful discharge case against discrimination 
in private employment on the basis of race).'" We believe that if 
the Supreme Court intended to call into question or overrule this 
substantial body of employment discrimination precedent in 
Patterson, it would have said so. We do not believe that the 
Supreme Court would reject by implication such seminal Section 1981 
cases without so much as even a word.

We also find it significant that the majority took issue with 
substantial portions of Justice Brennan's opinion dissenting in 
part, see Patterson, 109 S. Ct. at 2371 n.l, 2376-77, but did not 
object to his statement that Section 1981 continues to provide a 
cause of action for discriminatory discharge. See id. at 2388 (in 
enacting Section 1981, Congress intended "to go beyond protecting 
the freedmen from refusals to contract for their labor and from 
discriminatory decisions to discharge them") (emphasis added) 
(Brennan, J., concurring in the judgment in part and dissenting in 
part). We also note that one of the most common uses of Section

Estes v. Dick Smith— Ford,. 
a s ?  F72d'io97r iioo-oi- (8th cir. 1988) (£stes)_;_ Hunter jy.covered by Section_1981 

IncInc., 856 F. 2d 1097, uuu-u ;  Connor
MTis-Chalmers Cor^, J'|d “  < m h C i r !  iSisTTv. Fort Gordon Bus Co., 761 i . 1 ^ 0   ̂ v

1 4 -



1981 is in discriminatory discharge actions. See generally 
Eisenberg & Schwab, The Importance of Section 1981, 73 Cornell L. 
Rev. 596, 599-601 (1988) (analyzing number of Section 1981 employ­
ment discrimination claims filed in three federal district courts 
in fiscal year 1980-81). In light of the large number of Section 
1981 discharge claims brought in the federal courts, we believe the 
Supreme Court would have at least expressed doubt about the 
continuing viability of such causes of action after Patterson.

It is important to note that we intend or imply no criticism 
of the Supreme Court for not reaching the discharge issue in 
Patterson. The plaintiff did not appeal the jury verdict rejecting 
her discharge claim, and hence this issue was not before the Court. 
Legal questions are best decided in cases which present concrete 
controversies.19 We simply decline, in light of Patterson's 
uncertain scope, to apply an oblique decision to overrule the clear 
and undisputed precedent of this circuit.

19We agree with Judge Posner's eloquent discussion of the 
uncertain scope of Patterson, and the necessity of further cases 
to flesh out its parameters:

We show no disrespect to the Supreme Court by 
suggesting that the scope of Patterson is uncertain. The glory of the Anglo-American 
system of adjudication is that general prin 
ciples are tested in the crucible of concrete 
controversies. A court cannot bê  assumed to 
address and resolve in the case in which it 
first lays down a rule every controversy 
within the semantic reach of the rule.

Patterson).

- 1 5 -



B.

Having established that Patterson did not address whether 
discharge is prohibited by Section 1981, we now must decide whether 
discriminatory discharge is actionable under either the right to 
make or the right to enforce contracts. Because protection from 
racially motivated deprivations of contracts is essential to the 
full enjoyment of the right to make contracts, we hold that dis­
criminatory discharge continues to be actionable under Section 
1981.20 Discharge is fundamentally different from racial harass­
ment or discrimination in the terms or conditions of employment. 
An employee who is harassed or subjected to discriminatory terms * 35

20While discharge impairs the right to make contracts it does 
not ordinarily impair the right to enforce contracts as descri]bed 
in Patterson. See 109 S. Ct. at 2373. The discharged employee is 
free to simply go into court and file suit. However, when an 
employer retaliates against an employee by discharging her for 
attempting to enforce her Section 1981 rights, this very .̂impai? the employee's ability to enforce her contract rights within 
the meaning of Section 1981 because it may intimidate her int 
refraining ̂froro resorting to the legal process to'Vindicate her. 
Section 1981 rights. See Malhotra, 885 F.2d at 1314 j., concurring) (noting in dicta that retaliatory discharge 
continues to be actionable after Patterson)7 Enqlish v. General 
gSv corn.. 717 F. supp. 628, «2-33 (N.D 111 1989) (P«tterggn
leaves retaliatory discharge action intact); Jordan v. U.S. west 
Direct CO.. 716 F. Supp. 1366, 1368-69 (D. Colo. l^Mretaliatron 
claims actionable after Patterson under right to enforce contract): 
But see Sherman v. Burke Contracting, Inc,., 891 F.2d 1 5 2 7,,1534
35 (11th Cir. 1990); (retaliatory discharge no longer actionable
under Section 1981 after Patterson) ; Overby v. chevroI\ USA»884 F. 2d 470, 472-73 (9th Cir. 1989) (same) ; Alexander v. N. Y_i.
Medical College, 721 F. Supp. 587, 588 (s-D-N-Y* 1989) (S^ ^ 'Williams v. National R.R. Passenger Cor^, 716 F. Supp. 49 5
(D D C. 1989) (retaliation not actionable under Section 1981 
beiaus4 right to enforce contracts unimpeded); Oangerf leld^  
Mission Press, 50 Fair Empl. Prac. Cas. (BNA) 1171, 1172 (N.D^ 111- 
1989) (same). Cf. Fowler v. McCrory Cor^., No. JFM-87 1610 (D. Mb.
Dec. 22, 1989) (white employee discharged after f<J^hirewith local agency claiming that employer directed him not to hire 
all blacks has a cause of action under Section 1981 for of his own right to "give evidence," and has third-party standing 
?o assert a violation of blacks' Section 1981 right to make
contracts).

- 1 6 -



or conditions of employment still receives the fundamental benefit 
of his or her employment contract-the employment itself--even 
though that employment may be unpleasant, degrading, or obnoxious, 
in distinction, discriminatory discharge goes to the very existence 
and nature of the employment contract. A discriminatory discharge 
completely deprives the employee of his or her employment, the very 
essence of the right to make employment contracts.

When construing Section 1981, we are mindful of our obligation 
to construe a statute in a fashion which gives meaningful effect 
to the rights it confers, not to negate them. McCown v. Heidler, 
527 F.2d 204, 207 (10th Cir. 1975). In fact, we are required to
generously interpret the Civil Rights Act of 1866, from which 
Section 1981 is derived, "•accord[ing] it a sweep as broad as its 
language."' .Tones v. Al^ d  H. Maver Co., 392 U.S. 409, 437 (1968) 
(Jones) (quoting Tin-i ted States v. Price, 383 U.S. 787, 801
(1966)).21 We refuse to construe Section 1981 as prohibiting an 
employer from refusing to hire someone based on her race, but then 
permitting the discharge of that same employee because of her race 
a month or a year later. Such an absurd interpretation would allow 
discriminatory discharge to effectively annihilate the right to 
make contracts. The right to make contracts would be rendered 
virtually meaningless unless it encompasses the right to be free 
from discriminatory deprivations of such contracts. In order to 
give meaning to the right to make contracts free from discrimina­
tion, the right to be free from discriminatory discharge must be

^Recognizing the extent and urgency of the crisis ^  which the 

Rrp°kenridae?n 40? U ^ 1.1 88^97 ** (1971) (interpreting 42̂  U.S.C.
s ^ 8i 5((3i>»s(, i,>)8.2):1 (̂ erpyreAnth Nos. 88-1353, 88-2830, and 88-2876, slip op. at 19 <— r .qrqi (notinq broad construction rule, court
interprets 242 to. cover civil conspiracy
motivated by racial animus towards whites).

- 1 7 -



implied. See Luria v. United States, 231 U.S. 9, 24 (1913) (that
which is clearly implied in a statute is as much a part of the law
as what is expressed).22 23 Accordingly, we hold that discriminatory
discharge directly affects the right to make contracts, and there-

23fore is cognizable under Section 1981.

We believe that construing the. right to make contracts as 
encompassing the right to be free from discriminatory discharge 
does not unduly strain the language of Section 1981. See 
Patterson. 109 S. Ct. at 2377. We do not deny that the right to 
make contracts is reasonably susceptible to an interpretation which 
does not extend its protection to prohibit discrimination after the 
contract has been formed.24 Nonetheless, in our view, postforma­

22See also Malhotra, 885 F.2d at 1314 (7th Cir. 1989) (Cudahy, 
J., concurring) (A prohibition against retaliation is a "necessary 
adjunct" to Section 1981 because "[i]f an employee may be fired for 
complaining of discrimination, his [or her] right not to be 
discriminated against is surely vitiated").

23We find the dissent noteworthy not for the issues it 
resolves, but for the questions it raises and leaves unanswered. 
For instance, the dissent suggests that we have applied a different 
standard in analyzing Hicks' claim than the Supreme Court applied 
in Patterson, post at 53, but fails to explain with particulan y 
in what respect we have departed from Patterson. Moreover, 
although the dissent concedes that Patterson did not address 
whether discharge is actionable under Section 1981, post at 53, it 
nevertheless purports to resolve the discharge issue by quoting the 
Patterson holding on harassment, substituting "harassment" with 
the words "discriminatory discharge" in parentheses. Post at 54. 
We agree that Patterson held that racial harassment is not action 
able under Section 1981. However, we do not believe that merely 
inserting "discriminatory discharge" into the Supreme Court s 
holding on harassment sheds light on the question of whether 
discriminatory discharge is prohibited by the rights to make an 
enforce contracts.

24We recognize that a number of federal courts have found, 
often summarily, that discharge is no longer actionable under 
Section 1981 after Patterson. See, e.q_̂ , Rivera v.— — & T.. 
Information Svs.. Inc.. 719 F. Supp. 962, 964-65 (D. Colo. 1989); 
Hall v. County of Cook. Illinois, 719 F. Supp. 721, 723 24 (N.D. 
111. 1989); Crader v. Concordia College, 724 F. Supp. 558, 562 
(N.D. 111. 1989); Alvarez v. Norden Systems,— Inc .̂, 1989 U.S. Dist

- 1 8 -



tion discharge continues to be actionable under the right to make 
contracts when it totally deprives the victim of the fundamental 
benefit the right to make contracts was intended to secure— the 
contractual relationship itself. Indeed, the Patterson Court 
indicated that it is appropriate to examine postformation conduct

LEXIS 9954, at 15 (S.D.N.Y. August 24, 1989); Bush v. Union Bank. 
1989 U.S. Dist. LEXIS 10936, at 2-4 (W.D. Mo. 1989); Copperidge v. 
Terminal Freight Handling Co.. 50 Fair Empl. Prac. Cas. (BNA) 812 
(W.D. Tenn. 1989); Greggs v. Hillman Distributing Co. . 719 F. Supp. 
552 (S.D. Tex. 1989); Leonig v. Hilton Hotels. 50 Fair Empl. Prac. 
Cas. (BNA) 738 (D.D.C. 1989). Cf. Carroll v. General Accident Ins. 
Co. . 891 F. 2d 1174, 1175 (5th Cir. 1990) (without discussing 
discharge issue, court relies on Patterson harassment holding to 
reverse portions of jury verdict based solely on Section 1981 in 
case where plaintiff had claimed racial harassment culminating in 
constructive discharge).

These courts have generally reasoned that discriminatory 
discharge is postformation conduct under Patterson and therefore 
no longer actionable under Section 1981. However, none of these 
decisions discuss the fundamental differences between discharge and 
conduct relating to the conditions of employment. Many of these 
cases fail to seriously consider the implications of Patterson's 
failure to resolve the discharge issue. These decisions also do 
not consider the obligation of the courts to give meaningful 
protection to the right to make contracts, and the absurdity that 
would result if the employer must be nondiscriminatory in hiring 
but can then fire with impunity. Finally, none of these decisions 
consider the legislative history of the 1866 Act or Congress' 
desire to secure to the freedmen the full exercise of the right to 
make contracts regardless of the devices employed by opponents to 
avoid compliance. Because these factors were not adequately 
considered by the courts finding Section 1981 discharge actions 
precluded, we are not persuaded by them.

We also note that several courts have agreed with our conclu­
sion that discriminatory discharge continues to be actionable under 
Section 1981 after Patterson. See. e.g.. Padilla v. United 
Airlines. 716 F. Supp. 485, 490 (D. Colo. 1989) (discriminatory 
discharge directly affects the right to make a contract contrary 
to Section 1981); Carroll v. Elliott Personnel Servs.. 51 Fair 
Empl. Prac. Cas. 1173 (BNA) (D. Md. 1989) ; Birdwhistle v. Kansas 
Power & Light. 723 F. Supp. 570, 575 (D. Kan. 1989) (discharge 
directly related to contact enforcement and is still actionable 
after Patterson); Booth v. Terminix Int'l. Inc.. 722 F. Supp. 675 
(D. Kan. 1989); Gamboa v. Washington. 716 F. Supp. 353 (N.D. 111.
1989) (constructive discharge).

- 1 9 -



mstances to determine whether the right to mak in certain circumstances t ct. at 2376-77.
contracts has been violated. See

tqhi actions for discriminatory 
»“  “U 1  ^ p r e f e r e n c e  for e l a t i o n  and con-

discharge subVertT1 ftfter an employee is discharged,
ciliation. £ee id- at thls point, there is
the employment - l a t ^ p  i s j  ^  ^  eBployment rela-
no relationship to s 9 . refusal to contract,
tionship mates discharge equiva ^ contract on the basis of
Eatterspn notes that actionable under Section 1981 and
race would continue o ^  court ^  ^  troubled by the
Title VII, id- at in preserving the integrity of Title
overlap because considerably when an employment rela-
VII procedures is 1 court held that -[.]t this stage of
tionship does not • mediation and concilia-
the employee/employer relation Tltle there is not yet a
tion procedure would be -  ;ilouing an employee to
relation to salvage. —  discharge under either Section
challenge his or her discnm ina Title VII's mediation and
1981 or Title VII wi longer an employment
conciliation procedures,^because there is
relationship to salvage.

25By noting that our holding °on ̂ w e ^ d o 6 not mean to
preference for mediation a n c o n  shQuld vary depending onsuggest that the scope of Section^ &s Title VII exists.^
whether a Para34 e.Pf^discrimination in the making and en ore Section 1981 prohibits dis<ori P,mYnn v. McCrary,
ment of contracts generally. §££» T T ' drivate school from refusing 160 (1976) (Section 1981 prohibits a priva race); Tillman_v^
to contract with black ? b 4io U.S. 431 (197 3) (Section 1981^motnn-Haven Recreational A s s j n, 41 ^  from denying memberE l f e r E i a^ssociati  ̂ ^  ^  at 2390
ship based on race) . See f u neral application, extending not ("Section 1981 is a statute ° . to aiiContracts") (emphasis in iust to employment contracts but to judgment in part and
original) J '''' “ ov^r“ t S «  l«l S  £dissenting in part). . Mo with 15 or more employees, cJUdiscrimination in - “ f  “ = “ V / t o  ..person[s) engaged in an U.S.C. § 2000e(b) (Title vi

- 2 0 -



Our holding that discharge continues to be actionable under 
Section 1981 also fulfills our obligation to interpret Section 1981 
and 42 U.S.C. § 1982* 26 (1982) (Section 1982) coextensively. Both 
Sections 1981 and 1982 are derived from Section 1 of the Civil 
Rights Act of 18 6 6.27 See General Building Contractors Assoc, v.

industry affecting commerce who has fifteen or more employees . . ."), and hence may protect the approximately 15% of the 
workforce not covered by Title VII. Id. We refer to Title VII 
only to demonstrate that in discharge cases such as this, where the 
coverages of Title VII and Section 1981 do overlap, the mediation 
and conciliation procedures of Title VII are not undermined by allowing Section 1981 actions because an employment relationship 
no longer exists.

264 2 U.S.C. § 1982 provides that " [a] 11 citizens of the United 
States shall have the same right, in every State and Territory, as 
is enjoyed by white citizens thereof to inherit, purchase, lease, 
sell, hold, and convey real and personal property."

27Section 1 of the Civil Rights Act of 1866 provided as 
follows:

Be it enacted by the Senate and House of 
Representatives of the United States in 
Congress assembled, That all persons born in 
the United States and not subject to any 
foreign power, excluding Indians not taxed, 
are hereby declared to be citizens of the 
United States; and such citizens, of every 
race and color, without regard to any previous 
condition of slavery or involuntary servitude, 
except as a punishment for crime whereof the 
party shall have been duly convicted, shall
have the same riaht. in everv State and Terri-
torv in the United States, to make and enforce
contracts, to sue. be parties, and aive evi-
dence. to inherit. purchase. lease. sell.
hold, and convev real and personal propertv.
and to full and ecrual benefit of all laws and
proceedinqs for the securitv of person and
propertv. as is enioved bv white citizens, and
shall be subiect to like punishment, pains.
and penalties as to none other, any law.
statute, ordinance, regulation, or custom, to 
the contrary notwithstanding.

- 2 1 -



Pennsylvania. 458 U.S. 375, 384 (1982); Bunyon, 427 U.S. at 170;
Jones, 392 U.S. at 408. Because of their common origin, the 
Supreme Court has held that where possible, the two sections should 
be given a common interpretation, Tillman v. Wheaton-Haven Reared 
Hon Ass'n. 410 U.S. 431, 439 (1973), and in fact the Court con
sistently has given the sections consistent interpretations, see 
id. at 440; Runyon, 427 U.S. at 170-73; Shaare Tefile congregation 
u Cobb. 481 U.S. 615, 617-18 (1987) (same definition of race
governs Section 1981 and 1982 actions). In Sullivan v. Little 
unnnno Part. Inc. . 396 U.S. 229, 236-37 (1969) (Sullivan), the 
supreme Court held that Section 1982 was violated when a white 
property owner was deprived of his property for advocating the 
rights of a black tenant. The Sullivan Court thus found that 
Section 1982 protects the right to acquire property and the right 
to keep it. By construing Section 1981 to include the right to 
keep a job as well as the right to acquire one, we effectuate the 
rule favoring consistent interpretations of Sections 1981 and 1982.

Moreover, our holding that discharge continues to be action 
able under Section 1981 is in consonance with the unwavering 
commitment of all three branches of the federal government to the 
eradication of racial discrimination,and the special obligation

Act Of April 9, 1866, C. 31, SI. «  ^text currently codified at Sections 1981 and 1982).
28e Q „ Pattprson. 109 S. Ct. at 2371 ("Runyon is entirely• our society's deep commitment to the eradicationconsistent with our society & ^ OT. color of his orof discrimination based on a person s oorietv's consensus

her skin") , id. at 2379 ( " T h e “ /f /skin is a prIISundthat discrimination based on b g  color nor our decisions
wronq of tragic dimensions. Neither o -retreat from“hoCld be interpreted as signaling one inch of ret from
congress' policy to forbid1 dls\rl2m313n0at,1°^en1"a^  jP, concurring in 
as the public, sphere ), . . part) (commitment to

product of4 na\ionaltconsensusothat
o u ^ S o m ^ u n i r ^ ^ ^ d  w\th TacPh individual's rightful expectation

- 2 2 -



Absent clearof the federal .courts to protect civil rights.29 
direction from the Supreme Court, we will not infer that discharge 
from employment, the most severe employment injury of all, is no 
longer cognizable under Section 1981.30

C.

The legislative history of the Civil Rights Act of 1866 (1866 
Act) supports our conclusion that Section 1981 prohibits discharges 
based on race.31 We will consider the context within which the

that her full participation in the community will not be contingent 
upon her race"); Bob Jones Univ. v. United States, 461 U.S. 574, 
593 (1983) ("every pronouncement of this Court and myriad Acts of Congress and Executive Orders attest a firm national policy to 
prohibit racial segregation and discrimination"); Emporium Capwell 
Co. v. Western Addition Community Orq.. 420 U.S. 50, 66 (1975) 
("[p]lainly, national labor policy embodies the principles of 
nondiscrimination as a matter of highest priority").

^See. e.g.. Patsy v. Bd. of Regents. 457 U.S. 496, 503 (1982); 
Mitchum v. Foster. 407 U.S. 225, 242 (1972); Ex parte Virginia, 100 
U.S. 339, 346 (1880). See generally Belknap, Federalism and the 
Protection of Civil Rights. 86 Colum. L. Rev. 1741 (1986); Chambers, Protection of Civil Rights: A Constitutional Mandate for 
the Federal Government. 87 Mich. L. Rev. 1599 (1989).

30Our holding that discriminatory discharge is prohibited by 
Section 1981 also furthers the deterrent purposes of Section 1981. 
See Edwards v. Jewish Hosp.. 855 F.2d 1345, 1351 (8th Cir. 1988) 
(Edwards) (acknowledging deterrent purposes underlying Section 
1981). Facilitating the deterrence objectives of Section 1981 in 
employment relationships is particularly important because of the 
debilitating chain reaction that racially motivated discharge from 
employment may trigger. See id. at 1349 ("racial discrimination 
takes its most malevolent form when it occurs in employment, for 
prejudice here not only has an immediate economic effect, it has 
a fulminating integrant that perpetrates the pestilences of 
degraded housing, unsatisfactory neighborhood amenities, and 
unequal education") (citation omitted).

31Because the meaning of the right to make contracts as 
formulated in the Patterson opinion is ambiguous as to whether it 
encompasses discharge, it is appropriate to turn to the legislative 
history of Section 1981 to ascertain whether it sheds light on the 
problem. See Public Citizen v. United States Dep't of Justice,

- 2 3 -



, the evidence before Congress at the time it 
r s i ^ h l  -t, 'and the congressionai debates themseives.

— 7 ^ 7 7 ^ 7 ^ 6 6  (1989) T  W h e r e  the «
statutory term would 'compel hn o lend the term its proper- 9  S. ct. 1981,

Our resort to legislative fj^c^ns^stently * interpreted bothleetion^lSBl^n^igs^with^eferemie to legislative ̂history •

legislative history of Section 1981 at leng tion for damages
3 ?th congress intended to create a <^oseviolated the rights now
against municipal actors an Francis College v ‘ ^ T ^ r n t ^ ”enumerated in Section 1981 . (discusses stat^ents by
481 u.s. 604, 612-13 (198 ‘ > >^rThIIrunderstandxng of race wmembers of Congress «9arding th entitled to the protections of 
ascertain whether Arab n a t i o n a l v cobb, 481 U.S. 615, 
section 1981) ; Shaare T<af 11 t?ve history developed in —*1 7 - 1 8  (1987) (based on legisl . d as a distinct race atKhazraii, Court holds^ that Jews we was df and thus entitled
the time the Civil Rights Act of 1H y. Santa_FejrplJliS^
to protections ° ^ 8 ? - 9 ^
history to determine that ^hJ,te!ta£J8 ̂  q (discusses legislative 
Section 1981); Runyon, 427 U *Sf* 1866 to determine significance of history of Civil Rights Act of I8bb in 1874) ; Tillman v_u
itS reenactment i \ 18™  u S- 431, .435 <1973)
struction^of^ec^ion1 1982 developed f/°“ t ̂ gl-^fdettiled review

g«,-% gsa J M B 5 U  s>
336-37 & n.47 (1989).

nfn.rHnn History and .fehg_Pror r ^ ^ ^^tion) ("most natters ot 

certainties")•
- 2 4 -



Before considering the question of whether racially motivated 
discharges fall within the scope of the 1866 Act as envisioned by 
the 39th Congress, it is important to take note of the context in 
which this Act was proposed, debated and passed.33 The radical and 
fundamental changes occasioned by the Civil War and the abolition 
of slavery are well-documented elsewhere and need not be recounted 
at great length here.34 Suffice it to state that this country had 
just suffered through the Civil War, a terrible conflict which cost 
the most lives of any war in American history. The Civil War was 
unique because it did not present an external enemy, but divided 
the country, pitting two competing economic systems and ways of 
life against one another, each vying for dominance. What began as 
a war to preserve the Union was gradually transformed into a war 
to abolish slavery and inequality based on race. See Sullivan, 
Historical Reconstruction. Reconstruction History, and the Proper

33See General Bldg. Contractors Ass'n v. Pennsylvania. 458 U.S. 
375, 386 (1982) (when interpreting Section 1981, one "must be mind­
ful of the events and passions of the time in which the law was 
formed") (citation omitted); United States v. Price, 383 U.S. 787, 
804 (1966) ("The purpose and scope of the 1866 and 1870 enactments 
must be viewed against the events and passions of the time").

Historians have cautioned on the dangers inherent in citing 
isolated quotations from Reconstruction Era congressional debates 
without understanding the conditions Congress faced and the ideo­
logical beliefs of the Republican majorities in Congress. See E. 
Foner, Reconstruction: America's Unfinished Revolution, 1863-77, 
at 257 n.53 (1988) (Reconstruction).

^For discussions of the changes wrought by the Civil War and 
the increase in the scope of federal authority which resulted, see 
Reconstruction, at 228-80; J. McPherson, Battle Cry of Freedom: 
The Civil War Era, at 859-62 (1988); R. Kaczorowski, The Politics 
of Judicial Interpretation: The Federal Courts, Department of 
Justice and Civil Rights, 1866-1876, at 1 (1985) ("Between the 
years 1866 and 1873, a legal theory of national civil rights 
enforcement authority emerged in the courts of the United States 
that manifested a revolutionary impact of the Civil War upon the 
constitutional and legal structure of American federalism."); 
Historical Reconstruction. 98 Yale L.J. at 547-56, 561-64; 
Kaczorowski, Revolutionary Constitutionalism in the Era of the 
Civil War and Reconstruction. 61 N.Y.U. L. Rev. 863, 874-84 (1986) 
(Revolutionary Constitutionalism) .

- 2 5 -



coone nf Section 1981, 98 Yale L.J. 541, 548-49 (1989) (Historical  
perAngtmction) . Despite the northern victory, public and private 
efforts to continue the subjugation and degradation of the freed 
slaves were rampant in the South.

35The thirteenth amendment was ratified on December 6, 1865.
Despite the ratification of the amendment, many members of Congress 
believed that broader and more explicit statutory guarantees were 
necessary if the newly freed slaves were to have "more than parch­
ment rights." J. tenBroek, Equal Under Law, at 175 (1965).
early 1866, the 39th Congress was well aware of the ubiquitous 
public and private discrimination against the freedmen in the 
South.54 Many Republicans believed that such discrimination 
threatened to make a mockery of the thirteenth amendment, if not 
actually precipitate a return to slavery. See Historical Recent 
Strnction. 98 Yale L.J. at 548. Many northerners had come to the 
uneasy conviction "that somehow the South had never really 
surrendered after all." See Kaczorowski, Revolutionary Constitu. 
einnelism in the Fra of the Civil War and Reconstruction, 61 N.Y.U. 
L Rev. 863, 871 (1986) (Revolutionary Constitutionalism)■ As a
result, some in Congress came to believe that the enactment of 35 36

35The thirteenth amendment provides.
Section 1. Neither slavery nor involuntary 
servitude, except as a punishment for crime 
whereof the party shall have b ^ n  duly 
convicted, shall exist within the United 
States, or any place subject to their 
jurisdiction.
Section 2. Congress shall have power to enforce this article by appropriate 
legislation.

36 _ ,Q, T1 c at 427 ("'Accounts in newspapers North
and sou^, K  - e a u \ ^  o f  er official docum t private

(quoting J. tenBroek, Equal Under Law, at 181 (
- 2 6 -



legislation protecting the freedmen was necessary in order to 
codify into law the military resolution of the Civil War. Id. A 
major focal point of the conflict between the Republican Congress 
and the South concerned the establishment of a free labor contract 
system to replace slavery. On the one hand, many northerners and 
black leaders saw a vigorous free labor contract system as a key 
to practical freedom. They believed that the free labor contract 
would be a substitute for slavery and constitute the backbone of 
a totally new system. See Historical Reconstruction. 98 Yale L.J. 
at 549-50, 556. White southerners, on the other hand, "bitterly 
resisted the creation of a free labor market as implied by 
emancipation." E. Foner, Reconstruction: America's Unfinished 
Revolution, 1863-77, at 132 (1988) (Reconstruction) (citation 
omitted). Southerners insisted that "[f]ree labor assump­
tions— economic rationality, internal self-discipline, responsive­
ness to the incentives of the market— could never . . .  be applied 
to blacks." Id. White planters recognized that the free labor 
contract would seal the demise of the plantation labor system, and 
bitterly resisted its implementation. In sum, the 39th Congress 
debated and passed the 1866 Act within a context characterized by 
the end of the Civil War, northern fear and anger over deprivations 
of freedmen rights in the South, and southern resistance to the 
implementation of the free labor contract system.37

37The importance of the free labor contract for reordering 
southern society, and the resistance its introduction engendered, 
has been succinctly described as follows:

[Republican] leaders recognized that the 
abolition of slavery, having destroyed the 
labor system that had existed for two 
centuries in the Southern states, necessarily 
called for the creation of a new labor system, 
for "the formation of new civil arrange­
ments." . . . Southern whites likewise con­
ceived of the labor question as the driving 
issue of public policy . . . Former masters 
were neither prepared nor disposed to deal 
with former slaves on the grounds assumed by 
free labor ideology. They struggled to

- 2 7 -



At the time it considered the 1866 Act, the 39th Congress had 
before it substantial evidence documenting widespread denials of 
the freedmen's right to enjoy the meaningful benefits of contract. 
The debate over the 1866 Act effectively began with Congress 
receipt of a report by Major General carl Schurz on conditions in 
the south. S. Exec. Doc. No. 2, 39th Cong., 1st Sess. (1865) 
(Schurz Report). See Jones, 392 U.S. at 428-429; Historical
pprnnstmction. 98 Yale L.J. at 553. In addition to documenting 
the emergence of the Black Codes, the Schurz Report detailed the 
various private devices used to deny the freedmen their rights. 
See schurz Report at 17-20 (persecution and violence against
freedmen), 21-22 ("General Ideas And Schemes Of Whites Concerning 
The Freedmen"). The Schurz report noted that even if al
discriminatory statutes and orders were repealed, equal treatment 
would still not be secured. Jones, 392 U.S. at 429. Schurz was 
careful to note that the denial of equal treatment was particularly
common in contract relations. ,

The Schurz Report placed substantial emphasis on southern 
resistance to the "new order of things"~the replacement of slave 
labor with the free labor contract system. See, id. at 16-
19, 21-22, 37-40. Schurz observed that the vast majority of
southern whites believed that blacks simply would not work without 
physical compulsion, id. at 1638, and that only a small minority of 
southern whites were attempting to adopt to the new contract labor

recreate the discipline and control of a slave 
system, while the Freedmen struggled to 
discover freedom as independent workers.
Reconstruction, 98 Yale L.J. at 549 (citation omitted)

side " S ?  ̂ o l r ^ ^ S e r ^ c i e t i e l ^ h i S , 6 hlTeTperTenc^emanci-

of coerced labor could the production of plantation staples be 
resumed.").

- 2 8 -



system. Id. at 38. Schurz warned that southern employers were 
attempting to "[ajdhere, as to the treatment of laborers, as much 
as possible to the traditions of the old system, even where the 
relations betweens employers and laborers had been fixed by 
contract." Id. at 19.

Significantly, Schurz reported that former masters generally 
did not refuse to contract with their former slaves, but instead 
undermined the establishment of the free labor system by refusing 
to pay wages earned or by trying to reintroduce practical slavery 
through the imposition of onerous contract terms. See id. at 22 
("many ingenious [southern] heads set about to solve the problem, 
how to make free labor compulsory"); Historical Reconstruction, 98 
Yale L.J. at 553-54. Many southerners impeded the introduction of 
the contract system by "throw[ing] obstacles in its way," id. at 
39, or by "adulter[ating] the new order of things by the admixture 
of elements belonging to the system of slavery." Id. at 40.

c
I

Schurz cogently summarized the problem facing the 39th 
Congress as follows:

The true nature of the difficulties of the 
situation is this: The general government of 
the republic has, by proclaiming the emanci­
pation of the slaves, commenced a great social 
revolution in the South, but has, as yet, not 
completed it. Only the negative part of it is 
accomplished. The slaves are emancipated in 
point of form but free labor has not yet been 
put in the place of slavery in point of fact.

Schurz Report at 38. In fact, Schurz was so concerned over 
southern resistance to the implementation of the free labor 
contract system that one of his key recommendations was to extend 
the time period of federal control over the southern states (and 
postpone their readmission into the Union) until the free labor 
contract system was firmly established. See id. at 39 ( The facts

- 2 9 -



enumerated in this report-,-as well as the news we receive from the 
[S]outh from day to day, must make it evident to every unbiased 
observer that unadulterated free labor cannot be had at present, 
unless the national government holds its protective and controlling
hand over it.").

The 39th Congress also considered the report of Major General 
Oliver 0. Howard, the head of the Freedmen's Bureau. H.R. Exec. 
DOC. No. 11, 39th Cong., 1st Sess. (1866) (Howard Report). The 
Howard Report detailed the widespread use of corporal punishment, 
the fraudulent deprivation of freedmen's wages, the formation of 
combinations to extort the freedmen, and the general refusal of 
whites to fulfill their contracts with freedmen. See Howard Report 
at 25, 28, 30, 32. Howard believed that the southerner's
reluctance to embrace the contract labor system arose from "the 
prejudice of the employer, and want of practical knowledge of any 
other system than the one under which he has been brought up . .
Id. at 32. Howard also documented the important role of the 
Freedmen's Bureau in implementing the free labor system by exhort­
ing parties to fulfill their contracts and resolving disputes when 
they arose. See id. at 32-35. Like Major General Schurz, Major 
General Howard focused on practical resistance to the 
implementation of the contract system through the devices of 
private parties. See Historical Reconstruction, 98 Yale L.J. at
554 .

The Joint Committee of Fifteen on Reconstruction (Joint Com­
mittee) conducted hearings to examine conditions in the southern 
states contemporaneously with Congress' consideration of the 1866 
Act. Testimony before the Joint Committee established that 
although "[f]ormer masters generally were willing to go through the 
motions of 'contracting* with the Freedmen for their labor," the 
emancipated slaves did not receive the true benefits of the con­
tract labor system because of the discriminatory imposition of low 
wages and onerous working conditions. Because former masters

- 3 0 -



balked at paying fair wages, "there was no possibility that the 
freedmen would be able to contract meaningfully; to sell their 
labor." Id. at 555 n.95 (citing congressional testimony) (emphasis
added).

Congress debated and passed the 1866 Act against this sub­
stantial evidence of resistance to the creation of an "unadul­
terated" contract labor system. The evidence before Congress 
documented that the emancipated slaves were not generally denied 
the right to enter into contractual relationships per se, but 
instead were denied the meaningful rights and benefits attendant 
to bona fide contractual relationships. Congress was therefore 
aware that the right to make and enforce contracts needed to be 
fully protected in order to insure the replacement of slavery with
a free labor system.

We believe the rights "to make and enforce contracts" must be 
interpreted in reference to the abuses Congress had knowledge of 
and intended to address. The rights conferred in Section 1981 come 
"freighted with the meaning imparted to them by the mischief to be 
rp.medied and bv contemporaneous discussio_n. In such conditions 
history is a teacher that is not to be ignored." Ouparquet Co., v^ 
Evans. 297 U.S. 216, 221 (1936) (Cardozo, J.) (emphasis added)
(citation omitted). The 1866 Act was intended to effectively 
respond to the abuses Congress specified. Its means were com­
mensurate with the evils perceived. See Historical Reconstruction,
98 Yale L.J. at 547.

The debates themselves also demonstrate Congress' intention 
to accord meaningful protection to the rights enumerated in the 
1866 Act. On January 5, 1986, less than one month after the
ratification of the thirteenth amendment, Senator Trumbull of 
Illinois introduced Senate Bill 61, which eventually became the 
Civil Rights Act of 1866. Senator Trumbull described the need for 
the 1866 Act when introducing it to the Senate:

- 3 1 -



M r. P r e s i d e n t ,  I  r e g a r d  t h e  b i l l * °  w h ic h  t h e  
a t t e n t i o n  o f  t h e  S e n a te  i s  now c a l l e d  a s  t h e  
m o s t im p o r t a n t  m e a s u re  t h a t  h a s  b e e n  under  i  
c o n s i d e r a t i o n  s in c e  t h e  a d o p t io n  o f  t h e  co  
s t i t u t i o n a l  am endm ent a b o l i s h i n g  s la v e r y  
? h a t  am endm ent d e c la r e d  t h a t  a l l  p e rs o n s  
t h e  U n i t e d  S t a t e s  s h o u ld  b e  f r e e  T h is
m e a s u re  i s  in t e n d e d  t o  g iv e  e f f e c t  t o  t h a t  
d e c l a r a t i o n  a n d  s e c u r e  t o  P®r ®° n : i s
t h e  U n i t e d  S t a t e s  p r a c t i c a l  f r e e d o m .  
v e r v  l i t t l e  im p o r ta n c e  i n  t h e  g e n e r a l  d e c l a r  
Ti7n  o f  a b s t r a c t  t r u t h s  an d  p r i n c i p l e s  u n le s s  
t i e y  c a n  b e  c a r r i e d  i n t o  e f f e c t  u n le s s  t h e  
p e rs o n s  who a r e  t o  b e  a f f e c t e d  b y  th e m  h a v e  
some m eans o f  a v a i l i n g  th e m s e lv e s  o f  t h e i r  
benefits.

Cong. Globe, 39th 
Senator Trumbull, 
all discrimination

Cong., 1st Sess. 474 (1866). According to 
the purpose of the 1866 Act was to "break down 
between black men and white men." Id. at 599.

Both supporters and opponents of the 1866 Act understood the 
broad scope of the rights it secured.1’ According to its sponsor, 
senator Trumbull, the Act would affirmatively secure those fun^ 
mental rights belonging to every man as a free man," inc u ±n<3 
right to make and enforce contracts. Id- at 476. The rights 
specified in the 1866 Act were those thought to be essen la o 
life, liberty, and property. See P e v o lutionary ronstitutiona ism, 
61 N.Y.U. L. Rev. at 924-25. Indeed, much of the congressional 
debate centered on the broad language of the act. See Note 
tc a pece Not . P"™?: Contemporary Issues Under the Civil Rights
Act, of 1866, 61 N.Y.U. L. Rev. 976, 982 (1986).

Like the other rights enumerated in the 1866 Act, Congress 
intended to accord full protection to the rights to make 39

39See Jones, 392 U . S .  at 433 ( ' would i^eed.have
rndSWasePS  greatest danger*by* i -  enemies but was disputed by 
none.").

- 3 2 -



enforce contracts. Although there is no explicit discussion about 
whether the rights to make and enforce contracts prohibit dlsorl“ - 
natory discharge, it is clear that Congress wanted to assure the 
economic independence of freedmen by protecting their rig 
acquire and keep a job:

CThe 1866 Act] merely provides safeguards to 
shield [the freedmen] from wrong and outrage, 
and to protect them in thelowest right of human nature, the right 
exist Its object is to secure to a poor, 
weak class of laborers the right to make con­
tacts for their labor, the power to enforce 
the payment of their wages, am|_yy
h o l d i n g  a n d  e n v y in g  t h e  p r o c e e d s-----------------------
toil. Who can deny them this.

Cong. Globe, 39th Cong., 1st Sess. 1159 (remarks of Representative 
Windom) (emphasis added). Moreover, Congress was »ot concerne 
with protecting the right to make contracts in the abstract, the 
intention was to protect the freedmen's right to engoy the rewar s 
of their labor free from discrimination:

It is idle to say that a citizen shall have 
the right to life, yet, to deny him the righ| 
to labor, whereby alone he can live. mockery"to say that a citizen may have a right To Tile,and yet deny him the right to make a 
contract tn secure the privilege and the 
rewards of labor.

Cong. Globe, 39th Cong., 39th Cong., 1st Sess. 1833 (remarks of 
Representative Lawrence) (emphasis added). In our view, a person 
who is discharged because of his or her race is denied the rig 
to labor and secure its benefits in the same way that a person 
is not hired because of race is denied this right. When Confess 
protected the rights to make and enforce contracts, it intended 
protect the right to contract and the right to receive the benefit
of contract.

- 3 3 -



The legislative debates are also replete with references to 
the fact that the 1866 Act was necessary in order toi give rea 
meaning to the thirteenth amendment. See, SL^u, Cong. o '
Cong., 1st Sess. 474 (1866) (remarks of Senator Trumbul (
measure is intended to give effect to (the thirteenth amendment] 
and secure to all persons within the United States P-ctl 
freedom."); id. at 1151 (remarks of Representative Thayer^ <18 
Act necessary to avoid rendering the thirteenth amendment a met 
paper guarantee"). See also (Tones, 392 U.S. at 433 ( like the
Senate, the House was moved by a larger objective [when passing the 
1866 Act,-that of giving real content to the freedom guaranteed 
by the Thirteenth Amendment"). A majority in congress believed 
that section two of the amendment gave it authority to enac 
positive legislation to remove the badges and - C l d e n t s o  
slavery.40 Section two of the thirteenth amendment clothe[ ] 
Congress with power to pass
a hoi i shi no all end incidents of slavery in the Unij ^
States.'" Jones, 392 U.S. at 439 (emphasis in Jgnesi (quot g 

Riohts Cases, 109 U.S. 3, 20 (1873,)/’ We believe that 
discharge based on race, like the refusal to contract, would have 
been viewed as another form of resistance to the creation of a

4o" 39th Conq., 1st Sess. 322 (remarks ofSee, o• q» » Globe, . . . nnf?PI- rsection two] .Senator Trumbull) ("I have no doub in civil rights against
we may destroy all these discrimi constitutional amendment
the black man; and if we ca"no.t'51°Ufremarks of Representative amounts to nothing"); id. at 1151 0°f the [thirteenth
Thayer) ("when I voted for the °g\ven to Congress
amendment, I felt certain]. * * hi h the first section gave
ability to protect . . • ^  Senator Hward) (Section two of the. . ."); id. at 503 (remarks of Senator *°thoritv to enact positive
thirteenth amendment gave Congres: h slaveholders to the "losslegislation to combat the resistance
of their property").

( p u J f S ^ c r S t '  o/lL^thfrteenth
^  inbc effective

legislation) (citations omitted).
- 3 4 -



free labor system, and was one of the "badges and incidents" of 
slavery that Congress intended to eradicate when prohibiting 
discrimination in the making and enforcement of contracts.

The Senate passed the 1866 Act by a 33-12 vote on February 2, 
1866, less than a month after Senator Trumbull introduced it. The 
House passed the measure on March 13, 1866 by a margin of 111 to 
38, with 34 not voting. On March 27, 1866, President Andrew
Johnson vetoed the Act. Similarly large majorities overrode the 
President's veto, and on April 9, 1866 the 1866 Act became law. 
Congress debated and passed the 1866 Act with full consciousness 
of the unprecedented rights it conferred and the dramatic expansion 
of federal authority it entailed. Despite its far-reaching scope, 
the 1866 Act was seen as a necessary response to the crisis pre­
cipitated by the Civil War, emancipation, and post-war southern 
resistance. Senator Morrill expressed the sentiment of many when 
he remarked, "I admit that this species of legislation is abso­
lutely revolutionary. But are we not in the midst of a revolu­
tion?" Cong. Globe, 39th Cong., 1st Sess. 570.

This review of the context of the debate, the evidence before 
Congress, and the debates themselves is instructive in two key 
respects. First, the replacement of slavery with the free labor 42 43

42The 39th Congress' override of President Johnson's veto of 
the Civil Rights Act of 1866 was the first time Congress had ever 
overridden the President on a major political issue. Many in 
Congress took satisfaction in the fact that the override was in 
favor of a statute guaranteeing equal rights for all, rather than 
in a dispute over an economic issue such as the imposition of 
tariff. See Jones, 392 U.S. at 435 n.70.

43See Cong. Globe, 39th Cong., 1st Sess. 1151-55 (remarks^ by 
Representative Thayer describing the Thirteenth A ^ m e n t  as * "revolutionary measure" and the 1866 Act as necessary to carry to 
its legitimate and just result the great humane revolution to which 
I have referred"). See also Historical Reconstruction, 98 Yal
L.J. at 546-47 & n.38.

- 3 5 -



contract system was a cornerstone of northern reconstruction 
policy. The free contract system was seen as essential to the 
radical reordering of southern society. Secondly, Congress was 
quite conscious of the multitude of devices used to deny the 
freedmen the meaningful exercise of their rights, including their 
rights to make and enforce contracts. Congress therefore passed 
an intentionally broad act, in order to insure the former slaves 
the meaningful exercise of their rights in the face of manifold 
southern resistance.

Given Congress' acquaintance with and concern about the varied 
forms of southern intransigence, we doubt that it would have 
subscribed to an interpretation of Section 1981 that secures the 
equal right of the freedmen to make contracts at the formation 
stage, but then abandons them after the contract is formed, 
congress could not have been so naive as to believe that nothing 
more needed to be done other than to secure the right to enter into 
contracts. We do not believe that Congress would have countenanced 
an interpretation of the 1866 Act which made it susceptible to such 
easy subversion. This could not have been the intended fate of the 
1866 Act, which was designed to secure "freedom in fact." Cong. 
Globe, 39th Cong., 1st Sess. 476 (remarks of Senator Trumbull). 
Because of the importance of the free labor contract to the 
envisioned transformation of the South and the evidence of resist­
ance to its implementation that Congress considered, we believe 
that Congress could have only intended that the 1866 Act be inter­
preted to secure the meaningful exercise of the rights to make and 
enforce contracts. The historical context, evidence before 
Congress, and legislative history of the 1866 Act thus buttress our 
conclusion that the right to make contracts forbids discriminatory
discharge.

For the reasons discussed above, we hold that discriminatory 
discharge continues to be cognizable under Section 1981, and Brown

- 3 6 -



Group's argument that Patterson precludes actions for discrimina-
. 44tory discharge is rejected.

III. Sufficiency of the Evidence

Brown Group next argues that the district court erred in 
denying its motion for a JNOV because the jury's finding of 
discrimination was clearly erroneous and not supported by suffi­
cient evidence. We review the district court's denial of a motion 
for a JNOV under the well—settled standards set forth in McGee—Vj. 
South Pemiscot School District R-V:

Both the trial court and this Court must 
(a) consider the evidence in the light most 
favorable to the prevailing party, (b) assume 
that the jury resolved all conflicts of evi­
dence in favor of that party, (c) assume as true all facts which that party's evidence 
tended to prove, (d) give that party the 
benefit of all favorable inferences which may 
reasonably be drawn from proved facts, and 
(e) deny the motion if in light of the above 
reasonable jurors could differ as to the 
conclusions that could be drawn from the 
evidence.

712 F. 2d 339, 343 (8th Cir. 1983) (McGee) . Applying these
principles to the jury's finding of intentional discrimination, we

“ Because we hold that discriminatory discharge is actionable 
under Section 1981, we need not address whether Patterson should 
be retroactively applied to Hicks's case. Compare Hall— v_.— County 
of Cook. 719 F. Supp. 721, 725 n.3 (N.D. 111. 1989) (Patterson 
decision retroactively applied to dismiss plaintiff's Section 1981 
discharge claim) with Gillespie v. First Interstate Bank— of 
Wisconsin Southeast. 717 F. Supp. 649, 651 n.2 (E.D. Wis. 1989) 
(Patterson decision not retroactively applied to reverse jury award 
based on Section 1981 harassment and discharge claims).

- 3 7 -



hold that the district court did not err in denying Brown Group's 
motion for a JNOV.45

Viewing the evidence in the light most favorable to Hicks, it 
is clear that at a minimum, the jurors could differ as to the 
conclusions that could be drawn from the evidence. Brown Group 
maintains that Hicks was terminated because Chester had more 
experience on the raw materials dock and was better qualified to 
handle the job. Rich Williams testified that he also based his 
decision on the fact that he believed Hicks was an emotional 
supervisor who would waive his hands and verbally abuse his * 15

45We disagree with Brown Group's contention that because this 
is a reverse race discrimination case, Hicks was required to prove 
the existence of "background circumstances support[ing] the 
suspicion that defendant is the unusual employer who discriminates 
against the majority." Lanohear v. Prokop, 703 F.2d 1311, 1314-
15 (D.C. Cir. 1986) (Lanohear) (citation omitted). See also 
Bishooo v. District of Columbia. 788 F.2d 781, 786 (D.C. Cir. 1986) 
(Bishopp). We need not decide the impact of Lanohear and Bishopp 
because they both address whether or not a member of the majority 
race has come forward with sufficient evidence to make out a prima 
facie case of race discrimination. In this case, after hearing all 
of the evidence, the jury found that Brown Group discriminated 
against Hicks because of his race. We do not review the evidence 
to determine whether or not Hicks made out a prima facie case. See 
United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 
711, 715 (1983) (after all the evidence is before the court, the 
factfinder must decide if the defendant intentionally discriminated 
against the plaintiff, and whether the plaintiff has made out a 
prima facie case "is no longer relevant"); Tolan v. Levi Strauss 
& Co.. 867 F.2d 467, 469 (8th Cir. 1989) (Tolan) (On appeal from 
a finding of discrimination, "this court does not review the evi­
dence presented by the parties at any given stage of the proceed­
ings. Instead, we must review the record to determine whether the 
evidence supports the jury's ultimate finding of . . . discrimi­
nation."); Estes. 856 F.2d at 1100 (8th Cir. 1988) (court rejects 
defendant's "case-within-a-case" contention that plaintiff must 
prove the sufficiency of his or her prima facie case before the 
sufficiency of proof regarding defendant's intent can be 
addressed). We need only decide whether, viewing the evidence in 
the light most favorable to Hicks, reasonable jurors could find 
that Brown Group discriminated against Hicks. See id. ; McGee v. 
South Pemiscot School Dist. R-V. 712 F.2d 339, 343 (8th Cir. 1983) 
(McGee) . We express no opinion on the elements of a prima facie 
reverse race discrimination case.

- 3 8 -



subordinates. Williams also testified that Hicks had told him he 
was not happy about relocating to the Benton terminal or being 
forced to accept a pay cut.46 Brown Group claims that Hicks did 
not contradict this explanation or show that it was pretextual. 
We disagree. While it is true that Hicks did not challenge 
Chester's general qualifications, Hicks did present evidence chal­
lenging Williams' assessment of his qualifications for the job. 
In the last written performance evaluation received by Hicks, the 
grade he received from Williams for acceptability as a company 
representative in plant and community was "[e]xcellent, exceeds job 
requirements, highly commendable, creative thinker." Williams 
conceded that he knew nothing about Hicks' and Chester's per­
formance at the Chouteau Avenue warehouse, where they had worked 
for over two years before their 1982 transfers to the Benton 
terminal. Williams also admitted that he did not consult with any 
of the people who worked with Hicks and Chester at the Chouteau 
Avenue warehouse regarding their respective job performances. 
Williams further acknowledged that the operations at the Benton 
terminal were chaotic before Hicks arrived. Williams also observed 
Hicks' performance for only about a month before deciding to fire 
him, and completed no performance evaluation of his work while he 
was at the Benton terminal. Brown Group also admitted at trial 
that Hicks performed his duties in a competent and satisfactory 
manner. Hicks denied telling Williams that he was unhappy at the 
Benton terminal or that he wanted more money. Based on these 
facts, the jury could have concluded that Brown Group's explanation 
for discharging Hicks was pretextual.

The jury could also have found that Hicks was as well or 
better qualified than Chester. In addition to Hicks' greater 
overall experience with Brown Group, the jury may have believed

46As a condition for relocating to Benton, Hicks and Chester 
were required to accept a pay cut from $414.00 per week to $325.00 
per week. After Hicks was terminated and Chester took over the 
night shift, he was given a $25.00 raise.

- 3 9 -



that Hicks had more experience as a full-fledged supervisor because 
Chester's evaluation forms described his position as "assistant 
supervisor" as recently as September 1978. The jury could have 
found that Hicks was better suited to be the night shift supervisor 
at the Benton terminal because he had supervised the night shift 
on the raw materials dock at the Chouteau Avenue warehouse for two 
years immediately before his transfer to the Benton terminal, 
whereas the bulk of Chester's experience was on the day shift.47

Other competent evidence existed from which the jury could 
have inferred that race made a difference in Hicks' discharge. 
For example, the jury could have chosen to credit Hicks' testimony 
about the evasive answers and "side smirk" given by Williams when 
Hicks asked him whether he was terminated because he was white and 
Chester was black. A decisionmaker's evasiveness or inconsistency 
in articulating the reasons for a discharge has been found to 
constitute evidence of discrimination. See Brooks v. Woodline 
Motor Freight. Inc.. 852 F.2d 1061, 1064 (8th Cir. 1988); United 
States v. Wolf. 839 F.2d 1387, 1395 n.5 (10th Cir.) ("[w]here a 
person hears, understands and has the opportunity to deny an 
accusatory statement made in his presence, the statement and his 
failure to deny it are admissible against him as an adoptive admis­
sion"), cert, denied. 109 S. Ct. 304 (1988). The jury also could 
have credited Hicks' testimony that he was told by his superiors 
on three separate occasions that seniority was used to decide which

47Contrary to Brown Group's suggestion, we do not believe that 
our decision in Holley v. Sanyo Mfq. , Inc. . 771 F.2d 1161 (8th Cir. 
1985) (Holley) . requires us to reverse the jury's finding of 
intentional race discrimination. First, Holley is an age dis­
crimination case, and it is unclear whether its principles apply 
to Section 1981 race discrimination claims. More importantly, 
"[i]n Holley. the plaintiff presented absolutely no evidence from 
which the jury could reasonably infer discriminatory animus." 
Estes, 856 F.2d at 1101. Such is clearly not the case here. 
Viewing the evidence in the light most favorable to Hicks, evidence 
existed from which the jury could have reasonably inferred 
intentional race discrimination.

- 4 0 -



supervisor would receive available jobs or assignments. The jury 
could have found that Brown Group had a policy to make employment 
decisions based on seniority, and that it violated this policy by 
terminating Hicks despite the fact that he had more overall and 
supervisory seniority than Chester. Brown Group further 
acknowledged that it had an affirmative action policy. The jury 
a so considered Brown Group's EEO- 1 Employer Information Report 
which documented a paucity of black employees in important jobs 
categories. Based on Brown Group's affirmative action plan and the 

report, the jury could have inferred that Chester was 
retained and Hicks terminated in order to increase the percentage 
Of minorities in supervisory positions.

Our role is not to review the evidence de novo. We express
no opinion on whether or not Hicks was in fact discharged because
° his race. We hold only that, viewing the evidence in the light
most favorable to Hicks, the jury could reasonably have inferred
that he was discharged because of his race. See Estes v.
Smith Ford, m e . , 856 F.2d 1097, lloo (8th cir. 1988). Because
reasonable jurors could have differed as to the conclusions that
could be drawn from the evidence, the district court did not err
in denying Brown Group's motion for a JNOV. See McGee, 712 F 2d 
at 343.

IV. Intentional Discrimination

Brown Group also alleges that the jury instructions and 
special interrogatories submitted by the district court permitted 
.* lury to find a Section 1981 violation without proof of inten­

tional discrimination. At trial. Brown Group objected to Instruc­
tion No. 9 on the ground that it lessened the requisite standard 
of proof in a Section 1981 case. Instruction No. 9 provided that 
[p] aintiff is required to prove that his race or his age was 

ei her a determining factor or a discernible or motivating factor 
in the defendant's decision to remove plaintiff from his posi-

- 4 1 -



tion."48 Brown Group also objected to Special Interrogatory No. 7 
for the same reason that it objected to Instruction No. 9.

In order to establish a Section 1981 violation, intentional 
or purposeful discrimination must be proven. General— Bldq^ 
Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391 (1982);
Edwards v. Jewish Hosp. . 855 F.2d 1345, 1351 (8th Cir. 1988)
(Edwards). Considered as a whole, the jury instructions and 
Special Interrogatories adequately instructed the jury that Hicks 
was required to prove intentional or purposeful discrimination to 
establish a Section 1981 violation. The district court instructed 
the jury that Section 1981 made it "unlawful for an employer to 
discharge a person intentionally because of that person's race. 
Instruction No. 7. Instruction No. 8 elaborated that "[a]n act is 
done 'intentionally* if it is done knowingly and voluntarily and 
not because of mistake, accident, or other proper reason." 
Instruction No. 10 further provided that "an employer may lawfully 
terminate an employee and retain a younger employee who is of a * 49

^Instruction No. 9 defines "determining factor" and "discern­
ible or motivating factor" as follows:

The term "determining factor" means a factor 
which made a difference in determining whether 
or not plaintiff was to be retained or 
terminated.
The term "discernible or motivating factor" 
means a factor which was one among two or more 
factors that played a part in, but did not 
necessarily control, the decision whether or 
not to retain or to terminate plaintiff.

49Interrogatory No. 7 provides:
Do you, the jury, unanimously find by a 
preponderance of the evidence that the 
defendant Brown Group, Inc., intentionally 
discriminated against plaintiff Kenneth Hicks 
on account of his race in that his race was a 
discernible or motivating factor in his 
termination from employment by defendant?"

- 4 2 -



different race, unless the employer's decision to do so is inten­
tionally motivated by race or age." Special Interrogatories 5  

and 7 also asked specifically about intentional race discrimi­
nation. "Where the instructions, considered as a whole, ade­
quately and sufficiently state the generally applicable law, the 
fact that the instructions are technically imperfect or are not a 
model of clarity does not render the charge erroneous." Tribble 
v, Washington, 669 F.2d 1193, 1197 (8th Cir. 1982) (citations
omitted), cert, denied, 460 U.S. 1080 (1983). So long as the 
generally applicable law is fairly stated, the district court is 
not required to utilize specific language or adopt any given 
sequence when instructing the jury. The jury instructions and 
Special Interrogatories in this case adequately conveyed the
necessity of finding intentional discrimination for a Section 1981 
violation.

V. Punitive Damages

Brown Group next argues that the district court erred in 
denying its motion for a JNOV because punitive damages may not be 
awarded without actual or nominal damages, and the district court's 
award of $1.00 nominal damages by additur after the jury awarded 
punitive damages violated its seventh amendment right to a jury 
trial. Brown Group further contends that the punitive damage award 
was not supported by sufficient evidence of evil motive or reckless 
or callous indifference to Hicks' federal civil rights.

A. Seventh Amendment Claim

We agree that additur is generally impermissible in federal 
actions because it violates the seventh amendment right to a jury 
trial. See Dimick v. Schiedt, 293 U.S. 474, 486-87 (1935); Novak 
~  £-raimn/ 469 F.2d 430, 432 (8th Cir. 1972). However, Brown Group 
misapprehends the significance of the jury's finding of a Section 
1981 violation. Brown Group's seventh amendment right to a jury

- 4 3 -



trial was satisfied when it received a jury trial on Hicks' Section 
1981 claim.50 Its seventh amendment rights were not further impli­
cated by the district court's additur of $1.00 nominal damages, 
because Hicks' proof of a Section 1981 violation automatically 
entitled him to nominal damages.

In Carey v. Piphus, 435 U.S. 247 (1978) (Carey), the Supreme 
Court held that the violation of certain absolute rights may 
entitle the plaintiff to an award of nominal damages even without 
P3-"00  ̂ actual damages, and found that procedural due process was 
one such absolute right:

Common-law courts traditionally have vindi­
cated deprivations of certain "absolute" 
rights that are not shown to have caused 
actual injury through the award of a nominal 
sum of money. By making the deprivation of 
such rights actionable for nominal damages 
without proof of actual injury, the law recog­
nizes the importance to organized society that 
those rights be scrupulously observed; but at 
the same time, it remains true to the 
principle that substantial damages should be 
awarded only to compensate actual injury or, 
in- the case of exemplary of punitive damages, 
to deter or punish the malicious deprivations of rights.

Because the right to procedural due process is "absolute" in the sense that it does not 
depend on the merits of a claimant's substan­
tive assertions, and because of the importance 
to organized society that procedural due pro­
cess be observed, we believe that the denial 
of procedural due process should be actionable

In Setser v. Novak Investment Co. . 638 F.2d 1137, 1140 (8th cert, denied, 454 U.S. 1064 (1981), we held that parties in 
a Section 1981 action had a right to a jury trial of their legal 
claims. Hicks and Brown Group received the required jury trial, 
and the jury found that Brown Group had violated Section 1981 
insofar as Hicks' race was "a determining factor" and "a 
discernible or motivating factor" in his termination. Special Interrogatories Nos. 5 & 7.

- 4 4 -
<3



for nominal damages without proof of actual 
injury.

Id. at 266 (citations omitted). See Hogue v. Clinton. 791 F.2d 
1318, 1323 (8th Cir.), cert, denied. 479 U.S. 1008 (1986).

Relying on Carey. we held in Edwards that the Section 1981 
right to be free from discrimination is absolute and proof of its 
violation entitles the plaintiff to nominal damages. 855 F.2d at 
1350. The Edwards court reasoned as follows:

[I]t cannot be seriously disputed that the 
right to be free from intentional racial 
employment discrimination is absolute in the 
same sense [as the right to procedural due 
process]. This much is implicit in the one 
hundred and twenty-two years of American 
social history since the decision was made to eliminate slavery and the badges and incidents 
thereof.

Id. We reiterate here that intentional racial discrimination, 
regardless of against whom it is directed, has no place in American 
society. Section 1981 thus grants an absolute right to be free of 
discrimination in the making and enforcement of contracts, the vio­
lation of which entitles the victim to nominal damages irrespec­
tive of actual injury. We hold that Hicks was entitled to at least 
nominal damages upon showing a violation of his Section 1981 
rights.

Because proof of a violation of Section 1981 automatically 
entitled Hicks to nominal damages regardless of the district 
court's additur of $1.00 nominal damages, we find that the district 
court did not err in using additur to clarify the legal conse­
quences (e.g., presumed nominal damages) of the jury's findings of

- 4 5 -



discrimination in violation of Section 1981.51 The nominal damages 
to which Hicks was entitled supported the $10,000 award in punitive 
damages.52 Brown Group received the jury trial required by the 
seventh amendment. It cannot now be heard to complain about the 
legal consequences of the jury's determination that it had violated 
Hicks' absolute right to be free from discrimination in the making 
and enforcement of contracts.

Citing Mitchell v. Keith. 752 F.2d 385, 390 (9th Cir.), cert. 
denied. 472 U.S. 1028 (1985) (Mitchell), Brown Group argues that 
the question of whether a punitive damage award can stand absent 
actual or nominal damages has not been resolved by federal law, and 
urges us to look to Missouri law to determine whether the award can 
stand. According to Brown Group, Missouri law forbids the recovery 
of punitive damages absent a recovery of nominal damages. See

51This court has directed the judicial entry of nominal damages 
when an award of actual damages cannot be sustained. Jasoerson v. 
Purolator Courier Coro.. 765 F.2d 736, 742 (8th Cir. 1985); Dean 
v. Civiletti. 670 F.2d 99, 101 (8th Cir. 1982) ("having prevailed 
on the discrimination issue . . . [plaintiff] is entitled to 
recover nominal damages of at least $1.00 as well as reasonable 
attorney's fees for proceedings in the district court"). See 
Steoter v. Underhill. 687 F. Supp. 1186, 1187 (S.D. Ohio 1988) 
($1.00 nominal damages entered by court upon jury finding of race 
discrimination); Wright v. Jasper's Italian Restaurant. Inc.. 672 
F. Supp. 424, 426 (W.D. Mo. 1987) ("[UJnder appropriate circum­
stances, judges can independently direct the entry of nominal 
damage judgments. A legal implication of damages arises whenever 
a legal right of plaintiff is violated.") (citation omitted).

52Brown Group does not dispute that nominal damages can support 
a punitive damage award where the standard of proof for imposition 
of punitive damages is met. See Goodwin v. Circuit Court. 729 F.2d 
541, 542-43 (8th Cir.) (nominal damages support punitive damages 
award), cert, denied. 469 U.S. 828 (1984); Edwards, 855 F.2d at 
1352 (nominal damages supports $25,000 punitive damage award). Nor 
is there a requirement that the punitive damage award bear a 
reasonable relationship to the nominal damages. "To apply the 
proportionality rule to a nominal damages award would invalidate 
most punitive damages awards because only very low punitive damages 
awards could be said to bear a reasonable relationship to the 
amount of a nominal damages award." Edwards. 855 F.2d at 1352.

- 4 6 -



Compton v._Williams Bros. Pipeline Co.. 499 S.W.2d 795, 7 9 7  (Mo.
1972). We disagree that Missouri law applies.^ There is no need 
to resort to Missouri law because federal law has addressed and 
resolved the issue raised by Brown Group. See Mitchell. 752 F.2d 
at 390 (appropriate to look to state law when federal law is 
"deficient in the provisions necessary to furnish suitable 
remedies"). Under Carey and Edwards. Section 1981 confers an 
absolute right to be free of discrimination in the making and 
enforcement of contracts, and the violation of this right 
automatically entitles the plaintiff to an award of nominal damages 
which can support an award of punitive damages if the standard of 
proof is met. See Basista v. Weir. 340 F.2d 74, 87 (3d Cir. 1965) 
("[a]s a matter of federal common law it is not necessary to allege 
nominal damages and nominal damages are proved by proof of depri­
vation of a right to which the plaintiff is entitled"). Applying 
federal law to determine Hicks' entitlement to the Section 1981 
punitive damage award also satisfies the requirement that damages 
issues be determined in accordance with a federal standard which 
furthers the purpose of the civil rights statutes. Sullivan. 396

Even assuming that Missouri law applies, we are not convinced 
Hicks would be stripped of his punitive damages award under 

Missouri law. Applying the law of Missouri in Wright v. Jasper's 
Italian Restaurant, Inc., 672 F. Supp. at 426 (citation omitted), 
the United States District Court for the Western District of 
Missouri noted a distinction between "direct injury" torts and 
those torts where "pecuniary loss constitutes a part of the cause 
of action." The court found that the torts at issue, assault and 
false imprisonment, were direct injury torts like trespass, where 
the wrong is committed regardless of pecuniary loss. Id. Reason­
ing that a legal implication of damages arises whenever a legal 
right of plaintiff is violated, the court upheld punitive damage 
awards totaling $55,000 despite the fact that the jury did not 
award actual damages. Id. Section 1981 is an absolute prohibition 
of discrimination in the making and enforcement of contracts. It 
is not necessary to prove actual damages to establish a Section 
1981 violation. Edwards, 855 F.2d at 1352. Consequently, we
believe that Missouri courts would view Section 1981 as a direct injury tort which, upon proof of its violation, raises a legal 
implication of nominal damages sufficient to support a punitive damages award.

- 4 7 -



U.S. at 238-40 (1969); see Gordon v. Norman. 788 F.2d 1194, 1199 
(6th Cir. 1986) (court refuses to reverse punitive damages award 
in 42 U.S.C. § 1983 action even though such damages are not 
recoverable under state law). - For these reasons, we find that 
federal law applies, Hicks automatically became entitled to nominal 
damages upon proving a Section 1981 violation, and the district 
court did not violate Brown Group's seventh amendment right to a 
jury trial by its additur of $1.00 in nominal damages.

B. Sufficiency of the Evidence

Hicks also contends that the district court erred in denying 
its motion for a JNOV because the jury's award of punitive damages 
was not supported by sufficient evidence. In Smith v. Wade. 461 
U.S. 30, 56 (1983) (Smith), the United States Supreme Court held 
that "a jury may be permitted to assess punitive damages in an 
action under [42 U.S.C.] § 1983 when the defendant's conduct is 
shown to be motivated by evil motive or intent, or when it involves 
reckless or callous indifference to the federally protected rights 
of others." This court applied the Smith punitive damages test to 
Section 1981 actions in Block v. R.H. Macv & Co.. 712 F.2d 1241, 
1246 (8th Cir. 1983) (Block).

We first note that the jury was instructed properly that it 
could award punitive damages if it found that Hicks' firing was 
"motivated by evil motive or interest, or that defendant was 
callously indifferent to plaintiff's federally protected rights." 
Instruction No. 13. Viewing the evidence, as we must, in the light 
most favorable to Hicks, we hold that there was sufficient evidence 
for the jury to conclude that Hicks was entitled to punitive 
damages. See Tolan, 867 F.2d at 469. The district court properly 
denied Brown Group's motion for a JNOV on the punitive damages 
award because reasonable jurors could have differed as to whether 
Brown Group was reckless or callously indifferent to Hicks' federal 
rights. See McGee, 712 F.2d at 343.

- 4 8 -



For example, the jury could have found that Brown Group acted 
recklessly or with callous indifference to Hicks' federally pro­
tected rights by discharging him after 34 years of service because 
of his race, and giving his job to a junior employee despite a 
company policy to make employment decision based on seniority. See 
Block. 712 F.2d at 1247-48 (finding of purposeful race discrimi­
nation under Section 1981 may in and of itself justify award of 
punitive damages). Moreover, after Hicks was discharged, he twice 
asked Rich Williams, his immediate supervisor and the person who 
made the decision to discharge him, whether he was terminated 
because of his race. The jury could have found that the evasive, 
teasing responses of Rich Williams to Hicks' earnest inquiries 
constituted callous or reckless indifference to Hicks' federally 
protected rights. Based on these facts, and after observing the 
demeanor and credibility of the witnesses, the jury could have 
concluded that Brown Group was callously indifferent to Hicks' 
federally protected rights. Whether or not punitive damages should 
be awarded is a jury determination that is rarely disturbed. See 
Garza v. City of Omaha. 814 F.2d 553, 556 (8th Cir. 1987) . As 
stated by this court in Goodwin v. Circuit Court, "[jJuries are 
uniquely suited to make this kind of moral judgment." 729 F. 2d 
541, 548 (8th Cir.), cert. denied. 469 U.S. 828 (1984). Because 
of the proper jury instruction, the finding of intentional dis­
crimination, and Williams' evasive responses, we decline Brown 
Group's invitation to substitute our moral judgment for that of the 
jury.

VI. Cross-Appeal: Equitable Relief

Having found none of the issues raised by Brown Group to merit 
reversal, we turn now to Hicks' cross-appeal. Hicks argues that 
the district court erred in denying his post-trial motion for 
reinstatement and related equitable relief despite the fact that 
he had successfully proven that he would not have been discharged

- 4 9 -



except for his race. Hicks argues that the district court erred 
in allowing the jury to answer Special Interrogatories Nos. 7 and 
10 after the jury found in Special Interrogatory No. 5 that race 
was a "determining factor in his termination from employment."

The three Special Interrogatories in dispute provided as 
follows:

Special Interrogatory No. 5.
Do you, the jury, unanimously find by a pre­
ponderance of the evidence that the defendant 
Brown Group, Inc., intentionally discriminated 
against plaintiff Kenneth Hicks on account of 
his race in that his race was a determining 
factor in his termination from employment by 
defendant?
Answer: Yes.
Special Interrogatory No. 7.
Do you, the jury unanimously find by a pre­
ponderance of the evidence that the defendant 
Brown Group, Inc., intentionally discriminated 
against plaintiff Kenneth Hicks on account of 
his race in that his race was a discernible or 
motivating factor in his termination from 
employment by defendant?
Answer: Yes.
Special Interrogatory No. 10.
Do you, the jury, unanimously find by a pre­
ponderance of the evidence the defendant Brown 
Group, Inc., would have terminated plaintiff 
Kenneth Hicks from employment, even had plain­
tiff's race and age not been a discernible or 
motivating factor or a determining factor in 
the decision to terminate?
Answer: Yes.

Hicks argues that Special Interrogatories numbers 5 and 10 ask 
the same question, namely whether Hicks' race was the "but for"

- 5 0 -



cause of his termination. Hicks argues that Special Interrogatory 
No. 10 should be disregarded as surplusage, and requests this court 
to grant him reinstatement and related equitable relief. m  the

jury "to ̂ et ' HlCkS re9UeStS a Partial neW trial “  °rder for « “  wheth r ' 91Ve" that « role in his discharge,TcTsL 3 di“ ™  in ^termining the outcome of that

special"" T nct reSP°nd tC the appa- nt conflict between
Pr^ce war !rr°9a N°S- 5 and 10' bUt ***** argues that"^terhnuse v. Hopkins, 109 s. ct. 1775 (1989) (plurality
opinion) (Price Waterhouse), requires that judgment be entered in
its favor because the jury's answer to Special Interrogatory No. 10

^ n o t  t l  th3t HiCKS "°Uld h3Ve teen disChar9ed eve" ^  his race 
Title VII “  aCC°Unt- M ce Waterhouse is a mixed-motive
cross-appealSe *  **“  °OUrt “hile this a^ aal a"d
that Were Pendln9‘ In Nhterhonse, the plurality heldthat once a plaintiff proves that a prohibited factor "played a
motivating part in an employment decision, the defendant may avoid 
evid" ' " I f  ~ abllltY °nly by Proving by a preponderance of the
o Z n T  r W°Uld "aVe "ade the daCiSi°" —  if if hadnot taken the (impermissible factor] into account." Id. at 1795
(emp asis added). Brown Group argues that Price Waterhouse implic­
itly overruled B i b b ^ ^ ^ x ,  778 F.2d 13— 324 (8th ci-r. p985)
mlde th° ' UhlCh hEld that a" e”ployer who shows that it would have
not l i a b - T r  deCiSi°n ”ay aV°id pr°“oti°" °r reinstatement, but liability under Title VII. Brown Group further argues, without

t.h£ dltferent Purposes and legislative histories of
this c h ” Ctl°n 1981' that Price Waterhouse also undermines
"  : n : ; : section 1 9 8 1  decisions and -  s—

confusino Interrogatories in this case were indeed
error H- v they reversiblerror. Hicks counsel failed to object to Special Interrogatory

- 5 1 -



No. 1 0  at trial despite having the opportunity to do so. Conse­
quently, the issue was not preserved for appellate review. United 
States v. Carey, No. 89-5298, slip op. at 3 (8th Cir. Mar. 14,
1990); United States v. Elem, 845 F.2d 170, 173 (8th Cir. 1988),- 
Patterson v. United States, 361 F.2d 632, 636 (8th Cir. 1966). We 
need not address the merits of Hicks' cross-appeal and Brown 
Group's response, and leave for another day the determination of 
the precise effect (if any) that Price Waterhouse has on this 
court's Section 1981 and Title VII precedent.

CONCLUSION

To summarize, we hold that (l) racially discriminatory dis­
charge continues to be actionable under Section 1 9 8 1  after 
Patterson; (2) the district court did not err in denying Brown 
Group's motion for a JNOV because the jury's finding of race dis­
crimination was supported by sufficient evidence; (3) the jury 
instructions and Special Interrogatories adequately instructed the 
jury on the need to prove intentional discrimination to establish 
a Section 1981 violation; (4) the district court did not violate 
Brown Group's seventh amendment right to a jury trial by its 
additur of $1 . 0 0  in nominal damages, and the punitive damages award 
was supported by sufficient evidence; and (5) the court need not 
reach the merits of Hicks' cross-appeal or Brown Group's response 
because Hicks failed to properly preserve this issue for appellate 
review. Accordingly, the judgment of the district court is

affirmed.

FAGG, Circuit Judge, dissenting.

I respectfully dissent. In my opinion this case is controlled 
by the Supreme Court's decision in Patterson v. McT^an 
Union, 109 S. Ct. 2363 (1989).

- 5 2 -



In Patterson. the Supreme Court considered the meaning and 
coverage of 42 U.S.C. § 1981. In doing so, the Supreme Court 
declared that "[w]here an alleged act of discrimination does not 
[impair the making and enforcement of contracts], [section] 1981 
provides no relief." Id. at 2372. This construction of section 
1981 is binding on the courts of appeals. In re Continental Inv. 
Corn.. 586 F.2d 241, 248 (1st Cir. 1978), cert, denied. 440 U.S. 
981 (1979); United States v. Herrera. 584 F.2d 1137, 1145 (2d Cir. 
1978); United States v. LeFaivre. 507 F.2d 1288, 1294 (4th Cir. 
1974), cert, denied. 420 U.S. 1004 (1975).

Because the Patterson majority did not expressly limit its 
construction of the language of section 1981 to the factual 
circumstances before the Court, "it is the principle [that] 
controls and not the specific facts [on] which the principle was 
decided." Walker v. Georgia. 417 F.2d 5, 8 (5th Cir. 1969). 
Nevertheless, our court lamely declines to apply Patterson because 
"[discriminatory] discharge was not at issue or discussed [in 
Patterson], and nothing in [Patterson] requires us to overrule the 
numerous and long-settled cases in this circuit which hold that 
discriminatory discharge is actionable under [s]ection 1981." Ante 
at 8-9. I believe our court has mistakenly concluded that 
Patterson is not a controlling precedent in this case.

Although Patterson is factually distinguishable, the Supreme 
Court's decision is legally relevant because it is a decision in 
the identical area of the law. Levine v. Heffernan. 864 F.2d 457, 
460 & n. 8 (7th Cir. 198^), cert, denied. 110 S. Ct. 204 (1989). 
When a court of appeals is faced with "a factually distinguishable 
but legally relevant Supreme Court decision, . . . [the court] may 
not employ a different standard in analyzing the different facts 
[because to do so] would [] limit[] both the Supreme Court's 
decision and its method of analysis to a particular set of facts." 
Id. at 460.

- 5 3 -



Patterson's and Hicks's claims of racial discrimination in 
their employment were clearly triggered by different facts— racial 
harassment for Patterson and racial discriminatory discharge for 
Hicks. Despite these factual differences, the Supreme Court's 
construction of section 1981 in Patterson controls the outcome of 
Hicks's case because both Patterson and Hicks brought their claims 
of racial discrimination in the workplace under the identical 
statute. Our court is "obliged [] rigorously [to] apply the
prevailing, majority precedent" in Patterson. Ferina v. United 
States, 340 F.2d 837, 839 (8th Cir.), cert, denied. 381 U.S. 902 
(1965); see also Rodriquez De Ouiias v. Shearson/American Express. 
109 S. Ct. 1917, 1922-23 (1989) (Stevens, J., dissenting) (court
of appeals refusal to follow a controlling Supreme Court precedent 
is "an indefensible brand of judicial activism").

Because section 1981 "prohibits discrimination only in the 
making and enforcement of contracts," Patterson. 109 S. Ct. at 
2372, Hicks's claim must fail. Hicks's claim of discriminatory 
discharge "involves [n]either a refusal to make a contract with 
[him] or the impairment of [his] ability to enforce [his] 
established contract rights. Rather, the conduct which [Hicks] 
labels as actionable racial [discriminatory discharge] is 
postformation conduct by the employer relating to the terms and 
conditions of continuing employment. . . . This type of conduct 
. . . is not actionable under [section] 1981 . . . ." Id. at 2374.

The decision in Patterson is controlling in this case and 
binding on our court. Thus, I would reverse the district court.

A true copy.
Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

- 5 4 -





11-21-89 (No. 223) D  - 1

BNA's Daily Reporter System

DAILY L A B O R  R E P O R T

FULL TEXT 
SECTION

ANALYSIS BY NAACP LEGAL D EFE N SE  FUND ON IMPACT OF SU PR E M E  C O U R T 'S  DECISION  
ANALYSIS BY n a  u  PA TTER SO N  v McLEAN CREDIT UNION

SUMMARY

T h is  s tu d y  a s s e s s e s  th e  im p a c t  in th e  lo w e r  f e d e ra l  c o u r ts  
o f  th e  J u n e  15, 1989 d e c is io n  in P a t t e r s o n  v .  M c L e a n  
C r e d i t  Union.  B e tw e e n  J u n e  15, 1989, an d  N o v e m b e r  1, 
1989. a t  l e a s t  96 s e c tio n  1981 c la im s  w e re  d ism is se d  b e c a u se  
o f  P a t t e r s o n .  A lth o u g h  th e  c e n t r a l  h o ld in g  of P a t t e r s o n  
w a s  th a t  r a c i a l  h a r a s s m e n t  w a s  n o t fo rb id d e n  by  s e c tio n  
1981, m o s t  o f  th e  d ism is sa ls  h a v e  in v o lv e d  fo rm s  of d is ­
c r im in a t io n  o th e r  th a n  r a c ia l  h a r a s s m e n t .

T y p e  o f  D is c r im in a tio n  C la im s  D ism isse d

D is c h a rg e  31
P ro m o t io n  16
R e ta l ia t io n  8
D e m o tio n  8
M isc e lla n e o u s  E m p lo y m e n t  ®
N o n -E m p lo y m e n t  7
H a r a s s m e n t  33

T h e s e  d is m is s a l  o r d e r s  w e re  e n te r e d  in a  to ta l  o f 50 d i f f e r ­
e n t  c a s e s .

T h e  d is m is s a ls  w e re  n o t l im ite d  to  c la im s  of d is c r im in a ­
t io n  a g a in s t  b la c k s . A lso  d ism is se d  w e re  r a c e  d is c r im in a t io n  
c la im s  by  H isp a n ic , C h in ese , F il ip in o , H a w a iia n  a n d  J e w is h  
p la in t i f f s .  N o n e  of th e  c la im s  th ro w n  o u t u n d e r  P a t t e r s o n  
w e r e  c la s s  a c tio n s , n o n e  w e re  b a se d  on  a  d is c r im in a t io n  
e f f e c t  th e o ry ,  a n d  n o n e  -  so f a r  a s  c a n  b e  a s c e r ta in e d  f ro m  
th e  o p in io n s  — w a s  se e k in g  q u o ta  o r  o th e r  a f f i r m a t iv e  
a c t io n  re m e d ie s .  T h e  on ly  a f f i r m a t iv e  a c tio n  d isp u te  a f f e c t ­
e d  by  P a t t e r s o n  w a s  T o rre s  v .  C i ty  o f  C h icago ,  in w h ic h  a 
f e d e r a l  c o u r t  d ism is se d  b e c a u se  o f P a t t r e r s o n  a  la w s u i t  
c h a l le n g in g  a  C h ica g o  m in o r ity  se t  a s id e  p ro g ra m .

T h e  d e c is io n  in P a t t e r s o n  h a s  r a is e d  a  h o st o f n o v e l an d  
d i f f ic u l t  le g a l  is su e s  r e g a rd in g  th e  sc o p e  of s e c tio n  1981. T h e  
lo w e r  c o u r ts  a r e  a l r e a d y  sh a rp ly  d iv id e d  a b o u t  th o se  q u e s ­
t io n s ,  a n d  re so lu tio n  o f  th e se  c o m p le x  p ro b le m s  is l ik e ly  to  
r e q u i r e  y e a r s  of l i t ig a tio n . T h e  a b il i ty  o f p r iv a te  a t to r n e y s  
to  l i t ig a te  th e s e  is su e s  h a s  b e en  im p a i r e d  by  a  p a t t e r n  of 
s u a  s p o n t e  d is m is s a ls ,  an d  by a  w e ll- fo u n d e d  f e a r  o f R u le  
11 s a n c tio n s .

F o r  u n e x p la in e d  re a so n s , a p p ro x im a te ly  one  th ird  of a ll  
d is m is s a ls  a n d  d is m is s a l  o rd e rs  h a v e  b e e n  issu e d  by th e  
f e d e r a l  c o u r t  in C h ica g o

O n J u n e  15, 1989, th e  U n ited  S ta te s  S u p re m e  C o u r t  in 
P a t t e r s o n  v .  M c L e a n  C re d i t  U nion ' a b ru p t ly  a n d  su b ­
s t a n t i a l l y  re d u c e d  th e  p ro te c tio n s  w h ic h  f e d e ra l  law  h a d  
u n t i l  th e n  a f fo rd e d  a g a in s t  in te n tio n a l  d is c r im in a t io n  on th e  
b a s is  o f r a c e .  T h e  s t a tu t e  a t  is su e  in P a t t e r s o n ,  42 U .S.C . 
§1981 , w h ic h  d e r iv e s  f ro m  th e  1866 C iv il R ig h ts  A ct, p ro h ib ­
i t s  r a c i a l  d is c r im in a t io n  in  th e  m a k in g  a n d  e n fo rc e m e n t  of 
c o n t r a c t s .  U n ti l  th e  P a t t e r s o n  d e c is io n  fe d e ra l  d i s t r ic t  a n d  
a p p e l l a t e  c o u r ts  h a d  b e e n  v i r tu a l ly  u n a n im o u s  in  c o n s tru in g  
s e c t io n  1981 to  fo rb id  a ll  fo rm s  of in te n t io n a l  r a c ia l  d is ­
c r im in a t io n  in  c o n t r a c tu a l  re la t io n s ,  in c lu d in g  a l l  fo rm s  of

r a c i a l  d is c r im in a t io n  in e m p lo y m e n t  P a t t e r s o n  e f fe c tiv e ly  
o v e r ru le d  o r  l im i te d  m a n y  if  n o t m o s t  o f th e  lo w e r  c o u r t  
d e c is io n s  o f th e  l a s t  tw o  d e c a d e s  r e g a r d in g  th e  m e a n in g  an d  
sc o p e  of s e c tio n  1981.

P a t t e r s o n  i ts e l f  in v o lv e d , i n t e r  a l i a ,-  a  c la im  of r a c ia l  
h a r a s s m e n t  in e m p lo y m e n t .  T h e  p la in t if f ,  a  b la c k  fe m a le  
f o r m e r  e m p lo y e e  o f a  R a lie g h , N o r th  C a ro lin a  c r e d i t  un ion , 
a l le g e d  th a t  sh e  h a d  b e e n  s u b je c te d  to  a  lo n g  s e r ie s  of 
a b u s iv e  c o m m e n ts  a n d  t r e a tm e n t  b e c a u s e  o f h e r  r a c e .  Ms. 
P a t t e r s o n  c la im e d  th a t  th e  f i r m ’s p r e s id e n t  r e p e a te d ly  a d ­
m o n is h e d  h e r  t h a t  “ b la c k s  a r e  k n o w n  to  w o rk  s lo w e r  th a n  
w h ite s  b y  n a tu r e ,” b e c a u s e  “ so m e  a n im a ls  [ a re ]  f a s t e r  th a n  
o th e r  a n im a ls .” ’ M s P a t te r s o n  a ls o  a s s e r te d  t h a t  sh e  w a s  
r e g u la r ly  g iv en  m o re  w o rk  th a n  w h ite  e m p lo y e e s , a n d  th a t  
s h e  w a s  re q u ir e d  to  do  d e m e a n in g  ta s k s  n e v e r  a sk e d  of 
w hites.*  T h e  m in o r i ty  o p in io n  in P a t t e r s o n  h e ld  t h a t  su ch  
in te n t io n a l ly  d i s c r im in a to r y  p r a c t ic e s  w e re  p e r m i t te d  by 
s e c tio n  1981. T h e  m a jo r i ty  in s is te d  th a t  th e  s e c tio n  1981 
g u a r a n te e  o f n o n -d is c r im in a t io n  in th e  m a k in g  of a  c o n tr a c t  
“ e x te n d s  on ly  to  th e  fo rm a t io n  of a  c o n t r a c t ,  b u t  n o t to  
p ro b le m s  th a t  m a y  a r i s e  l a t e r  f ro m  th e  c o n d it io n s  of c o n ­
t in u in g  e m p lo y m e n t .” ! T h e  C o u r t  r e a s o n e d  th a t  th e  s e c tio n  
1981 r ig h t  to  n o n -d is c r im in a t io n  in  th e  e n fo rc e m e n t  o f a 
c o n t r a c t  d id  n o t a p p ly  to  th e  r a c ia l ly  m o tiv a te d  b r e a c h  of a  
c o n t r a c t ,  b u t e n c o m p a s s e d  on ly  “ p r o te c tio n  o f a  le g a l  p ro ­
c e s s  . ,  th a t  w ill a d d re s s  a n d  re s o lv e  c o n tr a c t - la w  c la im s  
w ith o u t r e g a r d  to  r a c e .” *

T h e  P a t t e r s o n  d e c is io n  g a v e  r i s e  to  a  d is p u te  a s  to  th e  
p r a c t ic a l  s ig n if ic a n c e  o f th is  n e w  c o n s tru c t io n  o f  se c tio n  
1981 J u s t ic e  K e n n e d y , w r i t in g  fo r  th e  m a jo r i ty ,  in s is te d , 
“ N e i th e r  o u r  w o rd s  n o r  o u r  d e c is io n s  sh o u ld  be  in te rp r e te d  
a s  s ig n a lin g  o n e  in ch  of r e t r e a t  f ro m  C o n g re ss ' p o lic y  to  
fo rb id  d is c r im in a t io n  in th e  p r iv a te ,  a s  w e ll a s  th e  p u b lic , 
s p h e r e .” ' J u s t i c e  B re n n a n  o b je c te d , on th e  o th e r  h a n d , th a t  
“ [w ]h a t th e  C o u rt d e c l in e s  to  sn a tc h  a w a y  w ith  o n e  h an d , it 
t a k e s  a w a y  w ith  th e  o th e r  "  ’ J u s t ic e  S te v e n s  a rg u e d  th a t  th e  
m a jo r i ty 's  i n te r p r e ta t io n  of se c tio n  1981 w a s  ‘ d r a m a tic a l ly  
a s k e w " " f ro m  p r io r  d e c is io n s , " r e p la c in g  a  s e n se  of r a t io n a l  
d ir e c tio n  an d  p u rp o se  in th e  la w  w ith  a n  a im le s s  c o n f in e ­
m e n t to  a  n a r ro w  c o n s tru c t io n .’" ’ T h e  A d m in is tr a t io n  e x ­
p re s s e d  a n  u n w illin g n e s s  to  su p p o r t  le g is la tio n  to  o v e r tu rn  
P a t t e r s o n  u n til  a n d  u n le s s  e x p e r ie n c e  d e m o n s tr a te d  th a t  
th e  d e c is io n  w a s  h a v in g  a  s ig n if ic a n t  im p a c t.

T h is  s tu d y  u n d e r ta k e s  to  a s s e s s  w h a t  th e  p r a c t ic a l  im p a c t  
o f  P a t t e r s o n  h a s  b e en  on c iv il  r ig h ts  l i t ig a t io n  in th e  
f e d e r a l  c o u r ts  d u r in g  th e  f i r s t  fo u r  a n d  o n e  h a lf  m o n th s  
s in c e  th a t  d e c is io n  w a s  h a n d e d  dow n. A m o n g  th e  fe d e ra l  
c o u r t  d e c is io n s  a p p ly in g  P a t t e r s o n  s in c e  J u n e  15, on ly  a 
s m a l l  m in o r i ty  a r e  y e t  o f f ic ia l ly  r e p o r te d .  A m u c h  la r g e r  
n u m b e r  of th o se  d e c is io n s  c a n  b e  fo u n d  th ro u g h  L E X IS  and  
F E P  C a se s  (BNA ). A lso  in c lu d e d  in  th e  s tu d y  w e re  s e v e ra l  
s l ip  o p in io n s  w h ic h  h a v e  n o t y e t  a p p e a r e d  in L E X IS  o r  an y  
o f f ic ia l  o r  u n o ff ic ia l  r e p o r te r .  T h e  a s s e s s m e n t  w h ic h  fo llo w s 
d ra w s ,  a s  w e ll, on  in te rv ie w s  w ith  s e v e ra l  d ozen  a t to rn e y s  
h a n d lin g  e x is tin g  s e c tio n  1981 c la im s .

Published by THE BUREAU OF NATIONAL AFFAIRS. INC.. W ashington. D C. 20037



D  - 2 (No. 223) TEXT (DLR) ' 11-21-89

The Number of Dismissals

T h e  im p a c t  of P a t t e r s o n  c a n  be  m e a s u re d  m o s t  r e a d i ly  
b y  c o n s id e r in g  th e  n u m b e r  o f r a c e  d is c r im in a t io n  c la im s  
th a t  h a v e  b e en  d ism is se d  by th e  lo w e r  c o u r ts ,  w ith o u t e v e r  
b e in g  t r ie d  "  an d  re s o lv e d  on th e  m e r i t s ,  so le ly  b e c a u s e  of 
th e  P a t t e r s o n  d e c is io n  B e tw e e n  J u n e  15, 1989 an d  N o v e m ­
b e r  1, 1989," a t  le a s t  96 su c h  r a c e  d is c r im in a t io n  c la im s  
h a v e  b e en  d ism is se d  by fe d e ra l  ju d g e s  b e c a u se  o f P a t t e r ­
s o n '  T h e se  d is m is s a l  o rd e r s  w e re  e n te re d  in a to ta l  of 50 
d i f f e r e n t  c a s e s . T h e  a c tu a l  n u m b e r  o f d ism is se d  c la im s  is, 
f o r  a  n u m b e r  o f r e a s o n s ,"  h ig h e r  th a n  96. b u t th e  p re c is e  
f ig u r e  c a n n o t r e a d i ly  be a s c e r ta in e d  A lis t of c a s e s  in w h ich  
s e c tio n  1981 c la im s  h a v e  b e en  d ism is se d  u n d e r  P a t t e r s o n  is 
s e t  fo r th  a t  th e  en d  of th is  re p o r t .

T h e  r a c e  d is c r im in a t io n  c la im  d ism is se d  in P a t te r s o n  
i t s e l f  in v o lv e d  r a c ia l  h a r a s s m e n t ;  th e r e  is, a s  is  e x p la in e d  
b e lo w , c o n s id e ra b le  c o n fu s io n  r e g a rd in g  w h a t o th e r  fo rm s  
o f  r a c i a l  d is c r im in a t io n  a r e  a n d  a r e  n o t fo rb id d e n  by  s e c tio n  
1981. S o m e w h a t s u rp r is in g ly ,  h o w e v e r , th e  l a r g e s t  c a te g o ry  
g ro u p  o f  c la im s  d ism is se d  u n d e r  P a t t e r s o n ,  a r e  n o t h a r a s s ­
m e n t  c la im s  a t  a ll. T h e  l a r g e s t  g ro u p  of c la im s  th a t  h a v e  
b e e n  th ro w n  o u t a s  a  r e s u l t  o f P a t t e r s o n  c o n c e rn s  a l l e g a ­
t io n s  t h a t  a  p la in t if f  w a s  f i r e d  b e c a u se  o f h is  o r  h e r  r a c e ; 
s o m e  31 of th e  d is m is s a ls  a r e  o f  th is  s o r t .  A to ta l  o f 22 r a c ia l  
h a r a s s m e n t  c la im s  h a v e  b e e n  d ism is se d  in th e  w a k e  of 
P a t t e r s o n  a s  h a v e  16 c la im s  a lle g in g  th a t  p ro m o tio n s  o r  
t r a n s f e r s  w e re  d e n ie d  on a c c o u n t  of r a c e .  P a t t e r s o n  h a s  
le a d ,  a s  w e ll, to  th e  d is m is s a l  o f 8 r e ta l i a t io n  c la im s ,  an d  6 
d e m o tio n  c la im s .14

The Characteristics of the Dismissed Claims

P r i o r  to  P a t t e r s o n ,  th e  lo w e r  c o u r ts  an d  th e  S u p re m e  
C o u r t  h a d  in te r p r e te d  s e c tio n  1981 to  p r o te c t  n o t ju s t  b la c k s , 
b u t  a ll  r a c ia l  an d  e th n ic  g ro u p s  l! T h u s, th e  d e c is io n  in 
P a t t e r s o n ,  n a r ro w in g  th e  ty p e s  of d is c r im in a t io n  fo rb id d e n  
b y  s e c tio n  1981, h a s  a f fe c te d  c la im s  by a  w id e  ra n g e  of 
p la in t if f s .  A m o n g  th e  s e c tio n  1981 c la im s  d ism is se d  u n d e r  
P a t t e r s o n  h a v e  b e e n  a l le g a t io n s  o f r a c ia l  d is c r im in a t io n  
a g a in s t  H isp a n ic , '4 n a tiv e  H a w a iia n ."  C h in e se ,"  F i l ip in o ,"  
C u b a n .^  an d  J e w ish  p la in t if f s .  In  a s ig n if ic a n t  n u m b e r  of 
th e  d ism is se d  ra c ia l  h a r a s s m e n t  c la im s , th e  p la in t if f s  w e re  
b la c k  w o m e n  w ho  a lso  a lle g e d  th ey  h a d  b een  th e  v ic t im s  of 
b o th  r a c ia l  a n d  se x u a l  h a r a s s m e n t ; :: b e c a u se  o f th e  p r a c t i ­
c a l  d i f f ic u l ty  o f d is t in g u ish in g  b e tw e e n  th e se  tw o  fo rm s  of 
d is c r im in a t io n ,  r a c ia l  h a r a s s m e n t  c la im s  p r io r  to  P a t t e r ­
son  m a y  h a v e  p ro v id e d  an  in d ire c t  b u t p o te n t ia l ly  im p o r ­
t a n t  a d ju n c t  to  th e  l im ite d  a n d  o f te n  in a d e q u a te  r e m e d ie s  
a v a i l a b le  u n d e r  T it le  V II fo r  se x u a l h a r a s s m e n t

A lth o u g h  in v o lv in g  a v a r ie ty  of d if f e r e n t  ty p e s  o f c la im s  
a n d  p la in t if f s ,  th e  d ism is se d  c la im s  h a v e  a n u m b e r  o f c o m ­
m o n  c h a r a c te r i s t i c s .  F i r s t ,  a ll  a lle g e d  in te n t io n a l  d i s c r im i ­
n a tio n  on th e  b a s is  o f r a c e .  T h is  w a s  to  be  e x p e c te d ,  s in c e  
th e  S u p re m e  C o u rt h e ld  in  1982 th a t  se c tio n  1981 fo rb id s  
so le ly  in te n t io n a l ly  d is c r im in a to ry  p ra c t ic e s ,  an d  h a s  no 
a p p l ic a t io n  to  p r a c t ic e s  w ith  on ly  a  d is c r im in a to ry  e f fe c t  
S e c o n d , a l l  o f th e  d ism is se d  c la im s  w e re  in d iv id u a l a c tio n s , 
a l th o u g h  in a  few  in s ta n c e s  s e v e ra l  a g g r ie v e d  in d iv id u a ls  
jo in e d  in  th e  s a m e  la w su it.  T h e  d e c is io n s  p ro v id e  no b a s is  
f o r  a s c e r ta in in g  w h y  no c la s s  a c tio n s  w e re  in v o lv e d . T h ird , 
t h e r e  is  no in d ic a tio n  in th e s e  d e c is io n s  t h a t  th e  p la in t if f s  
w e r e  se e k in g  a s  a  r e m e d y  a n y  fo rm  of a f f i r m a t iv e  a c tio n ; 
f o r  p r a c t ic a l  a n d  le g a l  r e a s o n s  su ch  a f f i r m a t iv e  a c t io n  
r e m e d ie s  in e m p lo y m e n t  d is c r im in a t io n  c a s e s  a r e  so u g h t 
p r im a r i ly  in c la s s  a c tio n s .

O n e  of th e  d ism is se d  c la im s  d id in v o lv e  a f f i r m a t iv e  a c ­
t io n , b u t  n o t a s  a  c o u r t  o rd e re d  re m e d y . In  T o r r e s  v. C i ty  o f

C h ica g o ,  1989 U.S. D is t L E X IS  9503 (N .D . 111. 1989), P a t ­
te r so n  w a s  in v o k ed  to  p r e v e n t  a  p la in t i f f  f r o m  c h a lle n g in g  
th e  le g a lity  of a m in o r i ty  s e t  a s id e  p r o g r a m  T h e  d is t r ic t  
c o u r t  e x p la in e d :

T h e  r e le v a n t  f a c t s  a r e  n o t in  d isp u te . T o r r e s  is a  b la c k  
H isp a n ic  f e m a le  w ho  o w n s a n d  o p e r a te s  L e g a l  S e c r e ta r ia l  
S e rv ic e s , L td . O n J u ly  2, 1984, T o r r e s  e n te r e d  in to  a  
w r i t te n  c o n tr a c t  w ith  th e  C ity  in w h ic h  L e g a l S e c r e ta r ia l  
S e rv ic e s  a g re e d  to  p ro v id e  th e  C ity  w ith  te m p o r a r y  t e l e ­
p h o n e  sw itc h b o a rd  o p e r a to r s  on a n  " a s  r e q u i r e d ” b a ­
s is  . .  On N o v e m b e r  4, 1984, T o r r e s  r e c e iv e d  a  te le p h o n e  
c a l l  f ro m  F ra n c is c o  D u P re v . th e n  th e  D e p u ty  D ir e c to r  of 
th e  M a y o r 's  O ffice  of In q u iry  a n d  In fo rm a tio n .  D u rin g  
th e ir  c o n v e rs a t io n ,  D u P re y  in fo rm e d  T o r r e s  th a t  u n le s s  
sh e  co u ld  p ro v e  th a t  b la c k  A m e r ic a n s  c o n tro l  51 p e rc e n t  
o r  m o re  of h e r  b u s in e ss , th e  C ity  w o u ld  c a n c e l  h e r  c o n ­
t r a c t .  . . On N o v e m b e r  6, 1984, D u P re y  in fo rm e d  T o r r e s  
th a t  th e  C ity  t e r m in a te d  h e r  c o n t r a c t  b e c a u s e  s[h]e w a s  
H isp a n ic  r a th e r  th a n  b lac k .

1989 U.S. D ist. L E X IS  9503 a t  1 -2 . T h e  d i s t r ic t  c o u r t  d is ­
m is se d  T o r r e s ' c o m p la in t  on th e  g ro u n d  th a t ,  u n d e r  P a t t e r ­
son ,  “ S e c tio n  1981 . . .  d o e s  n o t a p p ly  to  p o s t- fo rm a t io n  
c o n d u c t w h e re , a s  h e re , a  c o n t r a c t  a l le g e d ly  is  b r e a c h e d .” 
Id. a t  3.

T h e  d e c is io n s  h a n d e d  do w n  s in c e  P a t t e r s o n  i l l u s t r a te  th e  
e g re g io u s  n a tu r e  o f th e  fo rm s  of h a r a s s m e n t ,  a n d  o th e r  
d is c r im in a t io n ,  fo r  w h ich  s e c tio n  1981 no  lo n g e r  p ro v id e s  a 
r e m e d y  T h e  a c t io n  in B r o o m s  v. R e g a l  T u b e  Co., 881 F .2 d  
412 (7 th  C ir 1989), w a s  b ro u g h t by  a  36 y e a r -o ld  b la c k  
f e m a le  w ho  h ad  b e e n  e m p lo y e d  a s  an  in d u s t r ia l  n u r s e  a t  
R e g a l T u b e  C o m p a n y  fo r  16 m o n th s  b e g in n in g  in 1983 T he 
d i s t r ic t  c o u r t  fo und  th a t  d u r in g  th e  c o u rs e  o f  h e r  e m p lo y ­
m e n t  B ro o m s ' s u p e rv is o r ,  C h a r le s  G u s ta fso n , s u b je c te d  h e r  
to  r e p e a te d  e x p lic i t  r a c ia l  a n d  se x u a l  r e m a r k s ,  an d  in one  
in s ta n c e  d i r e c tly  p ro p o s it io n e d  h e r  O n tw o  o c c a s io n s  G u s­
ta f s o n  d isp la y e d  to  B ro o m s  i l lu s t r a t io n s  o f i n te r r a c i a l  s e x ­
u a l  a c ts ,  a n d  to ld  h e r  t h a t  sh e  w a s  h ire d  to  p e r fo r m  th e  kind  
o f  se x u a l  a c ts  d e p ic te d . On th e  se c o n d  o c c a s io n , a f t e r  G u s­
ta fs o n  th r e a te n e d  to  k ill h e r . B ro o m s  f led  s c r e a m in g  and  
s u f f e r e d  a fa ll d o w n  a f lig h t of s t a i r s  S he  t h e r e a f t e r  le f t  
R e g a l  T u b e  an d  r e c e iv e d  tw o  m o n th s  of d is a b il i ty  p a y  fo r 
s e v e re  d e p re s s io n  b ro u g h t on by th e  r e p e a te d  h a ra s s m e n t ,  
w h ic h  le f t  h e r  u n a b le  to  w o rk  on a  p e r m a n e n t  b a s is  fo r 
s e v e ra l  y e a rs .  T h e  l i t ig a t io n  w a s  p e n d in g  in th e  S e v e n th  
C irc u i t  w h en  P a t t e r s o n  w a s  d e c id ed ; th e  c o u r t  o f a p p e a ls  
s u m m a r i ly  d ism is se d  th e  c o m p la in t ,  r e a s o n in g  th a t  th e  a l ­
le g e d  h a ra s s m e n t  w a s  la w fu l u n d e r  s e c tio n  1981

It is u n d isp u te d  th a t  B ro o m s ' s e c tio n  1981 c la im  d o es not 
r e la te  to  “ c o n d u c t a t  th e  in it ia l  fo rm a t io n  of th e  [e m p lo y ­
m e n t]  c o n t r a c t ” o r  to  " c o n d u c t w h ich  im p a i r s  th e  r ig h t  to 
e n fo rc e  c o n tr a c t  o b lig a tio n s  ” T h u s. B ro o m s ' se c tio n  
1981 c la im s  a p p e a r  to  be fo re c lo se d  by P a t t e r s o n  a n d  th e  
c la im  m u s t be d ism is se d  

881 F .2 d  a t  424.
In L e o n g  v. H ilton  H ote ls ,  50 F E P  C as. 738 (D  H a w a ii 

1989). th e  d is t r ic t  c o u r t  a p p lie d  P a t t e r s o n  to  d ism is s  th e  
c o m p la in t  of B K ish a b a , a  H a w a iia n  w o m a n  of A sian  
e x tr a c t io n :

I t  is  u n d isp u te d  th a t  [K ish a b a 's  s u p e rv is o r ]  M cD onough  
m a d e  m a n y  d e ro g a to ry  an d  d i s c r im in a to r y  r e m a r k s  a b o u t 
v a r io u s  e th n ic  g ro u p s  . M cD onough  r e f e r r e d  to  a  J a p a ­
n e se  p e rso n  a s  a “ J a p "  an d  c o m p a re d  lo c a l  p e o p le  to  “ th e  
sp ie s  in  N ew  Y o rk ."  s ta t in g  th a t  lo c a ls  a r e  “ n o t c a p a b le  of 
b e in g  s u p e rv is o r s "  an d  a r e  " in c o m p e te n t” . . .  K ish a b a  
w itn e s se d  r a c i s t  b e h a v io r  o f a  m o re  s u b t le  k ind . W hen a 
J e w is h  g ro u p  a t t e m p te d  to  c o n ta c t  th e  e x e c u tiv e  o ffice . 
M cD onough  to ld  h e r  to  h a v e  D 'R o v e n c o u r t  t a k e  c a r e  o f it

Published by THE BUREAU OF NATIONAL AFFAIRS. INC.. W ashington. D C. 20037



11-21-89 (DLR) TEXT (No. 223) D  - 3

b e c a u s e  " h e ’s o u r  r e s id e n t ."  S he  a s s e r t s  th a t  th e r e  w a s  no 
d o u b t f ro m  h is m a n n e r  t h a t  he m e a n t  “ re s id e n t  J e w "  . . .  
M c D o n o u g h  to ld  h e r  . . . .  “ in a c o n te m p tu o u e  w a y ” th a t  “ 1 
h a v e  to  h a v e  th e  on ly  s e c r e t a r y  w ho  d o es  th e  h u la  ” 
A d d it io n a lly , M cD o n o u g h  f re q u e n t ly  u sed  th e  te r m  "y o u  
p e o p le "  in su c h  p h ra s e s  a s  " w h a t 's  th e  m a t t e r  w ith  you 
p e o p le "  "  o r  “ if  y o u  p e o p le  d o n ’t sh a p e  up. I ’ll g e t  r id  of 
a l l  o f  y o u ."  K ish a b a  s t a te s  th a t  “ th e r e  w a s  no d o u b t 
w h a te v e r  th a t  h is  r e fe r e n c e s  to  “ p e o p le "  w e re  to  lo c a l 
A s ia n s  a n d  H a w a i i a n s . . . .  M cD o n o u g h  a d o p te d  a  ru d e  an d  
a g g re s s iv e  b e h a v io r  w ith  K ish a b a , y e llin g  a t  h e r  f r e q u e n t ­
ly  a n d  d e m e a n in g  h e r  in f ro n t  of o th e r  e m p lo y e e s  

50 F E P  C as. a t  739. T h e  d i s t r ic t  c o u r t  h e ld  t h a t  P a t t e r s o n  
r e q u ir e d  d is m is s a l  o f K is h a b a ’s c la im , re a s o n in g  th a t  r a c ia l  
h a r a s s m e n t ,  e v a n  r a c ia l  h a r a s s m e n t  re s u l tin g  in c o n s t ru c ­
t iv e  d is c h a rg e ,  w a s  le g a l  u n d e r  s e c tio n  1981.

In  M a s o n  v. C o ca -C o la  B o t t l in g  Co.. 1989 U.S. D ist. 
L E X IS  10533 (D .K an . 1989), th e  d e fe n d a n t  c o n c e d e d  th a t  co ­
w o r k e r s  o f i ts  e m p lo y e e . M r. M aso n , h a d  to ld  “ n u m e ro u s  
r a c i a l  jo k e s  a n d  u sed  f r e q u e n t ly  r a c ia l  e p ith e ts  to w a rd  [h im ] 
a n d  th a t  p la in t i f f  le t  i t  be  k n o w n  th a t  th e se  r a c ia l ly  o f fe n ­
s iv e  p r a c t ic e s  u p se t  h im .” A m o n g  th e  m o re  re c e n t  in c id e n ts  
w a s  a  c o -w o rk e r ’s c o m m e n t  th a t  he  h a d  “ n e v e r  se e n  a 
d e p r e s s e d  n ig g e r  b e fo re ,” a f t e r  M a so n ’s w ife  g a v e  b ir th  to  a 
s t i l l - b o rn  ch ild . A s u p e rv is o r  o f M a so n  h a d  a lso  e m p a th iz e d  
w ith  a  c u s to m e r ’s c o m p la in ts  t h a t  M aso n , a  b la c k  m a n . w a s  
s e r v in g  h e r .  s a y in g  “ you  k n o w  how  th e y  a r e  ” . T h e  d i s t r ic t  
c o u r t  d ism is se d  M a so n 's  s e c tio n  1981 c la im s  in lig h t of 
P a t t e r s o n .  In  D a n g e r f i e ld  v .  M iss io n  P r e s s ,  50 F E P  C as. 
1171 (N .D . 111. 1989), s e v e ra l  b la c k  p la in t if f s  c la im e d  th a t  
t h e i r  e m p lo y e r  a l t e r n a t e ly  h a r a s s e d ,  d e m o te d  an d  t e r m i n a t ­
e d  th e m  in v io la t io n  o f s e c tio n  1981. T w o  of th e  p la in t if f s  
a l le g e d  th a t  o f f ic ia ls  o f M iss io n  P r e s s  re fu s e d  to  a s s ig n  w o rk  
to  th e m , o r  a s s ig n e d  w o rk  fo r  w h ic h  th e y  w e re  n o t t r a in e d ,  
a n d  th e n  v e rb a l ly  a b u se d  th e m  a s  " s tu p id "  a n d  “ la z y .” O ne 
p la in t i f f  c la im e d  th a t  th e  d e fe n d a n t  d e m o te d  h im  w h ile  
a llo w in g  a  l a t e r a l  t r a n s f e r  fo r  a w h ite  e m p lo y e e  in a c o m p a ­
r a b le  p o s itio n  A ll th r e e  c la im e d  th a t  M iss ion  P r e s s  s u b je c t ­
e d  th e m  to  in te n se  s u p e rv is io n  n o t g iv e n  to  w h ite  e m p lo y e e s  
T h e  d i s t r ic t  c o u r t  h e ld  th a t  “ [s]uch c o n d u c t is c o n te m p tib le  
A f te r  P a t t e r s o n ,  h o w e v e r , it  is  n o t a c t io n a b le  A t le a s t ,  not 
u n d e r  §1981 "  90 F E P  C as. a t  1172.

T h e  m a jo r i ty  in P a t t e r s o n  in s is te d  on a n a r ro w  c o n s t ru c ­
t io n  o f s e c tio n  1981 in o rd e r  to  av o id  o v e r la p p in g  th e  
s e p a r a t e  p ro h ib it io n s  an d  re m e d ie s  of T it le  V II

I n te r p r e t in g  §1981 to  c o v e r  p o s t- fo rm a t io n  c o n d u c t u n ­
r e la te d  to  an  e m p lo y e e 's  r ig h t  to  e n fo rc e  h e r  c o n tr a c t ,  
su c h  a s  in c id e n ts  r e la t in g  to  th e  c o n d itio n s  of e m p lo y m e n t 

w o u ld  . u n d e rm in e  th e  d e ta i le d  an d  w e l l- c ra f te d  
p ro c e d u re s  fo r  c o n c il ia tio n  an d  re so lu tio n  of T it le  V II 
c la im s  . w h e re  c o n d u c t is c o v e re d  by bo th  §1981 an d  
T i t le  V II. th e  d e ta i le d  p ro c e d u re s  of T itle  V II a r e  r e n ­
d e re d  a d e a d  l e t t e r  . . .  W e sh o u ld  be r e lu c ta n t  to  r e a d  
a n  e a r l i e r  s t a tu te  b ro a d ly  w h e re  th e  r e s u l t  is to  c i r c u m ­
v e n t  th e  d e ta i le d  r e m e d ia l  s c h e m e  c o n s tru c te d  in a l a t e r  
s t a tu t e . ”

A s ig n i f ic a n t  n u m b e r  o f th e  c la im s  th a t  h a v e  b e en  d ism is se d  
in  th e  w a k e  of P a t t e r s o n ,  h o w e v e r , in v o lv e d  d is c r im in a to ry  
p r a c t i c e s  t h a t  w e re  n o t c o v e re d  by  T itle  V II a t  a ll  In 
G o n z a le z  v. The H o m e  I n s u r a n c e  Co.. 1989 U.S. D ist. 
L E X IS  8733 (S.D .N .Y . 1989), th e  c o m p la in t  a lle g e d  th a t  th e  
d e f e n d a n t  in s u ra n c e  c o m p a n ie s  h a d  re fu s e d  to  be  r e p r e s e n t ­
e d  b y  th e  p la in t i f f  in s u ra n c e  a g e n c y  b e c a u s e  th e  o w n e rs  of 
th e  a g en c y , w e re  H isp a n ic . In  N o la n 's  A u to  B o d y  Shop.  
Inc. v. A l l s ta t e  I n s u r a n c e  Co.. 718 F .S u p p  721 (N .D  111. 
1989), th e  p la in t if f s  c la im e d  th a t  A l ls ta te  h ad  c a n c e lle d  an  
a g r e e m e n t  fo r  in s u ra n c e  r e p a i r  w o rk  to  be  d o n e  a t  a  g a r a g e

b e c a u s e  i ts  o w n e rs  w e re  b la c k . T h e  p la in t i f f  in  C la rk  v. 
S l a t e  F a r m  I n s u r a n c e  Co..  1989 U.S. D is t. L E X IS  10666 
(E .D  P a  1989), a s s e r te d  t h a t  S ta te  F a r m  h a d  re fu s e d  to  p ay  
h e r  le g i t im a te  in s u ra n c e  c la im  b e c a u s e  sh e  w a s  b la c k . S e e  
a lso  R a g in  v  S te in e r ,  C l a t e m a n  a n d  A s s o c ia te s .  714 
F .S u p p . 709, 713 (S .D .N .Y . 1989) ( r a c ia l ly  o r ie n te d  a d v e r t i s e ­
m e n t) ;  T o r r e s  v .  C i t y  o f  C h ica g o ,  1989 U .S. D is t L E X IS  
9503 (N .D . 111. 1989). In  a l l  o f th e s e  c a s e s  T it le  V II w a s  
p la in ly  in a p p l ic a b le  T h e  o n ly  f e d e r a l  s t a tu t e  w h ich  a r g u ­
a b ly  fo rb a d  th e  a lle g e d  d is c r im in a t io n  w a s  s e c tio n  1981, bu t 
in  e a c h  c a s e  th e  c la im  w a s  n o n e th e le s s  d ism is se d  u n d e r  
P a t t e r s o n .

A n u m b e r  o f o th e r  d is m is s a ls  in v o lv e d  e m p lo y m e n t  d is ­
c r im in a t io n  c la im s  w h ich , fo r  a  v a r ie ty  o f re a so n s , w e re  no t 
a c t io n a b le  o r  c o u ld  n o t be  re m e d ie d  u n d e r  T it le  V II. In  
G u e r r a  v. T i s h m a n  E a s t  R e a l t y ,  1989 U .S. D is t. L E X IS  
6744 (S .D .N .Y . 1989). th e  d i s t r ic t  c o u r t  h e ld , in lig h t of 
P a t t e r s o n ,  t h a t  it  w a s  le g a l  u n d e r  s e c tio n  1981 fo r  a  
r a c ia l ly  m o tiv a te d  th ird  p a r ty  to  c o e rc e  o r  in d u ce  a n  e m ­
p lo y e r  to  f i r e  a b la c k  w o rk e r .  In  W a sh in g to n  v. L a k e  C oun ty . 
I llin o is ,  717 F .S u p p . 1310 (N .D . 111. 1989), th e  ju d g e  w ho 
th r e w  o u t th e  p l a in t i f f ’s s e c tio n  1981 c la im  a ls o  h e ld  t h a t  th e  
p la in t i f f  c o u ld  n o t su e  h is  a l le g e d ly  r a c ia l ly  m o tiv a te d  su ­
p e r v is o r  u n d e r  T i t le  V II b e c a u s e  th e  s u p e rv is o r  w a s  n o t an  
“ e m p lo y e r ” w ith in  th e  m e a n in g  of T it le  V II. In  M a so n  v. 
C o ca -C o la  B o t t l in g  Co.,  1989 U.S. D is t. L E X IS  10533 (D. 
K a n . 1989), th e  d i s t r ic t  c o u r t  n o t o n ly  d ism is se d  th e  p la in ­
t i f f ’s s e c tio n  1981 h a r a s s m e n t  c la im s ,  d e s p i te  a c k n o w le d g ­
in g  th e  u n d isp u te d  r a c ia l  h a r a s s m e n t  t h a t  h a d  o c c u r re d ,  b u t 
a ls o  d ism is se d  th e  p la in t i f f ’s T it le  V II c la im  on th e  g ro u n d  
th a t ,  in  th e  c o u r t ’s  v iew , T i t le  V II d id  n o t p ro v id e  a  re m e d y  
fo r  a l l ' r a c i a l  h a r a s s m e n t ,  b u t on ly  fo r  r a c ia l  h a r a s s m e n t  
t h a t  “ d e s t r o y e d ]  th e  e m o tio n a l  a n d  p sy c h o lo g ic a l  s ta b i l i ty  
o f  th e  [p la in t if f l  "

T h e  m a jo r i ty  in  P a t t e r s o n  a s s u m e d  th a t  th e  a v a i la b i l i ty  
o f  a s e c tio n  1981 r e m e d y  w o u ld  in d u c e  p la in t if f s  to  d e lib e r ­
a te ly  d is r e g a rd  th e  c o n c i l ia t io n  p ro c e d u re s  e s ta b l is h e d  by 
T it le  V II. F r e q u e n t ly ,  h o w e v e r , th e  p la in t if f s  w h o se  c la im s  
w e re  d ism is se d  u n d e r  P a t t e r s o n  h a d  in d e e d  a t t e m p te d  to 
in v o k e  th o se  v e ry  T it le  V II p ro c e d u re s .  In  S o f f e n n  v  
A m e r i c a n  A ir l in e s .  717 F .S u p p . 597 (N .D  111. 1989). and  
H all v. C o u n ty  o f  Cook. Illinois,  719 F .S u p p  721 (N .D  111 
1989)" th e  p la in t i f f s  in a d v e r te n t ly  fo r fe i te d  th e ir  T it le  V II 
c la im s  by f ilin g  t h e i r  a d m in i s t r a t iv e  c h a rg e s  w ith  th e  w ro n g  
a g e n c y  In th r e e  c a s e s  th e  p la in t if f s  p ro p e r ly  filed  th e ir  
a d m in i s t r a t iv e  c h a rg e s  w ith  E E O C , b u t w e re  held  to  h av e  
d e la y e d  too  long  in d o in g  so  B y r d  r  P y le .  N o 87-3547  
(C R R ). D.D .C. (s lip  o p in io n . S ep t 1. 1989). B r a c k s h a tc  v. 
M iles .  1989 U.S. D is t  L E X IS  12820 (N .D  111 1989): M ason  
v  C oca-C ola  B o t t l in g  Co.. 1989 U .S D ist L E X IS  10533 (D 
K a n  1989i In s o m e  c a s e s  th e  p la in t if f  c a r e fu lly  file d  p ro p e r  
T it le  V II c h a rg e s  b e fo re  su in g  u n d e r  bo th  T it le  V II and 
s e c tio n  1981 b e c a u se  of th e  m o re  e f f ic a c io u s  r e m e d ie s  a t 
t im e s  a v a i la b le  u n d e r  s e c tio n  1981 S e c tio n  1981 is p a r t i c u ­
l a r ly  im p o r ta n t  in h a r a s s m e n t  c a s e s , s in c e  m o n e ta ry  re l ie f  
o f te n  c a n n o t be  o b ta in e d  in a h a r a s s m e n t  c a s e  b ro u g h t u n d e r  
T it le  V II a lo n e ; in a  n u m b e r  o f th e  s e c tio n  1981 h a ra s s m e n t  
c a s e s  th e  p la in t i f f  h ad  a ls o  f ile d  a t im e ly  T it le  V II c la im  ” 
In  s e v e ra l  o th e r  c a s e s  a  s e c tio n  1981 c la im  a p p e a r s  to  h a v e  
b e e n  jo in e d  w ith  a T it le  V II c la im  fo r  th e  p u rp o se  of 
o b ta in in g  a  ju ry  t r i a l . ”

Lower Court Opinions Interpreting Patterson

T h e  im p a c t  o f P a t t e r s o n  is  c o m p l ic a te d  c o n s id e ra b ly  by 
th e  fa c t  th a t  th e  m a jo r i ty  o p in io n  r a is e s  f a r  m o re  q u e s tio n s  
th a n  it re so lv e s . P r io r  to  P a t t e r s o n  th e  f e d e r a l  c o u r ts  had  
h e ld  th a t  v i r tu a l ly  a ll  fo rm s  o f  r a c ia l  d is c r im in a t io n  in

Published by THE BUREAU OF NATIONAL AFFAIRS, INC.. W ashington. D.C. 20037



D  - 4 (No. 223) TEXT (DLR) 11-21-89

e m p lo y m e n t  v io la te d  se c tio n  1981 T h e  d e c is io n  in P a t t e r ­
son  le a v e s  c le a r  on ly  tw o  th in g s  a b o u t th e  sc o p e  of se c tio n  
1981: a  r a c ia l ly  m o tiv a te d  r e fu s a l  to  h ir e  v io la te s  an  e m ­
p lo y e e s  r ig h ts  u n d e r  se c tio n  1981, a n d  a p r a c t ic e  of r a c ia l  
h a r a s s m e n t ,  a d o p te d  a f t e r  a n  e m p lo y e e  w a s  h ire d , d o e s  not. 
T h e  S u p re m e  C o u r t 's  d e c is io n  le a v e s  in  a n  e n ti r e ly  c o n fu se d  
s t a t e  th e  a p p lic a t io n  o f s e c tio n  1981 to  o th e r  d is c r im in a to ry  
e m p lo y m e n t  p ra c t ic e s .  T h e  m a jo r i ty  o p in io n  a p p a r e n t ly  
c o n te m p la te s  th a t  so m e  b u t n o t  a ll  p ro m o tio n  c la im s  w ill 
r e m a in  w ith in  th e  sc o p e  o f s e c tio n  1981; w h e th e r  fe w  o r  
m a n y  p ro m o tio n  d e c is io n s  a r e  s t i l l  c o v e re d  by s e c tio n  1981, 
a n d  how  th e  lin e  is  to  be d ra w n , a r e  e n t i r e ly  u n c le a r .  T h e  
m a jo r i ty  o p in io n  m a k e s  no re fe r e n c e ,  f a v o ra b le  o r  u n fa v o r ­
a b le ,  to  th e  la r g e  n u m b e r  of p r e - P a t t e r s o n  s e c tio n  1981 
e m p lo y m e n t  c a s e s , in c lu d in g , fo r  e x a m p le ,  th e  C o u r t 's  ow n 
p r io r  d e c is io n s  a p p ly in g  s e c tio n  1981 to  c la im s  of d is c r im i­
n a to r y  d is c h a rg e s . -' ’ P a t t e r s o n ,  a s  a  c o n se q u e n c e , h a s  
s p a w n e d  a  h o s t o f n o v e l an d  u n p re c e d e n te d  n e w  is su e s  a b o u t 
th e  m e a n in g  of s e c tio n  1981, is su e s  w h ic h  in  th e  o rd in a ry  
c o u r s e  o f  l i t ig a t io n  c o u ld  e a s ily  r e q u ir e  a  d e c a d e  o r  m o re  to  
r e s o lv e ,  a n d  w h ic h  w ill b re e d  c o n f lic t  a n d  c o n fu s io n  a m o n g  
th e  lo w e r  c o u r ts .

T h e  d i s a g r e e m e n ts  an d  u n c e r ta in ty  t h a t  w ill in e v i ta b ly  
f lo w  f ro m  th e  P a t t e r s o n  d e c is io n  b e c a m e  a p p a r e n t  w ith in  a 
m a t t e r  o f m o n th s . In  C o lo rad o , fo r  e x a m p le .  D is t r ic t  J u d g e  
A r r a j  c o n c lu d e d  in P a d i l la  v .  U n i te d  A i r  L in e s ,  716 
F .S u p p . 485 (D. C olo. J u ly  5. 1989), th a t  r a c ia l ly  d i s c r im in a ­
to ry  d is m is s a ls  s t i l l  v io la te  s e c tio n  1981 b e c a u s e  “ t e r m i n a ­
tio n  a f f e c ts  th e  e x is te n c e  o f th e  c o n tr a c t ,  n o t m e r e ly  th e  
t e r m s  of i ts  p e r fo r m a n c e ,” a n d  th a t  th e  p la in t i f f ’s §1981 
d i s c r im in a to r y  f i r in g  c la im  w a s  th e r e f o r e  good  a f te r  P a t ­
te r so n .  J u d g e  B a b c o c k  of th e  s a m e  D is t r i c t  C o u rt, on th e  
o th e r  h a n d , e x p re s s ly  r e je c te d  J u d g e  A r r a j ’s in te r p r e ta t io n  
o f  s e c tio n  1981 a n d  P a t t e r s o n ,  d ism is s in g  a  §1981 t e r m in a ­
tio n  c la im  c a s e  s im ila r  to  th a t  in  P a d i l la .  “ I r e s p e c t fu l ly  
d i s a g r e e  w ith  m y  c o lle a g u e 's  r a t io n a le  . . .  [ d i s c r im in a to r y  
d is c h a r g e  o c c u rs  a f t e r  th e  c o m m e n c e m e n t  of th e  e m p lo y ­
m e n t  r e la t io n s h ip  an d  d o e s  n o t a f fe c t  th e  e m p lo y e e 's  r ig h t  to  
m a k e  o r  e n fo rc e  c o n tr a c ts ."  R i v e r a  r .  A .T .  & T. I n f o r m a ­
tion  S y s t e m s .  719 F .S u p p . 962 (D  C olo. 1989)

O n A u g u s t 14. 1989, Ju d g e  R o v n e r  o f th e  f e d e ra l  D is t r ic t  
C o u r t  in  C h ic a g o  h e ld  th a t  s e c tio n  1981 d o e s  n o t fo rb id  an  
e m p lo y e r  f ro m  d ism is s in g  an  e m p lo y e e  in r e ta l i a t io n  fo r  
h a v in g  c o m p la in e d  a b o u t r a c ia l  d is c r im in a t io n  "B ecause  
[ th is ]  C o u r t  h a s  d e te rm in e d  th a t  p la in t i f f 's  d is c h a rg e  is n o t 
a c t io n a b le  u n d e r  se c tio n  1981, th e  f a c t  th a t  th e  d is c h a rg e  
m a y  h a v e  b e e n  r e ta l i a to r y  h a s  no  im p a c t  on th e  C o u r t 's  
h o ld in g  "  H all v  C o u n ty  o f  Cook, r .hnois ,  719 F .S u p p . 721 
(N .D  111 A u g u s t 14. 1989). T h e  n e i .  d a y  J u d g e  D uff, a ls o  of 
th e  D is t r i c t  C o u rt in C h icag o , re a c h e d  th e  o p p o s ite  c o n c lu ­
sio n . h o ld in g  th a t  d is c r im in a to ry  d is c h a rg e s  do v io la te  s e c ­
tio n  1981, r u l in g  in a c a s e  in w h ic h  tw o  w h ite  p la in t if f s  w e re  
a lle g e d ly  t e r m in a te d  in r e ta l i a t io n  fo r  t h e i r  c o m p la in ts  to 
c o m p a n y  m a n a g e m e n t  a b o u t r a c ia l  d is c r im in a t io n  in h ir in g  
E n g lish  v. G e n e r a l  D e v e lo p m e n t  C o r p o r a t io n  717 
F .S u p p . 628 (N .D . 111. 1989). T h e  N in th  C irc u it ,  a n d  one  
o p in io n  in th e  S o u th e rn  D is t r ic t  o f N e w  Y o rk  a g re e  w ith  
J u d g e  R o v n e r . '’ T h e  S e v e n th  C irc u it ,  a n d  a  d i s t r ic t  c o u r t  
o p in io n  in  C o lo ra d o  a g r e e  w ith  J u d g e  D u ff .”

In  P a t t e r s o n  th e  S u p re m e  C o u rt h e ld  t h a t  ‘‘[o jn ly  w h e re  
th e  p ro m o tio n  r i s e s  to  th e  lev e l o f  an  o p p o r tu n ity  fo r  a  new  
a n d  d is t in c t  r e la t io n  b e tw e e n  th e  e m p lo y e e  a n d  th e  e m p lo y ­
e r  is  su c h  a  c la im  a c t io n a b le  u n d e r  s e c tio n  1981." 105 
L .E d .2 d  a t  156. T h is  “ n e w  a n d  d is t in c t  r e la t i o n ” w a s  e n ti r e ly  
a  n o v e l c o n c e p t  in  th e  law , a n d  is c e r ta in  to  e l ic i t  im a g in a ­
t iv e  a n d  d iv e rg e n t  th e o r ie s  a m o n g  th e  lo w e r  c o u r ts ."  A s of

to d a y  th e r e  a p p e a r  to  be  s e v e ra l  d i f f e r e n t  in te r p r e ta t io n s  of 
th is  p h ra se . T h e  F o u r th  C irc u i t  h o ld s  t h a t  th e  c o m b in a tio n  o f  
in c re a s e d  re sp o n s ib i li ty  a n d  in c r e a s e d  s a l a r y  r e n d e r  a  p r o ­
m o tio n  a  “ new  a n d  d is t in c t  r e la t io n " . ’1 J u d g e  P o s n e r ,  in a 
r e c e n t  S e v e n th  C irc u it  o p in io n , a rg u e d  th a t  a  p ro m o tio n  
in v o lv e d  a  “ new  a n d  d is t in c t  r e la t i o n ” i f  th e  p o sitio n  w a s  
o n e  fo r  w h ich  a  n o n -e m p lo y e e  c o u ld  a ls o  h a v e  a p p lie d .’ A 
C o lo rad o  d i s t r ic t  c o u r t  o p in io n  h o ld s  t h a t  w h e th e r  a  p ro m o ­
tio n  w ould  r is e  to  th e  le v e l o f a “ n e w  a n d  d is t in c t  r e la t io n  " 
is  a  q u e s tio n  of f a c t  fo r  th e  ju ry  o r  o th e r  t r i e r  o f f a c t ."  
A n o th e r  g ro u p  of d e c is io n s  h o ld s  t h a t  a n  o r d in a r y  p ro m o tio n  
is no t a c t io n a b le  u n d e r  s e c tio n  1981. a n d  l im i ts  "new an d  
d is t in c t  r e la t io n "  to  c h a n g e s  lik e  t h a t  o c c u r r in g  w hen  a  law  
f i r m  a s s o c ia te  b e c o m e s  a  p a r tn e r ,  " a  t r a n s f o rm a tio n  f ro m  
e m p lo y e e  to  e m p lo v e r ."  " A n d e r s o n  v .  U n i te d  P a r c e l  S e r ­
v ic e ,  1989 U.S. D ist. L E X IS  12195 (N .D . 111. 1989), r e je c te d  a 
s e c tio n  1981 p ro m o tio n  c a s e  b e c a u se  th e  p ro m o tio n  in v o lv e d  
a  s ig n if ic a n t  c h a n g e  in d u tie s ,  b u t o n ly  a  m in o r  in c re a s e  in 
s a la ry ,  W il l ia m s  v .  N a t io n a l  R a i l r o a d  P a s s e n g e r  C o rp  , 
716 F .S u p p . 49 (D .D .C. 1989), r e je c te d  a  s e c tio n  1981 p ro m o ­
tio n  c la im  b e c a u se  th e  p ro m o tio n  in v o lv e d  a  s ig n if ic a n t  
in c r e a s e  in s a la ry ,  b u t on ly  a  m in o r  c h a n g e  in  re sp o n s ib il­
it ie s .  T w o d is t r ic t  c o u r t  ju d g e s  h a v e  e x p re s s ly  d is a p p ro v e d  
th e  s ta n d a rd  a d v o c a te d  by J u d g e  P o s n e r  in M a lh o tra :  bo th  
o f  th e s e  ju d g e s , s o m e w h a t  s u rp r is in g ly ,  s i t  w ith in  th e  S e v ­
e n th  C irc u i t .“  A n u m b e r  o f  o th e r  d i s t r ic t  o p in io n s  d ism is s  
s e c tio n  1981 p ro m o tio n  c la im s  w ith o u t e v e r  a r t i c u la t in g  an y  
s ta n d a r d  a t  a ll  r e g a r d in g  w h a t c o n s t i tu te s  a  "n e w  an d  
d is t in c t  r e la t io n .” *'

T h e re  h a s  b e en  a  d iv e rg e n c e , a s  w e ll, in  th e  m o re  g e n e ra l  
a p p ro a c h  th e  lo w e r  c o u r ts  h a v e  ta k e n  to  th e  p ro b le m s  an d  
is su e s  r a is e d  by  P a t t e r s o n .  J u d g e  R ic h a rd  P o s n e r ,  a  R e a- 
g a n -a p p o in te e  o f a  f a ir ly  c o n s e rv a t iv e  p e rsu a s io n ,  h a s  e x ­
p re s s e d  c o n c e rn  a s  to  “[h]ow  m a n y  p la in t if f s  c an  
s u c c e s s fu lly  n e g o tia te  th e  t r e a c h e r o u s  a n d  sh if t in g  sh o a ls  of 
p re s e n t-d a y  fe d e ra l  e m p lo y m e n t  d is c r im in a t io n  law  " M a l­
h o tr a  v. C o t t e r  & Co., 50 F E P  C as. 1474 (7 th  C ir. 1989). 
S e v e ra l  lo w e r  c o u r t  d e c is io n s  h a v e  re c o g n iz e d  th e  n eed  to 
a llo w  se c tio n  1981 p la in t if f s  to  a m e n d  th e i r  c o m p la in ts  to  
in c lu d e  a d d it io n a l  a l le g a t io n s  th a t  m a y  now  be  re q u ire d  by 
P a t t e r s o n O th e r  c o u r ts ,  h o w e v e r , h a v e  in th e  w a k e  of 
P a t t e r s o n  d ism is se d  s e c tio n  981 c la im s  w ith  an  a la c r i ty  
b o rd e r in g  on e n th u s ia s m  B e tw e e n  J u n e  15 a n d  J u ly  31. 
1989. a  m a jo r i ty  o f  th e  o rd e r s  d ism is s in g  P a t t e r s o n  c la im s  
w e re  issu e d  su a  sp o n te ,  th e  d e f e n d a n ts  n e v e r  file d  an y  
re q u e s t  fo r  d ism is sa l,  an d  th e  p la in t if f s  w e re  n e ith e r  n o ti­
f ied  th a t  d ism is sa l  w a s  b e in g  c o n s id e re d  by th e  c o u r t no r 
a f fo rd e d  an y  o p p o r tu n ity  to  s u b m it  a  b r ie f  on th e  m e a n in g  
o f  P a t t e r s o n  ” S u a  sp o n te  d is m is s a ls  o f c iv il c la im s  a r e  a 
d e b a ta b le  p r a c t ic e  e v e n  w hen  th e  law  is c r y s ta l  c le a r ,  in 
s e c tio n  1981 c a s e s , g iv en  th e  a m b ig u i ty  of P a t t e r s o n  and  
th e  p o ss ib ility  th a t  p la in t if f s  m ig h t be  a b le  to  o f f e r  m a te r ia l  
a d d it io n a l  a lle g a t io n s ,  su a  s p o n te  d is m is s a ls  s e e m  un iquely  
in a p p ro p r ia te .

A n u m b e r  of lo w e r  c o u r t  d e c is io n s  r e a d  a s  th o u g h  the  
c e n t r a l  p u rp o se  o f P a t t e r s o n  w a s  s im p ly  to  th ro w  o u t as 
m a n y  se c tio n  1981 r a c e  d is c r im in a t io n  c a s e s  a s  p o ss ib le  In 
S o f f e n n  v. A m e r i c a n  A ir l in e s ,  Inc.,  717 F .S u p p . 597 (N .D  
111 1989), th e  p la in t if f  c o n te n d e d  th a t  p ro m o tio n  f ro m  a 
“ p ro b a t io n a ry "  to  a  " te n u re d  " p o s itio n  in v o lv e d  a  new  an d  
d is t in c t  r e la t io n  w ith in  th e  m e a n in g  of P a t t e r s o n .  Ju d g e  
N o rg le  r e je c te d  th a t  c o n te n tio n , in  p a r t ,  on  th e  g ro u n d  th a t  
i t  w o u ld  p e r m i t  to o  m a n y  p ro m o tio n  c la im s  to  r e m a in  
a c t io n a b le  u n d e r  s e c tio n  1981:

P la in t i f f 's  [c o n te n tio n ]  . . .  w o u ld  c r e a te  a n  e x c e p tio n  
w h ich  w ou ld  sw a llo w  up  th e  ru le  a n n o u n c e d  in  P a t t e r s o n ,

Published by THE BUREAU OF NATIONAL AFFAIRS. INC., W ashington. D.C. 20037



11-21-89 (DLR) TEXT (No. 223) D  - 5

s u b je c t in g  in n u m e r a b l e  c la im s  of d is c r im in a to ry  w o rk ­
in g  c o n d itio n s , w h ic h  the  C o u r t  c o n s id e r e d  b e t t e r  a d ­
d re s s e d  by T it le  V II 's  c o m p re h e n s iv e  s c h e m e , to  review - 
u n d e r  § 1 9 8 1 .

( E m p h a s is  a d d ed ) In  N o la n 's  A u to  B o d y  Shop . Inc. v. 
A l l s t a t e  In s u r a n c e  Co., 718 F .S u p p . 721 (N .D. 111. 1989), th e  
p la in t i f f s  a lle g e d  th a t ,  a f te r  th e i r  f i r s t  c o n tr a c t  w ith  A lls ta te  
w a s  te r m in a te d  fo r  r a c ia l  re a so n s , th e y  a sk e d  A lls ta te  to 
e n t e r  in to  a  new  c o n tr a c t ,  an d  th a t  th is  r e q u e s t  w a s  d e n ie d  
b e c a u s e  th e y  w e re  b lac k . T h e  d i s t r ic t  c o u r t  d id  n o t su g g e s t  
t h a t  a  r a c e  b a se d  r e fu s a l  to  m a k e  su c h  a  new  c o n tr a c t  w o u ld  
s o m e h o w  fa ll  o u ts id e  th e  l i t e r a l  la n g u a g e  of s e c tio n  1981 
i ts e l f .  R a th e r ,  Ju d g e  B u a  d ism is se d  th is  c la im  b e c a u se  o f h is 
f e a r  t h a t  to o  m a n y  c o n tr a c t  t e r m in a t io n  c a s e s  c o u ld  s u c ­
c e s s fu l ly  be  r e p le a d e d  in th is  m a n n e r :

P a t t e r s o n ' s  d is t in c tio n  b e tw e e n  p re fo rm a tio n  d i s c r im i ­
n a tio n  — a c t io n a b le  u n d e r  §1981 — an d  p o s tfo rm a t io n  
d is c r im in a t io n  — n o t a c t io n a b le  u n d e r  §1981 — w o u ld  be 
o b l i t e r a te d  u n d e r  p la in t if f s ' th e o ry  o f r e c o v e ry . D is c r im i­
n a tio n  p la in t if f s  co u ld  tu rn  p o s t fo rm a t io n  c o n d u c t in to  
p r e fo r m a t io n  c o n d u c t s im p ly  b y  a l le g in g  t h a t  th e y  so u g h t 
a  " n e w ” c o n t r a c t  r e in s ta t in g  th e  t e r m s  of a  p r io r  
a g re e m e n t .

(E m p h a s is  ad d ed ). T h e  c o u r t  e v id e n t ly  r e g a rd e d  a s  i r r e l e ­
v a n t  th e  p o s s ib il ity  t h a t  su c h  a n  a l le g a t io n  m ig h t  in d e e d  b e  
t r u e .  In  D a n g e r f i e ld  v. The M iss io n  P r e s s ,  50 F E P  C as. 
1171, th e  p la in t if f s  a lle g e d  th a t  t h e i r  e m p lo y e r  in te n d e d , a t  
th e  t im e  i t  c o n tr a c te d  w ith  th e m , to  im p o se d  on th e m  
d i s c r im in a to r y  t e r m s  of e m p lo y m e n t .  J u d g e  H a r t  in s is te d  
t h a t  su c h  d is c r im in a t io n  be  r e g a r d e d  a s  le g a l  u n d e r  s e c tio n  
1981, f e a r fu l  t h a t  i t  w o u ld  o th e rw is e  b e  to o  e a s y  fo r  a  
p la in t i f f  to  s t a te  a  c a u s e  o f a c tio n :

I f  a  p la in t if f  c a n  re ly  on p o s t  f o rm a t io n  c o n d u c t to  sh o w  
th e  e m p lo y e r ’s s t a te  o f m in d  a t  th e  t im e  of c o n tr a c t in g ,  
a n d  th e re b y  su e  u n d e r  §1981, th e n  P a t t e r s o n  is  e s s e n t ia l ­
ly  a  n u lli ty .  In  e v e ry  su it , a  p la in t i f f  c o u ld  a l le g e  t h a t  th e  
e m p lo y e r  in te n d e d  a ll  a lo n g  to  d is c r im in a te  b a se d  on 
r a c e ,  en d  th a t  th e  p o s t f o rm a t io n  c o n d u c t is  p ro o f  o f 
u n sp o k e n  in te n t .  S e c tio n  1981 w o u ld  in  t h a t  c a s e  b e  u se d  
to  e x p o s e  the  e x a c t  s a m e  c o n d u c t  a s  P a t t e r s o n  d i s a l ­
lo w s .  . . .  P la in t i f f ,  in  o th e r  w o rd s , w o u ld  a c c o m p lis h  in d i­
r e c t ly  w h a t P a t t e r s o n  d i r e c t l y  p ro h ib its .

(E m p h a s is  ad d ed ). T h is  p a s s a g e  r e a d s  a s  th o u g h  P a t t e r s o n  
h a d  d e c la r e d  th a t  o n -th e -jo b  d is c r im in a t io n  en d  r a c ia l  h a ­
r a s s m e n t  w e re  fo rm s  of p ro te c te d  a c t iv i ty  w ith  w h ich  th e  
f e d e r a l  c o u r ts ,  a t  l e a s t  in a  s e c tio n  1981 c a s e , w e re  n o t to  
i n te r f e r e .

T h e re  h a s  b e e n  a n  in e x p l ic a b le  f lu r r y  o f d is m is s a ls  in th e  
f e d e r a l  d i s t r ic t  c o u r t  in C h ica g o  A p p ro x im a te ly  o n e - th ird  of 
a l l  o r d e r s  d ism is s in g  s e c tio n  1981 c la im s  h a v e  b e e n  issu e d  
b y  f e d e r a l  ju d g e s  in C h icag o , fo u r  t im e s  a s  m a n y  o rd e r s  a s  
in  th e  n e x t  l a r g e s t  c ity , th e  tw o  d i s t r ic t  c o u r ts  fo r  N ew  Y o rk  
C ity . M o re  d is m is s a l  o rd e rs  h a v e  b e e n  e n te r e d  in  C h ica g o , 
a n d  m o re  s e c tio n  1981 c la im s  h a v e  b e e n  d ism is se d  th e re ,  
th a n  in th e  n e x t s ix  la rg e s t  (in  t e r m s  of d ism is sa ls )  c i t ie s  
c o m b in e d . T h is  h a s  o c c u rre d , in  p a r t ,  b e c a u s e  a  m a jo r i ty  o f 
a l l  s u a  s p o n te  d ism is sa l  o r d e r s  in th e  c o u n try  h a v e  b e e n  
is su e d  by  C h ica g o  fe d e ra l  ju d g e s .40 I t  is  u n c le a r  w h e th e r  
th e s e  o rd e r s ,  o r  th e  o th e r  C h ic a g o  f e d e ra l  c o u r t  d is m is s a ls ,41 
a r e  th e  r e s u l t  o f s o m e  c o in c id e n c e  o f b e n ig n  f a c to r s ,  o r  
r e f l e c t  a  s u b s ta n t iv e  v iew  of s e c tio n  1981 o r  c iv il  r ig h ts  
c la im s  in  g e n e ra l.

The Broader Impact of Patterson

T h e  ju d ic ia l  d e c is io n s  d e s c r ib e d  a b o v e  a r e  n e c e s s a r i ly  
l im i te d  to  th e  r a c e  d is c r im in a t io n  c la im s  of in d iv id u a ls  w h o

a r e  a b le  to  fin d  a n  a t to r n e y  w h o  w ou ld  ta k e  on th e i r  c a s e s , 
a n d  c o n tin u e  to  p u rs u e  th e m , d e sp ite  th e  d e c is io n  in P a t t e r ­
so n  O u r d isc u ss io n s  w ith  a t to r n e y s  a c ro s s  th e  c o u n try  in d i­
c a t e  t h a t  P a t t e r s o n  h a s  h a d  a  p a lp a b le  d e te r r e n t  e f fe c t  on 
a t to r n e y s  a sk e d  to  r e p re s e n t ,  o r  a lr e a d y  r e p re s e n t in g ,  c iv il 
r ig h ts  p la in t if f s  In  th e  w a k e  of P a t t e r s o n  p r iv a te  p r a c t i ­
t io n e r s  a r e  s u b s ta n t ia l ly  a n d  a v o w e d ly  less  w illin g  to  h a n d le  
s e c tio n  1981 c a s e s ,  r e g a r d le s s  of w h e th e r  th e y  m a y  be 
c o n v in c e d  th a t  th e y  c o u ld  p ro v e  th a t  r a c ia l  d is c r im in a t io n  
h a d  in d ee d  o c c u r re d .  L a w y e rs  w ho w e re  a l r e a d y  h a n d lin g  
s e c tio n  1981 c a s e s  w h e n  P a t t e r s o n  w a s  f ile d  a r e  e n c o u ra g ­
in g  th e i r  c l ie n ts  to  a b a n d o n  th o se  c la im s . In  th e  lo n g  te r m  
th is  d e te r r e n t  e f fe c t  of P a t t e r s o n  is  lik e ly  to  b e  m o re  
im p o r ta n t ,  a n d  f a r  re a c h in g ,  th a n  lo w e r c o u r t  o p in io n s  
i n te r p r e t i n g  th a t  d e c is io n .

P a t t e r s o n  h a s  h a d  th is  im p a c t,  in p a r t ,  b e c a u se  i t  is 
p e r c e iv e d  a s  r e f le c t in g  o r  p r e s a g in g  an  u n w illin g n e ss  on th e  
p a r t  of th e  f e d e ra l  c o u r ts  to  a w a rd  r e l ie f  in  s e c tio n  1981 
c a s e s ,  if  n o t  c iv il  r ig h ts  c a s e s  g e n e ra lly . In  m o s t  o f th e  
p o s s ib le  s e c tio n  1981 c a s e s  c o n s id e re d  by  p r iv a te  a t to rn e y s ,  
th e  m e a n in g  o f  P a t t e r s o n  a n d  s e c tio n  1981 a r e  f a r  f ro m  
c l e a r  B u t t h a t  v e ry  tu r m o i l  is  o f te n  su f f ic ie n t,  fo r  in e x o ra ­
b le  e c o n o m ic  r e a s o n s ,  to  d is su a d e  c o u n se l f ro m  h a n d lin g  
th e s e  c a s e s . P r i v a t e  a t to r n e y s  w ho  h a n d le  c iv il  r ig h ts  c a s e s , 
o f  c o u rse , do  n o t g e t  p a id  u n le s s  th e  c la im  is  su c c e ss fu l.  
S u c c e s s  n e e d  n o t b e  a  c e r ta in ty ,  b u t w h en  th e  p ro b a b il i ty  of 
s u c c e s s  f a l l s  to o  low , i t  m a k e s  no f in a n c ia l  s e n se  fo r  a 
l a w y e r  to  ta k e  o r  p u r s u e  th e  c a se . P a t t e r s o n  h a s  n o t 
g u a r a n te e d  th e  f a i lu r e  o f s e c tio n  1981 p ro m o tio n , t r a n s f e r ,  
d is c h a rg e ,  d is m is s a l ,  r e ta l i a t io n  o r  s a la ry  c la im s ,  b u t  th e  
c o n fu s io n  w ro u g h t  by  P a t t e r s o n  h a s  c r e a te d  a  le g a l  e n v i­
r o n m e n t  in w h ic h  to d a y , a n d  fo r  th e  f o r e s e e a b le  fu tu re ,  
s o m e  m e r i to r io u s  s e c tio n  1981 c a s e s  w ill n o t b e  b ro u g h t 
s im p ly  b e c a u s e  o f  t h a t  tu rm o il .  P a t t e r s o n  w ill a f fe c t ,  a s  
w e ll,  p r iv a t e  e n f o rc e m e n t  o f  T it le  V II, b e c a u s e  th e r e  a r e  
fo rm s  o f d is c r im in a t io n ,  su c h  a s  r a c ia l  h a r a s s m e n t ,  w h ich  
T i t l e  V II fo rb id s , b u t  fo r  w h ic h  T it le  V II i ts e l f  p ro v id e s  no 
s u b s ta n t ia l  m o n e ta ry  r e m e d y  D o u b ts  c r e a te d  b y  P a t t e r s o n  
a r e  l ik e ly  to  d is c o u ra g e  th e  filin g  of c o m b in e d  T it le  V II - 
s e c tio n  1981 h a r a s s m e n t  c la im s ; w ith o u t th e  s e c tio n  1981 
e le m e n t  o f th o se  c a s e s ,  th e  r e m a in in g  T it le  V II  c la im  w ill 
o f te n  n o t b e  w o r th  p u rsu in g , fo r  e i th e r  p la in t if f s  o r  th e ir  
c o u n se l.  T h e  e x te n t  to  w h ic h  P a t t e r s o n  h a s  d e te r r e d  o r  
d is c o u ra g e d  la w y e r s  in p e n d in g  l it ig a tio n  is r e f le c te d  in 
c a s e s  in w h ic h  p la in t i f f s ’ c o u n se l c o n c e d e d  th a t  th e i r  s e c tio n  
1981 c la im s  w e re  no  lo n g e r  v ia b le .4: o r  in w h ic h  p la in t if f s ' 
c o u n se l  s im p ly  d id  n o t r e sp o n d  w hen  th e  v ia b i l ity  o f th o se  
c la im s  w e re  c h a l le n g e d  by  th e  d e fe n d a n t o r  th e  c o u r t .4’

P r iv a te  a t to r n e y s  a r e  a ls o  b e in g  d e te r r e d  f ro m  h a n d lin g , 
o r  p u rsu in g  th e s e  c a s e s  b e c a u s e  of f e a r  th a t  th e  f e d e ra l  
c o u r ts  w ill im p o se  s a n c tio n s  on th e m  u n d e r  R u le  11 of th e  
F e d e r a l  R u le s  of C iv il P r o c e d u re .  R u le  11 sa n c tio n s  a r e  
l im i te d ,  a t  l e a s t  in th e o ry ,  to  th e  f ilin g  o r  p u rs u i t  o f fr iv o lo u s  
c la im s .  B u t in th e  w a k e  of P a t t e r s o n  i t  is  f a r  f ro m  c le a r  
w h ic h  s e c tio n  1981 c la im s  w ill be  r e g a rd e d  by  th e  c o u r ts  a s  
f r iv o lo u s . In  N o l a n ’s A u to  B o d y  S h o p  v  A l l s ta t e  In su r ­
a n c e  Co.. 718 F .S u p p . 721 (N .D . 111. 1989), fo r  e x a m p le . 
J u d g e  B u a  d e n o u n c e d  a s  a  “ d is in g e n u o u s  p le a d in g ” a n  a l le ­
g a tio n  th a t  a  p la in t if f ,  w h o  o r ig in a l ly  c o m p la in e d  of c o n ­
t r a c t  te r m in a t io n ,  h a d  so u g h t to  r e in s ta te  t h a t  c o n tr a c t .  
S e v e ra l  o th e r  c a s e s ,  h o w e v e r , ho ld  th a t  t e rm in a t io n  c la im s  
m a y  be  r e c a s t  in  ju s t  th is  m a n n e r  to  c o n fo rm  to  th e  r e q u ir e ­
m e n ts  o f P a t t e r s o n .** In  M a t th e w s  v. F r e e d m a n ,  D a r r y l  
a n d  M c C o r m ic k ,  T a y lo r  & Co., 882 F .2 d  83 (3d C ir. 1989), 
th e  T h ird  C irc u i t  im p o s e d  sa n c tio n s  on a n  a t to r n e y  w ho 
fa i le d  to  w ith d ra w  a n  a p p e a l  in a  se c tio n  1981 d is c h a rg e  
c a s e ,  a s s e r t in g  th a t  P a t t e r s o n  “ w a s  p a te n t ly  d isp o s it iv e  of

Published by THE BUREAU OF NATIONAL AFFAIRS. INC., W ashington, D C. 20037



D  - 6 (No. 223) TEXT (DLR) 11-21-89

th e  is su e s "  an d  th a t  th e  a p p e a l,  in th e  w a k e  of P a t t e r s o n .  
w a s  o b v io u s ly  “ f r iv o lo u s  ”  A n u m b e r  of d is t r ic t  c o u r ts ,  on 
th e  o th e r  h a n d , c o n tin u e  to  s u s ta in  d is c h a rg e  c la im s  a f te r  
P a t t e r s o n R u le  11 s a n c tio n s  a r e  n o t, of c o u rse , a  c e r t a in ­
ty  a f t e r  P a t t e r s o n ,  a  d e fe n se  m o tio n  fo r  s a n c tio n s  w a s  
r e c e n t ly  d e n ie d , fo r  e x a m p le ,  in  D ic k e r  v . A l l s ta t e  In s u r ­
a n c e  Co.. 1989 U.S. D is t. L E X IS  12482 (N .D . 111. 1989) B u t 
th e  p o ss ib il ity  th a t  th e y  w ill  b e  so u g h t in a  g iv en  c a s e  w ill 
a lm o s t  in e v i ta b ly  c o lo r  th e  ju d g m e n t  o f co u n se l.

T h e  d e c is io n  in  P a t t e r s o n ,  a n d  th e  c o n fu s io n  w h ich  it  h a s  
c r e a te d ,  h a v e  a lso  d im in ish e d  s ig n if ic a n tly  th e  p o ss ib il ity  of 
s e t t l in g  s e c tio n  1981 c la im s . In  a n u m b e r  of p e n d in g  se c tio n  
1981 c a s e s , s e t t le m e n t  n e g o tia tio n s ,  o r  s e t t le m e n ts  t e n t a ­
t iv e ly  a r r iv e d  a t,  h a v e  c o lla p s e d  a s  a  r e s u l t  o f P a t t e r s o n  
T h e  s e t t l e m e n t  o f a  m e r i to r io u s  c iv il  r ig h ts  c la im  o rd in a r i ly  
r e q u ir e s  t h a t  th e  r e le v a n t  la w  an d  fa c t  be  r e a s o n a b ly  c le a r ,  
so  t h a t  c o u n se l fo r  th e  p a r t i e s  c a n  a r r iv e  a t  a  s im ila r  
a s s e s s m e n t-o f  th e  lik e ly  o u tc o m e  of f u r th e r  l i t ig a t io n  In  th e  
w a k e  of P a t t s r s o n ,  h o w e v e r , th e  sc o p e  of s e c tio n  1981 is an  
o p e n  q u e s tio n ; to d a y  a  c iv i l  r ig h ts  d e fe n d a n t  h a s  good  c a u s e  
to  h o p e  th a t  v i r tu a l ly  a n y  s e c tio n  1981 c la im  w ill be  d is ­
m is s e d ,  if  n o t in th e  d i s t r ic t  c o u r t  th e n  on a p p e a l.  A s a  
c o n se q u e n c e , s e c tio n  1981 c a s e s  w h ic h  w o u ld  h a v e  b e e n  
s e t t l e d  b u t  fo r  P a t t e r s o n  w ill  now  b e  t r ie d  in s te a d .

CONCLUSION

I t  is  n o t o u r  in te n t  to  r e a r g u e  th e  te c h n ic a l  le g a l  is su e s  
a d d re s s e d  by  th e  S u p re m e  C o u r t  in  P a t t e r s o n .  T h e  m a jo r i ty  
o p in io n , w h e th e r  o r  n o t o n e  a g r e e s  w ith  i t,  is  a t  th e  le a s t  an  
in g e n io u s  a c a d e m ic  e x e rc is e  in th e  c o n c e iv a b le . B u t is  an  
e x e r c is e  t h a t  h a s  h a d  v e ry  s e r io u s  a n d  r e g r e t ta b l e  c o n se ­
q u e n c e s  fo r  th e  m e n  an d  w o m e n  w h o  h a v e  to  l iv e  w ith  th e  
i n t r a c t a b le  r e a l i t i e s  o f r a c i a l  d is c r im in a t io n .

P a t t e r s o n  h a s  n o t in  a  s in g le  b lo w  r e tu r n e d  th e  n a tio n  to  
th e  d e p lo ra b le  id e a s  a n d  p r a c t ic e s  e m b ra c e d  by  th e  S u ­
p r e m e  C o u rt in  P l e s s y  v .  F e rg u so n .  B u t o u r  e n t i r e  le g a l  
s y s te m  is c o r r e c t ly  p r e m is e d  on a  r e c o g n itio n  th a t  in d iv id ­
u a ls  a n d  o f f ic ia ls  sh a p e  th e i r  c o n d u c t  in lig h t of th e  lik e ly  
le g a l  c o n se q u e n c e s  o f th o se  a c tio n s . W hen th e  S u p re m e  
C o u r t  r e d u c e s  th e  lik e lih o o d  th a t  d is c r im in a to ry  e m p lo y e rs  
c a n  be  c a l le d  to  a c c o u n t  fo r  t h e i r  p r a c t ic e s ,  o r  r e s t r i c t s  th e  
r e m e d ie s  th a t  e v e n  a  su c c e s s fu l  c iv il  r ig h ts  p la in t if f  c a n  
w in . th e  C o u rt sh if ts  th e  b a la n c e  o f c o n s id e ra tio n s  th a t  
a f f e c t  how  e m p lo y e rs  w ill  a c t .

T h e  m a jo r i ty  in P a t t e r s o n  in s is te d  it h ad  n o t r e t r e a t e d  so 
m u c h  a s  o n e  in ch  f ro m  th e  n a tio n a l  p o lic y  to  fo rb id  in te n ­
t io n a l  r a c i a l  d is c r im in a t io n .  B u t e f fe c tiv e  p ro te c tio n  a g a in s t  
in v id io u s  d is c r im in a t io n ,  lik e  e f fe c tiv e  p ro te c tio n  of th e  
n a tio n a l  s e c u r i ty ,  c a n  b e  im p e r i le d  a s  m u c h  by a w e a k e n e d  
d e fe n s e  a s  by a n  o v e r t  p o lic y  o f to le r a t in g  r e p e a te d  a s s a u l ts  
T h is  is n o t t im e  fo r  ta m p e r in g  w ith  th e  a r s e n a l  of r e m e d ia l  
m e a s u r e s  t h a t  h a v e  m a d e  p o ss ib le  th e  c iv il r ig h ts  p ro g re s s  
o f th e  l a s t  tw o  d e c a d e s . C re a t iv i ty  a n d  f le x ib ili ty  c o n tin u e  to  
h a v e  a n  im p o r ta n t  ro le  to  p la y  in th e  e v o lu tio n  o f th e  law  
B u t  th e  h a rd  w on  r ig h t  o f b la c k  A m e r ic a n s , o f a ll  A m e r i­
c a n s ,  to  e q u a l  o p p o r tu n ity  sh o u ld  n o t be  s u b je c t  to  r e h e a r in g  
o r  re c o n s id e ra t io n ,  e v e n  in  th e  h ig h e s t  c o u r t  in th e  lan d .

E r ic  S c h n a p p e r

1 105 L.Ed.2d 132, 109 S.Ct. 2363. 57 U.S.L W 4705 (1989)
1 The plaintiff also alleged that she had been denied a promotion 

because of race The P a tterson  m ajority held that some but not all 
promotion claims could still be brought under section 1981.

’ 105 L.Ed.2d at 174 (Brennan J., concurring and dissenting)
•Id

105 L.Ed 2d at 150
• 105 L.Ed.2d at 151 

105 LEd.2d at 158
‘ 105 L.Ed 2d at 158-59
• 105 L.Ed.2d at 180
" A few of the cases discussed below were dismissed under 

P atterson  a fter having been tried on the merits. E.g M organ v  
K ansas C ity A rea Transporta tion  A u thority , 1989 U.S. Dist. 
LEXIS 10482 (W.D. Mo 1989) (overturning $60,000 jury verdict for 
victim of discrimination discharge).

11 Excluding Saturdays, Sundays, Holidays, the federal courts 
were open a total of 97’davs during this period

17 In ascertaining the number of section 1981 claims that have 
been dismissed, we have considered as distinct the claims of several 
different plaintiffs in the same lawsuit, e g A nderson r .  United 
P arcel Service. 1989 U.S Dist LEXIS 12195 (N.D II! 1989). and 
different types of discnm inauon claims brought in one suit by a 
single plaintiff, e.g D angerfield  v. The M ission Press, 50 FE P 
Cas 1171 (N.D. Ill 1989). We treated as involving only a single 
claim cases in which a plaintiff sued several defendants because of 
a single discriminatory act, e.g. S o ffe r in  tv A m erica n  A irlines. 
717 F Supp. 597 (N.D. 111. 1989), or in which several plaintiffs were 
allegedly injured by a single discriminatory act, e.g Gonzalez v. 
The H om e In su ra n ce  Co., 1989 U.S. Dist. LEXIS 8733 (S.D.N.Y. 
1989).

" There are a number of decisions which dismiss multiple claims, 
but do not specify how many there were or what their nature might 
have been E.g. Woods v. M iles P h a rm a ceu tica ls . 1989 U.S. Dist 
LEXIS 7642 (N.D. II! 1989). There appear to be a significant 
number of instances in which section 1981 claims have been dis­
missed without written opinions in one line orders, or have been 
dismissed by judges from the bench.

“ The cases in each category can be ascertained from the table 
printed at the end of the studv.

” St. F ra n c is College v. A l-K haraji, 481 U.S 604 (1987); (Arabs); 
S h a a re  Te fila  C ongregation v. Cobb, 481 U.S. 615 (1985) (Jews). 
M cDonald v. S a n ta  F e Trail T ra n sporta tion  Co., 427 U.S. 273 
(1976) (Whites).

“ Gonzalez v. The H om e  In su ra n ce  Co., 1989 U.S. Dist. LEXIS 
8733 (S.D.N.Y. 1989)

’’ Leong v. H ilton Hotels, 50 FE P Cas. 738 (D. Hawaii, 1989).
11 R isin g er v. Ohio B ureau  o f W orkers’ C om pensation, 883 

F.2d 475 (6th Cir. 1989)
*• B ra cksh a w  v. Miles, Inc  1989 U.S. Dist. LEXIS 12820 (N.D 

m . 1989).
® A lverez v. N orden S ystem s, Inc., 1989 U.S. Dist LEXIS 9954 

(S.D.N.Y 1989)
" S o ffe r in  v. A m e r ica n  A irlines, Inc., 1989 U.S. Dist. LEXIS 

9632 (N.D. II! 1989).
!:E.g , D angerfield  v. The M ission Press. 50 FEP Cas 1171 

(N.D 111 1989) (plaintiff Kimble), Busch v. P izza  Hut. Inc., 1989 
U.S Dist LEXIS 11974 (N D 111 1989); B room s v. Regal Tube Co.. 
881 F.2d 412 (7th Cir. 1989); H a m s  v. H om e Sav in g s  Ass n. 1989 
U.S. Dist LEXIS 7015 (W.D Mo 1989), M atthew s v. F reed m an . 
Darryl and M cC orm ack, Taylor, & Co., 882- F.2d 83 (3d Cir 1989), 
M athis v  Boeing M ilitary  A irp la n e  Co., 50 FE P Cas. 688 (D. 
Kan 1989)

71 General Building Contractors v. Pennsylvania, 45B U.S 375 
(1982;

7< 105 L.Ed.2d at 153
r.Telephone Interview. November 1. 1989. with Thomas Buess, 

Chicago. Illinois, counsel for plaintiff
“ B rackshaw  v. M iles, Inc , 1989 U.S Dist LEXIS 12820 (N.D 

111 1989), H a m s  v. H om e Sav in g s A ss n, 1989 U.S. Dist LEXIS 
7015 (W7 D Mo 1989), W ashington v. L a k e  County. Illinois, 717 
F.Supp 1310 (N.D 111 1989)

r  Bush V Union B ank. 1989 U.S. Dist. LEXIS 10936 (W.D Mo. 
1989); C oopendge v. T erm in a l F light H andling, 50 FEP Cas. 812 
(W’.D Tenn 1989).

3 Johnson v. R a ilw a y  E xp ress  A gency, 421 U.S 454, 459-60 
(1975); M cDonald v. S a n ta  F e  Trail T ransporta tion  Co., 427 U.S. 
273, 275 (1976). D elaw are S ta te  College v. R icks, 449 U.S. 250 
(1980); St. F ra n c is  College v. A l-K hazraji, 481 U.S. 604 (1987); 
G oodm an  v. L ukens Steel Co., 482 U.S. 656 (1987) Virtually every 
federal circuit court of appeals prior to P a tterso n  bad affirm ative­
ly stated that terminations were covered bv section 1981 E.g E stes  
v. Dick S m ith  Ford, Inc., 856 F.2d 1097’, 1100-01 (8th Cir. 1988); 
Connor v. F ort Gordon B us Co., 761 F.2d 1495, 1498-99 (11th Cir. 
1985)

* Overby v. Chevron USA, Inc., 882 F.2d 470 (9th Cir. 1989) 
("Though an argument could be concoted that (retaliation! impedes,

Published by THE BUREAU OF NATIONAL AFFAIRS, INC., W ashington, D C. 20037



11-21-89 (DLR) TEXT (No. 223) D  - 7

in some broad sense, Overby's access to the EEOC, the court in 
P a tterso n  counseled against stretching the meaning of section 1981 
..." ) ; A lexa n d er  v. Neu- Y o rk  M edical College, 50 FEP Cas. 1729 
(S.D.N.Y 1989) ("retaliatory discharges . take place after the 
initial employment contract is m ade”).

* M alhotra v. C otter & Co., 50 FE P  Cas 1474 (7th Cir. 1989) 
("clearly, when an employer punishes an employee for attempting 
to enforce her rights under section 1981. this conduct impairs the 
employee's ability to enforce her contract rights”) (section 1981 
would become "meaningless” if such claims were excluded) (Cu­
dahy. J„ concurring); Jordan  v. V.S. W est D irect Co., 50 FEP Cas 
633 (D Colo. 1989) (section 1981 protects an employee subjected to 
retaliatory harassment because of his instigation regarding 
discrimination).

" One district judge observed that this language in P atterson  was 
"certain to generate substantial litigation before the line is marked 
out with anv precision" C rader v. Concordia College. 1989 U.S. 
Dist LEXIS' 12114 (N.D. 111. 1989).

M allory v. Booth R efrig e ra tio n  S u pp ly  Co., 882 F.2d 908 (4th 
Cir. 1989), see also Green v. K inney  Shoe C o rp , 1989 U.S. Dist. 
LEXIS 10736 (D.D.C. 1989).

” M alhotra v. C otter & Co., 1989 U.S. App. LEXIS 13843, p. 13 
(7th Cir 1989).

“ Lu n a  v. City and C ounty o f  D enver, 718 F.Supp 85 (D.Colo. 
1989)

” S o ffe r in  v. A m e rica n  A irlines, 717 F.Supp. 597 (N.D 111. 
1989); see also D icker v. A llsta te  L ife  In su ra n ce  Co., 1989 U.S. 
Dist LEXIS 12482 (N.D. Ill 1989); C rader v. Concordia College, 
1989 U.S. Dist. LEXIS 12114 (N.D. 111. 1989).

“ D icker v. A llsta te  In su ra n ce  Co., 1989 U.S. Dist. LEXIS 12482 
(N.D 111 1989); C ra d e r v. C oncordia College, 1989 U.S. Dist. 
LEXIS 12114

G reggs v. H illm an D istribu ting  Co., 50 FE P  Cas. 429 (S.D. 
Tex 1989); Brow n v. A von  Products, Inc., 1989 U.S. Dist LEXIS 
12142 (N.D 111. 1989); N e w m a n  v. U niversity  o f  the D istric t o f 
Colum bia. 1989 U.S. Dist. LEXIS 12346 (D.D.C. 1985).

’’ E.g H annah  v. The P hiladelphia  Coca-Cola B ottling Co., 
1989 U.S. Dist LEXIS 7200 (E.D.Pa. 1989); P ra th er  v  D ayton  
P ow er  <fc Light Co.. 1989 U.S Dist LEXIS 10756 (S.D Ohio 1989); 
English v. General D evelopm ent Corp., 717 F.Supp 628 (N.D 111 
1989).

" See S o ffe r in  v. A m e r ica n  A irlines, Inc., 717 F.Supp 597; 
G uerra  v. T ishm an  E as t R ealty, 1989 U.S.App Dist LEXIS 6744 
(S D N Y. 1985); Woods v. M iles P h a rm a ceu tica ls , 1989 U.S. Dist 
LEXIS 7643 (N.D III 1989); R iley  v. Illinois Dept o f  M ental 
Health. 1989 U.S. Dist. LEXIS 7686 (N.D.IU. 1989)

“ Conley v. U niversity  o f  Chicago Hospitals. 50 FE P Cas. 1145 
(N.D 111. 1989); Riley v. Illinois Dept o f  M ental Health, 1989 U.S. 
Dist LEXIS 7688 (N.D 111. 1989); S o f fe n n  v. A m e rica n  A irlines, 
717 F.Supp 597 (N.D. 111. 1989); Woods v. M iles P harm aceu tica ls, 
1989 U.S Dist. LEXIS 7042 (N.D 111. 1989)

• A nderson v. United P arcel Serv ice, 1989 U.S Dist LEXIS 
9954 (N.D 111 1989): Bush v  P izza  Hut, Inc  . 1989 U.S Dist LEXIS 
11974 (N.D 111 1989); D angerfield  v. M ission Press. 50 FE P Cas 
1171 (N.D 111. 1989), Brow n v. A von Products. 1989 U.S. Dist 
LEXIS 17142 (N.D 111 1989); Hall v. C ounty o f Cook, 719 F.Supp 
721 (N.D 111. 1989); N olan's A u to  Body Shop  r  A llstate  Insur­
ance. 718 F.Supp 721 (N.D 111 1989); Torres  tv City o f Chicago, 
1989 U.S. Dist LEXIS 9503 (N.D 111. 1989); D icker v  Moore, 1989 
U.S Dist LEXIS 12482 (N.D 111 1989); B ra ckshaw  v. Miles, Inc., 
1989 U.S. Dist LEXIS 12820 (N.D 111 1989); W illiam s v Edsal 
M fg  . 1989 U.S. Dist LEXIS 12602 (N.D 111. 1989); C rader  r. 
C oncordia College, 1989 U.S Dist LEXIS 12114 (N.D 111. 1989).

B ra ckshaw  v. M iles, Inc., 1989 U.S Dist LEXIS 12820 (N.D 
111 1989); Torres v. City o f Chicago, 1989 U.S Dist LEXIS 9503 
(N.D 111. 1989)

“ Carroll v. General M otors, 1989 U.S. Dist LEXIS 10481 (D. 
Kan. 1989); Copperidge v. T erm in a l F reight Handling, 50 FEP 
Cas 812 (W.D Term. 1989): M ason v. Coca-Cola Bottling  Co.. 1989 
U.S Dist LEXIS 10533 (D Kan 1989); M atthew s v  F reedom . 
Darryl, M cC orm ick, Taylor & Co., 882 F.2d 83 (3d Cir 1989)

“  Padilla  v. United  A irlines, 716 F.Supp 485 (D. Colo 1989); 
Jo n es v. Pepsi-Cola General B ottlers. 1989 U.S Dist. LEXIS 
10407 (W.D Mo. 1989)

*’ In addition to the cases cited in the previous footnotes, see 
B irdw histle  v. K ansas P ow er and L ight Co., 1989 U.S. Dist 
LEXIS 9227 (D. Kan. 1989); G am boa v. W ashington, 716 F.Supp 
353 (N.D. 111. 1989).

Cases Dismissed Under 
Patterson v. McClean Credit Union

As of November 1, 1989

K ey

H  H a ra s s m e n t  
D  D is c h a rg e /T e r m in a t io n  
D M  D e m o tio n  
P  P r o m o t io n /T r a n s f e r  
R  R e ta l ia t io n
N 7 D is c r im in a to ry  p r a c t ic e  n o t c o v e re d  by  T i t le  V II 
M M isc e lla n e o u s  d is c r im in a to ry  t r e a tm e n t

Summary
Number of Clailms Dismissed, by Type

H a r a s s m e n t  22
D e m o tio n  6
R e ta l ia t io n  8
M isc . e m p lo y m e n t  6
D is c h a rg e  31
P r o m o t io n /T r a n s f e r  16
N o T it le  V II C o v e ra g e  7

T O T A L ..................................................................................................... 96

D  DM  R  A l e x a n d e r  v .  N e w  Y o r k  M e d ic a l  College,  
50 F E P  C as . 1729 (S .D .N .Y . 1989).

D  A l v a r e z  v. N o r d e n  S y s t e m s ,  Inc.,  1989 U.S.
D is t. L E X IS  9954 (S .D .N .Y . A u g u s t 24, 1989). 

p  (5) A n d e r s o n  v. U n i te d  P a r c e l  S e r v i c e ,  1989
U .S. D is t. L E X IS  12195 (N .D .Ill. O c to b e r  5, 
1989). (5 p la in tif f s ) .

H  D B e c to n  v .  B u r l in g to n  N o r th e r n  R a i l r o a d
Co., 878 F .2 d  1436 (6 th  C ir. 1989).

H P  D  B r a c k s h a w  v. M iles ,  Inc.,  1989 U.S. D is t
L E X IS  12820 (N .D .Ill. 1989).

H B r o o m s  v  R e g a l  T u b e  C o m p a n y ,  881 F .2d
412 (7 th  C ir . 1989).

D  P  B r o w n  v. A v o n  P r o d u c t s ,  1989 U .S D ist.
L E X IS  12142 (N .D .Ill. 1989)

H B u n y a n  v. F l e m i n g  F o o d  Co., NO. 88-9652
(E .D .P a .X o rd e r  f ro m  th e  b e n ch , S e p te m b e r  
27, 1989).

H(2) D B u sc h  v. P i z z a  H ut.  Inc..  1989 U.S. D ist.
L E X IS  11974 (N .D .Ill. 1989).

D  B u sh  v. U n ion  B a n k ,  1989 U.S. D ist. L E X IS
10936 (W .D .M o 1989) (3 p la in t if f s )

P  B y r d  v. P y le ,  No. 87-3547 (C R R X D .D .C .X Slip
o p in io n , S e p te m b e r  1, 1989).

D  C a rro l l  v. G e n e r a l  M o to rs ,  1989 U.S. D is t
L E X IS  10481 (D .K an s. 1989).

D  C a r t e r  v. A se l to n ,  50 F E P  C as. 251
(M .D .F la . 1989).

N 7 C la rk  v. S t a t e  F a r m  I n s u r a n c e .  1989 U.S.
D ist. L E X IS  10666 (E .D .P a . 1989).

D  C o n le y  v. U n i v e r s i t y  o f  C h ic a g o  H o s p i ­
ta ls ,  50 F E P  C as. 1145 (N .D .IU . 1989).

D  C o p p e r id g e  v. T e r m i n a l  F r e ig h t  H a n ­
d lin g .  50 F E P  C as. 812 (W .D. T en n . 1989).

H D  P  C r a d e r  v .  C o n c o r d ia  C o llege ,  1989 U.S.
D is t. L E X IS  12114 (N .D .Ill. 1989).

Published by THE BUREAU OF NATIONAL AFFAIRS, INC.. Washington, D.C. 20037



D  - 8 (No. 223) TEXT (DLR) 11-21-89

H D  DM  R  (3) D a n g e r f i e ld  v. M iss io n  P re s s ,  50 F E P  C as. D  
1171 (N.D.I11. 1989). (3 p la in t if f s )

P  (3) D ic k e r  v. A l l s ta t e  L i f e  I n s u r a n c e  co ., 1989
U.S. D is t. L E X IS  12482 (N.D.I11. 1989). (3 P  
p la in tif f s )

N 7 (2) G o n za le z  v .  H o m e  I n s u r a n c e  Co., 50 F E P
C a se s . 1173 (S.D .N .Y . 1989). N 7

D  P  M G r e g g s  v. H i l lm a n  D is t r ib u t in g ,  719
F .S u p p . 552; 50 F E P  C as. 49 (S .D .T ex  1989). H 

H  M N 7 G u e r r a  v .  T i s h m a n  E a s t  R e a l t y ,  1989 U .S.
D is t. L E X IS  6744 (S.D .N .Y . 1989).

D  H all v. C o u n ty  o f  Cook, Illinois,  719 F .S u p p . R
721 (N.D.I11. 1989).

H H a r r i s  v . H o m e  S a v in g s  A s s o c ia t io n ,  1989 D
U.S. D ist. L E X IS  7015 (W .D .M o. 1989).

D  M I n te r n a t io n a l  C i ty  M a n a g e m e n t  A sso c .  N 7
R e t i r e m e n t  C orp . v .  W a tk in s ,  1989 U.S.
D ist. L E X IS  12201 (D .D .C . 1989). H

D  J a c k s o n  v .  C o m m o n w e a l t h  E d iso n ,  1989
U.S. D is t. L E X IS  10514 (N.D.I11. 1989). H

D  J o n e s  v .  A ll te ch  A s s o c ia te s ,  1989 U .S. D is t.
L E X IS  10422 (N .D .Ill. 1989). D

D M  J o r d a n  v. U.S. W e s t  D ir e c t  Co., 50 F E P
C as. 633 (D .C olo. 1989). P  D

H (2) D  DM  L e o n g  v. H il ton  H ote ls ,  50 F E P  C as. 738
(D .D .C . 1989). N 7

H  M a s o n  v. C o ca -C o la  B o t t l in g  Co., N o. 88-
2636, U .S. D is t. L E X IS  10533 (D .K an s. 1989). H D 

H  M  M a th is  v. B o e in g  M i l i ta r y  A i r p l a n e  Co.,
719 F .S u p p . 991; 50 F E P  C as. 689 (D .K an s. D  (2) 
1989).

H  D  M a t th e w s  v. F r e e d m a n ,  D a r r y l  a n d
M c C o r m ic k ,  T a y lo r  & Co., 882 F .2 d  83, 50 P  M R  
F E P  C as. P 8 7 4  (3 rd  C ir. 1989).

R  M a t t h e w s  v. N o r th e r n  T e le c o m ,  Inc.,  1989 M  R
U.S. D is t  L E X IS  12926 (S .D .N .Y . 1989).

H  M ille r  v .  A ld r id g e ,  1989 U.S. D is t. L E X IS
9747 (1989).

M o r g a n  v. K a n s a s  C i ty  A r e a  T r a n s p o r t a ­
t io n  A u th o r i t y ,  1989 U .S. D is t. L E X IS  10482 
(W .D .M o. 1989)
N e w m a n  v . U n iv e r s i t y  o f  th e  D is t r i c t  o f  
C o lu m b ia ,  1989 U.S. D is t. L E X IS  12201 
(D .D .C . 1989).
N o la n 's  A u to  B o d y  S h o p  v .  A l l s t a t e  In s u r ­
a n c e ,  718 F .S u p p . 721 (N .D .Ill. 1989).
O b a g o  v. Union o f  A m e r i c a n  H e b r e w  
C o n g r e g a t io n s ,  1989 U.S. D is t. L E X IS  9055 
(S .D .N .Y . 1989)
O v e r b y  v. C h evo n  USA, Inc.,  884 F .2 d  470, 
50 F E P  C as. 1211 (9 th  C ir. 1989).
P r a t h e r  v. D a y to n  P o w e r  & L ig h t ,  1989 
U .S. D ist. L E X IS  10734 (S .D .O hio  1989). 
R a g in  v. S te in e r ,  C l a t e m a n  & A sso c . ,  714 
F .S u p p . 709 (S.D .N .Y . 1989).
R i l e y  v. Il l inois  D e p t ,  o f  M e n ta l  H ea l th ,  
1989 U.S. D is t. L E X IS  7686 (N .D .Ill. 1989). 
R i s i n g e r  v. Ohio B u r e a u  o f  W o r k e r s ’ 
C o m p e n s a t io n ,  883 F .2 d  475 (6 th  C ir. 1989). 
R i v e r a  v. A T & T  I n f o r m a t i o n  S y s t e m s ,  
719 F .S u p p . 962 (D. C olo. 1989).
S o f f e r in  v .  A m e r i c a n  A ir l in e s ,  Inc.,  717 
F .S u p p . 597 (N .D .Ill. 1989).
T o r r e s  v. C i ty  o f  C h ica g o ,  1989 U .S. D ist 
L E X IS  9503 (N .D .Ill. 1989).
W a s h in g to n  v. L a k e  C o u n ty ,  717 F .S u p p . 
1310; 50 F E P  C as. 1247 (N .D .Ill. 1989). 
W i l l ia m s  v. E d sa l  M a n u f a c t u r i n g  Co., 
1989 U.S. D is t. L E X IS  12606 (N .D .Ill. 1989).(2 
p la in t if f s )
W i l l ia m s  v .  N a t io n a l  R a i l r o a d  P a s s e n g e r  
C orp . ,  716 F .S u p p . 79 (D .D .C . 1989).
W o o d s  v .  M iles  P h a r m a c e u t i c a l s ,  1989 
U .S. D is t  L E X IS  7642 (N .D .Ill. 1989).

-  End of Section D -

Published by THE BUREAU OF NATIONAL AFFAIRS. INC., W ashington, D C. 20037





7TH CASE of Level 1 printed in FULL format.
PAGE 2

William M. LAVENDER, Plaintiff-Appellant, v. V & B 
TRANSMISSIONS & AUTO REPAIR, Defendant-Appellee. Tony Ray 
MORTON, Plaintiff-Appellant, V. V 5. B TRANSMISSIONS & AUTO 

REPAIR, Defendant-Appellee
No. 89-4215

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT 
1990 U.S. App. LEXIS 4975 

April 6, 1990

APPEAL-STATEMENT:
[*1]

On Appeal from the United States District Court for the Northern District of 
Mississippi. No. CA-EC-87-185-S-D & EC-87-186-S-D, L. T. Senter, Jr., Judge.

COUNSEL:Richard Grindstaff, Columbus, Mississippi, for Plaintiff-Appellant.
J. Tysfsn Graham, GRAHAM & SEGREST, Columbus, Mississippi, for 

Defendantt-Appellee.
OPINIONBY: THORNBERRY
OPINION:

Before THORNBERRY, POLITZ, and JOLLY, Circuit Judges. .
THORNBERRY, Circuit Judge:
Plaintiffs appeal the district court's dismissal of their employment 

discrimination suit alleging that they were discharged in violation of 42 U.S.C.
@ 1981. Finding that Patterson v. McLean Credit Union, --  U.S. -, 109
S.Ct. 2363, 105 L.Ed.2d 132 (1989) should be given retroactive application, we 
dismiss the claims for failing to state a cause of action under section 1981.

Facts and Procedural History
Plaintiffs William W. Lavender and Tony Ray Morton, who are both white males, 

allege that defendant V & B Transmissions & Auto Repair (V & B), a 
minority-owned business, terminated them on the basis of race in violation of 
section 1981. Plaintiffs began working for V & B on March 1, 1987. Like all 
employees, they were hired on a probationary basis for the first 90 days. Under 
Mississippi law, this meant that V & B could fire the employee for any reason or 
no reason at all, so long as the dismissal was not prompted by racial 
discrimination or some other illegal reason. See Kelly v. Mississippi Valley 
[*2] Gas Co., 397 So.2d 874, 874-75 (Miss.1981). After the 90-day
probationary period expired, V & B would consider hiring an employee on a 
permanent basis, which meant V & B would agree to fire the employee only for 
cause.

The plaintiffs were employed by V & B until May 8, 1987, when they were 
terminated. The termination was made by letter, and occurred well within the



PAGE 3

90-day probationary period. On May 12 and May 22, 1987, plaintiffs filed 
separate complaint in Mississippi state court alleging breach of contract and 
libel and slander. On June 16, 1987, V & B removed both actions to federal court
on the basis of diversity jurisdiction. The district court consolidated 
plaintiffs' claims on December 16, 1988. In April 1988 the plaintiffs filed a 
motion to amend their complaint to include an allegation that their employment 
was terminated because of their race in violation of 42 U.S C . @  1981. 
Immediately prior to trial, plaintiffs dismissed their breach of contract and 
libel and slander claims, leaving only their section 1981 claim.

Jury trial began in February 1989. After reviewing the evidence the district 
court granted V & B's motion for a directed verdict. The plaintiffs brought 
[*3] this appeal.

Discussion

1990 U.S. App. LEXIS 4975, *2

I. Retroactivity of Patterson v. McLean
After the plaintiffs filed notice of appeal in this case, the Supreme Court 

decided Patterson v. McLean Credit Union. The Court in Patterson 
determined that employment discrimination claims alleging racial^ 1 ^ ” ormation "not actionable under § 1981, which covers only conduct at the initial formation 
of the contract and conduct which impairs the right to enforce contract 
obligations through legal process. Rather, such conduct is actionable under the 
more expansive reach of Title VII. . . ." Patterson 109 S.Ct. at 2374 We
requested the parties to submit additional briefs addressing the retroactive 
application ofPpatterson and its effect on this case. V & B urges this court to 
apply Patterson retroactively and dismiss the plaintiffs claims.

A panel of this court has recently considered the retroactive effect of 
Patterson. See Carroll v. General Accident Ins. Co. of Am., 891 F.2d 1174 (5 
Cir.1990). In Carroll, we observed the general rule that a federal appellate 
court apply the law that is in effect at the time of its decision. Id at 1175. 
in deciding whether to depart from the [*4] general rule we evaluate the 
three factors set forth in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. ,
30 L.Ed.2d 296 (1971).

The first factor is that "the decision to be applied retroactively must 
establish a new principle of law, either by overruling clear past precedent on 
which litigants may have relied, or by deciding an issue of first 
whose resolution was not clearly foreshadowed." Id. at 106, 92 S.Ct. at 355 
(citation omitted). In Carroll, we reviewed a number of precedents in a
circuit and determined that it is "reasonably clear that Patterson establish 
new principle of law, at least in this circuit." Carroll, 891 ^.2d at 1176. 
new principle of law, this factor weighs in favor of nonretroactivity.

The second Chevron factor requires us to look "to the prior ^ sto^  of the 
rule in question, its purpose and effect, and whether retrospective °P«*tion 
will further or retard its operation." Chevron, 404 U.S. at 107 92 S.Ct. at
355. The purpose in Patterson of limiting section 1981 was two-fold. First the 
Court pointed to the narrow language of section 1981 limiting its application to 
the making and enforcement of contracts. [*5] ' Patterson, S-Ct. at
2372-73. Second, the Court found that a broader interpretation of section 1 
would interfere with the elaborate administrative procedures prescribed by 
Congress under Title'VII, thereby upsetting the delicate balance between



PAGE 4

employee and employer rights struck by-j^tha^applying Patterson retroactively 
Considering both these purposes we ^  *ha and avoid "undermining the detailed 
would limit section 1981 to its P ™ P «  ®=°P® “ “ resolution of Title VII
claims^"~Id?fatd 2 3 7 4 <?eTherefore,'"this'factor weighs in favor of retroactivity.
Carroll, 891 F.2d at 1176.

The third and final ^ctor in this case^requires^us^to *
imposed by retroactive application. -his anneal. Although it appears unjustincurred the expenses of both trial this appeal .nterprJ?ation, it would also
to limit the reach of section 1981 g action which, as the Supreme Court has
be unjust to subject V & B to a cause of ^ l“ 'rollf 89i F.2d at 1176-77. 
now held is not permitted under secti r*61 "the purpose of the rule
•Furthermore, this circuit has emphasize t^t^ ^hich the parties reiied on 
should be given greater weight than th ,nnounced " Williams v. Phil Rich Fan 
the law that existed before that rule was Helena, 529 F.2d 744, 748
Mfg. CO., 552 F. 2d 596, 600 (5th ^^intiffs may have relied on prior
(5th Cir.197 6). T h e r e f o r e , . t h o u g h  by the fact that retroactivity

t» .daition,.. find i I t ; " gr ^ p iS 5 n u ? f S h
to establish that retroactivity would be * ^ losed> this is not a case in which 
point out that a Title VII action Title VII action in reliance on our prior the plaintiffs decided to forego a Title vi fiied their original claim

f f t o s  •.?: H » hi s r *
■“ By “ is tl" ° f oou” *'aeciue ^ . j *r__ TiHp VII had expired,limitation period for Title v u  v

■ -•<=<= , r*7i filed a section 1981 actionIn Patterson, the piaintiff ais [ ] n iod expired. See Patterson v. 
presumably because the Tit e h Car.1986). Rather than
McLean Credit Union, 805 * d dJ£lication the Supreme Court applied the announce a rule of prospective applicatio^ ^  ^  see no reason why this case 
narrower interpretation of section 198 , 600 n_ 9- Therefore, given the
should be different. See ' s|ate ^ourt and the fact that plaintiffs did
r^relfon^prior^r^edent.to forgo • TitleJII action, - . f - ^ t h a t

2 £ c W d i \ K t  Patterson .no.ld b. applied retroactively.

1990 U.S. App. LEXIS 4975, *5

II. The Section 1981 Claims under Patterson
'to state a claim under. section 1981 the plaintiff " l U ^ w h i c h

improper "conduct at the initial f o r m ; £ idns through legal process." 
impairs the right to enforce c°ntr^ *  ^laim for failure to promote isPatterson, 109 S.Ct at 2374 In addition,^ clai^ ^  pQsiti such

that°it*3involved the opportunity [*8] pi^ntiffs'^laims involve2s s r ; ;  & S iS S - ^ s s :  "or«.isco«r.ct o r «- -  <*»
to enter into a new contract.

\



1990 U.S. App. LEXIS 4975, *8
PAGE 5

The plaintiffs first argue that section 1981 encompasses termination claims. 
One district court has held that discriminatory termination is actionable under 
1981, reasoning that "termination is part of the making of a contract." Padilla 
v. United Air Lines, 716 F.Supp. 485 (D.Colo.1989). We cannot agree. Termination 
neither involves "the formation of contracts" nor an "opportunity to enter into 
a new contract with the employer." Patterson, 109 S.Ct. at 2377. The Supreme 
Court made clear that

[t]he statute prohibits, when based on race, the refusal to enter into a 
contract with someone, as well as the offer to make a contract only on 
discriminatory terms. But the right to make contracts does not extend, as a 
matter of either logic or semantics, to conduct by the employer after the 
contract relation has been established, including breach of the terms of the 
contract or imposition of discriminatory working conditions. Such postformation 
conduct does [*9] not involve the right to make contract, but rather 
implicates the performance of established contract obligations and the 
conditions' of continuing employment, matters more naturally governed by state 
contract law and Title VII.

Id. at 2373. Because the contract here was already established, the 
termination amounted to postformation conduct. As such, it is not actionable 
under section 1981. See Overby v. Chevron USA, Inc., 884 F.2d 470, 473 (9th 
Cir.1989) .

Alternatively, plaintiffs argue that the change from probationary status to 
permanent status was a promotion involving the opportunity to enter into a new 
contract. The test adopted by the Supreme Court is that a claim for failure to 
promote is actionable "[o]nly where the promotion rises to the level of an 
opportunity to enter into a new and distinct relation between the employee and 
employer." Id. 109 S.Ct. at 2377.

We need not reach this issue, however, because the plaintiffs were fired 
during the 90-day probationary period. As such, the conduct that led to the 
plaintiffs' termination occurred during employment rather than during the 
formation of a new contract. Thus, their claim involves termination rather than 
a [*10] failure to promote. Of course like all terminations, this
termination precludes any possibility of future promotion and an opportunity to 
enter into a new contract. But until the plaintiff has actually qualified and 
applied for a promotion, a termination does not involve the opportunity to enter 
into a new contract. See Patterson, 109 S.Ct. at 2378.
III. Failure to Grant Summary Judgment

Finally, the plaintiffs submit that the district court erred by denying their 
motion for summary judgment. The plaintiffs argue that because V & B failed to 
answer some of the plaintiffs' requests for admissions in a timely manner, V & B 
should be deemed to have admitted those matters. V & B's answers, however, were 
only 10 days late, and the district court sanctioned V & B and awarded 
attorney's fees to the plaintiffs. Under these circumstances, refusing to grant 
summary judgment was not an abuse of discretion.

Conclusion
In sum, our analysis of the Chevron factors leads us to the conclusion that 

the rule in Patterson should be applied retroactively. In accordance with that

\



‘ \is» y v':’V!*w

1990 U.S. App. LEXIS 4975, *10
PAGE 6

finding, we also hold plaintiffs have failed to state a cause of action under 
section 1981, since their claim does [*11] not involve an opportunity to 
enter into a new contract. Finally, we find that the district court's refusal to 
grant summary judgment was not an abuse of discretion. Accordingly, the denial 
of summary judgment is AFFIRMED, and the plaintiffs' section 1981 claims are 
hereby DISMISSED.





PAGE 18
59TH CASE of Level 1 printed in FULL format.

TERESA A. FOSTER, Plaintiff, V. ATCHISON, TOPEKA AND SANTA 
FE RAILWAY COMPANY, Defendant

civil Action No. 88-4085-S
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS 

1990 U.S. Dist. LEXIS 1338
January 9, 1990, Decided; January 11, 1990, Filed and

Entered
COUNSEL:r*i]

Pantaleon Florez, Jr., Topeka, Kansas, for Plaintiff.
Roth A. Gatewood, Paul R. Hoferer, Nola Wright Phillipson, The Atchison, .Topeka & Santa Fe Railway Company, Topeka, Kansas, for Defendant.

0PINI0NBY: SAFFELS
OPINION:

MEMORANDUM AND ORDER
t

DALE E. SAFFELS, UNITED STATES DISTRICT JUDGE
This matter is before the court on defendant's motion for summary judgment.

In this action, brought pursuant to 42 U.S.C. § 2000e and 42 U.S.C. § 1981, with 
a pendent state law claim under K.S.A. 44-1001, Plaintiff Teresa Foster 
(hereafter "Foster" or "plaintiff") claims that defendant, Atchison, Topeka & 
Santa Fe Railway Company ("A.T. &S.F.") discriminated against her by denying her 
equal terms and conditions of employment and by terminating her employment on 
the basis of race and/or sex. Plaintiff also claims that defendant discriminated 
against her by subjecting her to a racially-based and sexually-based hostile work environment.

The relevant facts can be briefly summarized as follows. Beginning March 1, 
1976, plaintiff Teresa Foster was hired as a machine apprentice in the Shops and 
Craft Department of the Santa Fe Railway Company. Foster, a black female, was 
the first female machinist apprentice in the Shops [*2] and Craft Department. 
She completed her apprenticeship on May 16, 1979 and continued to work at 
various positions of machinist within the shops. She was a member and was 
represented by the International Association of Machinists and Aerospace Workers.

On or about October 22, 1986, Foster informed a relief foreman, Gary Doyle, 
that the boring complex machine needed maintenance work. In addition to Doyle, a 
maintenance supervisor, Francis Kaberline, and a relief foreman and supervisor.



Dennis Harvey, as well as a person named Kenny Metzger, were Involved in 
maintenance work on the machine, which included replacing a valve. After the 
valve was replaced, and while Foster was at the restroom, Harvey instructed 
Metzger to operate the machine to determine if it was operating properly.
Metzger then operated the machine and pressed on the pair of wheels. After 
Metzger had pressed on the wheels, Foster returned to the boring complex 
machine area and used vulgar language in telling Harvey, Kaberline and Metzger 
to leave her machine alone. Plaintiff claims that her reaction was based on a 
company memo which had been issued the day before (October 21, 1986) which 
provided that only the operator [*3] will operate the machine when it is in 
the maintenance mode because of a near serious accident. Harvey then asked 
Foster to record the numbers of the wheel that Metzger had pressed on; there is 
some dispute about whether Foster did so, as she felt that it was against 
company policy for her to record numbers of wheels that she herself had not 
pressed on. Plaintiff was charged with violation of Rule 16 of the General Rules 
for Guidance of Employees for being "insubordinate, quarrelsome and vicious" and 
for violation of Rule 14 and Rule 16 for failing to obey instructions. After a 
union investigation, Foster was terminated from her job with A.T.& S.F. on 
November 12, 1986. In this suit, plaintiff claims that she was terminated for 
behaviors for which white male employees were not terminated, i.e., being 
insubordinate, quarrelsome and refusing to obey instructions.

On January 30, 1987, Foster filed a charge with the Kansas Commission on 
Civil Rights ("KCCR") alleging that she had been harassed and discriminated 
against because of her race and sex. Plaintiff filed a dual charge with the 
Equal Employment Opportunity Commission ("EEOC") on February 28, 1987. Plaintiff 
consulted-with a therapist [*4] for emotional problems in 1985 and J.986, 
prior to her termination from A.T.&S.F. Foster alleges she sustained 
psychological trauma as a result of racial and sexual jokes and comments while 
on the job. She also alleges that her hyperthyroid problem became more difficult 
to control because of her emotional condition; in March 1988, plaintiff 
underwent surgery to have her thyroid removed.

A moving party is. entitled to summary judgment only when the evidence 
indicates that no genuine issue of material fact exists. Fed. R. Civ. P. 56(c); 
Maughan v. SW Servicing, Inc., 758 F.2d 1381, 1387 (10th Cir. 1985). The 
requirement of a "genuine" issue of fact means that the evidence is such that a 
reasonable jury could return a verdict for the nonmoving party. Anderson v.

' Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The moving party has the burden 
of showing the absence of a genuine issue of material fact. This burden "may be 

, discharged by ’showing1 —  that is, pointing out to the district court —  that 
there is an absence of evidence to support the nonmoving party's case." Celotex 
Corp. v. Catrett, 477 U.S. 317, 325 (1986). "[A] party opposing a properly 
supported motion for summary [*5] judgment may not rest on mare allegations 
or denials of his pleading, but must set forth specific facts showing that there 
is a genuine issue for trial." Anderson, 477 U.S. at 256. Thus, the mere 
existence of some alleged factual dispute between the parties will not defeat an 
otherwise properly supported motion for summary judgment. Id. The court must 
consider factual inferences tending to show triable issues in the light most 
favorable to the party opposing the motion. Bee v. Greaves, 744 F.2d 1387, 1396 
(10th Cir. 1984), cert, denied, 469 U.S. 1214 (1985).

Defendant argues that the United States Supreme Court's decision in 
Patterson v. McLean Credit Union, 109 S. Ct. 2363 (1989) bars plaintiff's



claim for racially discriminatory discharge under 42 U.S.C. § 1981 as a matter 
of law. In Patterson, the Court held that racial harassment in employment is not 
actionable under 42 U.S.C. @ 1981; thus, under Patterson, Foster can maintain no 
claim for racial harassment under that statute, although such claims remain 
viable under Title VII. 109 S. Ct. at 2374. The court, however, reaffirms its 
previous position on this issue as expressed in Birdwhistle v. Kansas [*6] 
Power & Light Co., 723 F. Supp. 570, 575 (D. Kan. 1989) and Booth v. Terminix 
Int'l, Inc., 722 F. Supp. 675, 676 (D. Kan. 1989) that Patterson does not bar 
claims for racially discriminatory discharge under 0 1981. Thus, the court will 
not grant summary judgment on this basis.

The court further finds that genuine issues of material fact regarding 
Foster1s termination preclude summary judgment in defendant's favor. The court 
notes that the circumstances leading up to the confrontational episode are disputed. Moreover, there is significant disagreement between the parties, with 
evidence in support of each party's position, about whether white male employees 
who were insubordinate were treated similarly to plaintiff, i.e., discharged. 
Because a factual dispute exists regarding whether defendant's stated reason for 
discharging plaintiff is pretextual, the court cannot grant summary judgment on 
plaintiff's claims related to her termination.

Defendant's remaining arguments relate to the question of what damages are 
properly awardable in this case. In addition to her wage-related claims, Foster 
seeks to. recover damages for surgery, medication, pain and suffering and 
emotional distress [*7] damages related to a hyperthyroid condition which 
Foster claims was aggravated by job—related stress. The Tenth Circuit Court of 
Appeals has held that compensatory and punitive damages (including damages for 
emotional distress) are not available under Title VII. See Pearson v.-Western 
Elec. Co., 542 F.2d 1150 (10th Cir. 1976). Such damages are, howgver, proper 
under 42 U.S.C. 0 1981, if plaintiff can establish a causal connection between 
her discharge and her injuries through medical testimony. See Foster v. M.C.I. 
Telecomm. Corp., 773 F.2d 1116, 1120 (10th Cir. 1985) (damages for nonpecuniary, 
including psychological, harm available under 0 1981); cf. Gutierrez v. Denver 
Post Inc., 691 F.2d 945 (10th Cir. 1982). See generally Johnson v. Railway Exp. 
Agency,-Inc., 421 U.S. 454 (1975) (stating that both equitable and legal relief, 
including compensatory and, under certain circumstances, punitive damages are 
available under 0 1981). Plaintiff has not designated an expert witness in 
support of her claims; she does, however, plan to present the testimony of 
several treating physicians,, including Dr. Gilbert Parks, in support of her 
claims that her physical and emotional [*8] problems were aggravated by defendant's allegedly discriminatory conduct. The court finds that defendant has 
not demonstrated that it is entitled to summary judgment with regard to 
plaintiff's claims for emotional and medical damages in relation to her 
discharge because plaintiff may be able to establish causation through the 
treating physicians' testimony. The court notes, however, that plaintiff cannot 
recover damages under 0 1981 for emotional distress suffered prior to her 
termination in November 1986, since such damages would relate to racial 
harassment rather than racially-motivated discharge and only the latter claim 
remains viable under Patterson.

Thus, the court will grant summary judgment for defendant with regard to 
plaintiff's claims for emotional distress and punitive damages under Title VII 
and to plaintiff's claims for emotional distress damages prior to November 1986. 
Summary judgment, however, is denied with regard to plaintiff's claims under 0



1981 for medical damages and emotional distress as a 
regarding whether these damages relate to plaintiff s

factual question remains November 1986 termination*
IT IS BY THE COURT THEREFORE ORDERED that defendant•s motion [ * » ] * «  summary judgment is granted in part, and denied in part, consistent with the 

above opinion.
DATED: This 9th day of January, 1990, at Topeka, Kansas.





10TH CASE of Level 1 printed in FULL format.
JOE ARTHUR JONES, Plaintiff, v. PEPSI-COLA GENERAL BOTTLERS,

INC., Defendant
Case No. 88-0739-CV-W-l

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF 
MISSOURI, WESTERN DIVISION
1989 U.S. Dist. LEXIS 10307

August 29, 1989, Decided and Filed

PAGE 57

OPINIONBY: [*1]
WHIPPLE

OPINION:
ORDER
DEAN WHIPPLE, UNITED STATES DISTRICT JUDGE
Plaintiff, a former employee of defendant, alleges race discrimination and 

age discrimination. Defendant filed a motion for summary judgment on June 15, 
1989. with suggestions and documents in support. In an order entered July 1 , 
1989, this court called to plaintiff’s attention the requirement under Rule 
56(e), Fed.R.Civ.P., that evidence must be submitted by an adverse party to 
avoid summary judgment. On July 21, 1989, plaintiff filed suggestions with 
documents in opposition to the motion. Defendant filed reply suggestions in 
support.of the motion on August 1, 1989. In the reply suggestions, defendant 
submits in the alternative a motion to dismiss all of the race discrimination 
claim and parts of the age discrimination claim. On August 14, 1989, plaintiff 
filed reply suggestions in opposition to the motion. For the reasons set forth 
below the motion will be granted and summary judgment will be entered in favor 
of defendant and against plaintiff.

I. Facts
Plaintiff was 47 years old when his 19 years of employment with defendant 

ended in 1987. Plaintiff's race is black. After two years as a fork-lift 
operator, he became [*2] a truck driver. He made daily trips to St. Joseph, 
Missouri.

On November 25, 1985, plaintiff was involved in an accident while driving one 
of defendant's trucks. On May 9, 1986, he was suspended for three weeks for 
sleeping while on duty on April 18, 1986, and for falsifying records that day. 
Although he filed a labor union grievance, he brought no race-discrimination 
claims against defendant at that time. The union declined to take the grievance 
to arbitration, finding "it lacked merit." On July 17, 1986, he received a 
written reprimand for having three unexcused absences during a twelve-month 
period.

On December 17, 1986, plaintiff was driving on the job when he was involved 
in a traffic accident in St. Joseph resulting in injury to the driver of anothe: 
truck. Plaintiff said he had "blacked out" and, upon impact with the other truck, "woke up." He pleaded guilty to careless and imprudent driving. During



PAGE 58
1989 U.S. Dist. LEXIS 10307, *2 

..t.ndanf. investigation ot « •

Infractions, many involving vehicu ar ac 1987, purportedly for violatingEolations. Plaintiff was fired on J ^ u a ^ d12a,diffe.ePt job, offering to sweep
5SSeif°S2SaS “‘.2; employed. Defendant refused.

Plaintiff filed a labor union gr^f^"£iff^he^filedT^ac^discrimination

he wen^to^government agency concerning the J ^ ' ^ i i M t i ^ w i S ’the Equal filed a charge of race discrimination and age^disc ̂ ^  ^  ^  issued a

a p s s j c s r ^ s r s a s  » •-» — ■<* 18 • 1988 ■
Xi. statement of the Case
in the motion for summary ^u^ ^ ^ e dofSadprimarfaciet«se°nonathat basis, 

plaintiff has failed to issue of material fact and therefore
defendant submits there is " | j the reply suggestions in support of t 
summary judgment is aPProP ^ ® -  * ^*4] dismissal of the racemotion, defendant alternatively |e®ks  ̂ and arts of the claims under 42

S 1:1:1: 5 «2i * seq.
For dismissal of the Section 1981 claim, ̂ efendant reliesupon^the ' J g £ \ 05

« “  2d i3f(1989) . in that^ase the court held Section ^ J ^ ^ c i a /  
making and enforcing c?nt” c^ ,p“ inti£f"*tclaim of discriminatory suspension in

such, was filed outside the wo y defendant argues that the .
incorporated by 29 U.S.C. J ^ J S i i g S n M ^ e r e  not included in the EEOC charge, discriminatory suspension and su^vej;^ f cannot be considered here,
so they were not investigated f  two claims is "like or related to"
DteheeEEof cfair!orhunina:fuAermination citing E v a - v .  ^ r i c a ^ ^ u r s e ^ ^  ̂
SS°SSi“: S” (™i «u <—  »«> <«~
discrimination).

in opposition to the motion for summary ^ ^ g g ^ ^ t ^ e x p e c t a t i o n s  of the 
defendant relies on plaintiff s ^l l  failed to meet the expectations, and
employer. Plaintiff challenges«h^her he f fairly— particularly because 
that such expectations cannot be ^  conduct rules promulgated by defendant,
plaintiff did not receive a c py a ues that Patterson does not require
In his reply suggestions, plaintiff g different job, plaintiff was attempting ^ s m L s a l  here because, by j e s t i n g  a^ifferent^o^,^ ^  refusing 0n the 
co make a new employment contract. defendant violated Section 1981. Such a
basis of race to -eke a "J-y.ar li.it and the deviation tro.2?tS SJSSS’̂ r-TSSSSi-’K t». reply suggestions.



1989 U.S. Dist. LEXIS 10307, *5
PAGE 59

III. Discussion
A. Standard
Rule 56, Fed. R. Civ. P. , provides

depositions, answers genuine Issue of iate?ial fact, andaffidavits, if any, show that there is no gen ^  ^ matter of law.
that the moving party ls entitled to all reasonable inferences to beThe party opposing the to be viewed in the light most favorabledrawn from the facts and all fac ^ cir. 1988) ; Portis v.
to that party. Pierce 5”  jgJJ cir'. 1982 . However, pursuant to Rule
s s , r K E 2 - ; . - i E J H r  H  s e e s r a ^ a .
E S S  f l  genuine i s s u e d  — riel « * .

B. Race Discrimination
Counts I and II allege race “iscriminati^ barring1 °f **“

Civil Rights Act of 1964, as amended, 42 U.S. • concerns 4 2 u.S.C. 0 1981,
providing^fo^equal'^rights^for'all persons to ma*e and enforce contracts without 
discrimination based upon race.

„ MaT.=h _UDra 859 F.2d at 603, the Eighth Circuit Court of 
Appeals^e^forth^he' standard for considering summary judgment in a case of _  
disparate treatment under 42 U.S.C. 0 2000e.

in order to prove a case of d i s p a ^ h u s ^ I  ferencfof .
risLimInItion!STheeSburden ^ s h i f t s .  t o e j ^ l o y e r . t o ^ i c u l a t e ^  ^  
legitimate nondiscnminatory reason that the employer's articulated reason is
S S i M S S I ^ S S  S L S  “ *• ’ ■ — • 411 “-s -792, 802, 93 S.Ct. 1817, 1824, 36.L.Ed.2d 668 (1973).
The threshold issue of establishing a p r i m a ^ ^ N e b ? 6^^!)?Xaff"d, 834 F.2d 
v. Omaha Girls Club, 629 F.Supp. 925, 9 ntiff alleged disparate treatment
J S ^ i^ s-S T iT i-S iS  ^  -

Disparate treatment occurs when an “ P^yer trea^ . o M nPJr»“  favorab^
than others because of race, color, ^al^gl° d States 431 U.S. 324, 335-36 International Brotherhood °f Teamste • u (1977) (pattern[-]and[-]practice n. 15, 97 S.Ct. 1843, 1854 n.15, 52 L.Ed,2d .” ai^ nat;rAFIBOtive is critical,
case of racial discrimination). Pr , r*81 from differences inalthough in some situations it can be inferred [ 8] from a n
treatment. Id.

The Supreme Court in McDonnell Douglas Corp. v' — "Illoeating'the^urdens ot
1817. 86 l . M . M  .68 (1973, e.t.hUsh.d a ~ « = d  for Dougl„  die
E E S i S i S  L di S S S . * S S ,  f o r « .  « « 4 L K 1 E E S
E i . "however3 f l .SinS '



PAGE 60

against the plaintiff. United States ^ ^ J e r v i c e  Board^f . In a
Aikens, 460 U.S. 711'^;5' g a r d e n ' o f  shewing intentional discriminationdisparate treatment case the bur ^rtment *£ Coralnunity Affairs v Burdine,
remains with the plaimirr. iex. <=-7 t Fd 2d 207 (1981); McDonnell

Sr;;rd:nd=?Pp r " L r “ “ ‘S « “ ” ^ * » “ ' "on-di.=rt.i»>tor7 r.„=n
is not the real reason she was terminated.
in9! footnote, the court restated the prima facie case as articulated in 
McDonnell Douglas Corp., supra.

T= • Pri.. «oi. o... »  >
$ & ! ? ! = £ ! £ " £  (3?°r.jr i n J»d ,4, t5 f  to. ..Ployor - « * » -  «
seek applicants Id. 411 U.S. at 802, 93 S.Ct. at 1824.

The parties here do not y e a r ^ o ^ ^ e ? ' He^lso
suggests^without fubs^nti^l evidence^ support, £ £  
precise t ^ I f S i o ^ S f  pe»on/orincidents
s s s a s r * s s ^  S K i«? S S S  ;3 : 'vi“ "“whereby such an inference would be plausible and reasonable.

Meanwhile, defendant challenges ^laintiff^s°discharge. Defendantdocumentation of numerous incidents i e a d i n g P  sleeping on the job,has submitted statements and records which concern^^io^ pvi*elice
falsifying records, and involvement in an 3 ry intiff was not qualified to 
substantially supports def®”d?n .® p brouqht no contrary evidence to dispel«?.«. s.™-. —  »f «»»
exist concerning plaintiff's qualifications.

The only evid^ = et=°£C^ ™  involved^* ^vera^incidentl that resulted in
beingareprlmanded, suspended and; J1 ̂ h ^ f  o r ' t £ f j c H e e p S e " ^  indents  support a finding that he remained by defendant of its
which defendant has documented. In ? • for h^s position, there is no
position, and the absence of proof y P • considering all the facts in
genuine issue of material fact. A rea jLt find that plaintiff remainedthe light most favorable to Pla^tiff, could ^ ePJ^ma facie case is
qualified for the }ob. Because . . favor Qf defendant and against
missing, summary judgment must ®. r*lll Celotex Corporation v.plaintiff on the race discrimination issues. [*11] celotex u P
Catrett, 477 U.S. 317, 322-323 (1986).

C. Age Discrimination

_ f unt lZ1hcllle2T u  19C d@S6li”etaseqn ThfLghth^Ircilfcoi^orAppeals, in Employment Act, 29 U.s.c. e o^i et ='f'* ’ ,.oQ rath Cir. 1987), cert.
a a r *

1989 U.S. Dist. LEXIS 10307, *8



1989 U.S. Dist. LEXIS 10307, *11
PAGE 61

motion in an age discrimination case:
Xn order to establish a prima facie case of age discrimination under the 

revised McDonnell Douglas test, a plaintiff must establish all of the following 
elements: (1) the plaintiff was in the protected age group; (2) he or sheperformed the job at a level that met the employer's legitimate expectations;
(3) he or she was fired; and (4) the employer tried to replace the plaintiff 
with someone else who would provide the same service or skill. McDonnell Douglas 
Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Halsell v. 
Kimberly-Clark Corp., 683 F.2d 285, 289 (8th Cir. 1982) [cert, denied, 459 U.S. 
1205]. If the plaintiff is successful in establishing a prima facie case, the 
defendant has the burden of producing some legitimate [*12]non-discriminatory reason for the alleged discriminatory action. Halsell, 683 
F.2d at 291.
See also, Bell v. Gas Service Co., 778 F.2d 512, 515 (8th Cir. 1985).

The only element which is in dispute is whether the plaintiff met the employer's legitimate expectations. Defendant argues that plaintiff did not meet 
legitimate expectations because (a) he previously had been suspended (for 
sleeping on the job and falsifying records), (b) he was involved in a serious
accident causing bodily injury to another person, (c) he admitted he had been 
driving in a careless manner at the time of the accident, and (d) his conduct 
violated a written, publicized and utilized statement of rules. Generally, . 
defendant's position is that plaintiff was fired because of unsatisfactory work, 
including poor driving, rather than because of age.

Plaintiff responded to each point. First, he said the suspension is alleged 
to be due -to discrimination and therefore, standing alone, cannot support * 
summary judgment. However, plaintiff does not submit any evidence refuting the 
substance of defendant's reasons for discharge (i.e., sleeping on the job and 
falsifying records) or supporting the claims of discrimination. [*13]
Plaintiff also does not address whether an employer legitimately can expect an 
employee truck driver to refrain from sleeping on the job and falsifying 
records. Plaintiff asserts that, as long as the question of discrimination in 
the suspension is unresolved, it cannot be a basis for granting summary 
j udgment.

Regarding the traffic accident, plaintiff asserts that defendant's choice to 
plead guilty to a charge of careless and imprudent driving should not be held 
against him in this instance. Plaintiff recalls that he "blacked out" while 
driving, but does not explain why he later denied the phenomenon during a 
medical examination. Plaintiff does not deny that the accident occurred, or that 
another person was injured in the accident.

Plaintiff also questioned whether defendant had any legitimate expectations 
that its drivers should follow a rule that they not engage in recklessness that 
results in a serious accident while on duty. Plaintiff asserts that he did not 
receive a copy of the defendant's general rules of conduct. He apparently 
suggests that defendant cannot legitimately expect its drivers to refrain from 
injurious recklessness if the drivers did not receive copies of the rules.
[*14] Plaintiff notes that, even if it were legitimate to expect him to folio: 
rules when he did not have a copy of them, ascertaining defendant's expectation: 
would be difficult anyway.



1989 U.S. Dist. LEXIS 10307, *14
PAGE 62

This matter can be resolved with simple common sense. In these circumstances, 
there is no significance to whether plaintiff received a copy of the rules of 
conduct. There can be no question that an employer legitimately can expect its 
truck drivers will not (1) sleep on the job, (2) falsify records, and (3) drive 
recklessly, nl No reasonable jury, viewing the evidence in the light most 
favorable to plaintiff, could conclude that such expectations are not 
legitimate.

nl Plaintiff implies he was not driving recklessly because he "blacked out." 
If plaintiff actually "blacked out," as he stated once but later denied, then it 
must be noted that an employer has a legitimate expectation that its truck 
drivers will not "black out" while driving trucks in traffic.

Assuming, without deciding, plaintiff did not have a copy of the rules, such 
expectations are obvious enough that plaintiff cannot complain his failure to 
meet them was due to lack of awareness of the rules. These expectations are not 
unusual, peculiar [*15] or specific to a particular industry or company, as 
some rules of conduct might be. These expectations (to refrain from sleeping, 
falsifying records, and driving recklessly on the job) would be apparent enough 
that they can be enforced even if they were not codified in a handbook. Therefore, it is unnecessary to determine whether plaintiff received a copy of 
the rules.

Plaintiff has not denied he was sleeping on the job, or that he falsified 
records, or that he was involved in the injurious traffic accident. Apparently, 
by asserting he blacked out, he denies that he was driving recklessly. n2 If 
indeed he blacked out (and therefore was not driving recklessly) he certainly 
could not dispute that the employer has a legitimate expectation that employees 
refrain from driving after showing they are prone to blacking out. In any event, 
plaintiff pleaded guilty to a charge of careless and imprudent driving related 
to the traffic accident. Such an admission is difficult to reconcile with his 
implied denial that he was driving recklessly.

n2 He does not explain why he later denied any health problem or blacking 
out.

Plaintiff has failed to establish by any evidence a prima facie case because 
[*16] he has not shown that he met the legitimate expectations of his 
employer. Even though the burden had not yet shifted to defendant, it 
nevertheless came forward with substantial evidence showing legitimate, 
non-discriminatory reasons for firing plaintiff. Absent a prima facie case, 
there is no need yet for the burden to shift back to the plaintiff to show that 
the proffered non-discriminatory reasons are merely a pretext for discriminatory 
action. Thus, it is virtually academic that plaintiff has offered no substantial 
evidence whatsoever to support his'various broad claims that he was a victim of 
discrimination based upon age. Absent establishment of a prima facie case, 
summary judgment must be entered against plaintiff and in favor of defendant on 
the age discrimination claim. Celotex Corporation v. Catrett, 477 U.S. 317, 
322-323 (1986).

IV. Conclusion
As discussed above, plaintiff has not established a prima facie case for either race discrimination or age discrimination. He has not demonstrated by 

evidence that he remained qualified to hold his job. He has not demonstrated



. . . «.'>/** ■

1989 U.S. Dist. LEXIS 10307, *16
PAGE 63

by evidence that he met the legitimate expectations of the defendant employer. 
Having found that summary [*17] judgment must be entered against plaintiff 
on all claims, this court finds it unnecessary to address the other issues or 
the alternative motion to dismiss.

It should be noted the outstanding efforts of counsel for the parties are 
appreciated. In particular, appointed counsel for the plaintiff has done an admirable job of presenting plaintiff's claims so they could be aired completely 
and considered upon the merits.

It is
ORDERED that defendant's motion, filed June 15, 1989, for summary judgment is 

granted. It is further
ORDERED that summary judgment shall be entered in favor of defendant and 

against plaintiff, and the parties shall bear their own costs. It is further
ORDERED that all remaining motions in this action are denied as moot, and 

this action shall be removed from the accelerated joint civil jury trial docket.
DATED: August 29th, 1989 
Kansas City, Missouri