Rivers v Roadway Express Petition for A Writ of Certiorari
Public Court Documents
April 10, 1997
117 pages
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Brief Collection, LDF Court Filings. Rivers v Roadway Express Petition for A Writ of Certiorari, 1997. 0b379d80-c29a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/81bc1763-e044-4265-9996-5362de430ebb/rivers-v-roadway-express-petition-for-a-writ-of-certiorari. Accessed April 29, 2025.
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No. 97-
In The
Supreme Court of tfje Untteb States?
October Term , 1996
Maurice Rivers and Robert C. Davison,
V.
Petitioners
Roadway Express, Inc.,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Sixth Circuit
PETITION FOR A WRIT OF CERTIORARI
Eric Schnapper
University of
Washington
School of Law
1100 N.E. Campus Way
Seattle, WA 98195
(206) 616-3167
Ellis Boal
925 Ford Building
Detroit, MI 48226
(313) 962-2770
Elaine R. Jones
Director-Counsel
Theodore M. Shaw
Norman J. Chachkin
Charles Stephen Ralston
(Counsel o f Record)
NAACP Legal Defense &
Educational Fund, Inc .
99 Hudson Street
Sixteenth Floor
New York, New York 10013
(212) 219-1900
Attorneys for Petitioners
PRESS OF BYRON S. ADAMS ♦ WASHINGTON, D.C. ♦ 1-800-347-8208
1
Questions Presented
1. Where a black plaintiff alleges that he was
dismissed discriminatorily in retaliation for having
successfully enforced a contractual right to grieve
disciplinary action, is he required, in order to establish a
prima facie case, or demonstrate the pretextuality of his
employer’s proffered justifications, to identify a non-
dismissed white employee whose position, situation, and
work history were "nearly identical" to his own?
2. Where a plaintiff who has successfully enforced
his contractual rights under a collective bargaining
agreement on the ground, inter alia, that he was disciplined
discriminatorily because of his race, alleges that his employer
thereafter retaliated against him because of that successful
enforcement, was it error to grant summary judgment
against the plaintiff on the ground that no specific contract
right was identified as precipitating the retaliation?
11
Parties
All of the parties are listed in the caption.
Ill
Table of Contents
Questions P resen ted ........................................ .................. i
P a r tie s ................................................................................... ii
Table of A uthorities........................................................... 1
Opinions Be l o w ................................................................... 1
Jurisdiction .................................................................... 2
Statute In v o lv ed ........................................................... 2
Statement of the Case ............................................... 2
A. Proceedings Below.....................
1. The Earlier Litigation. . .
2. The Current Proceedings.
3. The Ruling Below..........
B. Statement of Facts............................................. 8
Reasons for Granting the Writ ........................... 14
I. Certiorari Should be Granted
to Clarify the Standard for
P r o v i n g I n t e n t i o n a l
Discrimination In the D ismissal
of an Employee..................................... 14
A. The Decision Below is in
Conflict with Decisions in
Numerous Other Circuits............ 14
B. The Decision Below Is In
Conflict With Decisions of
This Court...................................... 23
w
t
o
to
IV
II. Certiorari Should Be Granted
to Correct a Fundamental
Misinterpretation of the Anti-
Retaliation Protections of 42
U.S.C. § 1 9 8 1 .............................................29
Conclusion ........................................................................ 30
Appendix
Table of Authorities
Cases: Pages:
Ahmed v. N.C. Servo Technology, Corp.,
1996 U.S. Dist. LEXIS 6621 (E.D. Mich. 1996) 25
Brown v. Parker-Hannifin Corp.,
746 F.2d 1407 (10th Cir. 1984).......................... 22
Bryer v. Hubert Distributors, Inc.,
1991 U.S. Dist. LEXIS 14370 (E.D. Mich. May 13,
1991) .................................................................... 25
Bums v. AAF-McQuay Inc.,
96 F.3d 728 (4th Cir. 1996) .............................. 19
Burrell v. Providence Hosp.,
104 F.3d 361, 1997 WL 729281 (6th Cir. 1996) 26
Butler v. Ohio Power Co.,
91 F.3d 143, 1996 WL 400179 (6th Cir. 1996) 26
Cassino v. Reichhold Chemicals, Inc.,
817 F.2d 1338 (9th Cir. 1987) ......................... 17
Chambers v. TRM Copy Centers Corp.,
43 F.3d 29 (2d Cir. 1994) .................................... 19
Cooper v. City of North Olmsted,
795 F.2d 1265 (6th Cir. 1986) ............................ 16
Crum v. American Airlines, Inc.,
946 F.2d 423 (5th Cir. 1991) ............................ 19
Denisi v. Dominick’s Finer Foods, Inc.,
99 F.3d 860 (7th Cir. 1996) ............................... 17
EEOC v. Metal Service Co.,
892 F.2d 341 (3d Cir. 1990) ............................ 19
VI
Fuka v. Thomson Consumer Electronics,
82 F.3d 1397 (7th Cir. 1995) ..................... 18, 19
Fumco Construction Corp. v. Waters,
438 U.S. 567 (1978)........................................ passim
Gallo v. Prudential Services,
22 F.3d 1219 (2nd Cir. 1994) ............................ 25
Gerth v. Sears, Roebuck & Co.,
94 F.3d 644, 1996 WL 464984 (6th Cir. 1996) 26
Goldman v. First National Bank of Boston,
985 F.2d 1113 (1st Cir. 1993) .............. .. 18
Hale v. Secretary, Dept, of Treasury,
86 F.3d 1156, 1996 WL 279880 (6th Cir. 1996) . 26
Hargett v. National Westminster Bank, USA,
78 F.3d 836 (2d 1996) ......................................... 19
Harrison v. Metro Government of Nashville,
80 F.3d 1107 (6th Cir. 1996) ................ ........... 16
Harvis v. Roadway Express, Inc.,
923 F.2d 59 (6th Cir. 1991) .................................. 3
Harvis v. Roadway Express, Inc.,
973 F.2d 490 (6th Cir. 1992) ........................ 2, 4, 5
Hawkins v. The Ceco Corp,
883 F.2d 977 (11th Cir. 1989) ............................ 17
Henry v. Daytop Village,
42 F.3d 89 (2d Cir. 1994) ................................. 25
Pages
Jackson v. Ford Dealer Computer Services, Inc.,
95 F.3d 1152, 1996 WL 483028 (6th Cir. 1996) 26
vu
Jobe v. Hardaway Management Co., Inc.,
98 F.3d 1342, 1996 WL 577638 (6th Cir. 1996) 26
Josey v. John R. Hollingsworth Corp.,
996 F.2d 632 (3d Cir. 1993) ..................... 18, 19
Kocsis v. Multi-Care Management,
97 F.3d 876 (6th Cir. 1996) ............................ 26
LaPointe v. United Autoworkers Local 600,
103 F.3d 485 (6th Cir. 1996) ............................ 25
Laughlin v. United Telephone-Southeast, Inc.,
107 F.3d 871, 1997 WL 52921 (6th Cir. 1997) 25
Lawrence v. Mars, Inc.,
955 F.2d 902 (4th Cir. 1992) . .......................... 19
Lawrence v. National Westminster Bank New Jersey,
98 F.3d 61 (3d Cir. 1996) ............................ 17, 19
Leffel v. Valley Financial Services,
1997 U.S. App. LEXIS 11359 (7th Cir. 1997) 20,22
Lindsey v. Prive Corp.,
987 F.2d 324 (5th Cir. 1993) ............................ 19
Lytle v. Household Mfg., Inc.,
494 U.S. 545 (1990) ......................................... 5,1
Marhtel v. Bridgestone/Firestone, Inc.,
926 F. Supp. 1293 (M.D. Tenn. 1996) ............ 25
Mayberiy v. Vought Aircraft Co.,
55 F.3d 1086 (5th Cir. 1995) ............................ 19
McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) ......................................passim
Pages
Pages
Mitchell v. Ball,
33 F.3d 450 (4th Cir. 1994) ............................... 19
Mitchell v. Toledo Hospital,
964 F.2d 577 (6th Cir. 1992) ..................... 16, 17
Mitchell v. White Castle Systems, Inc.,
86 F.3d 1156, 1996 WL 279863 (6th Cir. 1996) 26
Mulero-Rodriguez v. Ponte, Inc.,
98 F.2d 670 (1st Cir. 1996) ............................... 18
Nesbit v. Pepsico, Inc.,
994 F.2d 703 (9th Cir. 1993) .............. ............. 17
Noble v. Alabama Department of Env. Mgt.,
872 F.2d 361 (11th Cir. 1989) .......................... 17
O’Connor v. Consolidated Coin Caterers Corporation,
517 U.S. _ , 134 L. Ed. 2d 433 (1996) . . . . passim
Palmer v. Health Care and Retirement, Inc., 1997 WL
135451 (6th Cir. 1997) . ...................................... 25
Palmer v. United States,
794 F.2d 534 (9th Cir. 1986) . . . . . . . . . . . . . 17
Patterson v. McLean Credit Union,
491 U.S. 164 (1989) ................................. .. 3, 4, 24
Perkins v. Regents of the University of Michigan,
934 F. Supp. 857 (S.D. Mich. 1996) ................. 25
Plair v. E.J. Brach & Sons,
105 F.3d 343 (7th Cir. 1997) ............................ 19
Quaratino v. Tiffany & Co.,
71 F.3d 58 (2d Cir. 1995) ................................. 19
viii
IX
Reynolds v. School District No. 1 Denver, Colorado,
69 F.3d 1523 (10th Cir. 1995) .......................... 20
Rivers v. Roadway Express,
511 U .S .___, 128 L. Ed. 2d 274 (1994) ___ 2, 5
Robinson v. Shell Oil,
519 U .S .___, 136 L. Ed. 2d 808 (1997)............ 14
Rothmeier v. Investment Advisers, Inc.,
85 F.3d 1328 (8th Cir. 1996) ............................ 20
Rowls v. Runyon,
100 F.3d 957, 1996 WL 627712 (6th Cir. 1996) 26
Ruth v. Children’s Medical Center,
940 F.2d 662, 1991 WL 151158 (6th Cir. Aug. 8,
1991) .................................................................... 16
Serrano-Cruz v. DFI Puerto Rico, Inc.,
109 F.3d 23 (1st Cir. 1996) ................................. 18
Shelmon-Murchison v. Gerber Products Company,
1996 U.S. Dist. LEXIS 20735
(S.D. Mich. Sept. 13, 1996) ................................. 25
Sinclair v. ATE Management & Service Company, Inc.,
1996 U.S. Dist. LEXIS 19921 (E.D. Mich. Nov. 27,
1996) .................................................................... 25
Singh v. Shoney’s, Inc.,
64 F.3d 217 (5th Cir. 1995) .................................. 19
Smith v. F.W. Morse & Co., Inc.,
76 F.3d 413 (1st Cir. 1996) ............................... 18
Smith v. Stratus Computer, Inc.,
40 F.3d 11 (1st Cir. 1994) ....................................... 18
Pages
X
St. Mary’s Honor Center v. Hicks,
509 U.S. 502, 125 L. Ed. 2d 407 (1993) . . . . passim
Steele v. Electronic Data Systems Corp.,
103 F.3d 131, 1996 WL 690142 (6th Cir. 1996) 26
Steward v. BASF Corporation,
1994 U.S. Dist. LEXIS 10261 (W.D. Mich. June 7,
1994) ....................... ............................................ 25
Stotts v. Memphis Fire Dept.,
858 F.2d 289 (6th Cir. 1988) ......... ............. 16, 17
Suggs v. Servicemaster Education Food Management,
72 F.3d 1228 (6th Cir. 1996) . ............................. 16
Sutera v. Schering Corp.,
73 F.3d 13 (2d Cir. 1995) ................................... 19
Terwilliger v. GMRI, Inc.,
952 F. Supp. 1224 (E.D. Mich. 1997) ............... 25
Texas Dept, of Community Affairs v. Burdine,
450 U.S. 248 (1981) ............................... passim
Thomas v. Hoyt, Brumm & Link, Inc.,
910 F. Supp. 1280 (E.D. Mich. 1994) . . . ----- 25
Timms v. Frank,
953 F.2d 281 (6th Cir. 1992) ..................... .. 16, 17
Toyee v. Janet Reno,
940 F. Supp. 1081 (E.D. Mich. 1991) .............. 25
Trujillo v. Grand Junction Regional Center,
928 F.2d 973 (10th Cir. 1991) ............................ 20
Pages
XI
United States Postal Service Board of Governors v.
Aikens,
460 U.S. 711 (1983) ...................................... 23, 28
Walker v. Runyon, 99 F.3d 1140, 1996 WL 607197
(6th Cir. 1996)........................................................ 26
Wallis v. J.R. Simplot Co.,
26 F.3d 885 (9th Cir. 1994) ................................. 17
Wathen v. Lexmark Intern, Inc.,
99 F.3d 1140, 1996 WL 622955 (6th Cir. 1996) 26
Weisbrot v. Medical College of Wisconsin,
79 F.3d 677 (7th Cir. 1996) ............................... 18
Weldon v. Kraft, Inc.,
896 F.2d 793 (3d Cir. 1990) 18
White v. United Autoworkers Local 600, 103 F.3d 485
(6th Cir. 1996)........................................................ 25
Wilson v. National Car Rental System, Inc.,
94 F.3d 646, 1996 WL 452882
(6th Cir. 1996) .................................................... 26
Wilson v. Wells Aluminum Corp.,
107 F.3d 12, 1997 WL 87218 (6th Cir. 1997) . . 25
Statutes: Pages:
Age Discrimination in Employment Act ........................ 15
Americans with Disabilities Act ...................................... 15
Civil Rights Act of 1866, 42 U.S.C. § 1981 ............passim
Pages
xii
Pages
Civil Rights Act of 1964,
42 U.S.C. § 2000e et seq ............................... 3, 15
Labor-Management Relations Act, 29 U.S.C. § 185(a) 3
28 U.S.C. § 1254(1) .......................................... ................ 2
No. 97-
In The
S u p re m e C o u r t o f tfje © m te b i^tate g
October Term , 1996
Maurice Rivers and Robert C. D avison,
Petitioners,
v.
Roadway Express, Inc .,
Respondent.
On Petition for Writ of Certiorari
to the United States Court of Appeals
for the Sixth Circuit
PETITION FOR A WRIT OF CERTIORARI
Petitioners, Maurice Rivers and Robert C. Davison,
respectfully pray that a writ of certiorari issue to review the
judgment of the Court of Appeals for the Sixth Circuit
entered in this proceeding on April 10, 1997.
O p in io n s B e l o w
The opinion of the United States Court of Appeals
for the Sixth Circuit is unreported and is set out at pages la-
9a of the Appendix hereto ("App."). The Opinion and
Order of the United States Court District Court for the
Northern District of Ohio, Western Division, dated May 25,
1995, is unreported and is set out in the Appendix at pages
10a-26a. The Order of the district court denying petitioners’
motion for reconsideration, dated September 22, 1995, is
also unreported and is set out in the Appendix at pages 27a-
28a.
2
Earlier decisions in this case that are relevant to the
issues raised in the current Petition are set out in the
Appendix as follows: Memorandum and Order of the
district court dated November 30, 1988, App. at 29a-37a;
Memorandum and Order of the district court dated January
9, 1990, App. at 38a-43a; Findings of Fact and Conclusions
of Law of the district court dated October 18, 1990, App. at
44a-54a. The earlier decision of the Court of Appeals is
reported sub nom. Harvis v. Roadway Express, Inc., 973 F.2d
490 (6th Cir. 1992) and is set out in the Appendix at 55a-
70a. In addition, the prior decision of this Court is reported
at 511 U .S .___, 128 L.Ed. 2d 274 (1994).
J u r is d ic t io n
The decision of the Sixth circuit was entered April
10, 1997. This Court has jurisdiction to hear this case
pursuant to 28 U.S.C. § 1254(1).
St a t u t e In v o l v e d
This case involves 42 U.S.C. § 1981, which provides,
in pertinent part:
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.
3
St a t e m e n t o f t h e C a s e
A. Proceedings Below.
1. The Earlier Litigation.
Maurice Rivers and Robert C. Davison, together with
a third co-plaintiff James T. Harvis, Jr.,1 filed their
Complaint against respondent, Roadway Express, Inc., their
former employer, on February 22, 1987, in the United
States District Court for the Northern district of Ohio,
Western Division, alleging that Roadway discharged them in
violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981.
They also asserted claims under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq., and under § 301 of
the Labor-Management Relations Act, 29 U.S.C. § 185(a).
Petitioners also raised a hybrid §301/duty of fair
representation claim against their Union, Local Union 20,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen, and Helpers of America. Petitioners filed
a First Amended Complaint dated September 28, 1987.
The district court entered final judgments on all
claims of each plaintiff. Only the § 1981 claim of Rivers and
Davison that they were discriminatorily discharged in
retaliation for seeking to enforce their contractual rights is
at issue here.
The parties engaged in extensive discovery over
several months under the law as it stood prior to Patterson
v. McLean Credit Union, 491 U.S. 164 (1989). Both
Roadway and the Union moved for summary judgment. The
district court dismissed petitioners’ claims that the Union
violated its duty of fair representation, and also dismissed
petitioners’ related labor law claims against Roadway. App.
‘Harvis was a co-plaintiff, but his case was severed from that of
Rivers and Davison and tried separately. His claims are not at issue
here. See Harvis v. Roadway Express, Inc., 923 F.2d 59 (6th Cir.
1991).
4
30a-38a. The district court denied Roadway judgment,
however, on petitioners’ race discrimination claims under
Title VII and § 1981, determining that "genuine issues of
material fact exist as to plaintiffs’ claims under Section 1981
and Title VII against defendant Company." App. 37a.
Petitioners’ case was awaiting trial when this Court
handed down its decision in Patterson v. McLean Credit
Union, supra. The district court, by Order dated July 10,
1989, directed Rivers and Davison to show cause why their
§ 1981 claims should not be dismissed in light of Patterson.
Subsequently, the district court dismissed petitioners’ § 1981
claims. App. 39a-44a. Petitioners’ Title VII claims were
tried to the district court without a jury, and he found
against petitioners in all respects. App. 45a-55a.
Petitioners appealed to the Sixth Circuit solely from
the dismissal of their claims under § 1981. At issue was
whether Patterson eliminated claims that an employee had
been discharged discriminatorily for seeking to enforce his
right under an employment contract to grieve an adverse
action. However, during the pendency of the appeal,
Congress passed the Civil Rights Act of 1991, which
overturned Patterson in its entirety. Petitioners filed a
supplemental brief arguing that the new statute should be
applied to this action and that, therefore, all of their section
1981 claims, including the claim that their discharge was
motivated by racial discrimination, should be reinstated and
the case remanded for a jury trial.
On August 24, 1992, the court of appeals affirmed in
part and reversed in part. Harvis v. Roadway Express, Inc..
973 F.2d 490 (6th Cir. 1992); App. 56a-71a. It held that
racially motivated discharge claims, as such, did not survive
Patterson. It also held that the 1991 Act should not be
applied to cases pending at the time of its enactment and
that, conversely, Patterson should be applied to cases that
arose before the date of that decision.
The court also held, however, that petitioners’ claim
5
that they had been discharged discriminatorily because they
had sought to enforce their employment contract by grieving
adverse actions against them was still covered by section
1981 after Patterson—and that, therefore, the district court
erred in dismissing that aspect of petitioners’ claims under
section 1981. The case was remanded for further
proceedings under section 1981, including a trial by jury as
guaranteed by the Seventh Amendment, citing Lytle v.
Household Mfg., Inc., 494 U.S. 545 (1990). Harvis v.
Roadway Express, 973 F.2d at 495; App. 61a-65a.
Petitioners successfully petitioned this Court for a
writ of certiorari on the issue of the application of the Civil
Rights Act of 1991 to this case. However, the Court held
that the 1991 Act did not apply, and remanded the case for
further proceedings. Rivers v. Roadway Express, Inc., 511
U.S. ___, 128 L.Ed. 2d 274 (1994). The Sixth Circuit
remanded the case to the district court for further
proceedings in conformity with its prior mandate.
2. The Current Proceedings.
On remand, no jury trial was in fact held. Rather,
respondent, Roadway Express, filed a second motion for
summary judgment in which it relied on the findings of fact
of the district court rendered after the bench trial on
petitioners’ Title VII claims, together with other citations to
pleadings and discovery developed before that trial, and the
trial transcript.
Petitioners opposed the motion, relying on matters in
the record that they claimed established that there were
disputed issues of material fact. They also reiterated their
demand for a jury trial.
The district court granted the motion for summary
judgment by applying the McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973) evidentiary analysis. The court held
that it was necessary for the petitioners to establish four
elements in order to make out a prima facie case:
6
1) plaintiff is a non-white;
2) plaintiff enforced or exercised a specific contract
right;
3) plaintiff was subject to an adverse employment
action;
4) there is a causal link between both plaintiffs
enforcement or exercise of the contract right and
plaintiffs race.
App. 18a. The court then held that petitioners had
established the first and third elements, since they are both
African Americans and they were discharged. With regard
to the second element, however, the district court held that
there was no evidence that there was a contractual right to
notice of a hearing by certified mail. It further rejected
petitioners’ argument that they were enforcing their
conceded contractual right to grieve differences with their
employer that arose out of the collective bargaining
agreement, on the ground that this claim had been raised for
the first time during the oral argument on the defendant’s
motion for summary judgment. Id., 23a.
With regard to the fourth element, the court held
that there was sufficient evidence to establish a retaliatory
motive for the adverse action since it occurred seventy-two
hours after petitioners had successfully grieved the two-day
suspension. Id., 24a-25a. However, the court further held
that the petitioners "presented] no evidence of any
comparables that could possibly raise an inference of a racial
motivation in the alleged retaliation," and that they had also
failed to present any direct evidence of a racial motivation
for the actions of the employer. Id., 25a. Therefore, the
court held, petitioners had failed to establish a prima facie
case of retaliatory contract impairment under § 1981.
The district court went on to hold that even if it were
assumed that a prima facie case had been established, the
company had come forward with evidence of a legitimate,
7
nondiscriminatory reason for their discharges, viz, "their
accumulated work records and because they disobeyed direct
orders to attend their second [post-grievance] set of
disciplinary hearings on September 26." Id., 26a. The court
said that petitioners had come forward with no evidence
which "would support a jury finding that the proffered, non
discriminatory reasons for petitioners’ discharges were a
pretext to cover defendant’s retaliatory and racial motivation
. . . Id., 27a. Therefore, the defendant was entitled to
judgment as a matter of law.
The district court denied the motion for
reconsideration filed by the petitioners on the grounds that
it asserted new contractual right theories and facts that were
not previously offered in opposition to the motion for
summary judgment and, therefore, it did not provide a
proper basis for reconsideration of the summary judgment
order.
3. The Ruling Below.
The petitioners appealed to the Sixth Circuit,
claiming that the grant of summary judgment denied them
their right to a jury trial under the seventh amendment and
this Court’s decision in Lytle, since there were substantial
and material matters of fact that were in dispute. The
majority of the court of appeals panel affirmed, holding,
inter alia, that the petitioners had failed to demonstrate that
comparable white employees had been treated differently
and had failed to establish that they had been denied a right
established by the collective bargaining agreement. It also
held that even if aprima fade case of discrimination through
a retaliatory discharge had been established, the respondent
had come forward with a legitimate, nondiscriminatory
reason for discharging the petitioners, viz., their
disobedience of a direct order to attend the second
disciplinary hearings and their accumulated work records.
Finally, the court of appeals held that no pretext had been
shown since a white employee had also been discharged for
refusing a direct order to attend his disciplinary hearing.
8
App., la-6a. Judge Merritt dissented on the ground that
summary judgment should not have been granted because
the petitioners had clearly introduced evidence that they had
been retaliated against because they sought to exercise their
contractual right to grieve the earlier discharge, and that
there was ample evidence from which a jury could infer a
racially discriminatory motive in their discharge. App. 6a-
10a.
B. Statement o f Facts.
Since this case involves the grant of summary
judgment, the facts are set out herein in the light most
favorable to the non-moving party, the petitioners.
Roadway hired plaintiff Robert Davison to work as
a washer in its Akron facility in 1972 and hired Maurice
Rivers the following year to work as a janitor at the same
facility.2 Each worked his way up to become a mechanic.
In 1975, both were transferred to work as mechanics in
Roadway’s garage in Toledo, Ohio. For 10 years, both
worked capably in that job.3
On August 22, 1986,4 Roadway required both Rivers
and Davison to attend disciplinary hearings on their
2 R. 192: Appendix I of Plaintiff in Opposition to [First Motion
for] Summary Judgment, ("Appendix I") Davison Dep. 7/15/87, at 44-
45; Rivers Dep. 6/16/87 at 11. Citations are to the record in the court
of appeals.
3R. 192: Appendix I, Thompson Dep. 7/22/87, at 49-50.
4There were only four African-American employees working in
the Toledo garage in 1986: plaintiffs Rivers, Davison and Harvis, and
an African-American union steward, Eugene T. McCord, who had
been discharged in 1984 for refusing to have his picture taken in
circumstances an arbitrator described as showing a "callous disregard
for the personal rights of minority employees." R. 345: Second
Affidavit of Eugene T. McCord, p. 3. Mr. McCord was reinstated.
9
accumulated work record without proper notice.5
Roadway’s practice in disciplinary cases was to request a
mutually agreeable hearing date with the union for a
disciplinary hearing. The company would then notify the
employee and the union of the hearing date. The
employee’s notice would come by certified or registered
mail.6 Rivers and Davison were not given such notice,
however. Davison was simply called into the office at the
end of his shift without any prior notice, verbal or written,
that a hearing would be held that day. He protested that
he had not received proper notice.7 Rivers’ foreman
verbally informed him during the early hours of August 22
that a disciplinary hearing would be held for him later that
morning. Rivers also received no written notice.8
Because Rivers and Davison had not received proper
notice, neither of them attended the disciplinary hearings.
Roadway Express proceeded despite their absence. At the
conclusion of the hearings, Roadway suspended each
employee for two days for minor infractions, such as
"wasting time" and wearing improper shoes to work.
Both employees then filed grievances challenging
their suspensions. The grievances were heard by the Toledo
Local Joint Grievance Committee (TLJGC) on September
23, 1986.9 The TU G C was comprised of six members,
three each from union and management, including co-chairs.
5R. 192: Appendix I, Guy Dep. 8/12/87, at 151; R. 218: Complaint,
at 11 11.
6R. 345, Second McCord Affidavit, p. 2.
7R. 192: Appendix I, Davison Dep. 7/20/87, at 187-192; Guy Dep.
8/12/87, at 148.
8R. 192: Appendix I, Rivers Dep. 7/14/87, at 297-299; Guy Dep.
8/12/87, at 149.
9 R. 192: Appendix I, Rivers Dep. 7/14/87, at 316, 318.
10
Rivers and Davison were represented by Mr. McCord, who
was chief steward at the time, and by the Union business
agent, Paul Toney.10 They contended that the Company
failed to give proper notice and instead discriminatorily held
prompt hearings for these African-American employees but
not for whites.11 As Mr. McCord stated:
Between us Toney and I made three arguments.
One was that the company had rushed disciplinary
hearings on plaintiffs ahead of white employees. I
said this was discrimination and gave specific
examples.12
* * *
A second argument I made to the TU G C was that
plaintiffs had been given improper notice of their
hearings August 22. Again, no specific clause in the
contract provides for any certain type or manner of
notice of disciplinary hearings, but the grievance
10R. 345, Second McCord Affidavit, p. 2-3.
nR. 192: Appendix I, Rivers Dep. 7/14/87 at 321-22, 324;
McCord Dep. 9/3/87, at 285-86, 293; R. 345, Second McCord
Affidavit, p. 3.
nSee also, R. 192: Appendix I, Rivers Dep. 7/14/87 at 321-22,
324; McCord Dep. 9/3/87, at 285-86, 293, explaining how they
presented examples of white employees who were not hastily brought
in for hearings as they had been, notwithstanding that Roadway’s
requests that the union agree to dates for hearings on their
disciplinary records had been pending for months. Thus, the time
between the request for hearings of the charges against Rivers and
Davison were 22 and 39 days respectively, while the time between the
request and the hearing of the eleven white employees for whom
hearings were held during 1986 and early 1987 averaged 99 days, with
only one white employee having a more prompt hearing than both
plaintiffs, and one other more prompt than Davison. R. 192:
Appendix II, Plaintiffs’ Exs. 64, 65, 69, 70, 71, 72, 73, 74, 75, 76, 77,
78, 79, 80, and 81.
1 1
procedure covered "any difference or dispute." That
included past practices. Notice had always been
given in the past by certified or registered mail to
employee mechanics. It was a past practice. They
had come to rely on it and they had the right to rely
on it.
* * *
Finally, Paul Toney and I both said that the
suspensions were without "just cause."13
The TLJGC ruled in petitioners’ favor, determining
that "[bjased on improprieties the claim of the union is
upheld."14 The committee reversed the suspensions and
awarded petitioners-appellants back pay for the two days
they were suspended.
Roadway Labor Relations Manager James O’Neill
became enraged upon hearing of the TLGC determination,
and vowed to hold hearings on petitioners again with 72
hours. O ’Neill was "hollering" and was visibly upset.15
Roadway did in fact convene disciplinary hearings on
Davison and Rivers again within three days of the
September 23, 1986, TU G C decision. Roadway also
scheduled hearings on three white employees specifically
because of Mr. McCord’s having argued that there had been
racial discrimination against Rivers and Davison because
white employees had not been called for hearings even
though their alleged offenses pre-dated those of Rivers and
Davison. Thus, Mr. O ’Neill testified:
13R. 345, Second McCord Affidavit, pp. 3-4.
14R. 192: Appendix II, Plaintiffs’ Ex. 113, 114; R. 345, Second
McCord Affidavit, p. 4.
15R. 192: Appendix I, McCord Dep. 9/3/87 at 286; Rivers 7/14/87
Dep. at 327; Guy Dep. 8/12/87 at 168-69.
12
Q. And you are having these hearings [on
the charges against three white
employees] because you claim that Mr.
McCord requested them?
A. Yes.
Q. Based on his argument of race discrimination
back in September 23?
A. Yes.16
With regard to the second round of hearings,
Roadway attempted to notify petitioners of the hearings by
leaving papers at their workstations. This notice, it was
claimed, also fell short of the standard procedure of sending
the notice by certified mail, which petitioners believed was
required.17 Davison and Rivers went to the hearing room,
but objected to the lack of notice and again declined to
remain. Again the hearings were held in their absence. The
second disciplinary hearings were conducted by another
member of Roadway management, Robert Kresge, but
O ’Neill also personally attended.18 As a result of the
hearings, petitioners were discharged on September 26,1986.
Petitioners each claimed that no one informed them
16R. 327: Testimony of James O’Neill, Transcript of Trial, Vol. II,
pp. 524, 531. The conclusion that white employees were included in
the disciplinary actions so that the company would be able to
discharge petitioners in retaliation for having exercised their
contractual rights was supported by the testimony of another white
employee, Mr. Russell, noted by Judge Merritt in dissent below.
Russell was also fired for violating a direct order but was reinstated.
He was told by a supervisor that he was fired so that "Roadway would
have a defense . . . that they don’t only fire black people . . ." App.
9a.
17R. 192: Appendix I, Rivers Dep. 7/14/87, at 339-40, 347, 378-9;
Toney Dep. 10/1/87, at 19-20.
18R. 192: Appendix I, O’Neill Dep. 8/13/87, at 63, 69.
13
that failure to attend the second disciplinary hearing would
cause his discharge.19 The Company, on the other hand,
asserted that the employees’ failure to attend the hearings in
disobedience of what it characterized as a "direct order" was
the basis for its decision immediately to discharge them
(even though it had not discharged the petitioners when they
refused to attend the hearings held before their successful
grievance).
With regard to the three white employees who
received disciplinary hearings on the same day because the
union steward raised the issue of racial discrimination, one,
Mr. Sedelbauer, also refused several orders to attend his
hearing and was discharged.20 A second white employee,
Mr. Bradley, had the day of the hearing off. He was neither
on the clock nor was he ordered to attend the hearing.
Nevertheless, the hearing was held in his absence and he was
given a two-day suspension. The third white employee, Mr.
Swartzfager,21 was on the clock but obeyed the order to
attend the hearing. He was suspended for two days. App.
27a.
19See, e.g., R. 192: Appendix I, Davison Dep. 7/20/87, at 227, 232;
Davison Dep. 8/20/87.
Petitioners argued that Mr. Sedelbauer’s circumstances were
different in that he did not attend the disciplinary hearing at all,
while petitioners did but left before the hearings were concluded.
21There had been a six-month delay between the alleged
misconduct of this white employee and the scheduling of a hearing in
response to McCord’s argument at the petitioners’ initial hearings.
14
R e a s o n s f o r G r a n t in g t h e W r it
This case involves a claim of discrimination more
egregious than presented in Robinson v. Shell Oil, 519 U.S.
___, 136 L.Ed. 2d 808 (1997). The petitioners allege that
they were fired from long-standing employment with
Roadway Express because they grieved, successfully,
disciplinary charges on the ground that they had been
subjected to different proceedings because of their race.
After winning their grievance, new disciplinary hearings were
set on short notice. Petitioners testified that they were not
warned that they could be terminated if they did not attend
the hearings; nevertheless, they were fired when they left.
All petitioners have sought is a jury trial on the merits of
their claims. They have been denied this right because of
the mechanical application by the courts below of rules for
establishing a prima facie case of discrimination and for
proving the ultimate fact of discrimination.
I.
Certiorari Should be Granted to Clarify the
Standard for Proving Intentional D iscrimination
In the D ismissal of an Employee.
A. The Decision Below is in Conflict with Decisions in
Numerous Other Circuits.
Twenty-four years ago in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), this Court set out a paradigm
for establishing a prima facie case of intentional
discrimination in the hiring of employees. 411 U.S. at 802.
For at least a decade, however, by far the largest number of
civil actions filed under federal anti-discrimination statutes
have concerned dismissals rather than initial hiring decisions.
To this very large group of employment discrimination
actions the McDonnell Douglas formulation, which expressly
concerns "applications," cannot be applied as written. Texas
Dept, o f Community Affairs v. Burdine, 450 U.S. 248, 253 n.6
(1981).
15
As a consequence, this Court noted in O ’Connor v.
Consolidated Caterers Corporation, 517 U.S.___, 134 L.Ed.2d
433, 438 (1996), the circuit courts in age discrimination cases
have "applied some variant of the basic evidentiary
framework set forth in McDonnell Douglas." 134 L.Ed.2d at
438 (emphasis added). There are widespread differences
among the lower courts as to how the McDonnell Douglas
paradigm should be adapted to discriminatory discharge
claims, not only under the Age Discrimination in
Employment Act, but also under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 1981, the Americans with
Disabilities Act, and other federal anti-discrimination laws.
O ’Connor resolved a comparatively narrow issue somewhat
unique to ADEA claims, and merely assumed without
deciding that the McDonnell Douglas paradigm for Title VII
hiring claims could be adapted to an ADEA discharge claim.
This case presents the broader, recurring issue of what basic
standard should be applied to discharge claims brought
under the various anti-discrimination statutes.22
The conflict and confusion among the courts of
appeals is quite complex. As we set out below, there are
five distinct standards in use in the lower courts. Several
circuits, including the Sixth, have embraced one of these
standards with a fair degree of consistency. In other circuits,
the standard announced and applied varies from panel to
panel with little rhyme or reason. Evidence deemed entirely
adequate in some courts to support a finding of intentional
discrimination is dismissed in other courts as insufficient
even to establish a prima facie case. Whether particular
claimants will receive a trial on the merits, or see their
claims dismissed on summary judgment, often depends less
on the evidence they adduce than on the circuit in which
their claim was filed.
22As described above, the specific claim in the present case is
whether the petitioners were discriminated against by being
discharged in retaliation for having sought to enforce their
contractual rights free of racial discrimination, in violation of § 1981.
16
The courts of appeals generally require, to establish
a prima facie case, that the plaintiff prove (1) that he or she
was discharged,23 (2) that he or she met the basic
qualifications for the job in question, and (3) that he or she
belonged to some group protected from discrimination by
the statute involved. Disputes about whether a plaintiff
meets these requirements arise only rarely. The critical issue
is what additional elements, if any, the dismissed employee
must establish to create a prima facie case. The five
standards now in use in the courts of appeals are as follows:
Similarly Situated Comparator: The most restrictive
rule, applied by the Sixth Circuit in this and previous cases,
requires the plaintiff to identify an employee, outside the
protected group, who (1) held the same position, (2) had the
same work record, (3) reported to the same supervisor, and
(4) was not discharged.24 Sixth Circuit caselaw
understandably characterizes this rule as mandating that the
plaintiff find a "comparable" who is "similarly situated in all
respects"25or "nearly identical."26Because of the stringency
23This first element is more complex where the claim is that the
plaintiff left employment because of intolerable discrimination, in
other words, was "constructively discharged." The present case
involves actual dismissal from employment.
24Harrison v. Metro Government o f Nashville, 80 F.3d 1107, 1115
(6th Cir. 1996); Pierce v. Commonwealth Life Ins. Co., 40 F.3d 796,
802 (6th Cir. 1994); Mitchell v. Toledo Hospital, 964 F.2d 577, 582-83
(6th Cir. 1992). A more general formulation of the "similarly
situated" comparator requirement can be found in Suggs v.
Servicemaster Education Food Management, 72 F.3d 1228 (6th Cir.
1996); Timms v. Frank, 953 F.2d 281, 186 (6th Cir. 1992); Stotts v.
Memphis Fire Dept., 858 F.2d 289, 296 (6th Cir. 1988); Cooper v. City
of North Olmsted, 795 F.2d 1265, 1270 (6th Cir. 1986).
25Harrison v. Metro Government of Nashville, 80 F.3d at 1115
("similarly situated in all respects")(emphasis in original); Mitchell v.
Toledo Hospital, 964 F.2d at 583.
17
of this rule, discriminatory discharge claims are frequently
dismissed in the Sixth Circuit because the employer has no
such nearly identical comparator in its workforce.26 27
Replacement by Non-Group Member: The Eleventh
Circuit requires that the plaintiff prove that he was replaced
by a person who is not a member of the protected group.
Although O ’Connor v. Consolidated Coin Caterers Corp.,
supra, disapproved use of this standard in ADEA cases, the
Eleventh Circuit also applies it in race discrimination
cases.28 This was the standard applied by the lower courts
in St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 125
L.Ed.2d 407 (1993). Other appellate panels applying this
approach to ADEA cases since O’Connor require proof that
the plaintiff was replaced by a "younger" worker.29 Both
before and after O’Connor the Ninth Circuit has generally
required in ADEA cases that the plaintiff show that he or
she was replaced by a younger worker.30
26Pierce v. Commonwealth Life Ins. Co., 40 F.3d at 802; Ruth v.
Children’s Medical Center, 940 F.2d 662 (Table), 1991 WL 151158, at
*6 (6th Cir. Aug. 8, 1991).
11 Pierce v. Commonwealth Life Ins. Co., 40 F.3d at 802; Mitchell v.
Toledo Hospital, 964 F.2d at 584; Timms v. Frank, 953 F.2d at 287;
Stotts v. Memphis Fire Dept., 858 F.2d at 296-99 (reversing finding of
intentional discrimination).
2sHawkins v. The Ceco Corp, 883 F.2d 977, 982 (11th Cir.
1989)(plaintiff "was replaced by one outside the protected class");
Noble v. Alabama Department of Env. Mgt., 872 F.2d 361, 365 (11th
Cir. 1989)(''he was replaced by a member of the majority race").
29Lawrence v. National Westminster Bank New Jersey, 98 F.3d 61,
66 (3d Cir. 1996); Denisi v. Dominick’s Finer Foods, Inc., 99 F.3d 860,
864 (7th Cir. 1996).
30Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir. 1994);
Nesbit v. Pepsico, Inc., 994 F.2d 703, 704 (9th Cir. 1993); Cassino v.
Reichhold Chemicals, Inc., 817F.2d 1338, 1343 (9th Cir. 1987); Palmer
v. United States, 794 F.2d 534, 537 (9th Cir. 1986).
18
Plaintiffs Duties Not Abolished: The prevailing rule
in the First Circuit is that the plaintiff need only show that
following the dismissal the employer continued to need an
employee to perform the plaintiffs former duties. This can
be demonstrated by proof that the employer "sought a
replacement with roughly similar skills or qualifications,"31
actually "replaced [the plaintiff with] another with similar
skills and qualifications,"32 or "continued to have her duties
performed by a comparably qualified person."33 The race,
gender or age of any actual replacement, however, is not an
element of the prima facie case.
Non-Group Member Treated "More Favorably":
Decisions in several circuits hold that the fourth requirement
to establish a prima facie case is that the plaintiff show that
persons outside of his or her own protected group were
treated "more favorably."34
31 Serrano-Cruz v. DFI Puerto Rico, Inc., 109 F.3d 23, 25 (1st Cir.
1996); see Smith v. Stratus Computer, Inc., 40 F.3d 11, 15 (1st Cir.
1994)("her employer sought a replacement for her with roughly
equivalent qualifications").
32Mulero-Rodriguez v. Ponte, Inc., 98 F.2d 670, 673 (1st Cir. 1996);
see Goldman v. First National Bank o f Boston, 985 F.2d 1113, 1117
(1st Cir. 1993)(plaintiff "was replaced by a person with roughly
equivalent job qualifications").
3iSmith v. F.W. Morse & Co., Inc., 76 F.3d 413, 421 (1st Cir. 1996).
Nosey v. John R. Hollingsworth Corp., 996 F.2d 632, 638 (3d Cir.
1993) (”other employees not in a protected class were treated more
favorably”); Weldon v. Kraft, Inc., 896 F.2d 793, 796 (3d Cir.
1990)("others not in the protected class were treated more
favorably"); Fuka v. Thomson Consumer Electronics, 82 F.3d 1397,
1404 (7th Cir. 1995)(”younger employees were treated more
favorably"); Weisbrot v. Medical College of Wisconsin, 79 F.3d 677, 681
(7th Cir. 1996)(younger employees were treated more favorably);
Cole v. Ruidoso Mun. Schools, 43 F.3d 1373, 1380 (10th Cir.
1994) ("she was treated less favorably than her male counterparts").
19
Any Evidence Supporting In ference of
Discrimination: Decisions in the Second Circuit reject any
requirement that some particular type of evidence be
adduced to establish the critical fourth element of a prima
facie case. Rather, appellate decisions in that circuit instead
repeatedly use a more general formulation, requiring proof
that the "discharge occurred in circumstances giving rise to
an inference of discrimination on the basis of . . .
membership in th[e] class."35
Circuits With Multiplicity of Rules: There are seven
circuits within which several different standards are in use,
with no evident explanation for why a particular standard is
utilized in each particular case. Each panel in these circuits
chooses at will among these conflicting formulations, with
the outcome of the appeal often turning on which
formulation the panel opted to apply. This chaotic situation
exists in the Third,36 Fourth,37 Fifth,38 Seventh,39
35McLee v. Chrysler Corporation, 109 F.3d 130, 134 (2d Cir. 1997);
Hargett v. National Westminster Bank, USA, 78 F.3d 836, 838 (2d
1996)(discharge occurred "in circumstances giving rise to an inference
of racial discrimination"); Sutera v. Sobering Corp., 73 F.3d 13, 16 (2d
Cir. 1995) ("the discharge occurred under circumstances giving rise to
an inference of age discrimination”); Quaratino v. Tiffany & Co., 71
F.3d 58, 64 (2d Cir. 1995)("the discharge occurred in circumstances
giving rise to an inference of unlawful discrimination"); Chambers v.
TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994)("discharge
occurred in circumstances giving rise to an inference of discrimination
on the basis of his membership in that class").
36Lawrence v. National Westminster Bank New Jersey, 98 F.3d 61,
66 (3d Cir. 1996) ("plaintiff "must" prove "replacement sufficiently
younger to permit a reasonable inference of age discrimination");
Geraci v. Moody-Tottrup, Int'l, 82 F.3d 578, 580 (3d Cir. 1996)(plaintiff
must show she was discharged "under conditions that give rise to an
inference of discrimination); Josey v. John R. Hollingsworth Corp., 996
F.2d 632, 638 (3d Cir. 1993)(plaintiff must show "other employees not
in a protected group were treated more favorably"); EEOC v. Metal
Service Co., 892 F.2d 341, 347 (3d Cir. 1990)(plaintiff must show he
was "treated less favorably than others similarly situated"); Williams
20
Eighth,40 Tenth,41 and District of Columbia Circuits.42
v. Giant Eagle Markets, Inc., 883 F.2d 1184, 1191 (3d Cir. 1989)(no
fourth requirement at all).
7,1 Bums v. AAF-McQuay Inc., 96 F.3d 728, 731 (4th Cir.
1996) ("following his discharge or demotion, the plaintiff was replaced
by someone of comparable qualifications outside the protected
class")-, Mitchell v. Ball, 33 F.3d 450, 459 (4th Cir. 1994)("the position
remained open to similarly qualified applicants after plaintiffs
dismissal"); Lawrence v. Mars, Inc., 955 F.2d 902, 905-06 (4th Cir.
1992);("evidence whose cumulative probative force supports a
reasonable inference that his discharge was discriminatory").
3iSingh v. Shoney’s, Inc., 64 F.3d 217, 219 (5th Cir. 1995)("after
her discharge, the position she held was filled by someone not within
her protected class"); Mayberry v. Vought Aircraft Co., 55 F.3d 1086,
1090 (5th Cir. 1995)("white employees who engaged in similar acts
were not punished similarly"); Lindsey v. Prive Corp., 987 F.2d 324,
327 (5th Cir. 1993) ("the job remained open or was filled by someone
younger"); Crum v. American Airlines, Inc., 946 F.2d 423, 428 (5th Cir.
1991)(plaintiff must show that he "was replaced by someone outside
the protected class or . . . by someone younger . . . or show otherwise
that his discharge was because of age").
39Leffel v. Valley Financial Services, 1997 U.S. App. LEXIS 11359,
*17 (7th Cir. 1997)("some evidence from which one can infer that the
employer took adverse action against the plaintiff on the basis of a
statutorily proscribed criterion"); Flair v. EJ. Brack & Sons, 105 F.3d
343, 347 (7th Cir. 1997) ("another, similarly situated but not of the
protected class, was treated more favorably"); Fuka v. Thomson
Consumer Electronics, 82 F.3d at 1404 ("younger employees were
treated more favorably").
*°Helfter v. United Parcel Service, 1997 U.S. App. LEXIS 13590,
*13 (8th Cir. 1997)("the employer continued to attempt to fill the
position with applicants having similar qualifications"); Johnson v.
Baptist Medical Center, 97 F.3d 1070, 1072 (8th Cir. 1996)(plaintiff
was "replaced by a male . . . or the circumstances surrounding the
discharge otherwise created an inference of unlawful discrimination");
Rothmeier v. Investment Advisers, Inc., 85 F.3d 1328,1333 n.7 (8th Cir.
1996)(plaintiff "was replaced by a younger person after his dismissal").
21
The coexistence of these widely differing standards within a
given circuit leaves litigants in considerable uncertainty as to
their respective burdens, and invites district and appellate
judges to select whichever standard will yield the result they
may for other reasons favor in a particular case. We have
set out in the notes above decisions in these circuits utilizing
these differing standards.
The difference among the standards being applied in
the circuit courts is widely recognized. The Seventh Circuit,
for example, has expressly rejected, in an ADA case, the
Sixth Circuit requirement that a plaintiff identify an
identical, but non-discharged, non-group member:
[Pjroof that persons not disabled . . . were treated
more favorably than the plaintiff . . . is certainly one
of the most obvious ways to raise an inference of
discrimination . . . . It should not be understood as
the only means of doing so, however. [Plaintiff] . . .
occupies a position of significantly greater 41 42
41Greene v. Safeway Stores, Inc., 98 F.3d 554, 558 (10th cir.
1996)("a younger person replaced [him]”); Reynolds v. School District
No. 1 Denver, Colorado, 69 F.3d 1523, 1534 (10th Cir. 1995)("the
position remained open or was filled with a non-minority"); Cole v.
Ruidoso Mun. Schools, 43 F.3d at 1380 (plaintiff "was treated less
favorably than her male counterparts"); Trujillo v. Grand Junction
Regional Center, 928 F.2d 973, 977 (10th Cir. 1991)("after she was
fired, her job remained open and the employer sought applicants
whose qualifications were not better than her qualifications); Allen v.
Denver Public School Board, 928 F.2d 978, 985 (10th Cir.
1991)("Nonminorities in the same or similar situations were not
disciplined the same or similarly").
42Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507, 1512
(D.C. Cir. 1995)("replacement by a person of equal or lesser ability
who is not a member of a protected class or, alternatively, the
position remains open after termination"); Williams v. Washington
Metropolitan Area Transit Authority, 1987 U.S. App. LEXIS 17587 *3
(D.C. Cir. 1987)("white employees were retained in comparable
circumstances").
22
responsibility and discretion than that of most . . .
employees. When cited for purported shortcomings
in her performance, she may find it difficult to find
evidence of disparate treatment in criticisms that are
intertwined with the unique aspects of her position.
But there may be other circumstances that bespeak
discrimination.
Leffel v. Valley Financial Services, 1997 U.S. App. LEXIS
11359, *18-*19 (1997). That same decision also "disavowed
. . . cases . . . suggesting that a Title VII plaintiff must show
that she was replaced by someone of a different race, sex,
and so on." Id. at *17. The Tenth Circuit, in requiring only
that a discharged employee prove that someone was hired in
her place after she was fired, acknowledged:
Other courts have developed stricter tests; for
example, some courts have held that . . . plaintiff
must show that the employer either assigned a non
minority person to her job or retained non-minority
employees having comparable or lesser qualifications.
Brown v. Parker-Hannifin Corp., 746 F.2d 1407, 1410 n.3
(10th Cir. 1984).
The circumstances of the instant case well illustrate
the practical consequences of the differing standards in use
in various federal courts. Because of petitioners’ unique
circumstances—as black grievants who had successfully
raised racial discrimination in discipline under a collective
bargaining agreement—no white employee could be found
who was similarly situated. Thus petitioners could not
satisfy the Sixth Circuit’s similarly situated comparator
requirement. Also, because petitioners were part of a larger
pool of mechanics, no particular individual was hired to
replace them when they were dismissed; thus they could not
23
have met the Eleventh Circuit’s replacement requirement.43
On the other hand, petitioners clearly would satisfy
the First Circuit requirement that they show that their
employer continued to need workers with their particular
skills.44 The Second Circuit requirement that a dismissed
worker offer some evidence supporting an inference of
discrimination would also be satisfied,45 for, as the
dissenting judge below noted at length, there was a
substantial body of such evidence in this case, albeit not the
very particular type of evidence required by Sixth Circuit
caselaw. (App. at pp. 7a-10a.)
B. The Decision Below Is In Conflict With Decisions o f
This Court.
The particular standard applied by the Sixth Circuit
conflicts in several distinct ways with this Court’s decisions
regarding proof of intentional discrimination.
First, and most fundamentally, the imposition of a
rigid formula as a condition for establishing a prima facie
case, for demonstrating pretext, or for proving the ultimate
fact of discriminatory intent is at odds with this Court’s
repeated admonitions that the McDonnell Douglas analysis
is not to be mechanically applied in all cases, but is only to
be used as a convenient tool where appropriate. See, ]Fumco
Construction Corp. v. Waters, 438 U.S. 567, 577 (1978);
] United States Postal Service Board of Governors v. Aikens,
460 U.S. 711, 715 (1983); St. Mary’s Honor Center v. Hicks,
125 L.Ed.2d at 424. Rather, the task of the fact-finder is to
J3See note 28, supra. See also MacDonald v. Delta Air Lines, Inc.,
94 F.3d 1437, 1441-42 (10th Cir. 1996)(dismissed airplane mechanic
could not establish a prima facie case where no one was hired to
replace him.)
44See note 31, supra.
45See note 35, supra.
24
determine whether, when the evidence is viewed as a whole,
an inference of intentional discrimination (and/or retaliation)
may be drawn. Id.
As this Court held in Patterson v. McLean Credit
Union, 491 U.S. 164, 187-88 (1989):
Although petitioner retains the ultimate burden of
persuasion, our cases make clear that she must also
have the opportunity to demonstrate that
respondent’s proffered reasons for its decision were
not its true reasons. . . . In doing so, petitioner is not
limited to presenting evidence o f a certain type. . . .
The evidence which petitioner can present in an
attempt to establish that respondent’s stated reasons
are pretextual may take a variety of forms. . . . She
may not be forced to pursue any particular means of
demonstrating that respondent’s stated reasons are
pretextual. It was, therefore, error for the District
Court to instruct the jury that petitioner could carry
her burden of persuasion only by showing that she
was in fact better qualified than the white applicant
who got the job.
(Emphasis added.) The Sixth Circuit violated this cardinal
rule by holding that petitioners could prevail only by
"presenting evidence of a certain type," i.e., that there were
comparable white employees who were not discharged under
similar circumstances.
By applying such a rule, the court of appeals affirmed
the grant of summary judgment and deprived the petitioners
of their right to have a jury determine whether the evidence
as a whole led to an inference of discrimination. Once
again, the approach of the Sixth Circuit is in sharp contrast
to and conflicts with that of the Second Circuit, whose rule
permits the consideration of all of the evidence to determine
whether there were circumstances giving rise to an inference
of discrimination. Not surprisingly, the results in the two
circuits are dramatically different; the Second Circuit
25
strongly discourages the granting of summary judgment in
employment discrimination cases,46 while in the Sixth
Circuit they are granted regularly by district courts47 and
affirmed routinely by the court of appeals.48
46See, e.g., Gallo v. Prudential Services, 22 F.3rd 1219 (2nd Cir.
1994) Henry v. Daytop Village, 42 F.3d 89 (2d Cir. 1994).
47 See, e.g., Shelmon-Murchison v. Gerber Products Company, 1996
U.S. D ist, LEXIS 20735, at *1 (S.D. Mich. Sept. 13, 1996)(no
showing of "nearly identical" comparable that was similarly situated
in all respects, i.e., same supervisor, subject to same standards,
engaged in same conduct); Perkins v. Regents of the University o f
Michigan, 934 F.Supp. 857 (S.D. Mich. 1996)(no showing of
comparables); Marhtel v. Bridgestone!Firestone, Inc., 926 F.Supp. 1293
(M.D. Tenn. 1996)(same); Ahmed v. N.C. Servo Technology, Corp.,
1996 U.S. Dist. LEXIS 6621, at *1 (E.D. Mich. 1996)(same); Sinclair
v. ATE Management & Service Company, Inc., 1996 U.S. Dist. LEXIS
19921, at *1 (E.D. Mich. Nov. 27, 1996)(same); Thomas v. Hoyt,
Brumm & Link, Inc., 910 F.Supp. 1280 (E.D. Mich. 1994)(same);
Steward v. BASF Corporation, 1994 U.S. Dist. LEXIS 10261, at *1
(W.D. Mich. June 7, 1994)(no showing that plaintiff qualified for
position or of comparable treated differently); Bryer v. Hubert
Distributors, Inc., 1991 U.S. Dist. LEXIS 14370, at *1 (E.D. Mich.
May 13, 1991)(same); Toyee v. Janet Reno, 940 F.Supp. 1081 (E.D.
Mich. 1991)(same); Terwilliger v. GMRI, Inc., 952 F.Supp. 1224 (E.D.
Mich. 1997)(same).
48 A review of decisions by the Sixth Circuit from January, 1996,
through March, 1997, reveals that out of forty-eight cases surveyed,
the court affirmed district court grants of summary judgment for the
defendant on the merits in thirty-two cases. Of the remaining sixteen,
six decisions affirmed summary judgment for defendants on
procedural or jurisdictional grounds, two decisions affirmed in part
and reversed in part summary judgment for the defendant, and the
other eight were favorable to the plaintiff. Most of the decisions
were summary affirmances without published opinions. See, e.g.,
Palmer v. Health Care and Retirement, Inc., 1997 WL 135451 (6th Cir.
1997); Laughlin v. United Telephone-Southeast, Inc., 107 F.3d 871
(Table), 1997 WL 52921 (6th Cir. 1997); Wilson v. Wells Aluminum
Corp., 107 F.3d 12 (Table), 1997 WL 87218 (6th Cir. 1997); LaPointe
v. United Autoworkers Local 600, 103 F.3d 485 (6th Cir. 1996); White
26
Second, the Sixth Circuit standard is inconsistent with
the very idea of a prima facie case articulated in McDonnell
Douglas and its progeny. The prima facie case required by
this Court’s decisions delineates the burden of production
imposed on a plaintiff before consideration of any reasons an
employer might proffer for a disputed employment action.
The burden on the plaintiff is to adduce sufficient evidence
to warrant a presumption of discrimination "if the employer
is silent in the face of the presumption." Texas Dept, o f
Community Affairs v. Burdine, 450 U.S. at 254; see Fumco
Construction Corp. v. Waters, 438 U.S. 567, 576 (1978)(prima
facie case met by evidence which, "if such actions remain
unexplained," would support inference of discrimination.)
The Sixth Circuit’s insistence on evidence regarding a
"comparable" white employee, however, requires a plaintiff
to anticipate and respond to an employer’s proffered
explanation as part of his or her prima facie case. Under the
Sixth Circuit’s rule, the "similarly situated" white employee
regarding whom a plaintiff must adduce evidence is a worker
who, if he or she existed, would fall within the same
standard or rule invoked by the employer to explain its
v. United Autoworkers Local 600, 103 F.3d 485 (6th Cir. 1996); Burrell
v. Providence Hosp., 104 F.3d 361 (Table), 1997 WL 729281 (6th Cir.
1996); Steele v. Electronic Data Systems Corp., 103 F.3d 131 (Table),
1996 WL 690142 (6th Cir. 1996); Rowls v. Runyon, 100 F.3d 957
(Table), 1996 WL 627712 (6th Cir. 1996); Wathen v. Lexmark Intern,
Inc., 99 F.3d 1140 (Table), 1996 WL 622955 (6th Cir. 1996); Walker
v. Runyon, 99 F.3d 1140 (Table), 1996 WL 607197 (6th Cir. 1996);
Kocsis v. Multi-Care Management, 97 F.3d 876 (6th Cir. 1996); Jobe v.
Hardaway Management Co., Inc., 98 F.3d 1342 (Table), 1996 WL
577638 (6th Cir. 1996); Jackson v. Ford Dealer Computer Services, Inc.,
95 F.3d 1152 (Table), 1996 WL 483028 (6th Cir. 1996); Gerth v. Sears,
Roebuck & Co., 94 F.3d 644 (Table), 1996 WL 464984 (6th Cir. 1996);
Wilson v. National Car Rental System, Inc., 94 F.3d 646 (Table), 1996
WL 452882 (6th Cir. 1996); Butler v. Ohio Power Co., 91 F.3d 143
(Table), 1996 WL 400179 (6th Cir. 1996); Mitchell v. White Castle
Systems, Inc., 86 F.3d 1156 (Table), 1996 WL 279863 (6th Cir. 1996);
Hale v. Secretary, Dept, of Treasury, 86 F.3d 1156 (Table), 1996 WL
279880 (6th Cir. 1996).
27
treatment of the plaintiff. Thus the Sixth Circuit compels a
plaintiff, as part of his or her initial prima facie case, to
adduce evidence of a very specific kind to prove the
pretextuality of the employer’s possible proffered
explanation. This rule collapses the distinction between a
prima facie case and proof of pretext, and exempts
employers from the requirement of McDonnell Douglas and
Burdine that they adduce "admissible evidence" of that
explanation. Burdine, 450 U.S. at 255.
Third, under this standard the only method available
to an employee to prove pretext is to show that an employer
treated more favorably whites with comparable records,
positions and supervisors. Although that would certainly be
probative evidence, McDonnell Douglas itself makes clear
that that is not the sole type of evidence sufficient to
establish pretext.
[Plaintiff] must . . . be afforded a fair opportunity to
show that [the employer’s] stated reason . . . was in
fact pretext. Especially relevant to such a showing
would be evidence that white employees involved in
acts . . . of comparable serious [to the plaintiffs
misconduct] were nevertheless retained or
rehired. . . . Other evidence that may be relevant to
any showing of pretext includes facts as to the
[employer’s] treatment of [plaintiff] during his prior
term of employment. . . and [the employer’s] general
policy and practice with respect to minority
employment."
411 U.S. at 792 (emphasis added).
Fourth, this Court has repeatedly made clear that a
prima facie case requires only "evidence adequate to create
an inference that an employment decision was based on a[n]
[illegal] discriminatory criterion." O’Connor v. Consolidated
Coin Caterers Corp., 517 U.S. at 134 L. Ed. 2d at 432; see
Texas Dept, o f Community Affairs v. Burdine, 450 U.S. at 253
(proof of "circumstances which give rise to an inference of
28
unlawful discrimination"); Fumco Construction Corp. v.
Waters, 438 U.S. at 576, 580 (evidence sufficient to show
discriminatory motive "more likely than not."). This is the
very formulation applied by the Second Circuit, but rejected
by the Sixth Circuit and other courts of appeals. In the
Sixth Circuit plaintiffs like petitioners who do indeed adduce
evidence supporting an inference of discrimination will
nonetheless lose as a matter of law unless they can also
adduce the requisite evidence regarding comparable "nearly
identical" whites.
Fifth, "there must be at least a logical connection
between each element of the prima facie case and the illegal
discrimination." O’Connor v. Consolidated Coin Caterers, 134
L. Ed. 2d at 438. In the Sixth Circuit one essential element
of a prima facie case is that the employer have in its employ
at least one non-minority worker who held the same position
as the plaintiff, served under the same supervisor as the
plaintiff, and had essentially the same work record as the
plaintiff. If there is no such "nearly identical" white worker
with whom a plaintiff can be compared, his or her discharge
claim fails as a matter of law. But the fact that a plaintiff
had a unique job or a unique work record is by itself
"irrelevant, so long as he has lost out because o f his [race]."
O ’Connor, 134 L. Ed. 2d at 438 (emphasis in the original).
In sum, the Sixth Circuit has created precisely the
sort of "rigid, mechanized [and] ritualistic" prima facie case
requirement which this Court has repeatedly disapproved.
U.S. Postal Service Bd. o f Govs. v. Aikens, 460 U.S. 711, 715
(1983); Fumco, 438 U.S. at 577. The practical effect of this
standard is to delineate a class of minority, female, disabled
or over 40 workers—employees for whom there is no "nearly
identical" comparator—who can with impunity be dismissed
on the basis of race, national origin, gender, disability or
age.
29
II.
Ce r t io r a r i Sh o u l d B e G r a n t e d T o C o r r e c t a
F u n d a m e n t a l M is in t e r p r e t a t io n o f t h e
A n t i-R e t a l ia t io n P r o t e c t io n s o f 42 U .S .C . § 1981
The court of appeals held that petitioners’ claim
under § 1981 must fail because they allegedly failed to
identify a specific contract provision that they enforced when
they successfully grieved the first disciplinary action against
them. App. 3a-5a. Judge Merritt, in dissent, correctly
points out that this was factually in error. App. 8a. More
fundamentally, however, the court of appeals was wrong as
a matter of law, and misinterpreted the protection provided
by section 1981 against retaliation for seeking to enforce
contractual rights free of discrimination.
It is undisputed that the petitioners successfully
exercised their contractual right to grieve a disciplinary
action against them. It is also undisputed that one of the
grounds for the successful grievance was that discipline was
being carried out in a racially discriminatory fashion.
Finally, the district court held that an inference of retaliatory
motive could be made because the the second disciplinary
hearing that resulted in petitioners’ termination was held
immediately after the grievance was won.49
Thus, petitioners alleged, and presented evidence to
support the allegation, that their employer required them to
go to second disciplinary hearings on short notice and
without the opportunity to prepare fully, and discharged
them purportedly because they refused to remain at the
hearings, in order to retaliate against them for successfully
enforcing their rights under the collective bargaining
contract to grieve a prior disciplinary action. Further, they
presented evidence that the motive behind the retaliatory
action was the fact that they had challenged the first
49App. 24a-25a. Other evidence supported the claim of
retaliation; see supra at pp. 11-12.
30
discipline, in part, because of racial discrimination in the
enforcement of the agreement.
The court of appeals’ decision fundamentally misread
section 1981. By requiring—years after a first trial on the
merits of their claims—that plaintiffs demonstrate not only
that they sought to enforce contractual rights free of racial
discrimination and were subsequently retaliated against, but
also have pleaded with particularity exactly what contractural
right was sought to be enforced, the court eviscerated the
protection against retaliation included in the statute. The
issue of the scope of section 1981’s protection against
retaliation for seeking to enforce contractural rights free of
discrimination is important and should be reviewed by this
Court.
C o n c l u s io n
For the foregoing reasons, the Petition for a Writ of
Certiorari should be granted and the decision of the court
below reversed.
Respectfully submitted,
E l a in e R . Jo n e s
D ir e c t o r -C o u n s e l
T h e o d o r e M . Sh a w
N o r m a n J. C h a c h k in
C h a r l e s St e p h e n R a l s t o n
(Counsel o f Record)
NAACP L e g a l D e f e n s e &
E d u c a t io n a l F u n d , In c .
99 Hudson Street
Sixteenth Floor
New York, NY 10013
(212) 219-1900
E r ic Sc h n a p p e r
U n iv e r s it y o f
W a s h in g t o n
S c h o o l o f L a w
1100 N.E. Campus Way
Seattle, WA 98195
(206) 616-3167
E llis B o a l
925 Ford Building
Detroit, MI 48226
(313) 962-2770
Attorneys for Petitioners
Appendix
[April 10, 1997]
No. 95-4171
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JAMES T. HARVIS, JR., et al.,
Plaintiff-Appellant,
v.
ROADWAY EXPRESS, INC.,
Defendant-Appellee.
BEFORE: MERRITT, RYAN AND SUHRHEINRICH,
Circuit Judges.
PER CURIAM. Two African-American garage
mechanics ("Plaintiffs") appeal summary judgment for their
employer, Roadway Express, Inc. ("Defendant") in this
action brought under 42 U.S.C. § 1981.1 We AFFIRM
I.
This case has a long and complicated procedural
history familiar to both parties. In summary, Plaintiffs were
notified of, yet failed to appear at, a disciplinary hearing
held to examine Plaintiffs’ accumulated work record.
Plaintiffs claim they were improperly notified of the
hearing.2 At the hearing, Defendant suspended Plaintiffs
1 Section 1981 states in relevant part that "[all] persons shall have
the same right . . . to make and enforce contracts . . . as is enjoyed
by white citizens. . . ."
2 Under the normal procedure for arranging disciplinary hearings
Defendant would request a mutually agreeable hearing date with the
union. Defendant would send an employee’s notice of the hearing via
certified or registered mail. In the case at bar, Plaintiffs were not
given such written notice via the mail. Instead, they were informed
verbally of their hearings on the same day that the hearings were
for two days without pay. Plaintiffs properly grieved their
suspension, arguing that they were contractually entitled to
written notice of the hearings and that such notice was
routinely provided to white employees. Without addressing
the merits of the suspensions, the grievance committee
reinstated Plaintiffs and awarded them back pay, citing
"improprieties". Defendant scheduled another disciplinary
hearing to be held approximately 72 hours after Plaintiffs
were reinstated. Defendant notified Plaintiffs of the
hearing, and Plaintiffs were not present during the
proceedings. Defendant conducted the hearing and
discharged Plaintiffs. Defendant also discharged a white
mechanic who failed to attend the hearing after receiving
proper notification.
Plaintiffs brought suit, and the district court dismissed
Plaintiffs’ § 1981 claim, holding that it did not survive
analysis under Patterson v. McLean Credit Union, 491 U.S.
164 (1989).3 On appeal, this Court held that the district
court misapplied Patterson and erred in dismissing Plaintiffs’
1981 claim. Harvis v. Roadway Express, Inc., 973 F.2d 490
(6th Cir. 1992). On remand the district court granted
Defendant summary judgment, holding that Plaintiffs failed
to establish two essential elements of the McDonnell
DouglasIBurdine4 test necessary to state a prima facie case
under § 1981. Plaintiffs filed a timely appeal.
held.
3The Supreme court in Patterson drastically circumscribed the
reach of discrimination actions brought under § 1981. Specifically,
the court held that § 1981 does not apply to discrimination in terms,
conditions, and termination of employment, but rather only forbids
discrimination in the formation of contracts and enforcement of
contract rights.
M cDonnell Douglas Corp. v. Green, 411 U.S. 792 (1972); Texas
Dep’t o f Community Affairs v. Burdine, 450 U.S. 248 (1981).
3a
II.
This court reviews de novo the district court’s grant
of Defendants’ motion for summary judgment. Hartsel v.
Keys, 87 F.3d 795, 799 (6th Cir. 1996). This court must
affirm the district court only if it determines that the
pleadings, affidavits, and other submissions show "that there
is no genuine issue as to any material face and that the
moving party is entitled to a judgment as a matter of law."
Id. (quoting Fed. R. Civ. P. 56(c)).
The McDonnell Douglas/Burdine formula is the
evidentiary framework applicable not only to claims brought
under title VII, but also to claims under § 1981. Mitchell v.
Toledo Hosp., 964 F.2d 577, 581 (6th Cir. 1992). The district
court formulated the following test to establish a prima facie
§ 1981 case of retaliatory contract impairment:
1) plaintiff is a non-white;
2) plaintiff enforced or exercised a specific
contract right;
3) plaintiff was subject to an adverse
employment action; and
4) there is a causal link between both plaintiffs
enforcement or exercise of the contract right
and plaintiffs race.
See generally Mitchell, 964 F.2d at 581, 582.
Plaintiffs clearly satisfy elements one and three of the
McDonnell Douglas/Burdine test - they are African-
American and their discharge was an adverse employment
action. We agree with the district court, however, that
Plaintiffs fail to raise a genuine issue of material fact
concerning the second and fourth factors.
In order for Plaintiffs to establish a § 1981 claim for
retaliatory impairment, they must have exercised a specific
4a
contractual right. Mozee v. American Commercial Marine
Service Co., 940 F.2d 1036, 1052 (7th Cir. 1991).
Throughout the course of litigation, Plaintiffs have changed
their theory of what specific contract right they have
enforced or exercised. Originally, Plaintiffs claimed
retaliatory discharge that punished them for enforcing their
contract right to receive notice equal to that received by
whites. Harris, 973 F.2d at 494. Plaintiffs acknowledged in
their briefs to the district court, however, that this alleged
contractual right to notice was never expressly granted under
the collective bargaining agreement. (J.A. at 321). Next,
Plaintiffs argued that such a right to written notice became
part of the collective bargaining agreement custom. We
agree with the district court that no such contractual right to
written notice is contained either expressly or impliedly in
the collective bargaining agreement. Furthermore, Plaintiffs
have not produced any evidence showing that they received
any less notice than white employees, or that the level of
notice they received was in any way influenced by their race.
In their most recent appearance before the district
court, Plaintiffs alleged that they were exercising their rights
under the collective bargaining agreement, specifically
grieving the issue of racial discrimination in the enforcement
of discipline, and therefore in the administration of the
collective bargaining agreement. This argument, too, must
fail, for the reasons expressed by the district court.
"Defendant first received notice of this theory of recovery at
oral argument on defendant’s motion for summary judgment,
nine vearsnt[sic] would appear to be entitled to summary
judgment on this claim on this basis alone." Opinion and
Order at 13. We find that the district court did not abuse its
discretion in denying Plaintiffs the opportunity to amend
their pleadings. See Fomen v. Davis. 371 U.S. 178, 182
(1962).
In analyzing Plaintiffs’ claim under the fourth prong
o f the McDonnell Dcugias Bkrrfine test, we first ask whether
5a
there was evidence that the dismissal may have had a
retaliatory motivation, and second, whether the retaliation
was based upon race. We find that the district court
properly held that the timing of Plaintiffs’ discharges,
approximately seventy-two hours after their exercise of the
contractual right to grieve, raises the inference of retaliation.
Wrenn v. Gould, 808 F.2d 493, 501 (6th Cir. 1987) ("‘[C]ausal
connection’ may be demonstrated by the proximity of the
adverse action to the protected activity").
We further agree with the district court that Plaintiffs
failed to establish a racial motivation for their discharges.
Plaintiffs presented no evidence of any comparables that
could possibly raise an inference of a racial motivation in the
alleged retaliation, and they failed to present any direct
evidence of a racial motivation for defendant’s actions.
It is undisputed that the only white mechanic who
received notice of the second disciplinary hearing and who
failed to attend was discharged along with Plaintiffs. We
simply do not agree with Plaintiffs’ contention that the use
of comparables in this case is unlikely, if not impossible.
According to Plaintiffs, no white employee could have been
comparable to them because no white employee could have
had the occasion to enforce their contractual rights against
race-based discrimination in the administration of discipline.
Plaintiffs have produced no evidence that they were the
victims of race-based discrimination in the administration of
discipline.
If we hold that there are no comparables in this case
given the racial basis of Plaintiffs’ claim, their case must still
fail for they are left without direct evidence to support their
racial motivation claim. "It is now quite well-established
that,in order to withstand a motion for summary judgment,
the party opposing the motion must present ‘affirmative
evidence’ to support his/her position; a mere ‘scintilla of
evidence’ is insufficient. Mitchell, 964 F.2d at 584 (citing
6a
Anderson v. Liberty Lobby Inc., A ll U.S. 242 (1986)).
Plaintiffs’ failure to present affirmative evidence of race
discrimination if fatal to their claim under the fourth prong
of the McDonnell Douglas/Burdine test. Consequently,
Plaintiffs do not survive a motion for summary judgment.
Assuming that Plaintiffs established a prima facie
case of retaliatoiy impairment, Defendant has proffered a
legitimate, non-discriminatory reason for Plaintiffs’
discharges. Namely, Defendant states that Plaintiffs were
discharged for their accumulated work records and because
they disobeyed direst orders to attend their second set of
disciplinary hearings.
The Supreme Court in St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502 (1993), stated that "a reason cannot be proved
to be ‘a pretext for discrimination’ unless it is shown both
that the reason was false and that discrimination was the
real reason." 509 U.S. at 515. Plaintiffs have done nothing
to rebut defendant’s legitimate, non-discriminatory reason
for their termination, nor have they offered any evidence of
Defendants’ discriminatory animus. At oral argument,
Plaintiffs asserted that the firing of the white mechanic was
merely a cover-up by Defendant, and they supported their
theory with general reference to the facts and circumstances
of the case. Absent support in the record to back up such
an argument, however, Plaintiffs fail to create a genuine
issue of material fact regarding Defendant’s proffered
explanation.
As a result, we hold that the district court properly
granted defendant’s motion for summary judgment.
AFFIRMED
MERRITT, Circuit Judge, dissenting. This case should be
tried on the merits and not disposed of on summary
judgment. There is clearly a material dispute of fact on the
issue of racial discrimination.
7a
On August 22, 1986, Roadway verbally notified the
plaintiffs that they were required to attend disciplinary
hearings later that day on the basis of their accumulated
work record. The plaintiffs refused to attend the hearings,
claiming that they had inadequate notice. The plaintiffs
claimed that they were entitled to notice by certified mail as
a result of Roadway’s consistent customary practice.
Roadway conducted the hearings without the plaintiffs, and
assessed a two-day suspension without pay against plaintiff
for "minor infractions," including wasting time and wearing
improper shoes to work.
The plaintiffs used the grievance procedure provided
for in their collective bargaining agreement to challenge
their suspensions before the Toledo Local Joint Grievance
Committee. The plaintiffs argued three grounds in their
grievance. First, the plaintiffs maintained that Roadway
discriminated against black employees by scheduling hearing
dates for them sooner after initially requesting disciplinary
hearings than in the case of white employees. In particular,
the plaintiffs alleged that disciplinary hearing requests for
three white employees (Sedelbauer, Bradley and
Swartzfager) had been outstanding longer than the requests
for plaintiffs’ hearings when the plaintiffs’ hearings were
held. Second, the plaintiffs claimed that they had not
received proper notice of their hearings. Finally, the
plaintiffs argued that they were suspended without just
cause. The Committee granted the plaintiffs’ grievances
based on "improprieties," and awarded both plaintiffs two
days of back pay.
This decision angered James O’Neill, Roadway’s
labor relations manager. Immediately after the grievance
panel issued its decision, Roadway scheduled new
disciplinaiy hearings for the plaintiffs to be conducted within
72 hours. At the same time, Roadway scheduled hearings
for Bradley, Sedelbauer and Swartzfager on the same time
schedule. The plaintiffs showed up for these hearings, but
8a
stated that they had not received adequate notice and then
left. Roadway claims, but the plaintiffs dispute, that the
plaintiffs were given direct orders to attend the hearings and
were told that they would be fired if they did not attend.
The plaintiffs refused to attend and were, in fact, fired. One
white employee, Sedelbauer, also refused to attend his
hearing and was fired. Swartzfager attended his hearing and
received a two-day suspension. Bradley had the hearing day
off and did not attend his hearing. The hearing was held
without him and he received a two-day suspension.
* * *
There is no dispute that the plaintiffs successfully
grieved their initial disciplinary hearings based on violations
of the collective bargaining agreement. Plaintiffs claim that
they were fired in retaliation for what enforcement of their
contract rights. The district court found that the plaintiffs
were barred from making this claim because they raised this
argument for the first time at oral argument on the
defendant’s summary judgment motion. That finding of
waiver of plaintiffs’ racial animus claim is clearly erroneous.
In a prior appeal in this case, this court stated "Rivers and
Davison were punished, they contend, for trying to utilize
the established legal process for their grievances."
Moreover, in a section of the plaintiffs’ summary judgment
brief titled "Plaintiffs’ successful enforcement of the contract
set in train a series of retaliatory actions by Roadway
culminating in their discharge," the plaintiffs allege that
there was a "direct line of events from the grievance decision
to the discharges" and that "Roadway set up and conducted
the [second] hearings in fury for having been had on
September 23 [the date of the grievance committee
decision]." J.A. 323.
Roadway says that there could not have been racial
animus for the firing because three white employees were
given disciplinary hearings with the same 72-hour time frame
9a
as the plaintiffs and that the one white employee who also
defied a direct order and refused to attend was also fired.
Plaintiffs argue that the white employee who was fired was
simply sacrificed to cover the plaintiffs’ race-based
discharges. There is evidence to support plaintiffs’ claim.
My review of the case indicates that the plaintiffs
have submitted sufficient evidence to raise a question of fact.
In particular, the plaintiffs rely on the following testimony
from the earlier title VII trial in this case:
1. Roadway labor relations manager James
O ’Neill testified that he scheduled
Sedelbauer’s hearing and the hearings of two
other white employees within the same 72-
hour time frame as the plaintiffs’ second
hearings because the plaintiffs had alleged
racial discrimination in their grievance
proceedings. R. 327 at 531.
2. Employee Richard Crawford testified that,
prior to the events involving the plaintiffs, on
three separate occasions he witnessed white
employees disobey direct orders without being
disciplined. R. 327 at 376-77 (J.A. 486-87).
3. White employee Russell testified that, after
the plaintiffs were discharged, he was
discharged for violating a direct order.
Russell grieved his discharge and was
reinstated. After he returned to work, one
supervisor (Guy) told him that no one in the
tractor shop had wanted him fired, and
supervisor Horton and G.O.M. Floyd told
him that he was fired "so Roadway would
have a defense [in this action] that they don’t
only fire black people ..." R. 327 at 332-36.
This evidence appears credible and raised a legitimate issue
of material fact on the question of racial motivation. It may
10a
well be that racial motives did play a substantial role here,
and for that reason the case should go to a jury and not be
short-circuited through the summary judgment process.
11a
[May 25, 1995]
No. 3:86CV7955
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
JAMES T. HARVIS, JR., et al.,
Plaintiffs,
v.
ROADWAY EXPRESS, INC.,
Defendants.
OPINION AND ORDER
POTTER, J.:
This cause is before the Court on defendant
Roadway’s motion for summary judgment, plaintiffs River’s
and Davis’s opposition and defendant’s reply. Oral
argument on defendant’s motion was held on May 4, 1995.
For the reasons that follow, defendant’s motion will be
granted.
The procedural histoiy of this case is long, somewhat
tortuous, and adequately recounted in the parties’ briefs,
the Court will only recount that portion of this chronology
which is germane to the subjects currently at issue.
When this case was originally before this Court, the
Court properly ruled that plaintiffs’ claims under 42 U.S.C.
12a
19811 for discriminatory discharge did not survive the
Supreme Court’s decision in Patterson v. McLean Credit
Union, 491 U.S. 164 (1989).2 On appeal, the Sixth Circuit
reversed and remanded on the § 1981 issue only,
determining that plaintiffs had adequately alleged a claim
under § 1981 for discriminatory contract impairment. Harvis
v. Roadway Express, Inc., 973 F.2d 490, 497 (6th Cir. 1992).
The court stated that plaintiffs
[A]re not making discriminatory discharge claims, but
rather are claiming retaliatory discharge that
punished them for enforcing their contract right to
receive notice. . . . [W]e find that sufficient
allegations exist to form the basis of a retaliatory
discharge claim. . . . We find the appellants’ claims
fall within the Patterson definition of permissible §
1981 actions, as the claims involve discrimination in
the right to enforce a contract.
Id. at 494. The defendant now moves for summary
judgment on plaintiffs’ § 1981 discriminatory contract
impairment claims, arguing that there are no material facts
in dispute and that defendant is entitled to judgment as a
matter of law.
Under the Federal Rules of Civil Procedure,
142 U.S.C. § 1981 provides, in pertinent part: "All persons within
the jurisdiction of the United States shall have the same right ... to
make and enforce contracts ... as is enjoyed by white citizens....
2The Supreme court in Patterson drastically circumscribed the
reach of discrimination actions brought under § 1981. Specifically,
the court held that § 1981 does not apply to discrimination in terms,
conditions, and termination of employment, but rather only forbids
discrimination in the formation of contracts and enforcement of
contract rights. 491 U.S. at 176. See also McKnight v. General Motors
Corp., 908 F.2d 104, 108 (7th Cir. 1990).
13a
summary judgment is proper only where there is no
genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. Red. R.
Civ. P. 56(c). The Supreme Court has recently stated
that the inquiry is "whether the evidence presents a
sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must
prevail as a matter of law." Anderson v. Liberty
Lobby, Inc., 106 S.Ct. 2505, 2512 (1986). . . . In
reviewing a motion for summary judgment, however,
all inferences "‘must be viewed in the light most
favorable to the party opposing the motion.’" See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 106
S.Ct. 1348, 1356-57 (1986)(quoting United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962)).
Ralph Shrader, Inc. v. Diamond International Corp., 833 F.2d
1210, 1213 (6th cir. 1987).
Matsushita demands only that the nonmoving party’s
inferences be reasonable in order to reach the jury,
a requirement that was not invented, but merely
articulated in that decision. If the [nonmoving
party’s] theory is . . . senseless, no reasonable jury
could find in its favor, and summary judgment should
be granted.
Eastman Kodak Co. v. Image Technical Servs., Inc., 112 S.Ct.
2072, 2083 (1992)(footnote omitted).
The party moving for summary judgment "always
bears the initial responsibility of informing the district court
of the ba sis for its motion, and identifying those portions of
‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits if any’ which
[he] believes demonstrate the absence of a genuine issue of
material fact." Celotex Corp. v. Catrett, A ll U.S. 317, 323
(1986). The substantive law of the case identifies which facts
14a
are material. Anderson v. Liberty Lobby, Inc., All U.S. 242,
248 (1986). Therefore, only disputes of facts affecting the
outcome of the suit under the applicable substantive law will
preclude the entry of summary judgment. Id. A moving
party may discharge its burden "by ‘showing’— that is,
pointing out to the district court — that there is an absence
of evidence to support the nonmoving party’s case." Celotex,
4 77 U.S. at 324-325. Where the moving party has met its
initial burden, the adverse party "must set forth specific facts
showing that there is a genuine issue for trial." Anderson,
All U.S. at 250.
[Wjhere the nonmoving party will bear the burden of
proof at trial on a dispositive issue, a summary
judgment motion may property be made in reliance
solely on the "pleadings, depositions, answers to
interrogatories, and admissions on file." . . . Rule
56(e) therefore requires the nonmoving party to go
beyond the pleadings and by her own affidavits, or by
the "depositions, answers to interrogatories, and
admissions on file," designate "specific facts showing
that there is a genuine issue for trial."
Celotex, All U.S. at 324.
Despite the voluminous record in this case, the facts
that are relevant to plaintiffs’ § 1981 claims are relatively
simple. Plaintiffs Rivers and Davison were employed by
defendant as mechanics. Both plaintiffs are black. On the
morning of August 22, 1986, defendant verbally informed
plaintiffs that they were required to attend disciplinary
hearings that were based upon their accumulated work
records. The hearings were scheduled to occur that same
day. Both plaintiffs refused to attend, arguing that the
defendant gave them inadequate notice. The hearings were
held without the plaintiffs’ presence, and both were given
two-day suspensions without pay.
15a
Plaintiffs challenged the suspensions, pursuant to a
grievance clause contained in the collective bargaining
agreement, arguing that they were contractually entitled to
written notice of the hearings and that such notice was
routinely provided to white employees. Plaintiffs successfully
grieved the suspensions to the Toledo Local Joint Grievance
Committee (TUGC). On September 22, 1986 the T U G C
granted the grievances based upon "improprieties" and
awarded each plaintiff two days back pay. The TLJGC did
not address the merits of the actual suspensions.
Almost immediately after the successful challenge,
plaintiffs and three other Caucasian Roadway employees,
Swartzfager, Sedelbauer and Bradley, were given notice that
they all would have disciplinary hearings within seventy-two
hours. After some discussion between the defendant and
plaintiffs’ union, the new hearings were scheduled for
September 26 at 7:00 A.M. Because the merits of the
suspensions were not addressed by the TU G C, the plaintiffs’
hearings were again intended to address the plaintiffs’
accumulated work records.
On the morning of the hearings, plaintiffs again
refused to attend, again claiming insufficient notice.
Plaintiffs refused to attend the hearings despite being
directly ordered by several management employees to do so
and despite being warned by a union official that failure to
attend the hearing could result in their ultimate discharges.
The orders were issued and the hearings held when the
plaintiffs were "on the clock" and had a commensurate duty
to obey orders. The hearings were again held in the absence
of the plaintiffs, and both plaintiffs were discharged as a
result of the hearings. Specifically, plaintiffs were discharged
for their accumulated work records coupled with their
refusal to obey direct orders to attend the hearings.
Like the plaintiffs, employee Sedelbauer also refused
several direct orders to attend his disciplinary hearing. The
16a
orders were given and hearing held when Sedelbauer was
also "on the clock." Sedelbauer was discharged for his
accumulated work record and for disobeying a direct order.
Employee Bradley was scheduled to have the day of his
hearing off. Bradley also did not attend his hearing, but
received a two-day suspension rather than a discharge.
Unlike the plaintiffs and Sedelbauer, however, Bradley never
received a direct order to attend his hearing as he was not
at work that day. Employee Swartzfager was at work that
day and did receive a direct order to attend his disciplinary
hearing. Unlike plaintiffs and Sedelbauer, Swartzfager chose
to attend. He was not discharged and only received a
disciplinary "record of hearing." This lawsuit followed these
events.
Before turning to the merits of plaintiffs’ allegations,
the court must first discuss the nature and the elements of
a § 1981 retaliatory impairment claim. Not surprisingly,
there is little case law addressing this portion of § 1981
jurisprudence, so the Court will look to Patterson, the
guidance provided by the Sixth Circuit in their remand
order, and to case law in other circuits. Once the elements
of a § 1981 retaliatory impairment claim are set forth, the
Court will apply the McDonnell Douglas/Hicks evidentiary
framework to plaintiffs’ causes of action. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802 (1972); St. Mary’s
Honor Center v. Hicks, 113 S.Ct. 1742 (1993).
Under Patterson, there are two ways that 42 U.S.C.
§ 1981 may be violated: an action may be taken, based on
race, to prevent someone from entering into a contract, or
an action may be taken, based on race, that would prevent
or impair someone from enforcing or exercising a right that
arose under an existing contract. Patterson, 491 U.S. at 176.
Retaliation, or punishing an individual based upon race for
17a
enforcing a contract right, is a subset of the latter.3
It is important to note that, unlike Title VII, § 1981
retaliation requires proof of a racial motive. Merely
exercising a contract right is not a protected activity under
§ 1981; thus retaliation requires proof of both a retaliatory
and racial animus.4 See e.g., McKnight v. General Motors
Corp., 908 F.2d 104, 111 (7th Cir. 1990)(the retaliation must
have a racial motive); Mozee v. American Commercial Marine
Service Co., 940 F.2d 1036,1052 (7th Cir. 1991)(in examining
a § 1981 claim for retaliation, a court "must inquire [as to]
whether the plaintiffs experienced retaliation with respect to
an effort to enforce contract rights (as opposed to statutory
anti-discrimination rights) and whether any such retaliation
occurred because of plaintiffs race.")
In Harvis, the Sixth Circuit also held that § 1981
covers the enforcement of any contract right, "not just anti
3The best way to illustrate the difference under § 1981 between
an impairment and a retaliatory impairment claim is by example. In
the former, an employee may state a cause of action if, because of his
race, his employer prevents or hampers his enforcement of a contract
right. In the latter, the employee is initially allowed to exercise the
contract right, but subsequently the employer punishes the employee
for exercising the right, based upon the employee’s race.
4In their brief, plaintiffs cite two cases to support the proposition
that this Circuit only requires proof of retaliatory motive to state a §
1981 retaliation claim. Plaintiff is mistaken. The first case cited,
Winston v. Lear-Seigler, Inc., 558 F.2d 1266 (6th Cir. 1977) does not
deal with retaliatory impairment and merely stands for the
proposition that, in certain circumstances, a Caucasian has standing
to bring suit under § 1981. Id. at 1268. The second case cited by
plaintiff, Cooper v. City o f North Olmstead, 795 F.2d 1265 (6th Cir.
1986), deals specifically with retaliatory discharge under Title VII and
§ 1981. Patterson destroyed the viability of any retaliatory discharge
claim plaintiff may have had under § 1981. Id. at 1270. Cooper does
not address a § 1981 retaliatory impairment claim.
18a
discrimination contract rights." 973 F.2d at 494; see also
Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 1535
(11th Cir. 1990)(§ 1981 does not apply where employee does
not allege that the retaliation was related to plaintiffs
attempt to enforce a specific contract right). In this case,
then, it is irrelevant what contract right plaintiffs allege they
were exercising, as long as they were in fact exercising an
actual right guaranteed by their collective bargaining
agreement. Thus, if plaintiffs were not exercising a contract
right, plaintiffs have no § 1981 cause of action. See
McKnight, 908 F.2d at 112 (no § 1981 cause of action where
employee engaged in activity protected by anti-discrimination
law, but not activity provided for by contract right); Mozee,
940 F.2d at 1053-54 (employee did not state § 1981 claim
where retaliation could not be attributed to enforcement of
contract rights).
In light of the above precedent, the court holds that,
in order to establish a prima facie case of § 1981 retaliatory
impairment, plaintiffs must provide evidence to establish the
following:
1) plaintiff is a non-white;
2) plaintiff enforced or exercised a specific
contractual right;
3) plaintiff was subject to an adverse
employment action;
4) there is a causal link between both plaintiffs’s
enforcement or exercise of the contract right and
plaintiffs race.
Defendant argues that this cause of action should
include a fifth element; that plaintiffs prove that their ability
to enforce their contract rights was actually impaired by the
alleged retaliation. The argument follows that, as plaintiffs
again grieved their discharges after the alleged retaliatory
action, plaintiffs cannot establish that their ability to enforce
the contractual right to grieve was impaired by the alleged
19a
retaliation. This contention, however, misapprehends both
the nature of a retaliation claim and the difference between
retaliatory impairment and simple impairment under §
1981.5
The Sixth Circuit has determined that discriminatory
discharge actions under § 1981 do not survive Patterson,
because discharge does not involve contract formation or,
generally, contract enforcement. See, e.g., Prather v. Dayton
Power & Light Co., 918 F.2d 1255 (6th Cir. 1990). Since a
discharge from employment, by and of itself, does not
establish a contract impairment and, as Patterson dictates
that § 1981 does not apply to events that occur after the
termination of a contract, no contract impairment can ever
occur after discharge from employment under § 1981.
Under defendant’s analysis then, since all contractual
rights and, thus, all § 1981 protections end at the
termination of a contract, a plaintiff who had been subject
to a retaliatory discharge would virtually never be able to
establish a prima facie case of retaliatory impairment
because the discharged employee has no post-termination
contractual rights to impair. This stands in odd contrast to
a different plaintiff, subject to a less drastic retaliatory
sanction, who could more readily establish a prima facie
case, as his employment contract had not been terminated.
This would then lead to the somewhat anomalous result of
essentially insulating from § 1981 liability any employers who
retaliate against a minority employee’s exercise of a
contractual right by discharging him. The Sixth Circuit did
not envision such a peculiar result.
5The Court notes that were defendant correct in this argument,
then they would be entitled to summary judgment on plaintiffs’
claims, as plaintiffs have come forward with no evidence, other than
the alleged retaliation, to establish an impairment in their ability to
enforce the contract.
20a
To require a showing of actual impairment in a
§ 1981 retaliation action would also defeat the purposes of
recognizing retaliatory impairment as a separate cause of
action under § 1981. For example, a plaintiff who pleads a
cause of action for simple contract impairment under § 1981
will typically have been, based upon race, prevented from or
interfered with in the exercise of a specific contract right.
The prohibited action on the employer’s part is the unlawful
interference. In a retaliation action, however, the plaintiff
is allowed to exercise the contract right, and the retaliation
occurs subsequently. The prohibited action and, realistically,
the impairment, is the actual retaliation. If a plaintiff were
required to prove some subsequent impairment after the
alleged retaliation, plaintiff would need not claim a
retaliation cause of action, but could directly proceed on a
simple contract impairment theory of recovery on the
subsequent impairment.
Harvis also indicates that in a § 1981 retaliation
action a plaintiff need not show impairment. The Sixth
Circuit indicates that access to the contract enforcement
mechanism, here the first or second grievance proceeding, is
irrelevant; rather, it is the more oblique effects of the
retaliation that serve as the impairment:
Just because [plaintiffs] were allowed to use the
available legal process does not mean the employer
did not discriminate against them through retaliation
for the very act of using that legal process.
Retaliation is defined more broadly than mere access
to legal process. . . . McKnight v. General Motors
Corp. . . . held that retaliation is a common method
of deterrence.
973 F.2d at 494 (citations and quotations omitted). It is the
chilling effect of the retaliation that impairs the right to
enforce the contract; the fact that these plaintiffs may not
21a
have been deterred by the alleged retaliation is irrelevant.6
This view is also consistent with retaliation jurisprudence in
other areas of the law. See, e.g., Laird v. Tatum, 408 U.S. 1,
11-14 (1972); EEOC v. Ohio Edison Co., 7 F.3d 541, 545 (6th
Cit. 1993); Graham v. National Collegiate Athletic Ass’n, 804
F.2d 953, 959 (6th Cir 1986); Boals v. Gray, 775 F.2d 686,
689 n.5 (6th 1985); Reichert v. Draud, 701 F.2d 1168, 1173
(6th Cir. 1983) (Krupansky J., concurring); Brock v. Casey
Truck Sales, Inc., 839 F.2d 872, 978-79 (2nd Cir. 1988). The
Court determines that where a plaintiff is alleging a § 1981
cause of action for retaliatory contract impairment, if the
plaintiff establishes proof that an adverse employment action
was motivated by both race and retaliation, the plaintiff need
not establish any additional contractual impairment.
There is one other item worthy of note before the
Court turns its discussion to an analysis of the undisputed
facts. In its briefs and at oral argument, defendant argues
that the dual causation standard used in Daniels v. Pipefitters’
Local Union No. 597, 945 F.2d 906 (7th cir. 1991), applies to
this action. At oral argument, plaintiffs also conceded that
they, while taking issue with the standard, were prepared
to proceed under it. Daniels contains the following language
regarding § 1981 actions: "First the plaintiff must show that
the defendant interfered with his right to enforce the
contract on account of race. Second, the plaintiff must then
show that the retaliation itself had a racial motivation. 945
F.2d at 917. This portion of Daniels, however, is not
controlling in this Circuit and appears to be inconsistent with
prior Seventh Circuit § 1981 case law. See, e.g, McKnight,
908 F.2d at 111; Mozee, 940 F.2d at 1052-54.
6The fact that plaintiffs grieved the results of the second
disciplinary hearing also does not necessarily establish that plaintiffs
were not deterred; at this point, plaintiff had been terminated and
had nothing to lost by grieving.
22a
As stated earlier, there are two types of contract
impairment actions a litigant may bring under § 1981: the
litigant may allege that a defendant directly interfered with
his ability to exercise a contract right based upon race, or
the litigant may allege that a defendant retaliated against the
litigant for the prior exercise of a contract right, the above-
cited language in Daniels implies that a plaintiff must prove
that both scenarios occurred in order to prevail on a § 1981
retaliatory impairment case. The Court concludes that this
causation standard is neither the correct standard for a §
1981 retaliatory impairment action, nor the standard implied
by the Sixth circuit in its remand order in this case. See
Harris, 973 F.2d at 494. The Court holds that to establish
causation, plaintiffs must merely prove that the adverse
employment action had both a racial and retaliatory motive.
The Court now turns its attention to the facts that
are undisputed in the case at bar. There is no doubt that
plaintiffs can establish the first and third elements of their
prima facie case; that is, they are African-American and
their discharge was an adverse employment action. Both
parties dispute, however, whether the facts in this case
establish the second and fourth elements of plaintiffs’ prima
facie case. The Court will deal with these issues in turn.
In order for plaintiffs to establish a § 1981 claim for
retaliatory impairment, they must have exercised a specific
contractual right. See Mozee, 940 F.2d at 1052. The Court
notes at the outset that plaintiffs apparently have a difficult
time deciding exactly what cause of action they are pleading
under § 1981. The Sixth Circuit remanded this case because
plaintiffs had sufficiently alleged a cause of action for
retaliatory impairment, despite the fact that plaintiffs never
precisely pled this cause in their complaint nor in their
amended complaint, and there is still some confusion as to
what precise contract right plaintiffs allege they were
exercising.
23a
Plaintiffs argued to the Sixth Circuit that "they are
not making discriminatory discharge claims, but rather are
claiming retaliatory discharge that punished them for
enforcing their contract right to receive notice equal to that
received by whites." Id. at 494 (emphasis added). Plaintiffs
concede in their brief, however, that there is no such express
right to notice of a disciplinary hearing in the collective
bargaining agreement. Plaintiffs instead argue that such a
right became part of the CBA by custom; unfortunately,
plaintiffs cite no law, other than an arbitration manual, and
no facts or competent evidence to support such a conclusion.
Indeed, the evidence presented by defendant unequivocally
establishes that there is no contractual right to notice
contained expressly or impliedly in the CBA. The Court
holds that there was no contractual right to notice; and,
therefore, plaintiffs cannot establish a prima facie case in
this instance.
During oral argument plaintiffs also, for the first
time, raise the argument that they were enforcing their
contractual right to grieve differences with their employer
that arise out of the CBA. Defendant concedes that there
is such an express contractual right, and plaintiffs did
exercise it.
This case is not nine years old. Plaintiffs never
pleaded nor alleged nor even mentioned in passing this
theory of recovery when the case was before the Court
initially. It was also not argued before the Sixth Circuit and
was not even raised in plaintiffs’ opposition to defendant’s
motion for summary judgment. There comes a time in the
life of a case when a litigant must settle on a theory or
theories of recovery and stick to it; that is a primary tenet of
the notice pleading theory of the civil Rules. Defendant first
received notice of this theory of recovery at oral argument
on defendant’s motion for summary judgment, nine years
after the inception of this case. Defendant would appear to
be entitled to summary judgment on this claim on this basis
24a
alone.
Nevertheless, this determination is hardly outcom-
determinative as plaintiffs are also unable to establish the
fourth element of their prima facie case, that defendant was
motivated by both race and retaliation.
Plaintiffs may establish the alleged dual motivation by
use of comparables. Defendant argues that, due to this
action’s dual motivation requirement, a plaintiff may never
use comparables to establish a prima facie case. Defendant
asserts this to be true because the comparables are used
under the "assumption that a single motive explains the
employer’s decision" to take an adverse employment action.
Terbovitz v. Fiscal Court o f Adair Cnty., 825 F.2d 111, 114
(6th Cir. 1987). In other words, a comparable may not be
used if it permits more than one reasonable inference with
respect to motivation, and any comparable used by plaintiffs
would by necessity lead a fact finder to speculate as to
whether race or retaliation motivated the defendant.
The Court finds defendant’s argument interesting in
the abstract, but hypertechnical in its application. The
difficulties cited by defendant in the use of comparable can
be circumvented by merely bifurcating the factual inquiry:
first, is there evidence that the adverse action may have a
retaliatory motivation; and, second, was the retaliation based
upon race? In the first instance, the temporal proximity of
the adverse action to the exercise of the contract right may
be used to establish the inference of retaliation. See e.g.,
Mozee, 940 F.2d at 1053. Only after this would the fact
finder look for a racial motive for the retaliation. This racial
motivation can be established by using comparables,
although with the more numerous variables involved it is
admittedly more complex and difficult than an analogous
standard Title VII case.
In this case, the time of plaintiffs’ discharges,
25a
approximately seventy-two hours after their exercise of the
contractual right to grieve, certainly raises the inference of
retaliation. See e.g., Miller v. Fairchild Industries, Inc., 797
F.2d 727, 731-32 (9th Cir. 1986); Love v. Re/Max of America,
Inc., 738 F.2d 383, 386 (10th Cir. 1984). Unfortunately for
plaintiffs, they present no evidence of any comparables that
could possibly raise an inference of a racial motivation in the
alleged retaliation. Plaintiffs also fail to present any direct
evidence of a racial motivation to defendant’s action.
Plaintiffs therefore fail to establish a prima facie case or
retaliatory contract impairment under § 1981.
Plaintiffs do assert that there is statistical evidence in
the record that establishes "an enormous history of racial
animus and disparate treatment" at defendant’s work place.
Statistical evidence is usually used in disparate impact cases;
however, under certain circumstances, a plaintiff may utilize
statistical evidence to establish the inference of racial
motivation in a disparate treatment case. To establish such
an inference, the statistics must "show a significant disparity
and eliminate the most common nondiscriminatory
explanations for the disparity." Barnes v. GenCorp Inc., 896
F.2d 1457, 1466 (6th Cir. 1990).
Other than baldly stating that statistical evidence in
the record establishes this inference, plaintiffs neither come
forward with this evidence in their opposition brief nor
eliminate any common nondiscriminatory reasons for this
alleged disparity. Plaintiffs have an affirmative duty at this
juncture to "set forth specific facts showing that there is a
genuine issue for trial." Other than generally referring to
the record in this case (which is eight volumes long)
plaintiffs have not done so with respect to the statistical
evidence. As stated previously by the Sixth Circuit: "A trial
court is not required to speculate on which portion of the
record the non-moving party relies, nor is there an
obligation to wade through the record for specific facts."
United States v. WRW Corp., 986 F.2d 138, 143 (6th Cir.
26a
1993)(citations and quotations omitted). This Court is
likewise not required to scour the record in this case
searching for an issue of material fact. See Guarino v.
Brookfield Twp. Trustees, 980 F.2d 399, 405 (6th Cir. 1992).
Upon a careful reviews of the evidence properly before the
Court and viewing the record in the light most favorable to
plaintiff, the Court finds that there exists no genuine issue
of material fact. Plaintiffs have failed to establish a prima
facie case of retaliatory contractual impairment under 42
U.S.C. § 1981, and defendant is entitled to judgment as a
matter of law.
Finally, the Court notes that, even if plaintiffs has
established a prima facie case of retaliatory impairment,
defendant has come forward with evidence of a legitimate,
non-discriminatory reason for plaintiffs’ discharges.
Defendant argues that plaintiffs were discharged because of
their accumulated work records and because they disobeyed
direct orders to attend their second set of disciplinary
hearings on September 26.
There is no dispute that plaintiffs were directly
ordered to attend their hearings. Defendant also points to
employee Sedelbauer who, like the plaintiffs, also refused
several direct orders to attend his disciplinary hearing that
same day. Like the plaintiffs, Sedelbauer was also "on the
clock" and had a duty to obey orders. Like the plaintiffs,
Sedelbauer was discharged for his accumulated work record
and for disobeying a direct order. Unlike the plaintiffs,
Sedelbauer is white. This like-treatment of a Caucasian for
misconduct comparable to plaintiffs sufficiently supports
defendant’s assertion that plaintiffs were disciplined for
legitimate, non-discriminatory reasons.
Defendant’s treatment of the other two employees
scheduled for disciplinary hearings that day, Bradley and
Swartzfager, does not create an issue as to this legitimate
non-discriminatory reason. Bradley had the day of the
27a
hearing off; thus, he was neither on the clock nor was he
ordered to attend the hearing. Swartzfager was on the
clock, but obeyed the order to attend the hearing; thus,
neither Swartzfager nor Bradley engaged in conduct
comparable to that of plaintiffs.
Had plaintiffs been able to establish a prima facie
case under § 1981, defendant’s proffered legitimate,
nondiscriminatory reason for plaintiffs’ terminations would
rebut any inference of a discriminatory animus on the part
of defendant. Plaintiffs argue that Sedelbauer was a
"sacrificial lamb" to cover the defendant’s discriminatory
motivation. Plaintiffs offer no evidence to support this bald
assertion; however, the court finds no evidence in the record
to sustain such a conclusion. As plaintiffs come forward
with no evidence which would support a jury finding that the
proffered, non-discriminatory reasons for plaintiffs’
discharges were a pretext to cover defendant’s retaliatory
and racial motivation, defendant is entitled to judgment as
a matter of law on this basis as well.7 See e.g. Hicks, 113
S.Ct. at 2747-49.
THEREFORE, for the foregoing reasons, good cause
appearing, it is
ORDERED that defendant’s motion for summary
judgment be, and hereby is, GRANTED.
_§/__________________________
Sr. United States District Judge
’Because of the Court’s disposition of plaintiffs’ claims, it need
not address defendant’s estoppel argument.
28a
[Sept. 22, 1995]
No. 3:86CV7955
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
JAMES T. HARVIS, JR., et al.,
Plaintiffs,
ROADWAY EXPRESS, INC.,
Defendants.
ORDER
POTTER, J.:
This cause is before the Court on plaintiffs’ motion
for reconsideration, defendant’s opposition, and plaintiffs’
reply. Plaintiffs ask the court to reconsider its grant of
summaiy judgment in favor of the defendant on May 25,
1995.
For the reasons set out in defendant’s opposition,
plaintiffs’ motion will be denied. This Court takes this
opportunity, however, to comment upon plaintiffs’ motion
for reconsideration. In plaintiffs’ opposition to defendant’s
motion for summary judgment and at oral argument over
that motion, plaintiffs raised a new contractual right theory
of recovery. In the court’s order of May 25, it observed:
[t]his case is now nine years old. Plaintiffs never
pleaded nor alleged nor even mentioned in passing
this theory of recovery when the case was before the
Court initially. It was also not argued before the
Sixth Circuit, and was not even raised in plaintiffs
brief in opposition to defendant’s motion for
29a
summary judgment. There comes a time in the life
of a case when a litigant must settle on a theory or
theories of recovery and stick to it; that is a primary
tenet of the notice pleading theory of the Civil Rules.
Defendant first received notice of this theory of
recovery at oral argument on defendant’s motion for
summary judgment, nine years after the inception of
this case. Defendant is entitled to summary
judgment on this claim on this basis alone.
The Court then, in the alternative, went on to hold on the
merits that plaintiff could not recover on the theory in
question.
Despite the quoted admonishment, plaintiffs’ counsel,
in his motion for reconsideration, raises several new
contractual rights that were allegedly asserted by the
plaintiffs that allegedly led to their retaliatory discharge.
These rights were either casually mentioned and then
abandoned by plaintiffs at oral argument or are entirely new.
Similarly, plaintiffs’ counsel now comes forward with facts
that, while presumably known to counsel prior to summary
judgment, were inexplicably not offered in plaintiffs’
opposition.
None of these new contractual right theories now
dilatorily offered facts are a proper basis for reconsidering
the Court’s summary judgment order. See, Dana Crop. v.
United States, 764 F.Supp. 482, 488-89 (N.D. Ohio 1991).
THEREFORE, for the foregoing reasons, good cause
appearing, it is
O R D E R E D th a t p la in tiffs ’ m otion for
reconsideration be, and hereby is, DENIED.
/s/________________
Sr. United States District Judge
30a
[November 30, 1988]
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
John T. Harvis, Jr., et al.,
Plaintiffs, Case No. C86-7955
- vs -
Roadway Express, Inc.,
et al.,
MEMORANDUM AND
Defendants. ORDER
POTTER, J.:
This cause is before the Court on motions for
summary judgment filed by defendant Roadway Express, Inc.
(Company) and defendant Teamsters, Local 20 (Union),
plaintiffs’ opposition, defendants’ replies, plaintiffs’ response
to new matters and defendant Union’s reply. The three
plaintiffs in this action are black and were employed as
mechanics by defendant Company. Plaintiffs’ claims arise
from their discharges. Plaintiffs’ first cause of action is a
hybrid section 301/duty of fair representation claim against
both defendants. Plaintiffs’ second cause of action for race
discrimination is only asserted against defendant Company.
Under the Federal Rules of Civil Procedure,
summary judgment is proper only where there is no
genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(c). The Supreme Court has recently stated
that the inquiry is "where the evidence presents a
sufficient disagreement to require submission to a
31a
jury or whether it is so one-sided that one party must
prevail as a matter of law." Anderson v. Liberty
Lobby, Inc., 06 S. Ct. 2505, 2512 (1986).... In
reviewing a motion for summary judgment, however,
all inferences "must be viewed in the light most
favorable to the party opposing the motion." See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.. 106
S. Ct. 1348, 1356-57 (1986) (quoting United States v.
Diebold, Inc., 369 U.S. 654, 655 (1962).
Ralph Shrader, Inc. v. Diamond International Corp., 833 F.2d
1210, 1213 (6th Cir. 1987).
The party moving for summary judgment "always
bears the initial responsibility of informing the district court
of the basis for its motion, and identifying those portions of
the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits if any, which
[he] believes demonstrate the absence of a genuine issue of
material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). The substantive law of the case identifies which facts
are material. Anderson v. Liberty Lobby, Inc., A ll U.S. 242,
248 (1988). Therefore, only disputes of facts affecting the
outcome of the suit under the applicable substantive law will
preclude the entry of summary judgment. Id. A moving
party may discharge its burden "by ‘showing’ - that is,
pointing out to the district court - that there is an absence
of evidence to support the nonmoving party’s case." Celotex,
A ll U.S. at 324-325. Where the moving party has met its
initial burden, the adverse party "must set forth specific facts
showing that the is a genuine issue for trial." Anderson, A ll
U.S. at 250. "[PJlaintiff, to survive the defendant’s motion,
need only present evidence from which a jury might return
a verdict in his favor." Id. at 257.
32a
Defendant Union’s claim that plaintiff Harvis’ suit is
barred by the statute of limitations is not well taken. The
Court finds the action was filed by Harvis within six months.
The Court will next address the motions for summary
judgment on plaintiffs’ hybrid section 301/duty of fair
representations claim. Specifically, the Court will consider
whether the Union breached its duty of fair representation
to plaintiffs. "A breach of the statutory duty of fair
representation occurs only when a union’s conduct toward a
member of the collective bargaining unit is arbitrary,
discriminatory, or in bad faith." Vaca v. Sipes, 386 U.S. 171,
190 (1967). "A union’s conduct may be sufficiently arbitrary
to establish a breach of its duty to fairly represent its
members when it handles a grievance in a ‘perfunctoiy’
manner, with caprice or without rational explanation." Poole
v. Budd Co., 706 F.2d 181, 183 (6th Cir. 1983). A plaintiff
may establish a breach of the union’s duty by evidence of
personal hostility or bad faith. Whitten v. Anchor Motor
Freight, Inc., 521 F.2d 1335, 1340-1341 (6th Cir. 1975).
Defendant Union has set forth facts which, if
uncontroverted, would entitle it to summary judgment as to
all plaintiffs on the claim for breach of duty of fair
representation. In effect, the Union has demonstrated that
plaintiffs’ case lacks evidence from which the court could
find in their favor on this claim. The claims of all three
plaintiffs involve their discharge from employment with the
defendant Company. Grievances were filed in each
plaintiffs case and each grievance was processed through
final and binding arbitration in accordance with the
collective bargaining agreement. The record in this case is
voluminous. It includes hundreds of pages of briefing and
thousands of pages of deposition testimony and exhibits.
Despite this extensive record, plaintiffs have failed to present
any evidence of arbitrariness, discrimination or bad faith in
the processing of their grievances.
Plaintiffs argue that the Union officers who
33a
represented them were hostile to plaintiffs because they
were members of a dissident faction within the Union.
Plaintiffs contend that this hostility was transferred to them
during the grievance proceedings. Plaintiffs have presented
no evidence in support of their contentions. To the
contrary, each plaintiff testified in his deposition that the
Union representative handling his grievance exhibited no
personal hostility toward him. Plaintiffs claim that their
grievances were arbitrated in a perfunctory manner is also
unsupported by any evidence. Plaintiffs have failed to
present specific facts creating a genuine issue of material
fact in opposition to the Union’s motion for summary
judgment. Plaintiffs have not shown that the Union failed
to take any reasonable step in processing their grievances
through arbitration or that any complaint they have with the
Union’s handling of their grievances could have had a
material impact on their outcome.
Plaintiffs continue to assert that the Union’s failure
to process race discrimination claims through the grievance
machinery is a breach of its duty, despite this matter having
already been adjudicated in this case. This claim is not well
taken for the reasons set forth in the magistrate’s Report
and Recommendation filed June 6, 1988. The holding in
Farmer v. ARA Services, Inc., 660 F.2d 1096 (6th Cir. 1981)
is not as broad in scope as plaintiffs suggest. The defendant
union in that case was found to have breached its statutory
duty based upon the facts found by the trial judge. Plaintiffs
in this case have produced no evidence from which it could
be determined that their situation was factually similar to
Farmer. In sum, there is no material fact as to the duty of
fair representation claim, and the Union is entitled to prevail
as a matter of law on the claims of all three plaintiffs.
Plaintiffs assert that they are entitled to prevail on
their hybrid section 301/duty of fair representation claim
even if they cannot establish the breach of the Union’s duty.
The Court believes this assertion is contrary to the well
34a
established law as set forth in DelCostello v. Teamsters, 462
U.S. 151 (1983).
The suit against the employer rests on §301, since the
employee is alleging a breach of the collective
bargaining agreement. The suit against the union is
one for breach of the union’s duty of fair
representation, which is implied under the scheme of
the National Labor Relations Act.
"Yet the two claims are inextricably interdependent.
‘To prevail against either the company or the Union,
. . . [employee-plaintiffs] must not only show that
their discharge was contrary to the contract but must
also carry the burden of demonstrating breach of
duty by the Union.’" Mitchell, supra, at 66-67
(Stewart, J., concurring in judgment), quoting Hines,
supra, at 570-571. The employee may, if he chooses,
sue one defendant and not the other; but the case he
must prove is the same whether he sues one, the
other, or both.
Id. at 164-165. It is clear that plaintiffs may not maintain
this claim against the Company where the Court has
determined that the Union is entitled to summary judgment.
Nor may plaintiffs directly attach the arbitration
awards adjudicating their grievances in this action. It is not
the award itself which is at issue in this case, but the conduct
of the parties to the arbitration. For this reason also, the
issue regarding the applicable collective bargaining
agreement is not an issue of material fact. This Court has
already held that the decisions of the arbitral committee are
final and binding on the parties in this case in its order of
May 24, 1988. For example, plaintiffs’ complaint does not
allege a cause of action to set the awards aside, pursuant to
the Arbitration Act, 9 U.S.C. §1, et seq., under which the
court could engage in a narrow, but direct review of the final
35a
decision of the arbitral committee. The Court does not
determine whether plaintiffs would have standing to bring
such an action, but only illustrates the contrast between this
case and an action brought to set aside an award. Thus, the
final decision must stand as to all parties, and plaintiffs’
hybrid section 301/duty of fair representation claim will be
dismissed.
Plaintiffs’ remaining claims are against the defendant
Company for race discrimination under 42 U.S.C. §1981 and
Title VII. The Company contends that plaintiffs are barred
from litigating these claims because of the final and binding
arbitration decisions. The showing required to prevail under
either statute is essentially the same. Murray v. Thistledown
Racing Club, Inc., 770 F.2d 63, 69 (6th Cir. 1985). The
principles underlying Title VII and Section 1981 are
essentially the same. Benson v. Little Rock Hilton Inn, 742
F.2d 414, 416 (8th Cir. 1984). "In sum, Title VIPs purpose
and procedures strongly suggest that an individual does not
forfeit his private cause of action if he first pursues his
grievance to final arbitration under the nondiscrimination
clause of a collective bargaining agreement." Alexander v.
Gardner-Denver Co., 415 U.S. 36, 49 (1974). The case
before the Court provides all the more reason why plaintiffs’
claims under Section 1981 and Title VII should not be
barred by the final arbitration decision where plaintiffs had
no opportunity to litigate their race discrimination claims in
the grievance procedure.
A Title VII case of sexual discrimination must
be analyzed under the three prong test articulated by
the Supreme Court in Texas Department o f
Community Affairs v. Burdine, 450 U.S. 248, 101 S.
Ct. 1089, 67 L.Ed.2d 207 (1981) and McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817,
36 L.Ed.2d 668 (1973). A plaintiff carries the burden
of establishing aprima facie case. 450 U.S. at 252-53,
101 S. Ct. at 1093-94. If she establishes a prima facie
36a
case, the defendant must then articulate a
nondiscriminatory reason for its actions. Id. If the
employer does this, the burden is again on the
plaintiff to prove that the articulated reason was
pretextual and not the true reason, either by showing
that a discriminatory reason was the more likely
motivation, or by showing that the articulated reason
is unworthy of belief. (Citations omitted.)
Mills v. Ford Co., 800 F.2d 635, 637 (6th Cir. 1986).
"The plaintiff must ultimately prove that the
defendant intentionally discriminated against her. 450 U.S.
at 253, 101 S. Ct. at 1093." Id. at 638. "Proof of the four
McDonnell Douglas elements or other direct or statistical
proof raises a rebuttable presumption of discrimination."
(Footnotes omitted.) Simpson v. Midland-Ross Corp., 823
F.2d 937, 940 (6th Cir. 1987).
Establishment of the prima facie case in effect
creates a presumption that the employer unlawfully
discriminated against the employee. If the trier of
fact believes the plaintiffs evidence, and if the
employer is silent in the fact of the presumption, the
court must enter judgment for the plaintiff because
no issue of fact remains in the case. (Footnotes
omitted.)
Texas Department o f Community Affairs v. Burdine, 450 U.S.
248, 254 (1981).
"The burden of production then shifts to the
defendan t em ployer to provide a leg itim ate
nondiscriminatory reason for the action taken." Simpson,
823 F.2d at 940.
A plaintiff can establish that the legitimate,
nondiscriminatory reason for the employment
37a
decision articulated by the defendant employer is
pretextual in one of two ways, the first is to establish
by a preponderance of the evidence that the
discriminatory reason was the true reason motivating
the employer’s conduct. Alternatively, the plaintiff
can prove pretext by showing that the proffered
legitimate reason was false. (Citations omitted.)
Sims v. Cleland, 813 F.2d 790, 792 (6th Cir. 1987).
Plaintiffs claim that their discharges were racially
motivated. The Court determines for the purpose of this
motion that plaintiffs have each established a prima facie
case under Section 1981 and Title VII. Defendants assert
that plaintiffs’ discharges were for the legitimate
nondiscriminatory reasons advanced to the arbitration
committee. Plaintiffs’ claim that they were discharged for
violations for which similarly situated white employees have
received lesser discipline or no discipline and that the
defendants’ reasons are pretextual. The Court has
thoroughly reviewed the pleadings, affidavits, depositions
transcripts and other materials filed in support of and in
opposition to summaiy judgment. It is this Court’s opinion
that genuine issues of material fact exist as to plaintiffs’
claims under Section 1981 and Title VII against defendant
Company.
The Court has also reviewed all the pending motions
in this action relating to various issues of trial management.
The Court believes the issues raised in these motions are
now moot in light of the foregoing opinion. This cause will
now proceed to trial against the defendant Company on
plaintiffs’ claims of race discrimination. Plaintiffs’ claims
under Section 1981 will be tried to a jury and the claim
under Title VII will be tried to the Court. Title VII matters
not appropriate for presentation to the jury under Section
1981 will be heard out of the presence of the jury.
38a
THEREFORE, for the foregoing reasons, good cause
appearing, it is
ORDERED that the defendant Union’s motion for
summary judgment be, and hereby are, GRANTED; and it
is
FURTHER ORDERED that defendant Company’s
motion for summary judgment be, and hereby is GRANTED
in part and DENIED in part; and it is
FURTHER ORDERED that all pending motions be,
and hereby are, DENIED as moot.
______ sL__________
UNITED STATES DISTRICT JUDGE
39a
[Jan. 9, 1990]
No. 3:86CV7955
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
JAMES T. HARVTS, JR., et al.,
Plaintiffs,
v .
ROADWAY EXPRESS, INC.,
Defendants.
MEMORANDUM AND ORDER
POTTER, J.:
This matter is before the court on plaintiffs’ response
to the Court’s show cause order of July 10,1989, defendants’
reply, and plaintiffs’ surreply. This Court’s order of July 10,
1989 ordered plaintiffs to show cause why their claims
brought pursuant to 42 U.S.C. § 1981 should not be
dismissed pursuant to the Supreme court’s decision in
Patterson v. McLean Credit Union, 109 S.Ct. 2363 (1989).
The current posture of the case is such that a juiy
returned a verdict finding no violation of § 1981 against
plaintiff James Harvis. Two days later, on June 15,1989, the
Supreme Court decided Patterson. Defendants contend that
the Patterson decision should not apply retroactively to
Harvis’ § 1981 claim. Plaintiff, however, argues precisely the
opposite. The Patterson decision should, according to
plaintiffs, be applied retroactively to Harvis’ claim, thus
depriving the court of subject matter jurisdiction on Harvis’
§ 1981 claim. Plaintiffs contend that the Curt must as a
result disregard the juiy verdict rendered on Harvis’ § 1981
40a
claim and make its own findings of fact and conclusion of
law with regard to Harvis’ 42 U.S.C. § 2000e et seq. claim.
Thus, the first issue before the Court is what effect the
Patterson decision must be given regarding Harvis’ § 1981
claim.
The parties have correctly pointed out that judicial
decisions involving statutory interpretation are generally
applied retroactively. Chevron Oil Co. v. Huson, 404 U.S. 97
(1971). However, under certain circumstances it is
appropriate not to apply a decision retroactively. The
Chevron court set forth a three-part analysis to be used in
determining the nonretroactivity question. The court stated:
In our cases dealing with the nonretroactivity
question, we have generally considered three separate
factors. First, the decision to be applied
nonretroactively must establish a new principal of
law, either by overruling clear past precedent on
which litigants have relied [citation omitted] or by
deciding an issue of first impression whose resolution
was not clearly foreshadowed [citation omitted].
Second, it has been stressed that "we must ... weigh
the merits and demerits in each case by looking at
the prior history of the rule in question, its purpose
and effect, and whether retrospective operation will
further or retard its operation." [Citation omitted.]
Finally, we have weighed the inequity imposed by
retroactive application, for "[w]here a decision of this
court could produce substantial inequitable results if
applied retroactively, there is ample basis in our
cases for avoiding the ‘injustice or hardship’ by a
holding of nonretroactivity." [Citation omitted.]
Id. at 106-107.
This Court has applied Patterson retroactively to cases
pending before it. See e.g., Haynes v. The Salvation Army,
41a
No. 3:89CV7115 (N.D. Ohio, Aug. 22,1989) and Hernandez
v. AP Parts Co., No. C88-7797 (N.D. Ohio, Aug. 22, 1989).
However, those cases did not involve the factual scenario of
the case sub judice since no jury verdict has been returned
yet on the § 1981 claims. Thus, the relevant question is
whether the fact that a jury rendered a verdict on H am s’ §
1981 claim should preclude a retroactive application of
Patterson. At least one other district court considered this
issue in light of the Chevron nonretroactivity analysis and
concluded that equity disfavors the retroactive application of
Patterson to a § 1981 claim tried to a verdict before a jury.
Gillespie v. First Interstate Bank o f Wisconsin Southeast, 1989
U.S. Dist. LEXIS 8150 (E.D. Wise. 1989). The Court agrees
that to apply Patterson to § 1981 claims tried to a verdict
before a jury would yield an inequitable result to the
prevailing party, whether it be plaintiff or defendant.
Accordingly, Patterson does not apply to Harvis’ § 1981 claim
and the jury verdict on the claim survives Patterson.
When a party has a right to a jury trial on an issue
involved in a legal claim, the court is bound by the jury’s
determination of that issue as it relates to an accompanying
equitable claim. In re Lewis, 845 F.2d 624, 629 (1988).
Clearly, both 42 U.S.C. § 2000e et seq, (Title VII) and 42
U.S.C. § 1981 require proof of purposeful discrimination on
the part of a plaintiff in order to prevail. Daniels v. Board
o f Educ. o f Ravenna City School district, 805 F.2d 203, 207
(1986). In the case of Harvis, a jury found that intentional
discrimination based on race was not a factor in his
discharge. Pursuant to Lewis, this court is bound to follow
that determination with respect to Harvis’ Title VII claim
and enter judgment in favor of defendant. The court is
persuaded that final judgment should be entered on Harvis’
claim pursuant to Rule 54(b). Harvis’ claims are dissimilar
to those of Rivers and Davison and thus there is no just
reason for delay in entering judgment on Harvis’ claims.
42a
The second issue before the Court is whether the §
1981 claims of plaintiffs should be dismissed pursuant to
Patterson. It should be noted that the Court concludes,
pursuant to the Chevron analysis, that Patterson should be
applied retroactively to the § 1981 claims of Rivers and
Davison since they have not yet been tried to a jury.
Defendants Rivers and Davison have pled in essence
that their discharges were racially motivated and thus
violated § 1981. However, in Patterson the court held as
follows:
By its plain terms, the relevant provision in §
1981 protects two rights: "the same right ... to make
... contracts" and "the same right ... to ... enforce
contracts." The first of these protections extends
only to the formation of a contract, but not to
problems that may arise later from the conditions of
continuing employment, the statute prohibits, when
based on race, the refusal to enter into a contact 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 not involve the right to
make a 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. See infra, a t __ .
Patterson, 109 S.Ct. at 2372-73. Since the Patterson decision,
43a
this court and others1 have concluded that § 1981 does not
apply to discriminatory discharges since a discharge is
conduct which occurs after the formation of a contract
Finally, although plaintiffs Rivers and Davison
contend that they were discharged in retaliation for
exercising their grievance procedure rights, the Court is not
persuaded that the complaint continues to state a claim
upon which relief can be granted in light of Patterson. Other
district courts have considered similar issues and concluded
that claims that a plaintiff was discharged in retaliation for
exercising rights still protected under § 1981 do not state a
claim under § 1981 in light of Patterson. Dangerfield, et al.
v. The Mission Press, 1989 U.S. Dist. LEXIS 8985 (N.D. 111.
1989)(holding that a retaliatory discharge for filing EEOC
complaint was no longer actionable under § 1981); Hall,
1989 U.S. Dist. LEXIS 9661 (N.D. 111. 1989)(holding that
discharge for complaints about discrimination not
actionable). In this case plaintiffs Rivers and Davison
contend that they were discharged in retaliation for
prevailing in a grievance hearing. However, such a
"bootstrapping" of the actual breach of contract claim into a
claim that plaintiffs were deprived of the right to enforce the
contract was rejected in Patterson. Id. at 2376. Plaintiffs
concede that "the claim of denial of access to those
grievance and judicial forums is not the claim here."
Plaintiffs’ Reply at 6. Ironically, the denial of access to such
forums is precisely what is protected under the "right to ...
enforce contracts" provision of § 1981. Plaintiffs Rivers and
Davison have been free to grieve or litigate their discharges
in the appropriate forums. Thus, their complaint fails to
allege that they have been deprived of their § 1981 rights.
Accordingly, the § 1981 claims of Rivers and Davison will be
:See Williams v. National Railroad Passenger Corp., 1989 U.S. Dist.
LEXIS 8859 (D. D.C. 1989); Hall v. County of Cook, 1989 U.S. Dist.
LEXIS 9661 (N.D. 111. 1989); Haynes, supra, Hernandez, supra.
44a
dismissed.
THEREFORE, for the foregoing reasons, good cause
appearing, it is
ORDERED that judgement be, and hereby is,
entered in favor of defendant on plaintiff Harvis’ 42 U.S.C.
§ 2000E et seq. and 42 U.S.C. § 1981 claims; and it is
FURTHER ORDERED that the 42 U.S.C. § 1981
claims of plaintiffs Rivers and Davison be, and hereby are
DISMISSED.
________ISL________________
United States District Judge
45a
[Oct. 18, 1990]
No. 3:86CV7955
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
WESTERN DIVISION
JAMES T. HARVIS, JR., et al.,
Plaintiffs,
v.
ROADWAY EXPRESS, INC.,
Defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
POTTER, J.:
This cause came on for trial on plaintiffs Robert C.
Davison and Maurice Rivers’ complaint alleging that they
were discriminated against on the basis of race in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e (Title VII). In an order dated March 14,1989, this
Court separated the trial of plaintiff Harvis from the trial of
plaintiffs Rivers and Davison. The trial of plaintiff Harvis
ended in a jury verdict in favor of defendant Roadway
Express, Inc. (Roadway) on June 13, 1989. Since plaintiffs
Rivers and Davison alleged only violations of Title VII and,
hence, were not entitled to have their claims heard by a jury,
their case was tried upon the facts without the jury.
Roadway is the only defendant which plaintiffs proceeded
against at trial. The extensive briefing done by the parties
has resulted in the Court having before it plaintiffs’ pre-trial
proposed findings of fact and conclusions of law, defendant’s
pre-trial proposed findings of fact and conclusions of law,
defendant’s post-trial proposed findings of fact and
46a
conclusions of law and plaintiffs’ oppositions thereto, and
plaintiffs’ post-trial proposed findings of fact and conclusions
of law and defendant’s opposition thereto. The Court has
considered these materials and makes the following findings
of fact and conclusions of law.
Preliminarily, the Court denies defendant’s motion to
dismiss plaintiffs’ amended complaint (Doc. Nol. 282) for
two reasons. First, this motion was filed out of time. On
September 11, 1989, the Court issued a pre-trial order
setting the trial of this cause to commence on February 27,
1990. Among other things, this Order also set the motion
practice cut-off date at eight weeks prior to trial.
Defendant’s instant motion was Filed February 28, 1990, the
day of trial, for this reason alone, the Court would deny the
motion. However, defendant’s motion asks this Court to
dismiss plaintiffs’ claims under Fed. R. Civ. P. 12(b)(1) for
lack of subject matter jurisdiction. Since this Court may
reexamine subject matter jurisdiction at any point in the
proceedings, it has examined the merits of defendant’s
motion. In doing so, the Court finds the motion not well
taken.
Defendant contends that plaintiffs failed to assert
their Title VII claims within 90 days after the EEOC
notified plaintiffs of their right to bring suit. Assuming that
the right-to-sue letter was issued June 30,1987, as defendant
alleges, plaintiffs attempted to bring suit on these claims by
moving for leave to amend their complaint on September 29,
1987. Clearly, plaintiffs’ motion for leave to amend
evidenced plaintiffs’ intent to bring suit under Title VII.
Defendant can claim no prejudice by the apparent confusion
which resulted in plaintiffs’ filing the amended complaint on
October 18, 1988. Therefore, the Court has jurisdiction to
address the merits of the case, and defendant’s motion will
accordingly be denied.
47a
FINDINGS OF FACT
1. Plaintiffs are black male citizens of the United
States and reside within the territorial jurisdiction of this
Court.
2. Defendant does business in toledo, Ohio and
is an employer within the meaning of 42 U.S.C. § 2000(b).
3. Plaintiffs began working for Roadway in 1972
in Akron, Ohio. Rivers began working on the dock, while
Davison began working in the garage. Both plaintiffs
transferred to the Roadway facility in Toledo, Ohio in 1975.
4. Roadway Garage Manager Ed Guy and Union
business Agent Paul Toney agreed upon august 20, 1986 as
the date on which a hearing would be held to discuss
Davison’s accumulated work record. On August 15, 1986, a
letter was sent out to confirm this date. The hearing was
postponed and rescheduled for August 22, 1986 by
agreement between Mr. Guy and Mr. Toney.
5. Paul Toney was the union representative who
was responsible for scheduling disciplinary hearings with
defendant. Mr. Toney testified that he would mislead and
even lie to Roadway in his attempts to stall hearings in the
hope of resolving the matter on an informal basis. Mr.
toney used this procedure for a number of employees, both
black and white.
6. Toney testified that he believed that some
time prior to August 22, 1986 Guy became award of his
stalling tactics and his history of avoiding disciplinary
hearings. Plaintiffs were employees for whom Toney had
employed such tactics. As a result, Guy demanded that a
disciplinary hearing occur within 72 hours of the request.
This procedure was a proper notification procedure due to
a 1971 ruling.
7. On the morning of August 22, 1986 at
approximately 7:30 A.M., Davison was told by foreman Bill
Thompson that there was going to be a disciplinary hearing
concerning Davison. Davison was told to go to the office
and complied. When he arrived at the garage office,
48a
Davison told Guy that he had not received a letter in the
mail informing him of a hearing and the [sic] he would not
attend the hearing. Guy told Davison that he had received
the proper notice for the hearing and that the hearing would
be held whether he was there or not. Davison then left the
office.
8. Davison was subsequently informed by Toney
that he had received a two-day suspension as a result of the
hearing that was conducted in his absence. That suspension
was based on Davison’s accumulated work record.
9. Davison filed a grievance alleging that his
suspension was without just cause and without proper
notification.
10. Guy and Toney also agreed upon August 20,
1986 as the date on which a hearing would be held to discuss
Rivers’ accumulated work record. On August 15, 1986, a
letter was sent to confirm this date. That hearing was
postponed and rescheduled for august 22,1986 by agreement
between Guy and Toney.
11. In the early morning of August 22, 1986,
Roadway’s supervisor Bill Thompson told Rivers that he had
head Rivers was having a disciplinary hearing later that day.
Rivers stated that he had not received a letter notifying him
of a hearing on August 22 and that as far as he was
concerned no hearing would take place.
12. At approximately 7:30 A.M. on the morning
of August 22, a Roadway foreman approached Rivers and
told him to go to the office for a hearing. Although Rivers
went to the office, he informed Guy that he had not
received proper notice of the hearing. Although Rivers’
Union Business Agent was present, Rivers replied that he
did not think he should be there for the hearing and he was
not properly represented. While Rivers claims was excused,
the court finds that he was not.
13. Rivers subsequently received a letter from
Roadway dated August 22, 1986 which indicated that as a
result of a hearing on his accumulated work record, he was
given a two-day suspension.
49a
14. Rivers filed a grievance alleging that his
suspension was without just cause and without proper
notification.
15. The Toledo Local Joint Grievance Committee
(TLJGC) convened and heard both grievances on September
23, 1986. During the hearings, plaintiffs argued that they
had not received proper notice for their disciplinary
hearings, that if they had received proper notice they would
have been present at their disciplinary hearings, and that
white employees Sedelbauer, Bradley and Swartzfager should
have had disciplinary hearings scheduled before plaintiffs as
Roadway had requested hearing dates for those three
individuals prior to requesting hearing dates for plaintiffs.
Both grievances were granted based upon " improprieties,"
and both plaintiffs were awarded two days of back pay.
16. Disciplinary hearings has been requested for
Swartzfager on June 6, 1986, Davison on July 14, 1986,
Rivers on August 1,1986, Sedelbauer on August 8,1986 and
for Bradley on August 11, 1986. Swartzfager had a
disciplinary hearing scheduled for July 9, 1986 which did not
occur as he was on vacation that week. Union Steward
Eugene McCord was instrumental in the postponement of
Swartzfager’s hearing as he informed Guy on several
occasions that Swartzfager’s attendance record was not that
bad and a hearing was not necessary.
17. Based upon these facts and the credible
testimony of Dr. Cranny, black employees were not treated
differently than white employees with respect to the
scheduling of disciplinary hearings.
18. Shortly after the decision of the T U G C was
announced, Roadway’s Labor Relations Manager James
O’Neill announced there would be disciplinary hearings on
employees Rivers, Davison, Bradley, Sedelbauer and
Swartzfager within 72 hours. Both plaintiffs were present
when O ’Neill announced the upcoming hearings. Davison
responded that he could not attend as he had a doctor
appointment, and McCord responded that he could not
attend as it was his day off. After some discussion, O’Neill
50a
and Toney agreed upon the date of September 26, 1986 at
7:00 A.M. for the hearings.
19. The race of Swartzfager, Sedelbauer and
Bradley is white.
20. On September 25,1987, Broadway supervisor
Robert Kresge delivered and read a written notice of
hearing to Davison at work which stated that a hearing
would be held for him on September 26, 1986 at 7:00 A.M.
and asked him to sign a receipt acknowledging his upcoming
hearing. Davison spoke with McCord and refused to sign
the paper. Kresge left the written notice on a tool box next
to Davison. Davison claims that the notice was not read to
him and that he was not notified of the hearing date and
time. McCord, however, testified that Kresge read the
notice to Davison. Based on this testimony, the court finds
that Davison was told on the morning of September 25,1986
that a disciplinary hearing would be held for him on
September 26, 1986.
21. On September 26, 1986, Toney informed
Davison that Davison should attend the hearing because he
had been given a direct order to do so and that Davison
could be discharged if he did not attend the hearing.
Davison maintained that he had not received the proper
notice.
22. Davison was then approached by Roadway
supervisors Broone and Gates who ordered him to go to the
office for a hearing. Davison proceeded toward the office
but stopped to talk to Toney and McCord.
23. Kresge approached Davison, in the presence
of McCord and Toney, and again ordered him to go into the
office, but Davison replied, "I’m talking to Paul, get out of
my face." After some time elapsed, Davison walked into the
office.
24. Once in the office, a heated discussion ensued
between McCord, O’Neill, and Davison about whether the
hearing should take place. Davison was informed that he
could be discharged if he did not attend the hearing.
Twenty-five minutes elapsed while the parties discussed
51a
whether or not to proceed. Finally, O’Neill told Kresge to
start the hearing. Kresge started the hearing, and Davison
and McCord left the office and returned to work.
25. On September 25, 1986 Rivers was
approached by Kresge, who delivered and read to Rivers a
written notice of hearing for September 26, 1986 and asked
Rivers to sign a form acknowledging that a hearing would be
held the next day. McCord, who was present at the time,
told Rivers that he was not obligated to sign the form.
Rivers refused to sign or take the document acknowledging
that a hearing would be held the next day.
26. Shortly after 7:00 A.M. on September 26,
1986, Roadway Supervisors Broome and Gates approached
Rivers at work. Broome ordered Rivers to go into the office
because Roadway was going to have a disciplinary hearing
concerning his accumulated work record.
27. After discussing this matter with toney, Toney
informed Rivers that failure to attend the hearing could
result in discharge.
28. Kresge then went to the garage break room
where Rivers was speaking with McCord and Toney, told
them that the hearing was ready to begin and order Rivers
to attend the hearing.
29. Later O’Neill approached rivers, Mccord nd
toney and stated that the Company was ready to begin the
hearing. Rivers, Toney and McCord went into the office.
After O’Neill began the hearing, Rivers walked out.
30. Similarly, on September 25 and 26, 1986,
Sedelbauer was directly ordered numerous times by various
Roadway supervisors to attend a hearing on his accumulated
work record scheduled for September 26, 1986.
31. Sedelbauer, like rivers and Davison, refused
those direct order to attend his disciplinary hearing on
September 26, 1986.
32. Swartzfager was also given direct orders to
attend a disciplinary hearing to be held on September 26,
1986. Swartzfager complied with those orders and attended
the disciplinary hearing. Swartzfager was given a disciplinary
52a
record of hearing but did not receive any other disciplinary
time off without pay.
33. Throughout the time of these events on
September 26, 1986, Rivers, Davison, Sedelbauer and
Swartzfager were punched in and on the clock at work. As
such, they were obliged to follow the orders of their
supervisors unless the orders required unsafe actions.
34. rivers was discharged on September 26, 1986
for refusing several direct orders and for his accumulated
work record. Rivers was not discharged because of his race.
35. Davison was discharged on September 26,
1986 for refusing several direct orders and for his
accumulated work record. Davison was not discharged
because of his race.
36. Sedelbauer was discharged on September 26,
1986 for refusing several direct orders and for his
accumulated work record.
37. The only employee to comply with the direct
orders of management, Swartzfager, was not discharged on
September 26, 1986 but was given a disciplinaiy record of
hearing.
38. The greater weight of the evidence clearly
demonstrates that there was no pattern or practice of
different treatment of blacks from whites at Roadway’s
Toledo garage. From the statistical evidence introduced by
defendant, the Court finds that blacks and whites were
treated equally in the assignment of job duties and the
scheduling of disciplinary hearings.
Conclusions of Law
1. This court has jurisdiction over the parties and
subject matter of this action pursuant to Title VII of the
Civil Rights Act of 1964, 42 U.S.C. §2000e-5(f) and 28
U.S.C. § 1331.
2. The Court does not judge the correctness of
the defendant’s business decision. Cooper v. North Olmstead,
795 F.2d 1265, 1271-72 (6th Cir. 1986); Dale v. Chicago
53a
Tribune Co., 797 F.2d 458, 464 (7th Cir. 1986).
3. The disparate treatm ent theory of
discrimination is the proper framework for analysis. Kent
County Sheriff’s Ass’n v. county o f Kent, 826 F.2d 1485, 1492-
93 (6th Cir. 1987), rehearing denied, 835 F.2d 1146 (6th Cir.
1987).
4. The United States Supreme Court outlined
the appropriate analysis of disparate treatment claims in
Texas Dept, o f Community Affairs v. Burdine, 450 U.S. 248
(1981), and U.S. Postal Service Board o f governors v. Aikens,
460 U.S. 711 (1983). According to Burdine, plaintiffs must
first establish a prima facie case of intentional
discrimination, which defendant can rebut by producing a
legitimate, nondiscriminatory reason for the discharge. "The
defendant need not persuade the court that it was actually
motivated by the proffered reasons.. . . It is sufficient if the
defendant’s evidence raises a genuine issue of fact as to
whether it discriminated against the plaintiff." Burdine, 450
U.S. at 254-55. If defendant meets this burden of
production, plaintiffs must then prove that defendant’s
asserted motive is pretextual. The need to prove pretext
merges with plaintiffs’ ultimate burden of persuading the
Court that he was the victim of intentional discrimination, a
burden that plaintiffs retain at all times. Id. at 254-56. In
Aikens, the Court held that if the trial judge denies
defendant’s motion for dismissal after completion of
plaintiffs’ case-in-chief and if defendant offers evidence in
support of nondiscriminatory reasons for its action, the
Burdine presumption "drops from the case" and "the factual
inquiry proceeds to a new level of specificity." Aikens, 460
U.S. at 715. "The question than becomes for the trial judge,
Aikens holds, whether plaintiff has carried the burden of
persuasion of showing intentional discrimination, as would
be true in other civil litigation." Weems v. Ball Metal &
Chemical Div., Inc., 753 F.2d 527, 529 n.2 (6th Cir. 1985).
5. The Court finds that plaintiffs made out a
prima facie case of disparate treatment. The elements of a
prima facie case applicable to the fact situation presented
54a
here are as follows. First, plaintiffs must show that they are
members of a class entitled to protection under the Civil
Rights Act. Second, plaintiffs must show that they were
subjected to adverse employment action. Third, plaintiffs
must show that they qualified for their respective positions.
Finally, plaintiffs must show that the employer either
continued to solicit applications for the vacant positions or
replaced plaintiffs with persons not within the protected
class. McDonnell Douglas v. Green, 411 U.S. 792, 802
(1973); Gagne v. Northwestern Nat. Inc. Co., 881 F.2d 309,
313 (6th Cir. 1989); Jacks,on v. RKO Bottlers o f Toledo, Inc.,
743 F.2d 370, 375 (6th Cir. 1984). In an appeal from this
Court, the Sixth Circuit cautioned that a "[plaintiffs burden
with respect to establishing a prima facie case is not
onerous." Jackson, 743 F.2d at 377. Plaintiffs have satisfied
the second element through the introduction of proof that
they were terminated. Defendant has not contended that
plaintiffs were not qualified for their respective positions.
Nor has defendant contended that it did not fill the positions
that plaintiffs occupied. Therefore, the Court finds the third
and fourth elements met.
6. In the present case, plaintiffs must prove not
only that they were treated differently than the defendant’s
white employees, but also that this disparate treatment was
the result of a discriminatory intent. Smith v. Pan A m World
Airways, 706 F.2d 771, 773 (6th cir. 1983). "The ultimate
question to be resolved is whether the employer intentionally
treated ‘some people less favorably than others because of
their race,’ International Brotherhood o f Teamsters v. United
States, 431 U.S. 324, 335, n.15 (1977), not whether the
employer treated an employee less favorably than someone’s
general standard of equitable treatment." Batts v. N LT
Corp., 844 F.2d 331, 337 (6th Cir. 1988).
7. Plaintiffs have failed to carry their burden of
proving by a preponderance of the evidence that their
discharge was racially discriminatory. Plaintiffs have had
their day in court. After weighing the testimony of the
witnesses and considering all of the evidence, the Court
55a
finds that plaintiffs did not carry their ultimate burden of
proof. D efendant has articulated legitimate,
nondiscriminatoiy reasons for discharging plaintiffs, i.e.,
their repeated refusal to obey direct orders. Plaintiffs have
failed to demonstrate that defendant’s proffered reasons for
their discharge were pretextual. Under the substantive
standards applicable to Title VII cases, plaintiffs have not
established that they were discharged from employment
based upon their race.
THEREFORE, for the foregoing reasons, good cause
appearing, it is
ORDERED that defendant’s motion to dismiss be,
and hereby is, DENIED; and it is
FURTHER ORDERED that judgment be, and
hereby is, entered in favor of defendant Roadway Express,
Inc. and against plaintiffs Maurice Rivers and Robert
Davison.
United States District Judge
No. 91-3348
[Aug. 24, 1992]
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JAMES T. HARVIS, JR., et al.,
Plaintiffs-Appellants,
ROADWAY EXPRESS, INC.,
Defendant-Appellee.
BEFORE: GUY, BOGGS and SILER,
Circuit Judges.
BOGGS, Circuit Judge.
In this race discrimination case, the appellants
originally claimed they were discharged because of racial
discrimination and now state that the claim was also for
retaliatory discharge for winning a grievance, exercised for
racial reasons. The claim was dismissed by the district court
based upon the United States Supreme court ruling in
Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct.
2363, 105 L.Ed.2d 132 (1989). On appeal, appellants argue
that the district court misapplied Patterson, but that even if
their claim had been properly dismissed, this court should
reinstate their claim by retroactively applying to this case the
new Civil Rights Act of 1991 (CRA of 1991), Pub. L. No.
102-166, 105 Stat. 1071-1100, 42 U.S.C. S 1981, which
explicitly enacted the interpretation of § 1981 rejected in
Patterson. We reverse on the grounds that the district court
misapplied Patterson to dismiss appellants’ retaliatory
discharge claim. We affirm the district court’s dismissal of
the race discrimination in firing claim, and hold that the
CRA of 1991 should be not applied retroactively to this case.
57a
I
Plaintiffs-appellants Maurice Rivers and Robert C.
Davison are Black garage mechanics who were employed by
defendant Roadway Express, Inc. since 1972 and 1973
respectively. On the morning of August 22, 1986, Roadway
verbally informed Rivers and Davison that they were
required to attend disciplinary hearings that same day
related to their accumulated work record. Both plaintiffs
refused to attend, alleging inadequate notice. Roadway was
contractually required to provide prior written notice of such
hearings and allegedly routinely did so for white employees.
The hearings resulted in two-day suspensions for both
appellants. Appellants filed grievances with the Toledo
Local Joint Grievance Committee (TUGC), which granted
the grievances based on "improprieties" and awarded each
appellant two days of back pay.
Shortly after these initial hearings, disciplinaiy
hearings were again called by Roadway’s Labor Relations
Manager, James O’Neill, who announced that he would hold
disciplinary hearings against Rivers and Davison within
seventy-two hours. Rivers and Davison again refused to
attend, claiming inadequate notice. As the result of the
hearings, both Rivers and Davison were discharged on
September 26, 1986, for refusing several direct orders to
attend the hearings and for their accumulated work record.
In February 1987, Rivers and Davison, along with
Jams T. Harvis, filed this suit, alleging that Roadway
discriminated against them on the basis of race, in violation
of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq. They also alleged that
Roadway violated the Labor Management Relations Act of
1947 (LMRA), 29 U.S.C. § 185(a), and brought an unfair
representation claim against their union. Both of these
latter claims were dismissed on summary judgment by the
district court.
58a
The district court then separated Harvis’s case, which
went to trial and ended in a jury verdict on the § 1981 claim
for Roadway. The district court ordered judgment against
Harvis on his § 1981 and Title VII claims. Hands’ appeal to
this court was denied and the trial court’s judgment
affirmed. Harvis v. Roadway Express, Inc., 923 F.2d 59 (6th
Cir. 1991).
On June 15, 1989, shortly after Harvis’s verdict and
before appellants went to trial, the Supreme Court decided
Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct.
2363, 105 L.Ed.2d 132 (1989), which held that the right to
make contracts protected by § 1981 does not apply to
conditions of employment, but only covers discrimination in
the formation of the employment contract or the right to
enforce the contract. The district court, while holding that
Patterson was not retroactive with respect to Harvis’s jury
verdict, held it did have retroactive effect on the untried and
pending § 1981 claims of Rivers and Davison. The district
court concluded that appellants’ claims were for
discriminatory discharge and thus, based on Patterson, could
not be maintained under § 1981. Rivers and Davison argued
that their claims were not simply for discriminatory
discharge, but rather for retaliation for their success in
enforcing contract rights in a grievance hearing. However,
the district court held that these were only basic breach of
contract claims, and not claims based on the right to enforce
contracts,which would fall under § 1981. After dismissing
the § 1981 claims, the district court held a bench trial on
plaintiffs’ Title VII claims and ruled in favor of Roadway,
holding that Rivers and Davison failed to establish that their
discharge from employment was base upon their race.
Rivers and Davison appeal the district court’s
dismissal of their § 1981 claims on two grounds. First, they
argue that Patterson does not preclude this action, as it is
not an action for discriminatory discharge, but rather an
action based on retaliation for attempting to enforce the
59a
labor agreement, thus squarely falling under § 1981. Second,
while this appeal was pending, the CRA of 1991 was
enacted, explicitly contradicting the Patterson decision.
Appellants argue that the CRA of 1991 should be applied
retroactively to their § 1981 claims, thus invalidating the
district court’s decision. The case, they argue, should be
remanded for a new determination under this new
legislation.
II
42 U.S.C. § 1981 provides:
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.
The Patterson court limited the scope of § 1981
actions by holding that § 1981 does not apply to
discrimination in conditions of employment, but only
prohibits discrimination in the formation of the employment
contract or the right to enforce the contract. Patterson, 491
U.S. at 176,109 S.Ct. at 2372. Thus, under Patterson, § 1981
"covers only conduct at the initial formation of the contract
and conduct which impairs the right to enforce contract
obligations through legal process." Id. at 179, 109 S.Ct. at
2374.
While Patterson did not directly address the issue of
whether § 1981 applied to discriminatory discharges, this
court, along with a majority of other courts, had held that
claims of discriminatory discharge are no longer cognizable
60a
under § 1981 because discharge does not involve contract
formation. See Prather v. Dayton Power & Light Co., 918
F.2d 1255 (6th Cir. 1990), cert, denied,__U .S .__ , 111 S.Ct.
2889, 115 L.Ed.2d 1054 (1991); Hull v. Cuyahoga Valley Bd.
o f Educ., 926 F.2d 505 (6th Cir. 1991), cert, denied,__U.S.
_ , 111 S.Ct. 2917, 115 L.Ed.2d 1080 (1991). The plaintiffs,
below and on appeal, argue that theirs were not
discriminatory discharge claims, but rather, claims of
retaliatory discharge where plaintiffs were punished for
attempting to enforce their contract rights to be treated
equally with white people. The district court rejected this
claim as "bootstrapping" and held that this was solely a
discriminatory discharge case.
Before deciding whether or not Patterson was
correctly applied, we must first address whether the district
court was correct in retroactively applying Patterson to the
claims of Rivers and Davison. Our circuit has twice held
that Patterson does apply retroactively to pending cases. In
Prather v. Dayton Power & Light Co., supra, we applied
Patterson retroactively to a pending discriminatory discharge
case based on three factors used to determine whether an e
exception mandating non-retroactivity exists, as discussed by
the Supreme Court in Chevron Oil Co. v. Huson, 404 U.S.
97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). Under these
factors, a decision will not be applied retroactively if, first it
establishes a new principle of law, either by
overruling clear past precedent on which litigants
have relied ... or by deciding an issue of first
impression which resolution was not clearly
foreshadowed.
Id. at 106, 92 S.Ct. at 355 (citations omitted). The second
retroactivity factor is the "prior history of the rule in
question, its purpose and effect, and whether retrospective
operation will further or retard its operation." Id. at 107, 92
S.Ct. at 355. Finally, the third factor involves weighing "the
61a
inequity imposed by retroactive application" to avoid
"injustice or hardship." Id. at 107, 92 S.Ct. at 355.
Weighing these factors, the Prather court held that
applying Patterson retroactively would not "retard its
operation," nor would it produce "substantial inequitable
results" that might otherwise be avoided and concluded that
applying Patterson would not unduly prejudice the plaintiff.
Prather, 918 F.2d at 1258. This decision was reaffirmed in
Hull v. Cuyahoga Valley Bd. o f Educ., supra. The district
court correctly found that Patterson applied retroactively to
the pending § 1981 claims of Rivers and Davison.
Ill
Appellants argue that, even if Patterson is applied
retroactively to their case, their claims still survive Patterson
and the district court wrongly dismissed the claim as a
discriminatory discharge complaint not recognized under §
1981. We agree.
Appellants contend that Patterson only eliminates
those claims of retaliation for exercising rights that are
unrelated to the specific § 1981 right to "make and enforce
contracts." But, they argue, Patterson does not eliminate a
cause of action for exercising rights that do relate to the
enforcement of contract rights. Appellants maintain that
they are not making discriminatory discharge claims, but
rather are claiming retaliatory discharge that punished them
for enforcing their contract right to receive notice equal to
that received by whites.
Roadway counters that Rivers and Davison were not
punished for enforcing their contract rights as
The right to enforce contracts does not however
extend beyond conduct by an employer which impairs
an employee’s ability to enforce through legal process
62a
his or her established contract rights.
Patterson, 491 U.S. at 177-78, 109 S.Ct. at 2373.
However, the prohibited conduct of impairing the
ability to enforce contract rights is exactly what appellants
are complaining about here. Rivers and Davison were
punished, they contend, for trying to utilize the established
legal process for their grievances. The fact that Roadway
allowed formal "access" to legal process does not imply that
it could never be impairing the employee’s "ability to enforce
through legal process." An employer’s intimidation and
punishment conducted inside formal legal process may
impair an employee’s contract rights just as much as
intimidation and punishment conducted outside formal legal
process. See Carter v. South Central Bell, 912 F.2d 832, 840
(5th Cir. 1990), cert, denied,__U .S .__ , 111 S.Ct. 2916, 115
L.Ed.2d 1079 (1991) (court emphasized that the alleged
conduct must have impaired the plaintiffs ability to enforce
contractual rights either through court or otherwise on the
basis of race).
Appellants’ claims are similar to those in Von
Zuckerstein v. Argonne National Lab., 760 F.Supp. 1310,1318
(N.D. 111. 1991), where plaintiffs were permitted to proceed
to trial on their § 1981 claims that "defendants specifically
retaliated against them for pursuing (or intending to pursue)
their contract claims in the internal grievance forum." Id. at
1318 (emphasis in original). We do not agree with
appellee’s argument that Von Zuckerstein is distinguishable
because it involved an employer who impaired or impeded
the plaintiffs from using the available legal process to
enforce a specific anti-discrimination contract right.
However, § 1981 speaks of the right to "enforce contracts,"
which includes any contract rights, not just anti-
discrimination contract rights. The key here is that plaintiffs
were impaired from enforcing contract rights, not the kind
of contract right they were impaired from enforcing. Just
63a
because Rivers and Davison were allowed to use the
available legal process does not mean the employer did not
discriminate against them through retaliation for the very act
of using that legal process. Retaliation is defined more
broadly than mere access to legal process. McKnight v.
General Motors Corp., 908 F.2d 104, 111 (7th Cir. 1990), cert,
denied, _ U.S. 111 S.Ct. 1306, 113 L.Ed.2d 241 (1991),
held that retaliation "is a common method of deterrence."
We hold that appellants have articulated this essential
element of § 1981, that their ability to enforce claimed
contract rights was impaired because of their race.
Roadway argues that even if retaliatory discharge did
occur, the plaintiffs never alleged retaliatory discharge in
either their first or amended complaints. However, upon
examination of the record, we find that sufficient allegations
exist to form the basis of a retaliatory discharge claim.
While appellants admit that their pre-Patterson complaint
was not specifically structured as a "right to enforce a
contract" claim as opposed to a "condition of employment"
claim, the very basis of their complaint has always stemmed
from retaliatory discharge. They allege, in their amended
complaint, that "Rivers’fsic] and Davison’s discharges were
taken without just cause. More particularly Roadway
scheduled a hearing for them for September 26,1986, based
on conduct for which a grievance committee had previously
exonerated them with backpay." We find that the appellants’
claims fall within the Patterson definition of permissible §
1981 actions, as the claims involve discrimination in the right
to enforce a contract. We hold that the district court
wrongly dismissed appellants’ § 1981 claims and the case
should be remanded for further proceedings on the § 1981
claims.
IV
Our holding that the case should be remanded for
further proceedings on appellants’ § 1981 claims raises
64a
potential collateral estoppel problems. The district court has
already had a bench trial on the appellants’ Title VII claims,
finding that Rivers and Davison were not discharged from
employment based on their race.
A similar situation existed in Lytle v. Household Mfg.,
Inc., 494 U.S. 545, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990),
where Lytle, a Black mechanist for a subsidiary of
Household Manufacturing, was dismissed for unexcused
absences. Lytle filed a complaint with the EEOC, alleging
that he had been treated differently than white employees
who missed work. He then brought discriminatory discharge
and retaliation claims under § 1981 and Title VII. The
district court dismissed Lytle’s § 1981 claims, concluding that
Title VII provided the exclusive remedy for his racial
discharge and retaliation claims. At a bench trial on the
Title VII claims, the district court dismissed Lytle’s
discriminatory discharge claims pursuant to Rule 41(b), Fed.
R.Civ.P., and granted defendants summary judgment on the
retaliation claim.
The Fourth Circuit affirmed, ruling that the district
court’s findings with respect to Title VII claims collaterally
estopped Lytle for litigating his § 1981 claims because the
elements of a cause of action under § 1981 are identical to
those under Title VII. Lytle, 494 U.S. at 549, 110 S.Ct. at
1335; see also Washington v. Brown & Williamson Tobacco
Corp., 756 F.Supp. 1547, 1555 (M.D. Ga. 1991). The
Supreme Court reversed, based on plaintiffs seventh
amendment right to trial by jury in "suits at common law,"
noting that:
When legal and equitable claims are joined in the
same action, "the right to jury trial on the legal claim,
including all issues common to both claims, remains
intact."
Lytle, 494 U.S. at 550, 110 S.Ct. at 1335 (citations omitted).
65a
The Supreme Court distinguished the Lytle situation,
where the equitable and legal claims were brought together,
from the situation in Parklane Hosiery Co. v. Shore, 439 U.S.
322, 99 S.Ct. 645, 58 L.Ed.2d 552 (1979), where the Supreme
Court held that "an equitable determination can have
collateral-estoppel effect in subsequent legal action and that
this estoppel does not violate the Seventh Amendment."
Lytle, 494 U.S. at 550-51, 110 S.Ct. at 1336 (citing Parklane
Hosiery Co., 439 U.S. at 335, 99 S.Ct. at 653 (emphasis
added).
We find that our situation falls squarely under the
Lytle precedent and that collateral estoppel does not
preclude relitigation of issues decided by the district court in
its bench trial resolution of the equitable claims of Rivers
and Davison under Title VII. As in Lytle, the purposes
served by collateral estoppel do not justify applying the
doctrine in this case. Id. 494 U.S. at 553, 110 S.Ct. at 1337.
Collateral estoppel is designed to protect parties from
multiple lawsuits and potentially inconsistent decisions, as
well as to conserve judicial resources. Ibid. Although
remanding for further proceedings certainly will expend
greater judicial resources, such litigation is essential in
preserving Rivers’s and Davison’s seventh amendment rights
to a jury trail.
V
While this case was pending on appeal, the United
States Congress passed the Civil Rights Act of 1991.
Appellants now argue that the district court should also be
reversed in light of the 1991 Act, which amends § 1981 to
change the result in Patterson. The 1991 Act states that:
For purposes of this section, the term "make and
enforce contracts" includes the making, performance,
modification, and termination of contracts, and the
enjoyment of all benefits, privileges, terms, and
66a
conditions of the contractual relationship.
Pub.L. 102-166, § 101(b); 42 U.S.C. § 1981(b).
Both this Circuit and the Eighth Circuit have
addressed whether this act should apply retroactively to §
1981 claims that were pending on appeal at the time of
enactment. Both circuits have ruled that CRA of 1991 does
not apply retroactively. Fray v. Omaha World Herald Co.,
960 F.2d 1370 (8th Cir. 1992); Vogel v. City o f Cincinnati,
959 F.2d 594 (6th Cir. 1992); Mozee v. American commercial
Marine Service Co., 963 F.2d 929 (7th Cir. 1992).
Both Vogel and Fray examine the history of judicial
treatment of retroactivity as applied to new legislation.
Building upon both Roman civil law and English common
law, up to 1969 it was a well-established principle in
American jurisprudence that legislation must be applied only
prospectively unless the legislature specifically decreed a
retroactive application. Fray, 960 f.2d at 1374. However, in
Thorpe v. Housing Auth. o f Durham, 393 U.S. 268, 89 S.Ct.
518, 21 L.Ed.2d 474 (1969), and in Bradley v. Richmond
School Bd., 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476
(1974), the Supreme Court held that a new statute must be
retroactively applied to a case that was pending on appeal at
enactment "unless doing so would result in manifest injustice
or there is statutory direction or legislative history to the
contrary." Bradley, 416 U.S. at 711, 94 S.Ct. at 2016.
Later, in Brown v. Georgetown University Hospital, 488
U.S. 204, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988), the
Supreme Court reiterated the principle that "[rjetroactivity
is not favored in the law. Thus, congressional enactments
and administrative rules will not be construed to have
retroactive effect unless their language requires the result."
Id., at 208, 109 S.Ct. at 471. While the Supreme Court
acknowledged this tension in the case law in Kaiser
Aluminum & Chemical Corp. v. Bonjomo, 494 U.S. 827, 110
67a
S.Ct. 1570,108 L.ed.2d 842 (1990), the court did not have to
resolve the issue, as congressional intent as found to be clear
in that case.
Given these conflicting rules of construction, both the
Vogel and Fray courts examined the language and legislative
history of the CRA of 1991 and concluded that it should
not be applied retroactively, for example, § 402 of Pub.L.
102-166 states that "[ejxcept as otherwise provided, this Act
and the Amendments made by this Act shall take effect
upon enactment." While appellants argue that this indicates
retroactivity, the Vogel court correctly noted that this
language could mean that the Act applies to pending cases
or it could mean it should be applied only to conduct
occurring as of that date of enactment. Vogel, 959 F.2d at
597-98.
Both the Vogel and Fray courts also agree that the
legislative history sheds little light on the matter, as Senators
expressed conflicting views and no legislative committee
reports exist explaining the bill. Fray, 960 F.2d at 1376-77.
Appellants argue that retroactivity is implied because two
sections are expressly made prospective. However, the Fray
court notes that a bill that specifically changes the result in
Patterson retroactively was vetoed by the President in 1990
and Congress failed to override the veto. The court
concluded that:
We think a rather clear picture emerges from this
review of the Act and its legislative history.
Proponents of retroactively overruling Patterson
commanded a majority in both houses of Congress,
but they could not override the President’s veto of a
1990 bill that contained express retroactive
provisions. Thus, proponents could do not better
than send an ambiguous law to the judiciary. On the
other hand, opponents of retroactivity who favored
enactment of a prospective law (including the
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President) were also willing to hand this controversial
issue to the judiciary by passing a law that contained
no general resolution of the retroactivity issue.
However, when a congressional majority could be
marshalled, retroactivity opponents "hedged their
bets" by expressly making specific provisions, such as
§ 109, prospective only.
Fray, 960 F.2d at 1377.
Given the ambiguous legislative histoiy and language
of the act, this court held in Vogel that:
Bradley should be read narrowly and should not be
applied in contexts where "substantive rights and
liabilities" broadly construed, would be affected.
Clearly, retroactive application of the 1991 Act would
affect "substantive rights and liabilities" of the parties
to this action.
Vogel, 959 F.2d at 598, citing United States v. Murphy, 937
F.2d 1032, 1037-38 (6th Cir. 1991).
Appellants argue that Vogel is not determinative here
since it deals with § 108, which is written differently from §
101, the section at issue here. They also argue that the Fray
opinion, which does deal specifically with § 101, is wrong.
However, appellants’ arguments are not well taken on either
count. Their distinction between § 101 and § 108 is
immaterial, as both Fray and Vogel examined the
retroactivity of the 1991 CRA as a whole, not in terms of
specific sections, and both courts concluded that applying
the Act retroactively would adversely affect substantive rights
and liabilities.
We agree with the Fray and Vogel decisions and hold
that the 1991 CRA does not apply retroactively. However,
as we also find that the district court misapplied Patterson,
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the case can be reversed on those substantive grounds alone.
We REVERSE and REMAND for further proceedings
under § 1981, as we hold that Patterson does not exclude §
1981 claims based on retaliation for attempting to enforce
contract rights.
SILVER, Circuit Judge, concurring in part and
dissenting in part.
I concur with the majority opinion in full, except that
which is listed in part III. It is my opinion that Patterson v.
McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105
L.Ed.2d 132 (1989), does not permit a claim for retaliation
pursuant to 42 U.S.C. § 1981 under the facts of this case. It
may be that Patterson’ precludes any retaliatory claims under
§ 1981, but this court need not go that far.
First, I have much more of a problem than the
majority in determining whether the plaintiffs ever alleged
retaliatory discharge in either their first or amended
complaints. However, for purposes of this analysis, I will
assume that they did.
The majority relies upon the decisions in McKnight v.
General Motors Corp., 908 F.2d 104 (7th Cir. 1990), cert,
denied, _ U.S. _ , 111 S.Ct. 1306, 113 L.Ed.2d 241 (1991);
and Von Zuckerstein v. Argonne Nat’l Lab., 760 F.Supp. 1310
(N.D. 111. 1991). However, McKnight did not hold that §
1981 allows a claim for retaliation. Instead, it assumed that
it was so actionable "provided that the retaliation had racial
motivation." McKnight, 908 F.2d at 111. Then, the court
went on to find that the plaintiff in that case "might be guilty
of violating section 1981. Id. at 112 (emphasis added). It
further stated that the question need not be pursued,
"because General Motors did not interfere with contractual
entitlements." Id.
Moreover, the court in Von Zuckerstein held at
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1319 that the plaintiffs in that case would have to establish
"that they sought to use the internal grievance procedure to
vindicate their contractual right to be free from
discrimination." That is unlike the present case, which
apparently does not have an antidiscrimination provision in
the collective bargaining agreement.
Instead, I would follow the decision in Carter v. South
Cent. Bell, 912 F.2d 832, 840 (5th Cir. 1990), cert, denied, _
U.S. _ 111 S.Ct. 2916, 115 L.Ed.2d 1079 (1991), which held
that § 1981 no longer extends to retaliatory termination.
Although that case is somewhat different from this one, in
that the plaintiff asserted that he was retaliated against
because of filing a charge with the EEOC, which was a
statutory right, not a contractual right, nevertheless, the
court stated:
Were we to hold that section 1981 still encompasses
retaliatory discharge, we would be encouraging
litigation to determine what the employer’s subjective
motive was when he fired the employee: was it to
retaliate or "merely" to discriminate? This would be
pointless. Both motives are equally invidious, and
the employee suffers the same harm. Because
section 1981 no longer covers retaliatory termination,
all suits for discriminatory dismissal must be brought
under Title VII.
Id. at 840-841. Accord Overby v. Chevron USA, Inc., 884
F.2d 470, 472-473 (9th Cir. 1989), cited with approval in Hull
v. Cuyahoga Valley Joint Vocational School Dist. Bd. ofEduc.,
926 F.2d 505, 509 (6th Cir.), cert, denied,__U .S .___, 111
S.Ct. 2917,115 L.Ed.2d 1080 (1991), for the proposition that
retaliatory discharge claim is conduct not cognizable under
§ 1981.
Moreover, this court has, by unpublished decisions,
followed that rule from Carter. Although they have no
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precedential value, see Sixth Cir. R. 24(c), they were cited by
Roadway Express in its brief. I am not inclined to
completely ignore opinions of other judges on this court,
even if they are not binding. In Christian v. Beacon Journal
Publishing Co., No. 89-3822,1990 WL 98844,1990 U.S. App.
LEXIS 12080 (6th Cir. July 17, 1990)[908 F.2d 972 (table)]
(unreported), the court held that claims of retaliatory
discharge may not be brought pursuant to § 1981 under
Patterson, citing Singleton v. Kellogg Co., No. 89-1073, 1989
WL 143565, 1989 U.S. App. LEXIS 17920 (6th Cir. Nov. 29,
1989) [890 F.2d 417 (table)] (per cun'am)(unreported). See
also Bohanan v. United Parcel Serv., No. 90-3155, 1990 WL
177208, 1990 U.S. App. LEXIS 20154 (6th Cir. Nor. 14,
1990) [918 F.2d 178 (table)] (unreported)(Wellford, Jr.,
concurring). Therefore, I would affirm the district court in
all respects.