Harvis v. Roadway Express, Inc. Brief for Appellee

    S -S -S -S -S -S -S -S -S -S -S -S -S -S -S -S -S -S -S -S -S -S -S -S -S -S -S -S -S -S -S -S

IN THE UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s
Case No. 91-3348James T. Harvis, Jr.,

Plaintiff,
Maurice Rivers and 
Robert C. Davison,

Plaintiffs-Appellants
vs.
Roadway Express, Inc.,

Defendant-Appellee,
Local 20, International 
Brotherhood of Teamsters, 
Chauffeurs, Warehousemen and 
Helpers of America,

Previous U.S.C.A. Case No. 
90-3103
U.S.D.C. Case No. C86-7955
APPEAL FROM THE UNITED STATES 
DISTRICT COURT. NORTHERN 
DISTRICT OF OHIO. WESTERN 
DIVISION

Defendant.s_s_s_s_s-s_s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s~s
BRIEF OF APPELLEE

s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s-s
Julius L. Chambers 
Charles S. Ralston 
Eric Schnapper 
Cornelia T.L. Pillard 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street, 16th Floor 
New York, New York 10013
Ellis Boal
925 Ford Building
Detroit, Michigan 48226
Attorneys for Plaintiffs- 
Appellants Rivers and Davison

John T . Landwehr
Thomas J. Gibney
EASTMAN & SMITH
800 United Savings Building
Toledo, Ohio 43604
Attorneys for Defendant-Appellee 
Roadway Express, Inc.

Jeffrey Julius 
P.O. Box 7417 
Toledo, Ohio 43615
Attorney for Teamsters Local 20



TABLE OF CONTENTS
Paa.e

I. TABLE OF AUTHORITIES iii-iv
II. DISCLOSURE OF CORPORATE AFFILIATION V

III. STATEMENT OF ISSUES vi
IV. STATEMENT OF THE CASE 1-8
V. STATEMENT OF FACTS 9-15
VI. ARGUMENT 16-36

A. THE DISTRICT COURT PROPERLY DISMISSED
APPELLANTS' §1981 DISCRIMINATORY 
DISCHARGE CLAIMS. 17-21

B. APPELLANTS' "NEW" CLAIMS OF RETALIATION 
FAILED TO STATE CLAIMS FOR WHICH RELIEF
COULD BE GRANTED UNDER 42 U.S.C. §1981. 21-33
1. The Standard of Review 21
2 . Appellants' Limited Contentions 21-23
3. Outline of the Arauments 

Presented 23-24
4. Overview: The Component Parts 24-25
5. Appellants Do Not Claim That Roadwav 

Impaired or Impeded Their Ability to 
Enforce Their Claimed Contract 
Rights 25-30

6. Retaliation Alone is Not Action- 
able 30-32

7. Appellants Had the Opportunity to 
Pursue Their Discriminatorv Dis- 
charae Claims Under Title VII 32-33

8. Summary 33

i



C. APPELLANTS' CLAIMS CANNOT SURVIVE THE 
UNAPPEALED SUMMARY JUDGMENT ORDER, 
ESTABLISHING THEIR UNIMPAIRED ACCESS TO 
THE GRIEVANCE PROCESS 33-36

VII. CONCLUSION 37-38
VIII. PROOF OF SERVICE 39
IX. ADDENDUM (Cross-Designation of Contents 

Joint Appendix)
of

40-41
X. ADDENDUM (Statutes, Regulations, Rules 

Unreported Cases, Etc.)
and

42f

ii



I. TABLE OF AUTHORITIES
Page

Cases
Ana v. Proctor & Gamble Co.. 932 F.2d 540, 544
(6th Cir. 1 9 9 1 ) ............................................... 21
Bohanan, Jr. v. United Parcel Service, unreported,
No. 90-3155, 1990 U.S. App. LEXIS 20154 (6th Cir.
November 14, 1 9 9 0 ) ......... ................................. 25
Carter v. South Central Bell. 912 F.2d 832, 840 
(5th Cir. 1990), cert, denied. Ill S. Ct. 2916
(1991) ......................................  20, 24, 25, 28, 32
Christian v. Beacon Journal Publishing Co.. unreported,
No. 89-3822, 1990 U.S. App. LEXIS 12080 (6th Cir.
July 17, 1990)   25
Connelly v. Gibson. 355 U.S. 41, 45, 46 (1957) ......... 21, 35
Cooper v. City of North Olmstead. 795 F.2d 1265, 1272
(6th Cir. 1 9 8 6 ) ...............................................  20
D. Frederico Co.. Inc, v. New Bedford Redevelopment
Authority. 723 F.2d 122 (1st Cir. 1 9 8 3 ).....................  19
Dash v. Equitable Life Assur. Soc. of the U.S.. 753
F. Supp. 1062, 1066-1067 (E.D. N.Y. 1990) ...................  28
Goodman v. Lukens Steel Co.. 482 U.S. 656 (1987) . 18, 26-29, 34
Groves v. Ring Screw Works. 882 F.2d 1081 (6th Cir.
1989), rev'd., Ill S. Ct. 498 (1990) ........................  27
Hall v. County of Cook. 719 F. Supp. 721, 724-25 (N.D.
111. 1989)     29
Halverson v. Wood. 309 U.S. 344 (1940)  5
Harvis v. Roadway Express, Inc., 923 F. 2d 59
(6th Cir. 1 9 9 1 ) ...................................................4
Hull v. Cuyahoga Valiev Bd. of Educ.. 926 F.2d 505,
509 (6th Cir.), cert, denied. Ill S. Ct. 2917 (1991) . . 16, 25
Jackson v. Havakawa. 605 F.2d 1121 (9th Cir. 1979),
cert, denied. 445 U.S. 952 (1980).............................  19

iii



McKniaht v. General Motors Corp.. 908 F.2d 104, 111
(7th Cir. 1990), cert. denied. 111 S. Ct. 1306 (1991) . . 28, 34
Moore v. City of Paducah. 790 F.2d 557 (6th Cir. 1986) . . .  19
Northern Pipeline Construction Co. v. Marathon Pipe
Line Co. . 458 U.S. 50 (1982) .................................. 5
Overby v. Chevron U.S.A.. Inc., 884 F.2d 470, 473
(9th Cir. 1 9 8 9 )........ .........................  20, 25, 26, 28
Patterson v. McLean Credit Union. 491 U.S. 164 (1989) . . 2, 5-7,

16, 17, 21-26, 30-32, 34, 37
Prather v. Davton Power & Light Co.. 918 F.2d 1255,
1258 (6th cir. 1990), cert, denied. Ill S. Ct. 2889 
(1991) ........ ............ ........................... 16, 18-20
Thomokins v. Dekalb County Hosp. Auth.. unreported,
No. 1:87—cv-303—RLV, 54 FEP cases 1424, 1425 (N.D.
Ga. February 7, 1990), aff'd, 916 F.2d 600 (11th
Cir. 1990) ...................................................  26
Userv v. Turner Elkhorn Mining Co.. 428 U.S. 1 (1976) ........  5
Von Zuckerstein v. Argonne National Laboratories. 760
F. Supp. 1310 (N.D. 111. 1991) ............................ 28-30

Statutes
29 U.S.C. §159 (a) ............................................ 1
29 U.S.C. §185 ( a ) .................................... 3, 6, 33-35
42 U.S.C. §1981 . . 1, 2, 4, 5, 7, 8, 17-21, 24, 25, 30, 31,33-35, 37
42 U.S.C. §2000e, et s e g . .................................. . . 1

Rules
6th Cir. R. 1 0 ( b ) ....................... ....................... 9
Fed. R. App. P. 2 8 ( a ) ...........................................9
Fed. R. Civ. P. 8 . . . .  .......... .. 20

iv



UNITED STATES COURT OF APPEALS 
FOR THE SIXTH CIRCUIT

(This statement should be placed immediately preceding the statement of issues contained 
in the brief of the party. See copy of 6th Cir. R. 25 on reverse side of this form.)

IX.

James T. Harvis, Jr.,
Plaintiff,

Maurice Rivers and 
Robert C. Davison,

Plaintiffs-Appellants

v.
Roadway Express, Inc.,

Defendant-Appellee,
Local 20, International Brotherhood of 
Teamsters, Chauffeurs, Warehousemen 
and Helpers of America,

Defendant.

) Case No. 91-3348
)
) Previous U.S.C.A. Case No. 90-3103
)
) U.S.D.C. Case No. C86-7955
)
)
)
)
)
)
)
)
)
)
)
)

DISCLOSURE OF CORPORATE AFFILIATIONS 
AND FINANCIAL INTEREST

Pursuant to 6th Cir. R. 25, Roadway Express, Inc.

makes the following disclosure:
(name of party)

1. Is said party a subsidiary or affiliate of a publicly owned corporation? ^Yes^_

If the answer is YES, list below the identity of the parent corporation or affiliate 
and the relationship between it and the named party:

Roadway Express, Inc. is a wholly-owned subsidiary of Roadway Services, Inc.

2. Is there a publicly owned corporation, not a party to the appeal, that has a 
financial interest in the outcome? No.______

If the answer is YES, list the identity of such corporation and the nature of the 
financial interest:

6CA-1
7/86 v.



III. STATEMENT OF ISSUES

1. DID THE DISTRICT COURT PROPERLY DETERMINE THAT §1981 
DOES NOT APPLY TO DISCRIMINATORY DISCHARGES?

2. DID THE DISTRICT COURT PROPERLY DETERMINE THAT 
BECAUSE APPELLANTS CLAIMED NO DENIAL OF ACCESS TO 
GRIEVANCE AND JUDICIAL ENFORCEMENT FORUMS THEIR 
"RETALIATION" CLAIM FAILED TO STATE A CLAIM UNDER 
§1981?

3. DOES THE DISTRICT COURT'S FINDING OF NO EVIDENCE OF 
ARBITRARINESS, DISCRIMINATION OR BAD FAITH IN THE 
PROCESSING OF APPELLANTS' GRIEVANCES BAR ANY CLAIM 
OF IMPAIRED ENFORCEMENT RIGHTS?

vi



IV. STATEMENT OF THE CASE

This action was filed on December 22, 1986 by plaintiff 
James T. Harvis, Jr. ("Harvis") and plaintiffs-appellants Maurice 
Rivers and Robert C. Davison ("Rivers" and "Davison" respectively 
when referred to individually, and "Appellants" when Rivers and 
Davison are referred to jointly), past employees of Roadway 
Express, Inc. ("Roadway"). (R. 1: 1/22/86 Complaint.) Appellants 
alleged race discrimination, breach of a collective bargaining 
agreement, and breach of the duty of fair representation by 
defendant Local 20, International Brotherhood of Teamsters, 
Chauffeurs, Warehousemen and Helpers of America ("the Union"). 
Appellant's First Amended Complaint addressed those allegations 
under 42 U.S.C. §§1981 and 2000e, et sea.. and 29 U.S.C. §§159(a) 
and 185(a) ("§301"). (R. 218: 10/18/88 First Amended Complaint.)
For purpose of this appeal the difference between the First Amended 
Complaint and the Complaint is not significant, because the First 
Amended Complaint merely attempted to add a claim against Roadway 
under 42 U.S.C. §2000e, et sea.. commonly known as Title VII. 
(Compare R. 1: 1/22/86 Complaint and R. 218: 10/18/88 First Amended 
Complaint.) Appellants' §1981 claim against Roadway, as stated in 
the First Amended Complaint, was limited as follows:

16. The discharges discriminated against the plaintiffs
because of their race in violation of 42 U.S.C. §1981.
[Emphasis Added.]

(R. 218: 10/18/88 First Amended Complaint.) The issue in this case 
is primarily whether Appellants' claim of a discriminatory

1



discharge pursuant to §1981 survives Patterson v. McLean Credit 
Union, 491 U.S. 164 (1989).

Appellants moved to file a Second Amended Complaint, were 
granted leave to withdraw that Second Amended Complaint, and 
requested leave to file a Third Amended Complaint. (R. 68:
10/19/87 Second Motion to Amend Complaint; R. 109: 12/1/87 Pretrial 
Order; R. 124: 12/8/87 Motion for Leave to File Third Amended
Complaint.) Leave was denied. (R. 173: 6/6/88 Magistrate's Report 
and Recommendation; R. 203: 9/1/88 Order.) The stated purpose of 
Appellants' proposed Second and Third Amended Complaints was to 
attempt to state a cause of action against the Union under §1981. 
(R. 68: 10/19/87 Second Motion to Amend Complaint; R. 124: 12/8/87 
Motion for Leave to File Third Amended Complaint.) Adding to the 
allegations in their previous two complaints, Appellants, in their 
Second Amended Complaint, claimed:

7. For many years Local 20 and Roadway have negotiated 
collective bargaining contracts which contain no wording 
or prohibition against the company and union committing 
race discrimination.
8. Local 20 has not sought to include such anti- 
discrimination language in its contract with Roadway.
9. The union officers and business agents have had a 
continuing pattern, practice or policy over the years of 
not pursuing race discrimination claims against Roadway 
in the grievance procedure, whether or not they believe 
[sic] that Roadway had practiced race discrimination in 
a particular case.

(R. 68: 10/19/87 Second Motion to Amend Complaint, proposed Second 
Amended Complaint attached, at p. 2.) In their Third Amended 
Complaint, Appellants sought to add, to the new allegations of the 
Second Amended Complaint, the following allegation:

2



10. Despite having the foregoing pattern, practice, 
and/or policy, Local 20 has purported to establish a non­
discrimination policy in regard to representing its 
membership in any area, and further purports to represent 
members in discrimination grievances notwithstanding the 
absence of a non-discrimination clause in a contract.

(R. 124: 12/8/87 Motion for Leave to File Third Amended Complaint,
proposed Third Amended Complaint attached, at p. 3.) Appellants
explained their desire to add a claim against the Union as follows:

The proposed new complaint alleges the same basic 
transaction and conduct by the union: improper grievance
handling of the plaintiffs' discharges. It simply adds 
an additional motive - race discrimination - for the 
union's action.

(R. 68: 10/19/87 Second Motion to Amend Complaint, p. 2.) Both the 
proposed Second and Third Amended Complaints sought to attribute 
the impairment of the grievance process to the Union only; neither 
proposed amended complaint alleged that Roadway had impaired 
Appellants' recourse to the grievance procedure. (R. 68: 10/19/87 
Second Motion to Amend Complaint, proposed Second Amended Complaint 
attached; R. 124: 12/18/87 Motion for Leave to File Third Amended 
Complaint, proposed Third Amended Complaint attached.) As noted, 
Appellants' second and third attempts to amend were unsuccessful. 
(See supra. p. 2.)

Roadway and the Union filed summary judgment motions on 
all counts of the First Amended Complaint. (R. 88: 11/16/87
Roadway Motion for Summary Judgment; R. 113-115: 12/1/87 Union
Motions for Summary Judgment.) On November 30, 1988, the District 
Court granted in part Roadway's Motion for Summary Judgment 
dismissing Appellants' and Harvis' hybrid §301 (29 U.S.C. §185(a))

3



claim. (R. 224: 11/30/88 Memorandum and Order.) The District
Court found:

The claims of all three plaintiffs involved their 
discharge from employment with defendant Company. 
Grievances were filed in each plaintiff's 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.

(R. 224: 11/30/88 Memorandum and Order at pp. 2-3.) Appellants'
claims that survived summary judgment were described by the
District Court, simply, as follows:

Plaintiffs claim that their discharges are racially 
motivated.

(R. 224: 11/30/88 Memorandum and Order at p. 6.)
Harvis' §1981 claim1 was tried to a jury commencing May 

30, 1989; at the conclusion of the trial on June 13, 1989, the jury 
entered a unanimous verdict for Roadway. (R. 243: 5/30/89 Minutes 
of Proceedings; R. 254: 6/13/89 Special Verdict.) On January 9,
1990, the District Court ordered judgment in favor of Roadway on 
Harvis' §1981 and Title VII claims, and certified its order as 
appealable. (R. 264: 1/9/90 Memorandum and Order; R. 266: 1/23/90 
Judgment on Decision by Court.) Harvis appealed to this Court, 
complained about the jury's role, and, ironically, sought to have 
his claim redetermined by the trial judge. Harvis— v_.— Roadway
Express. Inc.. 923 F. 2d 59 (6th Cir. 1991). (Rivers and Davison

^he District Court ordered a separate trial on Harvis' claim. 
(R. 229: 3/14/89 Memorandum and Order.)

4



seek the exact opposite result!) This Court denied Harvis* appeal 
and affirmed the trial court's judgment. Id. at p. 62.

Shortly after the Harvis verdict, the Supreme Court 
decided Patterson v. McLean Credit Union, 419 U.S. 164 (1989); on 
July 10, 1989 the District Court ordered Appellants to show cause 
why their §1981 claims should not be dismissed. (R. 257: 7/10/89 
Order.) In response, Appellants conceded that Patterson precluded 
claims of discriminatory discharge.2 (R. 259: 8/25/89 Appellants' 
Response to Show Cause Order.) Appellants alleged, however, for 
the first time, that:

Rivers and Davison were discriminated against racially 
for enforcing their contract. Accordingly to the extent 
that the case rests on a retaliation claim a valid claim 
under §1981 remains.

(R. 259: 8/25/89 Appellants' Response to Show Case Order at p. 11.) 
Appellants offered no reason for the omission of a retaliation 
claim against Roadway from their earlier Complaints. (R. 1: 
1/22/86 Complaint; R. 218: 10/18/88 First Amended Complaint; R. 
259: 8/25/89 Appellants' Response to Show Cause Order.)

2In their brief, Appellants' seek to preserve a claim that 
their discharges violated the "right...to make... contracts" 
language of §1981. (Appellants' Brief, pp. 22-23, n. 11.) There 
is nothing to preserve. An appellate court should not entertain 
an argument based upon a theory not litigated below. Halverson v...
Wood. 309 U.S. 344 (1940). See, also Usery v._Turner Elkhorn
Minina Co. . 428 U.S. 1 (1976). Moreover, Appellants' reliance upon
Northern Pipeline Construction Co. v. Marathon Pipe Line_Qo_._, 458
U.S. 50 (1982) to seek a stay is misplaced. In Northern Pipeline, 
the Supreme Court invalidated the legislative grant of jurisdiction 
to bankruptcy judges, applied its holding prospectively, and 
permitted Congress a limited amount of time to reconstitute the 
bankruptcy courts. (Id. at p. 88.) In Patterson the Supreme Court 
applied its holding retrospectively and granted no stay. Patterson 
is the law and must be applied until the legislature or the Supreme 
Court compels otherwise.

5



Answering Appellants' response, Roadway argued that 
Appellants' claims as stated in the First Amended Complaint should 
be dismissed, objected to the District Court's consideration of 
Appellants' new retaliatory discharge claim as beyond the 
allegations of the First Amended Complaint, questioned the 
viability of an attempt by Appellants to further amend their 
complaint, argued that Appellants' desire to ''remedy their attempts 
to enforce the collective bargaining contract" had previously been 
disposed of by summary judgment against their §301 claims, and, 
finally, argued that Appellants' "bare claim of retaliation" even 
if considered did not survive analysis under Patterson. (R. 261: 
9/6/89 Roadway Brief at pp. 10-19.) On that last point, Roadway 
argued:

Rivers and Davison have failed to allege that they were 
impeded or obstructed from access to the grievance 
procedure to redress their claim of retaliatory 
discharge. Indeed, as this court well knows, Rivers and 
Davison not only had, but took full advantage of, the 
opportunity to redress their claims through the grievance 
arbitration machinery as well as by access to the Equal 
Employment Opportunity Commission. Equal access to the 
means available to the parties to enforce contracts is 
the crux of a §1981 claim. Plaintiffs had such access, 
make no claim that their access was impeded or 
obstructed, and ultimately complain of only a 
discriminatory discharge.

(R. 261: 9/6/89 Roadway Brief, at p. 18.) Appellants responded as 
follows:

Roadway argues that Rivers and Davison had the later 
opportunity to address the discharges through the 
grievance procedure, the EEOC, and the court. That may 
be. But the claim of denial of access to those forums 
is not the claim here. The claim is that the discharges 
themselves were infected by racial animus in the first 
place. [Emphasis Added.]

6



(R. 263: 9/13/89 Appellants' Reply, at p. 6.)3
Appellants further took the position that no new 

complaint was necessary, but suggested that they were willing to 
again attempt to amend their complaint "to satisfy any formality 
by filing one." (R. 263: 9/13/89 Appellants' Reply at p. 4.) No 
such further amendment was ever proffered or filed by Appellants. 
(Record.)

After considering the memoranda filed by the parties, the 
District Court ruled that:

(1) Appellants claimed in their pleadings only a 
discriminatory discharge;

(2) §1981 does not apply to discriminatory discharges; 
and

(3) Appellants' contention of a retaliatory discharge 
failed to state a claim in light of Patterson and 
Appellants' concession that "the claim of denial of 
access to those [grievance and judicial forms] is 
not the claim here."

(R. 264: 1/9/90, Memorandum and Order at pp. 3-4.) The Court
therefore dismissed Appellants' §1981 claims. (R. 264: 1/9/90
Memorandum and Order at p. 4.)

Appellants' Title VII claims were tried from February 27 
through March 2, 1990. (R. 283-285: 2/27/90-3/5/90 Minutes of
Proceedings.) On October 18, 1990 the District Court rendered its 
findings of facts and conclusions of law and ordered that judgment 
be entered in favor of Roadway and against Appellants. (R. 306:

3Roadway's review of the arguments presented in response to 
the District Court's Show Cause Order is necessary because 
Appellants' claim of a retaliatory discharge is nowhere else 
"pleaded" in the record.

7



10/18/90 Findings of Facts and Conclusions of Law, at p. 11; R. 
307: 10/18/90 Judgment■on Decision by Court.) Appellants filed a 
Motion for Reconsideration which was considered and denied by the 
District Court on March 18, 1991. (R. 308: 10/22/90 Motion for 
Reconsideration; R. 310: 3/18/91 Memorandum and Order.)

Appellants filed their Notice of Appeal on April 17, 1991 
citing the District Court's January 9, 1990 Memorandum and Order4 
which dismissed their §1981 claims, the District Court's October 
18, 1990 Findings of Fact and Conclusions of Law which dismissed 
their Title VII claims, and the District Court's March 18, 1991 
Memorandum and Order which denied their motion for reconsideration. 
(R. 311: 4/17/91 Notice of Appeal.) Appellants did not appeal the 
District Court's November 30, 1988 Summary Judgment Order. (id.) 
Appellants address only the District Court's January 9, 1990 
Memorandum and Order in their brief to this Court.

Actually, appellants' Notice of Appeal identifies "the 
court's memorandum and order of January 19, 1990" as the order 
appealed from. (R. 311: 4/17/91 Notice of Appeal.) There is no 
such order.

8



V. STATEMENT OF FACTS

Much of the argumentative nature of Appellants' statement 
of facts is highlighted by Appellants' frequent omission of any 
reference to the record to support their statements as required by 
6th Cir. R. 10(b) and Fed. R. App. P. 28(a). Roadway adopts and 
repeats below the findings of fact rendered by the District Court 
after a full trial on the merits, and supplements the District 
Court's findings with citations to the record. The Honorable John 
W. Potter —  after presiding over this case for nearly four years 
—  rendered the following findings of fact:

1. Plaintiffs are black male citizens of the United 
States and reside within the territorial jurisdiction of 
this Court. [R. 218: 10/11/88 First Amended Complaint 
at para. 4.]

2. Defendant does business in Toledo, Ohio and is 
an employer within the meaning of 42 U.S.C. §2000(b).
[R. 218: 10/18/88 First Amended Complaint at para. 2.]

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. [R. 94: 11/16/87 Davison Deposition at pp. 7, 45- 
46; R. 99: 11/16/87 Rivers Deposition at pp. 8-9.]

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. [Cf. R. 99: 
11/16/87 Rivers Deposition at pp. 292, 295-6, 298.]

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.

9



Mr. Toney used this procedure for a number of employees, 
both black and white. [R. 88: 11/16/87 Roadway Summary 
Judgment Motion, excerpts of Toney Deposition attached 
at pp. 154-156, 159-160, 162.]

6. Toney testified that he believed that some time 
prior to August 22, 1986 Guy became aware 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. [R. 88: 11/16/87 Roadway 
Summary Judgment Motion, excerpts of Toney Deposition at 
pp. 154-156, 159-160, 162 and O'Neill 11/11/87 Affidavit 
attached.]

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, 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. [R. 94: 11/16/87 
Davison Deposition at pp. 188-190.]

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. [R. 94: 11/16/87 Davison Deposition at p. 191.]

9. Davison filed a grievance alleging that his 
suspension was without just cause and without proper 
notification. [R. 94: 11/16/87 Davison Deposition at p. 
193. ]

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. [R. 99: 11/16/87 
Rivers Deposition at pp. 292, 295-96, 298.]

11. In the early morning of August 22, 1986, 
Roadway's supervisor Bill Thompson told Rivers that he 
had heard Rivers was having a disciplinary hearing later

10



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. [R. 99: 
11/16/87 Rivers Deposition, pp. 298-299.]

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 he was 
excused, the Court finds that he was not. [R. 99: 
11/16/87 Rivers Deposition at pp. 300-301.]

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. [R. 99: 11/16/87 Rivers 
Deposition at p. 302.]

14. Rivers filed a grievance alleging that his 
suspension was without just cause and without proper 
notification. [R. 99: 11/16/87 Rivers Deposition at p. 
304. ]

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. [R. 94: 
11/16/87 Davison Deposition at p. 218; R. 99: 11/16/87 
Rivers Deposition at pp. 317-328.]

16. Disciplinary hearings had 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

11



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. [R. 292: 4/11/90 
Dr. Cranny Transcript at pp. 13-16.]

18. Shortly after the decision of the TLJGC 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 and Toney agreed upon the date of September 26, 
1986 at 7:00 A.M. for the hearings. [R. 94: 11/16/87 
Davison Deposition at pp. 218-19; R. 99: 11/16/87 Rivers 
Deposition at p. 392.]

19. The race of Swartzfager, Sedelbauer and Bradley 
is white. [R. 88: 11/16/87 Roadway Summary Judgment 
Motion, O'Neill 11/16/87 Affidavit attached.]

20. On September 25, 1986, [R]oadway 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. [R. 94: 
11/16/87 Davison Deposition at pp. 223-226.]

21. On September 26, 1986, Toney informed Davison 
that Roadway was having a hearing for him that day. He 
told 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. [R. 94: 11/16/87 Davison Deposition at 
pp. 226-227.]

12



22. Davison was then approached by Roadway 
supervisors Broome 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. [R. 94: 
11/16/87 Davison Deposition at pp. 230-231.]

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. [R. 11/16/87 Davison Deposition at pp. 
230-231.]

24. Once in the office, a heated discussion ensued 
between McCord, O'Neill, Toney, 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 
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. 
[R. 94: 11/16/87 Davison Deposition at p. 233; R. 88: 
11/16/87 Roadway Summary Judgment Motion, excerpts of 
O'Neill Deposition attached at pp. 75-76.]

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. [R. 99: 
11/16/87 Rivers Deposition at pp. 338-39.]

26. Shortly after 7:00 A.M. on September 26, 1986, 
Roadway Supervisors Broome and Gates approached Rivers 
at work. Broome ordered Rivers togo [sic] into the 
office because Roadway was going to have a disciplinary 
hearing concerning his accumulated work record. [R. 99: 
11/16/87 Rivers Deposition at p. 342.]

27. After discussing this matter with Toney, Toney 
informed Rivers that failure to attend the hearing could 
result in discharge. [R. 99: 11/16/87 Rivers Deposition 
at pp. 343-345.]

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 [sic] Rivers to 
attend the hearing. [R. 99: 11/16/87 Rivers Deposition 
at pp. 346-347.]

13



29. Later O'Neill approached Rivers, McCord and 
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. [R. 
99: 11/16/87 Rivers Deposition at pp. 348-352.]

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. 
[R. 88: 11/16/87 Roadway Summary Judgment Motion, 
O'Neill 11/16/87 Affidavit attached.]

31. Sedelbauer, like Rivers and Davison, refused 
those direct orders to attend his disciplinary hearing 
on September 26, 1986. [R. 88: 11/16/87 Roadway Summary 
Judgment Motion, O'Neill 11/16/87 Affidavit attached.]

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 record of hearing but did not receive any 
other disciplinary time off without pay. [R. 88: 
11/16/87 Roadway Summary Judgment Motion, O'Neill 
11/16/87 Affidavit attached.]

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. 
[R. 94: 11/16/87 Davison Deposition at p. 226; R. 99: 
11/16/87 Rivers Deposition at p. 342.]

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. [Emphasis in Original.] [R. 99: 11/16/87 Rivers 
Deposition at pp. 382-383.]

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. [Emphasis in Original.] [R. 94: 
11/16/87 Davison Deposition at p. 249.]

36. Sedelbauer was discharged on September 26, 1986 
for refusing several direct orders and for his 
accumulated work record. [R. 88: 11/16/87 Roadway

14



Summary Judgment Motion, O'Neill 11/16/87 Affidavit 
attached.]

37. The only employee to comply with the direct
orders of management, Swartzfager, was not discharged on 
September 26, 1986 but was given a disciplinary record
of hearing. [R. 88: 11/16/87 Roadway Summary Judgment 
Motion, O'Neill 11/16/87 Affidavit attached.]

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. [R. 292: 4/11/90
Cranny Transcript at pp. 10-16.]

(R. 306: 10/18/90 Findings of Fact and Conclusions of Law at pp.
2-8 .)

15



VI. ARGUMENT

Introduction
There is no dispute in this case whether Patterspn_Vj. 

McLean Credit Union. 491 U.S. 164 (1989) should be applied
retroactively; it should. Hull v. Cuyahoga Valley,Bd. of.EducL, 
926 F .2d 505, 509 (6th Cir.), cert, denied, 111 S. Ct. 2917 (1991); 
Prather v. Dayton Power & Light Co., 918 F.2d 1255, 1258 (6th Cir. 
1990), cert, denied. Ill S. Ct. 2889 (1991). There is not much
dispute whether claims of discriminatory discharge survive 
Patterson; Appellants conceded that point below but attempt to 
revive it on appeal. This court has held that such claims do not 
survive. (Id.)

Furthermore, Appellants do not contend that all claims 
of retaliatory discharge survive Patterson and acknowledge that 
most of the courts reviewing retaliatory discharge claims have 
stricken those claims in light of Patterson. (Appellants' Brief, 
pp. 13, 16-19.) Finally, there is no dispute that Appellants'
claims, however characterized, were actionable under Title VII, 
that appellants availed themselves of their administrative and 
judicial Title VII remedies but lost, that appellants' contract 
claims were redressable under the grievance process and that 
appellants, with unimpaired access to that process, grieved their
discharges, but likewise lost.

Yet, Appellants claim that they are entitled to another 
trial on their allegations, because their claims somehow relate to

16



Becausethe right to enforce contracts protected by §1981.
Appellants' §1981 claims, as stated in their First Amended 
Complaint, do not survive Patterson, because Appellants have not 
claimed and have in fact admitted that their claims do not rest 
upon the denial of access to any adjudicative forum, and because 
the integrity of the grievance process and Appellants' unbridled 
attempts to enforce their claimed contract rights are clearly 
established by the record, this Court should deny Appellants' 
appeal and affirm the judgment of the District Court.

A. THE DISTRICT COURT PROPERLY DISMISSED APPELLANTS'
§1981 DISCRIMINATORY DISCHARGE CLAIMS.
Appellants' First Amended Complaint alleged only a claim 

for discriminatory discharge, not a claim for retaliatory 
discharge. Paragraph 16 states:

The discharges discriminated against the plaintiffs
because of their race in violation of 42 U.S.C. 1981.
[Emphasis Added.]

(R. 218: 10/18/88 First Amended Complaint.) In ruling on Roadway's 
Motion for Summary Judgment and in deciding the effect of Patterson 
on Appellants' claims the District Court clearly confirmed that all 
that had been pled by Appellants was that "their discharges were 
racially motivated." (R. 224: 11/30/88 Memorandum and Order at p. 
6; R. 264: 1/9/90 Memorandum and Order at p. 3.)

Appellants knew the procedure by which to and the 
importance of amending their complaint as they had attempted to do 
so three times prior to Patterson. In fact, Appellants had
attempted, albeit unsuccessfully, to plead a claim of racial

17



discrimination impairing the enforcement of their contract rights 
against the Union similar to the claim approved by the Supreme 
Court in Goodman v. Lukens Steel Co., 482 U.S. 656 (1987). (R. 68: 
10/19/87 Second Motion to Amend Complaint, proposed Second Amended 
Complaint attached; R. 124: 12/8/87 Motion for Leave to File Third 
Amended Complaint, proposed Third Amended Complaint attached.) 
Yet, when Roadway argued below that Appellants' claims as pled 
should be dismissed (R. 261: 9/6/89 Roadway's Brief at pp. 11-13), 
Appellants merely responded that they were "willing to amend to 
satisfy any formality," and did nothing to follow up even after the 
District Court dismissed their limited claims. (R. 263: 9/13/89 
Appellants' Reply at p. 4; R. 264: 1/9/90 Memorandum and Order at 
p. 3.) Simply stated, Appellants' First Amended Complaint alleged 
only discriminatory discharges, such claims are no long viable 
under §1981, and the District Court properly dismissed Appellants' 
§1981 claims. Prather v. Davton Power & Light Co.. 918 F.2d 1255, 
1258 (6th Cir. 1990), cert, denied. Ill S. Ct. 2889 (1991).

In their brief to this Court, Appellants only make 
passing reference to the failure of their pleadings below. 
(Appellants' Brief, p. 7, n. 2.) Appellants erroneously contend 
that "the district judge properly considered plaintiff's current 
factual contentions, rather than the undeveloped allegations of the 
First Amended Complaint." (Id.) Quite the contrary, the District 
Court clearly distinguished between what Appellants had "pled," and 
what they merely contended in their memoranda. (R. 264: 1/9/90 
Memorandum and Order, compare pp. 3 and 4.)

18



Moreover, the case law Appellants rely upon to ameliorate 
the insufficiency of their pleadings is inapposite. In Jackson v. 
Havakawa, 605 F.2d 1121 (9th Cir. 1979) , cert, denied, 445 U.S. 952 
(1980) the court made a special exception to the pleading rules in 
order to uphold the application of the doctrine of res judicata. 
Id. at p. 1129. Far from seeking to promote judicial economy and 
the finality of judgments, Appellants in this case seek a second 
trial, under a different statute, of their claims of 
discrimination. D. Frederico Co. , Inc. v. New Bedford 
Redevelopment Authority. 723 F.2d 122 (1st Cir. 1983) and Moore v. 
City of Paducah. 790 F.2d 557 (6th Cir. 1986) involve, 
respectively, a case where issues not raised by the pleadings had 
been tried by express or implied consent of the parties, and a case 
where a formal motion to amend had been denied. Neither situation 
applies to this case.

Finally, Appellants opine that "the proper course" would 
be for this Court to now remand the case to the District Court, 
nearly five years after Appellants' discharges and the commencement 
of this action, to permit them to attempt to amend their pleadings. 
Appellants should have attempted to amend below, but relinquished 
that right. Any amendment at this time would surely be highly 
prejudicial. The District Court held some three years ago that the 
proposed amendment by appellant to assert a §1981 "enforcement" 
claim against the Union would unduly prejudice that defendant. (R. 
203: 9/1/88 Order.) In Prather v. Dayton Power & Light Co., 918 
F.2d 1255 (6th Cir. 1990), cert, denied. 111 S. Ct. 2889 (1991)

19



this Court faced a similar situation, except that the plaintiff had 
proposed an amendment below, and in affirming the denial of leave 
to amend, this Court held:

The magistrate denied appellant's motion to amend his 
complaint because the amendment at this late date, eight 
years after he was discharged and seven years after the 
alleged intimidation, would be highly prejudicial to 
appellee. Appellant's original and amended complaint 
included only allegations of discriminatory discharge. 
Appellant offers no reason for the omission of these 
claims from his earlier complaint. The amendment relates 
to entirely different conduct than that involved in the 
original complaint, since the arbitration process was 
never before at issue. To force appellant to formulate 
a defense to these allegations at this late date would 
be highly prejudicial. See. Foman v. Davis. 371 U.S. 178 
(1962).

Id. at p. 1259. As in Prather. Appellants' original and amended 
complaints included only allegations of discriminatory discharge, 
and Appellants have offered no reason for the omission of their 
"retaliation" claims from their earlier complaints. In addition, 
Appellants have yet to offer any short and plain statement, as 
required by Fed. R. Civ. P. 8, to support the paradigm elements of
a retaliatory discharge claim, see. Cooper v .__City— of— North
Olmstead. 795 F.2d 1265, 1272 (6th Cir. 1986), and Appellants have 
not and cannot articulate any basis for a claim that their ability 
to enforce their claimed contract rights was in any way impaired 
or impeded —  a necessary element for a §1981 enforcement claim. 
See. Carter v. South Central Bell, 912 F.2d 832, 840 (5th Cir.
1990), cert, denied. Ill S. Ct. 2916 (1991); Overby v..Chevron
U.S.A.. Inc.. 884 F.2d 470, 473 (9th Cir. 1989). Appellants'
dilatory request for leave to amend should be denied.

20



In sum, Appellants were before the District Court and are 
before this Court upon their First Amended Complaint. Their First 
Amended Complaint alleges only that their "discharges" violated 
§1981. Accordingly, the District Court properly dismissed 
Appellants' claims pursuant to Patterson and this Court should 
affirm.

B. APPELLANTS' "NEW" CLAIMS OF RETALIATION FAILED TO 
STATE CLAIMS FOR WHICH RELIEF COULD BE GRANTED UNDER 
42 U.S.C. §1981.

1. The Standard of Review
Roadway generally agrees with the standard of review 

urged by Appellants. (Appellants' Brief, p. 3.) This Court 
reviews dismissals de novo. all allegations in the complaint must 
be taken as true and construed in a light most favorable to the 
non-movant, and a motion to dismiss may only be granted if "it 
appears beyond doubt that the plaintiff can prove no set of facts 
in support of his claim which would entitle him to relief." 
Connelly v. Gibson. 355 U.S. 41, 45, 46 (1957); Ana v. Proctor & 
Gamble Co.. 932 F.2d 540, 544 (6th Cir. 1991). However, there are, 
essentially, no "allegations in the complaint" at issue! The only 
source of appellant's allegations of a claim of retaliatory 
discharge is their memoranda responding to the District Court's 
Show Cause Order.

2. Appellants' Limited Contentions
In their initial memorandum, Appellants stated their 

claims as follows:

21



Rivers and Davison were discriminated against racially 
for enforcing their contract.

(R. 259: 8/25/89 Appellants* Response to Show Case Order at p. 11.)
Appellants failed, however, to offer any factual allegations, nor
even any conclusory statements, that Roadway had impaired their
ability to enforce through the legal process their claimed contract
rights. (R. 259: 8/25/89 Appellants' Response to Show Cause
Order.) When Roadway raised that issue in its brief, Appellants
further refined and clarified their claims as follows:

...[T]he claim of denial of access to those forums is not 
the claim here. The claim is that the discharges 
themselves were infected by racial animus in the first 
place. [Emphasis Added.]

(R. 263: 9/13/89 Appellants' Reply at p. 6.)
The District Court quickly disposed of Appellants* 

contentions based upon that admission. The District Court reasoned 
and concluded as follows:

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 dismissed.

(R. 2 64: 1/9/90 Memorandum and Order at p. 4.) The District
Court's conclusion is entirely consistent with the Supreme Court s
holding in Patterson. In Patterson, the Supreme Court stated.

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 his or her 
established contract rights.

22



Patterson v. McLean Credit Union. 491 U.S. 164, 177-178. Later in
its Patterson opinion, the Supreme Court explained:

Nor is it correct to say that ... a breach of contract 
impairs an employee's right to enforce his contract. To 
the contrary, conduct amounting to a breach of contract 
under state law is precisely what the language of §1981 
does not cover. That is because, in such a case,
provided that plaintiff's access to state court or any 
other dispute resolution process has not been impaired 
by either the state or a private actor, see. Goodman v. 
Lukens Steel Co.. 482 U.S. 656 (1987), the plaintiff is 
free to enforce the terms of the contract in state court, 
and cannot possibly assert, bv reason of the breach 
alone, that he has been deprived of the same right to 
enforce contracts as is enjoyed by white citizens. 
[Emphasis Added.]

Id. at p. 183. By disavowing any denial of access to enforce their
claimed contract rights, Appellants failed to overcome Patterson.

3. Outline of the Arguments Presented
Appellant's argument takes a three-pronged approach:

(1) some retaliation claims survive Patterson (Appellants' Brief, 
pp. 17-20); (2) retaliation after successful enforcement is as
actionable as retaliation which impairs or impedes enforcement 
(Appellant's Brief, pp. 20-22); and (3) retaliation in the form of 
a discharge, which itself is not actionable, is actionable 
(Appellant's Brief, pp. 24-25). Roadway's response is likewise 
three-fold:

(1) Only a claim that the employer, acting with a 
racially-discriminatory motive, impaired or impeded 
the employee's ability to enforce his employment 
contract may survive Patterson;

(2) Retaliation, like any discriminatory conduct, is not 
actionable alone; the employee must have been 
deprived of the same right to enforce contracts as 
is enjoyed by white citizens; and

23



(3) Because Title VII protects employees from 
retaliation and discriminatory discharge it is not 
necessary to interpret §1981 to duplicate that 
protection, and, pursuant to Patterson. it should 
not be so interpreted.

4• Overview; The Component Parts
As an overview, Roadway notes that Appellants are 

essentially attempting to join two claims that are not actionable 
under §1981, to come up with a claim that is actionable. 
Appellants contend that they were discharged because:

(1) Their successful access to the grievance process; 
and

(2) Their race.
§1981 is part of the federal law barring racial discrimination, and 
a claim that an employee was discharged for accessing the grievance 
process alone is not actionable under §1981. Likewise, a claim 
that an employee was discharged for racial reasons is not 
actionable under §1981. Yet Appellants combine those two claims, 
assert that both reasons motivated Roadway, and apparently argue 
that the sum is greater than the component parts. In commenting 
on this form of "new math" the 5th Circuit in Carter v. South 
Central Bell. 912 F.2d 832 (1990), cert, denied. Ill S. Ct. 2916
(1991) stated:

Finally, we have already held that discriminatory 
discharge is no longer actionable under section 1981.
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 egually invidious and the employee suffers 
the same harm. Because section 1981 no longer covers

24



retaliatory termination, all suits for discriminatory 
discharge must be brought under Title VII.

Carter, supra, at pp. .840-841. When claimant's allegations are
broken down to the component parts, the conclusion is inescapable
that claimant's allegations are not actionable under §1981.

5• Appellants Do Not Claim That Roadway Impaired 
or Impeded Their Ability to Enforce Their 

Claimed Contract Rights
Appellants' first line of argument is that some claims 

of retaliatory discharge survive Patterson. In Christian v. Beacon 
Journal Publishing Co. . unreported, No. 89-3822, 1990 U.S. App.
LEXIS 12080 (attached) (6th Cir. July 17, 1990), a panel of this 
court disagreed holding:

We also read Patterson to suggest that claims of 
retaliatory discharge may not be brought under section 
1981. Retaliation and discharge do not involve the 
"making and enforcement of contracts." See. Singleton 
V. Kellogg Co.. No. 89-1077 [1989 U.S. App. LEXIS 17920 
(attached)] (6th Cir. November 29, 1989) (per curiam).

Id. . slip op. at p. 8. See also Bohanan. Jr. v. United Parcel
Service, unreported, No. 90-3155, 1990 U.S. App. LEXIS 20154
(attached) (6th Cir. November 14, 1990) (Wellford, J. concurring:
"I would be disposed to treat retaliation as relating to the
'conditions of employment' covered clearly under Title VII and not
properly conduct 'which impairs the right to enforce contract
obligation' under §1981.") Similarly, other appellate courts have
held that retaliation claims do not survive Patterson. See. e ■g.,
Carter v. South Central Bell. 912 F. 2d 832, 840-841, (5th Cir.
1990) cert, denied. Ill S. Ct. 2916 (1991); Overby v. Chevron
U. S.A. . Tnc. . 884 F.2d 470, 473 (9th Cir. 1989). See also Hull v.

25



Cuyahoga Valiev Bd. of Educ., 926 F.2d 505, 509 (6th Cir.) (citing 
and noting agreement with Overby, supra.)

Appellants' reliance upon the Supreme Court's reference 
to Goodman v. Lukens Steel Co.. 42 U.S. 656 (1987) in its Patterson 
decision, and upon dicta from other courts is misplaced. The 
exclusion the Supreme Court may have carved out for a claim under 
the Goodman case is very narrow. The Supreme Court, in Patterson, 
stated:

Following this principle and consistent with our holding 
in Runyan Tv. McCrary. 427 U.S. 160 (1976)] that §1981 
applies to private conduct, we have held that certain 
private entities such as labor unions, which bear 
explicit responsibilities to process grievances, press 
claims, and represent member[s] in disputes over the 
terms of binding obligations that run from the employer 
to the employee, are subject to liability under §1981 for 
racial discrimination in the enforcement of labor 
contracts. See. Goodman v. Lukens Steel Co., 482 U.S.
656 (1987). The right to enforce contracts does not 
however extend bevond conduct by an employer which 
impairs an employee's ability to enforce through legal 
process his or her established contract rights. 
[Emphasis Added.]

Patterson v. McLean Credit Union, 491 U.S. 164, 177-178 (1989). 
The Supreme Court clearly distinguished "certain private entities" 
which bore "explicit responsibilities" for effectuating the redress 
mechanism, from an employer whose conduct may be actionable only 
if it "impairs an employee's ability to enforce through legal 
process" his contract rights. Indeed, one court has held that 
because actionable employer conduct is limited to that which 
adversely affects the "legal process," such conduct does not extend 
to include grievance procedures. Thompkins v. Dekalb County_Hosp_. 
Auth., unreported, No. 1:87—cv-303-RLV, 54 FEP cases 1424, 1425

26



(attached) (N.D. Ga. February 7, 1990), aff'd, 916 F.2d 600 (11th 
Cir. 1990).

Appellants have not alleged that Roadway possessed any 
"explicit responsibilities" to see that their grievances got 
processed, and in fact charged that responsibility, and the alleged 
failure to carry out that responsibility, to the Union in their 
Second and Third proposed Amended Complaints. (R. 68: 10/19/87 
Second Motion to Amend Complaint, proposed Second Amended Complaint 
attached; R. 124: 12/8/87 Motion for Leave to File Third Amended 
Complaint, proposed Third Amended Complaint attached.) While there 
may be an exception under Goodman, and Goodman may apply to 
employers as well as unions (Appellants' Brief at p. 14), it only 
applies to employers who "bear explicit responsibilities to process 
grievances," and Roadway bore no such responsibility.5

Similarly, the assorted appellate court and district 
court decisions relied upon by Appellants do not support their 
cause. For the most part, Appellants acknowledge that the cited 
cases hold that the retaliatory discharge claims considered were

5Unions represent and are to be the advocate for employees 
through the grievance process; employers are naturally the 
adversary. To open employers to claims of racial discrimination 
every time they take an adversarial position would be to foster 
significant litigation. Denial of access to the process of 
grievance/arbitration should be the focus. For example, this court 
has dealt with collective bargaining contracts that provide for 
arbitration only by mutual consent of the employer and the union. 
See, Groves v. Ring Screw Works. 882 F.2d 1081 (6th Cir. 1989), 
rev'd., ill S. Ct. 498 (1990). If an employer refused to consent 
to the process of arbitration based upon a racially-discriminatory 
motive such refusal may be actionable in a claim similar to the 
claim against the union in Goodman v. Lukens Steel Co., 482 U.S. 
656 (1987). No such actionable denial of access to the process of 
grievance arbitration has occurred or can be claimed in this case.

27



not actionable. In particular, Carter v. South Central Bell. 912 
F.2d 832, 840-841 (5th Cir. 1990), cert, denied. Ill S. Ct. 2916 
(1991), Overby v. Chevron U.S.A.. Inc.. 884 F.2d 470 (9th Cir. 
1989), and Dash v. Equitable Life Assur. Soc. of the U.S.. 753 F. 
Supp. 1062, 1066-1067 (E.D. N.Y. 1990) emphasize that the alleged 
conduct must have "impaired [the plaintiff's] ability to enforce 
contractual rights either through... court or otherwise" Dash. 
supra. , and that retaliation does not necessarily impede or impair 
such ability to enforce. Appellants have never attempted to 
explain how the claimed retaliatory discharges impaired or impeded 
their access to legal process. At most, Appellants refer to the 
general statement in McKnight v. General Motors Corp.. 908 F.2d 
104, 111 (7th Cir. 1990), cert, denied. Ill S. Ct. 1306 (1991) that 
retaliation "is a common method of deterrence." The McKnight 
court, however, went on to recognize the narrowness of the 
exception under Goodman v. Lukens Steel Co.. 482 U.S. 656 (1987), 
and rejected the claim of retaliatory discharge posed in that case. 
Moreover, disparate treatment claims of intentional racial 
discrimination are not actionable based upon judicial notice of 
common knowledge; whether a claim is stated turns upon the specific 
allegations offered by the plaintiff. In this case Appellants have 
made no claim that their ability to enforce their claimed contract 
rights was impaired or impeded.

Appellants place special reliance upon Von Zuckerstein 
7-__Argonne National Laboratories. 760 F. Supp. 1310 (N.D. 111. 
!99i) . Obviously, Von Zuckerstein is not controlling, but it also

28



does not support Appellants’ position and is distinguishable. In 
von Zuckerstein. the plaintiffs alleged that the employer 
"prevented and/or discouraged the plaintiffs from using the 
available legal process to enforce the specific anti-discrimination 
contract right." Id. at p. 1318. The court found only a "kernel 
of a cognizable claim" in plaintiff's position and directed the 
claim to trial. Id. at p. 1318. In this case, Appellants have not 
and cannot allege that they were impaired or impeded from using the 
available legal process.

Moreover, the Von Zuckerstein court went on to hold that:
Argonne would be exposed to §1981 liability for the 
denial of access to this forum only if plaintiff sought 
there to redress the alleged breach of the manual's anti- 
discrimination provision.

Id. at p. 1319. A similar provision was at issue in the collective 
bargaining agreement reviewed by the Supreme Court in Goodman v, 
Lukens Steel Co.. 482 U.S. 656 (1987). In this case, however, 
Appellants claimed that the collective bargaining agreement did not 
contain an anti-discrimination provision. (R. 68: 10/19/87 Second 
Motion to Amend Complaint, proposed Second Amended Complaint 
attached at para. 7.) As the court in Von Zuckerstein noted, 
without that "added dimension" any claim of denial of access by the 
employer to the grievance process is "nothing more than a violation 
of a term of its contractual agreement with plaintiffs, which is 
not actionable under section 1981." Von Zuckerstein v. Argonne 
National Laboratories. 760 F. Supp. 1310, 1318, 1319 (N.D. 111. 
1991) , supra. . at pp. 1318, 1319, citing Hall v. County_gf_Cgok, 
719 F. Supp. 721, 724-25 (N.D. 111. 1989). Appellants cannot

29



bridge that gap and Von Zuckerstein does not support the notion 
that their claims are actionable; instead, Von Zuckerstein 
highlights that Appellants are attempting to combine two claims 
which clearly are not actionable to add up to an actionable claim.

While §1981 continues to extend to conduct by an employer 
which impairs an employee's ability to enforce through legal 
process his or her established contract rights, Appellants' claim 
of a retaliatory discharge, which in essence remains a simple claim 
of discriminatory discharge, fails to state a claim for which 
relief can be granted. Appellants have no claim because their 
ability to enforce their claimed contract rights was not impaired 
or impeded.

6, Retaliation Alone is Not Actionable
Appellants' second and third arguments are more quickly 

disposed of. Appellants' second argument is that the District 
Court erred in distinguishing impaired access from post-outcome 
retaliation and Appellants bemoan the notion that their right to 
enforce protected by §1981 may protect only a "pro forma grievance 
hearing" and the "purely formal right to go through the motions of 
judicial or non-judicial dispute resolutions." (Appellants' Brief, 
pp. 20-22.) Apparently, Appellants would have §1981 not only 
provide access to the process but also guarantee the results, which 
is far beyond what the Supreme Court held in Patterson when it 
stated:

The right to enforce contracts does not. however, extend 
beyond conduct by an employer which impairs an employees

30



ability to enforce through legal process his or her 
established contract right. [Emphasis Added.]

Patterson v. McLean Credit Union. 491 U.S. 164, 177-178 (1989).
Roadway was not the ultimate determiner of the outcome of
Appellants' grievances; their grievances were ultimately decided
by the Toledo Local Joint Grievance Committee ("TLJGC"). (See, R.
306: 10/18/90 Findings and Facts and Conclusions of Law at p. 5.)
If Roadway's conduct did not impair or impede Appellants' "formal
right" to appear and have their case heard before the TLJGC, which
it did not, Roadway cannot be held liable under §1981 for
Appellants' dissatisfaction with the outcome. §1981 provides for
nothing more than the "removal of legal disabilities" from the
right to enforce. Id. at 178, quoting Runyon v. McCrary. 427 U.S.
160, 195, n. 5 (1976) (White, J. , dissenting). [Emphasis in
Original.]

Moreover, the distinction drawn by the District Court was 
not, as Appellants imply, a categorical distinction between pre- 
and post-grievance retaliation, but was simply a distinction 
between claims which are not actionable and claims which may be 
actionable premised upon Appellants' admission that "the claim of 
denial of access to those [grievance and judicial] forums is not 
the claim here." (R. 264: 1/9/90, Memorandum and Order at p. 4.) 
A retaliatory discharge, alone, is no more actionable than a 
discriminatory discharge because Appellants "cannot possibly 
assert, by reason of the breach alone, that [they] have been 
deprived of the same right to enforce contracts as is enjoyed by 
white citizens." Patterson v. McLean Credit Union, 491 U.S. 164,

31



183 (1989). Because Appellants admitted that their claim did not 
encompass a claim of denial of access to the legal process their 
bare allegation of a retaliatory discharge is not actionable and 
this court should affirm the District Court's dismissal of their 
claim.

7. Appellants Had the Opportunity to Pursue Their 
Discriminatory Discharge Claims Under Title VII
Finally, Appellants' third argument addresses the

District Court's "bootstrapping" analysis; Appellants assert that
their allegations should be no less actionable simply because they
are in essence complaining of a discriminatory discharge. The fact
that the claimed actionable conduct does involve a discharge is
significant in light of the Supreme Court's admonition in Patterson
that courts "should be reluctant, however, to read an earlier
statute broadly where the result is to circumvent the detailed
remedial scheme constructed in a later statute." Patterson v.
McLean Credit Union. 491 U.S. 164, 181 (1989). As the Fifth
Circuit explained in Carter v. South Central Bell:

Title VII will protect an employee from retaliation. 
[Citation Omitted.] As noted above, we should not 
interpret section 1981 to duplicate that protection 
unless the overlap of the two statutes is "necessary."
[See, Patterson. 491 U.S. at p. 181.] While an employer 
who retaliates against an employee may discourage that 
employee (or others) from using the legal process, the 
employer has not impaired or impeded the employee's 
ability to enforce his employment contract. While these 
concepts have been construed to be synonymous [citations 
omitted], we do not believe that it is "necessary" to do 
so, [citation omitted].

Carter v. South Central Bell. 912 F . 2d 832, 840 (5th Cir. 1990), 
cert, denied. Ill S. Ct. 2916 (1991). Appellants are, undeniably,

32



trying to convert what had been for years and what continues to be 
essentially claims of ' discriminatory discharge into actionable 
claims under §1981, and seek not only to circumvent the detailed 
enforcement procedures set forth in Title VII, but in fact a final 
adverse disposition of their Title VII claims. Title VII provided 
them an ample opportunity for relief. The District Court was 
correct in seeing Appellants’ claims for what they are, claims of 
discriminatory discharge which are not actionable, and the District 
Court's dismissal of appellant's claims should be affirmed.

8. Summary
In sum, although Appellants have attempted to claim a 

retaliatory discharge, they have never attempted to explain how 
the alleged retaliation in any way impaired or impeded their right 
to redress through the legal process. They can, in fact, not do 
so. The District Court's dismissal of their purported claims under 
§1981 should be affirmed.

C. APPELLANTS' CLAIMS CANNOT SURVIVE THE UNAPPEALED 
SUMMARY JUDGMENT ORDER, ESTABLISHING THEIR 
UNIMPAIRED ACCESS TO THE GRIEVANCE PROCESS.
In ruling on Roadway's Motion for Summary Judgment on

Appellants' §301 claims, the District Court stated:
Grievances were filed in each plaintiff's 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. [Emphasis Added.]

33



(R. 224: 11/30/88 Memorandum and Order at pp. 2-3.) Appellants' 
allegations of a retaliatory discharge, in their own words, seek 
to "remedy their attempts to enforce the collective bargaining 
contract." (R. 259: 8/25/89 Appellants’ Response to Show Cause 
Order at p. 11.) In so seeking, they bring their claims squarely 
within the District Court’s prior ruling, which was not appealed, 
that they failed to present "any evidence of arbitrariness, 
discrimination or bad faith in the processing of their grievances." 
The disposition of Appellants’ §301 claims should bar them from 
proceeding on any claim which must, necessarily, address the 
impairment of their ability to enforce through legal process their 
contract rights, because that prior determination upheld the 
integrity of the grievance process.

Roadway is mindful that the Supreme Court in Goodman v. 
Lukens Steel Co.. 482 U.S. 656, 661 (1987) held that §1981 had a 
much broader focus than contractual rights and is part of the 
federal law barring racial discrimination which involves a 
fundamental injury to the individual rights of a person. Yet, in 
Patterson, the Supreme Court clearly revisited the issue of the 
breadth of §1981 and limited claims under "the same right —  to 
... enforce contracts" language of §1981 to the protection of a 
legal process that would address and resolve "contract-law claims" 
regarding "established contract rights." Patterson v. McLean 
-Credit Union. 491 U.S. 164, 177 (1989). In McKniqht v. General 
Motors Corp.. 908 F.2d 104, 112 (7th Cir. 1990), cert, denied. 111 
S. c t .  1306 (1991) the Seventh Circuit Court of Appeals, while

34



still adhering to the notion that §1981 involved tort rights, 
explained that if the rights protected by §1981 and its state 
equivalents, were limited to contract rights, preemption may be an 
issue.

While §301 preemption of other federal laws addressing 
"contract-law claims" and "contract rights" does not stand on as 
firm as ground as preemption of state laws that invade the scope 
of §301, in this case the issue is whether a prior, unappealed 
determination of the District Court upholding the integrity of the 
grievance process bars Appellants' claims. Because the §1981 right 
to enforce contracts does not "extend beyond conduct by an employer 
which impairs an employee's ability to enforce through legal 
process his or her established contract rights" and the District 
Court found that:

(1) grievances were filed by each plaintiff;
(2) each grievance was processed through final and 

binding arbitration in accordance with the 
collective bargaining agreement; and

(3) plaintiffs have failed to present any evidence of 
arbitrariness, discrimination or bad faith in the 
processing of their grievances. (R. 224: 11/30/88 
Memorandum and Order at pp. 2-3.)

Roadway asserts that Appellants cannot conceivably take the
position that Roadway engaged in any conduct which impaired their
ability to enforce their contract rights. That is, with those
facts conclusively and finally established, Appellants "can prove
no set of facts in support of [their] claim which would entitle
[them] to relief." Connelly v. Gibson. 355 U.S. 41, 45-46 (1957).

35



The District Court found that Appellants fully availed 
themselves of the grievance process and the District Court upheld 
the integrity of that process. Those findings preclude any claim 
that Appellants' abilities to enforce their contractual rights were 
impaired. The District Court's November 30, 1988 Memorandum and 
Order supports its decision to dismiss Appellants' claims, and that 
dismissal should be affirmed.

36



VII. CONCLUSION
Appellants' First Amended Complaint, the complaint upon 

which the action below proceeded to a determination on the law and 
the merits, claimed only a "discriminatory discharge." Such a 
claim is not actionable under §1981 and the District Court properly 
dismissed Appellants' §1981 claims. It is now far too late and it 
would be extremely prejudicial to permit Appellants the opportunity 
to attempt to plead some new, as yet not fully developed, claim 
that may or may not survive scrutiny under Patterson v. McLean 
Credit Union. 491 U.S. 164 (1989).

Certainly, Appellants' retaliation contentions discussed 
briefly in memoranda below do not survive Patterson, because, as 
Appellants admit, they are not pursuing claims, however they are 
labeled, that they were denied access to any forum in which they 
may have attempted to enforce their contract rights. Appellants 
truly are pursing only breach of contract claims and such alleged 
breaches alone cannot possibly satisfy their need to claim that 
they have been deprived of the same right to enforce contracts as 
is enjoyed by white citizens.

In fact, the District Court previously determined that 
Appellants had full access to the dispute resolution mechanism, the 
grievance process, and the District Court upheld the integrity of 
that process. With those facts conclusively and finally 
established in the record, Appellants can prove no set of facts 
that would support a claim that Roadway impaired their ability to 
enforce through legal process their contract rights.

37



For the foregoing reasons, defendant-appellee Roadway 
Express, Inc. respectfully requests that the court affirm the 
January 9, 1990 Memorandum and Order, the October 18, 1990 Findings 
of Fact and Conclusion of Law, and the March 18, 1991 Memorandum 
and Order of the District Court and deny Appellants' appeal, with 
costs awarded accordingly.

Respectfully submitted,
EASTMAN & SMITH

800 United Savings Building 
Toledo, Ohio 43604 
Telephone: (419) 241-6000
Telecopier: (419) 241-5568
Attorneys for Defendant- 
Appellee Roadway Express, Inc.

38



Two copies of the foregoing have been sent this
VIII. PROOF OF SERVICE

day of September, 1991 to Cornelia T.L. Pillard, Esq., NAACP Legal 
Defense and Educational Fund, Inc., 99 Hudson Street, 16th Floor, 
New York, NY, 10013; Ellis Boal, Esq., 925 Ford Building, Detroit, 
MI, 48226; and Jeffrey Julius, P.0. Box 7417, Toledo, OH, 43615.

39



UNITED STATES COURT OF aPPE, 
FOR THE 3DCTH CTRCU7T

IX.

---- ,_ib3348_
Cm  Cwwaaa:
James T. Harvis, Jr., Plaintiff, and Maurice Rivers and Robert C. 
Davison, Plaintiffs-Appellants v. Roadway Express, Inc., Defendant- 
Appellee, and Local 20, International Brotherhood of Teamsters, 
Chauffeurs, Warehousemen and Helpers of America, Defendant.

APPELLANT T / APPELLEE 1 DESIGNATION 
OF APPEND DC CONTENTS

App*ilMt/aep*d««. pmuM  fe StrtA Crcmi Ruk 11(b), W*»r iimcnim Um followup us tEt i k w  cown s r»cora m  imsh u> bt iaeru4M ja Us* irt«>»iir

DESCRIPTION OF ENTRY DATE RECORD 
^TRY NO

Complaint 1/22/86 1
First Amended Complaint 10/18/88 218 'Memorandum and Order 
on Summary Judgment 11/30/88 224
Memorandum and Order 
on Patterson 1/9/90 264
Appellants1 Response to Show 
Cause Order, pp. 1-2, 9-11 onl] 8/25/89 259
Roadway Brief, pp. 1, 10-21 on! y 9/6/89 261

Appellants'Reply, pp. 1,4-6 or ly 9/13/89 263

40



DESCRIPTION OF ENTRY DATE RECORD I 
ENTRY NO.

Findings of Fact and 
-Conclusions of Law 10/18/90 306
Judgment on Decision by Court 10/18/90 307
Memorandum and Order on 
Reconsideration 3/18/91 310

Notice of Appeal 4/17/91 311

DESCRIPTION OF 
PROCEEDING OR TESTIMONY

DATE TRANSCRIPT PAGES 
AND VOLUME

•

ij

|

j

!

NOTE;. Appendix designation to be included in briefs.

®0A-107
7/87 41

Respectfully submitted.

homas J.



X. ADDENDUM (Statutes. Regulations, Rules and 
Unreported Cases, Etc.)

Statutes
29 U.S.C. §185(a)
42 U.S.C. §1981 
42 U.S.C. §2000e-2(a)

Rules
Fed. R. App. P. 28(a)(3) 
6th Cir. R. 10(b)
Fed. R. Civ. P. 8(a)

Unreported Cases
Christian v. Beacon Journal Publishing Co.. unreported, No. 
89-3822, 1990 U.S. App. LEXIS 12080 (6th Cir. July 17, 1990)
Singleton v. Kellogg Co.. unreported, No. 89-1073, 1989 
U.S. App. LEXIS 17920 (6th Cir. November 29, 1989)
Bohanan, Jr. v. United Parcel Service, unreported, No. 90-3155, 
1990 U.S. App. LEXIS 20154 (6th Cir. November 14, 1990)
Thompkins v. Dekalb County Hosp. Auth.. unreported, No.
1:87-cv-3 03-RLV, (N.D. Georgia February 7, 1990), aff'd,
916 F.2d 600 (11th Cir. 1990)

42



29 § 183 LABOR Ch. 7

(d) Authorization of appropriations
There are authorized to be appropriated such 

sums as may be necessary to carry out the provi­
sions of this section.
(June 23, 1947, c. 120, Title II, § 213, as added July 26, 
1974, Pub.L. 93-360, § 2, 88 Stat. 396.)

Editorial Notes
Effective Date. Section effective on the thirtieth day 

after July 26,1974, see section 4 of Pub.L. 93-360, set out 
as a note under section 169 of this title.

Federal Practice and Procedure
Permissibility of issuance of injunctions. under certain 

conditions, see Wright, Miller & Cooper: Jurisdiction 2d 
§ 3581.

West’s Federal Practice Manual
Fees for arbitration services, see § 1483.25.
Role of agency in health care disputes, see § 1483.9 et 

seq. ■ -1. . x. •
Code of Federal Regulations

Federal Mediation and Conciliation Service, assistance 
in health care industry, see 29 CFR 1420.1 et seq.

Library References
Labor Relations <£=411 to 486.
CJ.S. Labor Relations §§ 402 to 500. i;

Selected Court Decisions •:
In light of Congress’ express finding in enacting-1974 

health care industry amendments to National Labor Rela­
tions Act [this section] that improvements in health care 
would result from right to organize and that unionism 
was necessary to overcome poor working conditions re­
tarding delivery of quality health care, National Labor 
Relations Board’s policy requiring that absent a showing 
of interference with patient care solicitation and distribu­
tion must be permitted in hospital except in areas where 
patient care is likely to be disrupted is not an impermissi­
ble construction of Act’s policies as applied to health care 
industry. Beth Israel Hospital v. N. L. R. B., 1978, 98 
S.Ct. 2463. ...........................- • •

SUBCHAPTER IV—LIABILITIES OF AND 
RESTRICTIONS ON LABOR AND ’•• ;;;

MANAGEMENT

§ 185. Suits by and against labor orga­
nizations , ,..v- ?

(a) Venue, amount, and citizenship w (?,) ,•
Suits for violation of contracts between an em­

ployer and a labor organization representing em­
ployees in an industry affecting commerce as de­
fined in this chapter, or between any such labor 
organizations, may be brought in any district court 
of the United States having jurisdiction of the 
parties, without respect to the amount in controver­

sy or without regard to the citizenship of the 
parties.
(b) Responsibility for acts of agent; entity for purposes

of suit; enforcement of money judgments
Any labor organization which represents employ­

ees in an industry affecting commerce as defined in 
this chapter and any employer whose activities 
affect commerce as defined in this chapter shall be 
bound by the acts of its agents. Any such labor 
organization may sue or be sued as an entity and in 
behalf of the employees whom it represents in the 
courts of the United States. Any mpney judgment 
against a labor organization in a district court of 
the United States shall be enforceable only against 
the organization as an entity and against its assets, 
and shall not be enforceable against any individual 
member or his assets.
(c) Jurisdiction

For the purposes of actions and proceedings by 
or against labor organizations in the district courts 
of the United States, district courts shall be 
deemed to have jurisdiction of a labor organization
(1) in the district in which such organization main­
tains its principal office, or (2) in any district in 
which its duly authorized officers or agents are 
engaged in representing or acting for employee 
members.
(d) Service of process '

The service of summons, subpena, or other legal 
process of any court of the United States upon an 
officer or agent of a labor organization, in his 
capacity as such, shall constitute service upon the 
labor organization.
(e) Determination of question of agency

For the purposes of this section, in determining 
whether any person is acting as an “agent” of 
another person so as to make such other person 
responsible for his acts, the question of whether 
the specific acts performed were actually autho­
rized or subsequently ratified shall not be control­
ling.
(June 23, 1947, c. 120, Title III,. § 301, 61 Stat. 156.)

Federal Practice and Procedure
Actions relating to unincorporated associations, see 

Wright & Miller: Civil § 1861. , _ ~‘-r-
Availability of summary judgment in equitable actions, 

see Wright, Miller & Kane: Civil 2d § 2731.
Discussion of this section, see Wright, Miller & Cooper: 

Jurisdiction § 4514. - . •
Effect of another adequate remedy upon right to de­

claratory judgment, see Wright, Miller & Kane: Civil 2d 
§ 2758. . . nn_

Intervention of right, see Wright & Miller: Civil § 1906 
et seq.

Complete Annotation Materials, see Title 29, U.S.C.A.
72



PUBLIC HEALTH AND WELFARE

CIVIL RIGHTS— SELECTED PROVISIONS
Title 42, U.S.C.A. §§ 1981 to 1988

Sec.
1981. Equal rights under the law.
1982. Property rights of citizens.
1983. Civil action for deprivation of rights.
1984. Omitted.
1985. Conspiracy to interfere with civil rights.

(1) Preventing officer from performing duties.
(2) Obstructing justice; intimidating party, wit­

ness, or juror.
(3) Depriving persons of rights or privileges.

1986. Action for neglect to prevent.
1987. Prosecution of violation of certain laws.
1988. Proceedings in vindication of civil rights; attor­

ney’s fees.

§ 1981. Equal rights under the law

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.
(R.S. § 1977.)

Editorial Notes . ,
Codification. R.S. § 1977 derived from Act May 31, 

1870, c. 114, § 16, 16 S tat 144.
Section was formerly classified to section 41 of Title 8, 

Aliens and Nationality. „1. • ■

Federal Practice and Procedure
Allegations in pleadings as insufficient to show triable 

issue of fact on motion for summary judgment, see 
Wright, Miller & Kane: Civil 2d § 2727.

Bar of award of back pay under this section by U.S. 
C.A. ConstiAmend. 11, see Wright, Miller & Cooper: Jur­
isdiction § 3524.

Private racial discrimination in employment as barred 
by this section, see Wright, Miller & Cooper: Jurisdiction 
§ 3573.

Relationship between this section and sections 1983 and 
1985 of this title to section 1343(3) of Title 28, see Wright, 
Miller & Cooper: Jurisdiction § 4436.

Removal of certain cases, see Wright, Miller & Coopen 
Jurisdiction § 3727 et seq.

Requests for bills of particulars, see Wright: Crim inal 
2d § 131.

Right to inspect records and documents under civil rule 
relating to production of documents, see Wright & Miller 
Civil § 2203.

Federal Jury Practice and Instructions
Civil rights—-deprivation under color of state law—ac­

tion for damages, see § 92.01 et seq.
Right to jury trial, see § 1.01.

West’s Federal Forms
Complaint in—

Civil actions, see §§ 1624, 1653 and Comment there­
under, §§ 1654, 1659.

Class action alleging discrimination against women, 
see § 3061.5.

Intervention on ground of common questions, see 
§ 3143.10.

Court of Appeals for the District of Columbia Circuit— 
illustration of appellant’s brief in discrimination case, see 
§ 935.

Motion to intervene as plaintiff in class action, proposed 
complaint, and order permitting intervention, see § 3150.

West’s Federal Practice Manual
Complaint, employment discrimination, see § 9084
Federal question, see § 7521 et seq.
Interference with civil rights—

Private individuals, see § 14141 et seq.
Public officials, see § 14041 et seq.

Protected categories in employment—
Age, see § 15386 et seq.
Ethnic and other groups, see § 15771 et seq. 
Handicapped, see § 13051 et seq., see § 15711 etwq- 
Religion and national origin, see § 15641 et **4 
Sex and sexual preference, see § 15491 et seq.

Protected rights, sources and remedies, see § 12081*  
seq.

Purchase, rent, or use of realty, see § 12751 et
Reverse discrimination, see § 15861 et seq. h*
Use of public accommodations, see § 12552. M s

§ 1982. Property rights of citizens , ^ *

All citizens of the United States shall. 
same right, in every State and Territory, ...

>x pety lj& jrvl
•' fi tO  n

^  vntw^ 1enjoyed by white citizens thereof to lmiern  ̂ r ”  ,

Complete Annotation Materials, see Title 42, U.S.C.A.
1002



EQUAL EMPLOYMENT 42 § 2000e-2

head of each agency represented on the Task 
•<! a 11 the extent permitted by law, furnish its 

native such administrative support as is neces-
appropriate.

ft!*0. General Provisions, (a) Section 1—101(h) of 
Order No. 12258, as amended, is revoked. 

^Executive Order No. 12135 is revoked. 1 
■'.W g ^ o n  6 of Executive Order No. 12050, as amend-

1 Jk revoked.|e . Ronald Reagan
[j 2000c—1- Subchapter not applicable to 

, employment of aliens out­
side State and individuals 
for performance of activi­
ties of religious corpora­
tions, associations, edu­
cational institutions, or so­
cieties

This subchapter shall not apply to an employer 
with respect to the employment of aliens outside 
jjy state, or to a religious corporation, association, 
{ducational institution, or society with respect to 
the employment of individuals of a particular reli- 

)D to perform work connected with the carrying 
on by such corporation, association, educational 
institution, or society of its activities.
(Pub.L. 88-352, Title VII, § 702, July 2,1964, 78 Stat. 255; 
Pub.L, 92-261, § 3, Mar. 24, 1972, 86 Stat. 103.)

Editorial Notes
Effective Date. Section effective July 2, 1964, see 

lection 716 of Pub.L. 88-352, set out as an Effective Date 
note under section 2000e of this title.

Exclusion From Coverage. Enactment of section 
2000d—4a of this title not to be construed to extend the 
application of the Civil Rights Act of 1964 [section 2000a 
et seq. of this title] to ultimate beneficiaries of Federal 
financial assistance excluded from coverage before Mar. 
22,1988, see Pub.L. 100-259, § 7, Mar. 22, 1988, 102 Stat. 
81, set out as a note under section 1687 of Title 20, 
Education.

West’s Federal Practice Manual
Private sector employees and miscellaneous exemptions 

under this subchapter, see § 15332.

(1) to fail or refuse to hire or to discharge any 
individual, or otherwise to discriminate against any 
individual with respect to his compensation, terms, 
conditions, or privileges of employment, because of 
such individual’s race, color, religion, sex, or na­
tional origin; or

(2) to limit, segregate, or classify his employees 
or applicants for employment in any way which 
would deprive or tend to deprive any individual of 
employment opportunities or otherwise adversely 
affect his status as an employee, because of such 
individual’s race, color, religion, sex, or national 
origin.
(b) Employment agency practices

It shall be an unlawful employment practice for 
an employment agency to fail or refuse to refer for 
employment, or otherwise to discriminate against, 
any individual because of his race, color, religion, 
sex, or national origin, or to classify or refer for 
employment any individual on the basis of his race, 
color, religion, sex, or national origin.
(c) Labor organization practices

It shall be an unlawful employment practice for a 
labor organization—

. (1) to exclude or to expel from its membership, 
or otherwise to discriminate against, any individual 
because of his race, color, religion, sex, or national 
origin;

(2) to limit, segregate, or classify its membership 
or applicants for membership, or to classify or fail 
or refuse to refer for employment any individual, in 
any way which would deprive or tend to deprive 
any individual of employment opportunities, or 
would limit such employment opportunities or oth­
erwise adversely affect his status as an employee 
or as an applicant for employment, because of such 
individual’s race, color, religion, sex, or national 
origin; or

(3) to cause or attempt to cause an employer to 
discriminate against an individual in violation of 
this secton.

Library References
Civil Rights «=9.10 to 9.14, 31 et seq.
CJ.S. Civil Rights §§ 59 et seq., 61, 65, 68, 69, 71 to 73, 

178, 185.

§ 2000e—2. Unlawful employment prac­
tices

(a) Employer practices

(d) Training programs

It shall be an unlawful employment practice for 
any employer, labor organization, or joint labor- 
management committee controlling apprenticeship 
or other training or retraining, including on-the-job 
training programs to discriminate against any indi­
vidual because of his race, color, religion, sex, or 
national origin in admission to, or employment in, 
any program established to provide apprenticeship 
or other training.

It shall be an unlawful employment practice for
an employer’— _______________
~ ~Complete Annotation Materials, eee Title 42, U.S.CA.

1021



Rule 27 RULES OF APPELLATE PROCEDURE
tion of such motions, subdivision (b) provides that they 
may be acted upon immediately without awaiting a re­
sponse, subject to the right of any party who is adversely 
affected by the action to seek reconsideration.

Subdivision (c). Within the general consideration of 
procedure on motions is the problem of the power of a 
single circuit judge. Certain powers are granted to a 
single judge of a court of appeals by statute. Thus, 
under 28 U.S.C. § 2101(f) a single judge may stay execu­
tion and enforcement of a judgment to enable a party 
aggrieved to obtain certiorari; under 28 U.S.C. § 2251 a 
judge before whom a habeas corpus proceeding involving 
a person detained by state authority is pending may stay 
any proceeding against the person; under 28 U.S.C. 
§ 2253 a single judge may issue a certificate of probable 
cause. In addition, certain of these rules expressly grant 
power to a single judge. See Rules 8, 9 and 18.

This subdivision empowers a single circuit judge to act 
upon virtually all requests for intermediate relief which 
may be made during the course of an appeal or other 
proceeding. By its terms he may entertain and act upon 
any motion other than a motion to dismiss or otherwise 
determine an appeal or other proceeding. But the relief 
sought must be “relief which under these rules may 
properly be sought by motion.”

Examples of the power conferred on a single judge by 
this subdivision are: to extend the time for transmitting 
the record or docketing the appeal (Rules 11 and 12); to 
permit intervention in agency cases (Rule 15), or substitu­
tion in any case (Rule 43); to permit an appeal in forma 
pauperis (Rule 24); to enlarge any time period fixed by 
the rules other than that for initiating a proceeding in the 
court of appeals (Rule 26(b)); to permit the filing of a 
brief by amicus curiae (Rule 29); to authorize the filing of 
a deferred appendix (Rule 30(c)), or dispense with the 
requirement of an appendix in a specific case (Rule 30(f)), 
or permit carbon copies of briefs or appendices to be used 
(Rule 32(a)); to permit the filing of additional briefs (Rule 
28(c)), or the filing of briefs of extraordinary length (Rule 
28(g)); to postpone oral argument (Rule 34(a)), or grant 
additional time therefor (Rule 34(b)).

Certain rules require that application for the relief or 
orders which they authorize be made by petition. Since 
relief under those rules may not properly be sought by 
motion, a single judge may not entertain requests for 
such relief. Thus a single judge may not act upon 
requests for permission to appeal (see Rules 5 and 6); or 
for mandamus or other extraordinary writs (see Rule 21), 
other than for stays or injunctions pendente lite, authori­
ty to grant which is “expressly conferred by these rules” 
on a single judge under certain circumstances (see Rules 
8 and 18); or upon petitions for rehearing (see Rule 40).

A court of appeals may by order or rule abridge the 
power of a single judge if it is of the view that a motion 
or a class of motions should be disposed of by a panel. 
Exercise of any power granted a single judge is discre­
tionary with the judge. The final sentence in this subdivi­
sion makes the disposition of any matter by a single 
judge subject to review by the court.

1979 AMENDMENT
The proposed amendment would give sanction to local 

rules in a number of circuits permitting the clerk to 
dispose of specified types of procedural motions.

1989 AMENDMENT
The amendment is technical. No substantive change is 

intended.

Rule 28. Briefs
(a) Brief of the Appellant. The brief of the 

appellant shall contain under appropriate headings 
and in the order here indicated:

(1) A table of contents, with page references, 
and a table of cases (alphabetically arranged), stat­
utes and other authorities cited, with references to 
the pages of the brief where they are cited.

(2) A statement of the issues presented for re; 
view.

(3) A statement of the case. The statement shall 
first indicate briefly the nature of the case, the 
course of proceedings, and its disposition in the 
court below. There shall follow a statement of the 
facts relevant to the issues presented for review, 
with appropriate references to the record (see sub­
division (e)).

(4) An argument The argument may be preced­
ed by a summary. The argument shall contain the 
contentions of toe appellant with respect to the 
issues presented, and the reasons therefor, with 
citations to the authorities, statutes and parts of 
the record relied on.

(5) A short conclusion stating the precise relief 
sought.

(b) Brief o f  the Appellee. The brief of the 
appellee shall conform to the requirements of sub­
division (a)(lH4), except that a statement of the 
issues or of the case need not be made unless the 
appellee is dissatisfied with the statement of the 
appellant.

(c) Reply Brief. The appellant may file a brief 
in reply to the brief of the appellee,- and if the 
appellee has cross-appealed, the appellee may file a 
brief in reply to the response of the appellant to 
the issues presented by the cross appeal. No fur­
ther briefs may be filed except with leave of court. 
All reply briefs shall contain a table of contents, 
with page references, and a table of cases (alpha­
betically arranged), statutes and other authorities 
cited, with references to the pages of the reply 
brief where they are cited.

(d) References in Briefs to Parties. Counsel 
will be expected in their briefs and oral arguments 
to keep to a minimum references to parties by such 
designations as “appellant” and “appellee”. It pro-

Complete Annotation Materials, see Title 28 U.S.C-A.

424



Local Rules - Sixth Circuit - April 1991

6th Cir. R. 10 
BRIEFS

(Amended November 30, 1988)

(a) NUMBER OF COPIES. Ten (10) copies of each brief shall be fiied in lieu o f the 
twenty-five (25) copies required by Rule 31(b) of the Federal Rules of Appellate 
Procedure. Two (2) copies of the brief shall be served on the opposing party. If a 
petition for rehearing is filed, the court may require that additional copies of the briefs be 
filed.

(b) REFERENCES TO THE RECORD. References in the briefs to the record should 
indicate the particular document in the record and the page thereof which is cited.

(c) FACT  SHEETS. A  one-page fact sheet, in the form prescribed by the court 
shall be prepared by counsel for the appellant and for the appellee in all social security 
appeals, Title VII appeals, habeas corpus §2254 appeals and motion to vacate §2255 
appeals (see forms 6CA-55, 6CA-56, 6CA-57, 6CA-58). Such fact sheet shall be of the 
same page size as the briefs as required by Rule 32(a), Federal Rules of Appellate 
Procedure, and be incorporated in the briefs of the parties immediately follow ing the 
table of contents and preceding the statement of issues presented for review which are 
required by Rule 28(a), Federal Rules of Appellate Procedure.

DESIGNATION OF APPENDIX CONTENTS. Each principal brief shall contain 
the designation of contents required by 6th Cir. R. 1 1(b).

(e) ADDITIONAL CONTENTS. Each principal brief shall also contain the disclosure 
°f A ° i?° ra! f  affllia.tlons and financial interests required by the 6th Cir. R. 25 (see form 
bCA-1) and may include a statement of reasons why oral argument should be heard 
pursuant to 6th Cir. R. 9(c).

(f) CITATION OF UNPUBLISHED DECISIONS. Citation of unpublished decisions by 
counsel in briefs and oral arguments in this court and in the district courts w ithin this 
circuit is disfavored, except for the purpose of establishing res judicata, estoppel, or the 
law of the case. If counsel believes, nevertheless, that an unpublished disposition has 
precedential value in relation to a materia! issue in a case, and that there is no published 
opinion that would serve as well, such decision may be cited if counsel serves a copy 
thereof on all other parties in the case and on the court. Such service shall be 
accomplished by including a copy of the decision in an addendum to the brief.

... (9) PAGE LIMITATIONS FOR BRIEFS. The documents required or permitted to be
tiled with the briefs pursuant to subdivisions (c), (d), (e), and (f) of this rule shall not be 
counted for purposes of the page limitations for briefs established by Federal Rule of 
Appellate Procedure 28(g).

Related Federal Rule of Appellate Procedure: Fed. R. App. P. 28, 31(b)

Comment: 6th Cir. Ft. 10(a) supercedes Fed. Ft. App. P. 31(h) with respect to the 
number o f  copies o f the brie f that must be filed. 6th Cir. R. 10(b) supercedes the 
provisions o f  Fed. R. App. P. 28(e) regarding the manner o f making references to the 
.ec ,0rd in briefs. 6th Cir. R. 10(c), (d) and (e) generally supplement Fed. R. App. P. 28(a) 
m  lb) by identifying additional documents that m ust be included in certain briefs 6th

6



Rule 7 RULES OF CIVIL PROCEDURE
(b) Motions and Other Papers,
(1) An application to the court for an order shall 

be by motion which, unless made during a hearing 
or trial, shall be made in writing, shall state with 
particularity the grounds therefor, and shall set 
forth the relief or order sought. The requirement 
of writing is fulfilled if the motion is stated in a 
written notice of the hearing of the motion.

(2) The rules applicable to captions and other 
matters of form of pleadings apply to all motions 
and other papers provided for by these rules.

(3) All motions shall be signed in accordance 
with Rule 11.

(c) Demurrers, Pleas, Etc., Abolished. Demur­
rers, pleas, and exceptions for insufficiency of a 
pleading shall not be used.
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Jan. 21, 
1963, eff. July 1, 1963; Apr. 28, 1983, eff. Aug. 1, 1983.)

NOTES OF ADVISORY COMMITTEE ON RULES 
1937 ADOPTION

1. A provision designating pleadings and defining a 
motion is common in the State Practice Acts. See Smith- 
Hurd IU.Stats. ch. 110, § 156 (Designation and order of 
pleadings); 2 Minn.Stat. (Mason, 1927) § 9246 (Definition 
of motion); and N.Y.C.P.A. (1937) § 113 (Definition of 
motion). Former Equity Rules 18 (Pleadings—Technical 
Forms Abrogated), 29 (Defenses—How Presented), and 
33 (Testing Sufficiency of Defense) abolished technical 
forms of pleading, demurrers and pleas, and exceptions 
for insufficiency of an answer.

2. Note to Subdivision (a). This preserves the sub­
stance of former Equity Rule 31 (Reply—When Re­
quired—When Cause at Issue). Compare the English 
practice, English Rules under the Judicature Act (The 
Annual Practice, 1937) 0. 23, r. r. 1, 2 (Reply to counter­
claim; amended, 1933, to be subject to the rules applica­
ble to defenses, 0. 21). See 0. 21, r. r. 1-14; 0. 27, r. 13 
(When pleadings deemed denied and put in issue). Under 
the codes the pleadings are generally limited. A reply is 
sometimes required to an affirmative defense in the an­
swer. 1 Colo.Stat.Ann. (1935) § 66; Ore.Code Ann. (1930) 
§§ 1-614, 1-616. In other jurisdictions no reply is neces­
sary to an affirmative defense in the answer, but a reply 
may be ordered by the court. N.C.Code Ann. (1935) 
§ 525; 1 S.D.Comp.Laws (1929) § 2357. A reply to a 
counterclaim is usually required. Ark.Civ.Code (Craw­
ford, 1934) §§ 123-125; Wis.Stat. (1935) §§ 263.20, 263.21. 
U.S.C.A., Title 28, former § 45 (District courts; practice 
and procedure in certain cases) is modified in so far as it 
may dispense with a reply to a counterclaim.

For amendment of pleadings, see Rule 15 dealing with 
amended and supplemental pleadings.

3. All statutes which use the words “petition”, “bill of 
complaint”, “plea”, “demurrer”, and other such terminol­
ogy are modified in form by this rule.

1946 AMENDMENT
Note. This amendment [to subdivision (a)] eliminates 

any question as to whether the compulsory reply, where a 
counterclaim is pleaded, is a reply only to the counter­

claim or is a general reply to the answer containing the 
counterclaim. The Commentary, Scope of Reply where 
Defendant Has Pleaded Counterclaim, 1939, 1 Fed.Rules 
Serv. 672; Fort Chartres and Ivy Landing Drainage 
and Levee District No. Five v. Thompson, E.D.I11.1945, 8 
Fed.Rules Serv. 13.32, Case 1.

1963 AMENDMENT
Certain redundant words are eliminated and the subdi­

vision is modified to reflect the amendment of Rule 14(a) 
which in certain cases eliminates the requirement of ob­
taining leave to bring in a third-party defendant.

1983 AMENDMENT
One of the reasons sanctions against improper motion 

practice have been employed infrequently is the lack of 
clarity of Rule 7. That rule has stated only generally 
that the pleading requirements relating to captions, sign­
ing, and other matters of form also apply to motions and 
other papers. The addition of Rule 7(b)(3) makes explicit 
the applicability of the signing requirement and the sanc­
tions of Rule 11, which have been amplified.

Rule 8 . General Rules o f Pleading
(a) Claims for Relief. A pleading which sets 

forth a claim for relief, whether an original claim, 
counterclaim, cross-claim, or third-party claim, shall 
contain (1) a short and plain statement of the 
grounds upon which the court’s jurisdiction de­
pends, unless the court already has jurisdiction and 
the claim needs no new grounds of jurisdiction to 
support it, (2) a short and plain statement of the 
claim showing that the pleader is entitled to relief, 
and (3) a demand for judgment for the relief the 
pleader seeks. Relief in the alternative or of sever­
al different types may be demanded.

(b) Defenses; Form of Denials. A party shall 
state in short and plain terms the party’s defenses 
to each claim asserted and shall admit or deny the 
averments upon which the adverse party relies. If 
a party is without knowledge or information suffi­
cient to form a belief as to the truth of an aver­
ment, the party shall so state and this has the 
effect of a denial. Denials shall fairly meet the 
substance of the averments denied. When a plead­
er intends in good faith to deny only a part or a 
qualification of an averment, the pleader shall spec­
ify so much of it as is true and material and shall 
deny only the remainder. Unless the pleader in­
tends in good faith to controvert all the averments 
of the preceding pleading, the pleader may make 
denials as specific denials of designated averments 
or paragraphs or may generally deny all the aver 
ments except such designated averments or para­
graphs as the pleader expressly admits; but, when 
the pleader does so intend to controvert all ij8 
averments, including averments of the grounds 
upon which the court’s jurisdiction depends, the

Complete Annotation Materials, see Title 28 U.S.C-A.

40



8TH CASE of Level 1 printed in FULL format.
PAGE 2 7

MARVA CHRISTIAN, Plaintiff-Appellant, v. BEACON JOURNAL 
PUBLISHING COMPANY, Defendant-Appellee

No. 89-3822
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT 

908 F .2d 972? 1990 U.S. App. LEXIS 12080

July 17, 1990, Filed
j IICE: [*1]
[RECOMMENDED FOR FULL-TEXT PUBLICATION SIXTH CIRCUIT RULE 24 LIMITS CITATION 

i  SPECIFIC SITUATIONS. PLEASE SEE RULE 24 BEFORE CITING IN A PROCEEDING IN A 
IRT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND 
:l COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS 
[RODUCED.
I0R HISTORY:
Appeal from the United States District Court for the Northern District of 
!io, No. 88-02326; S.H. Bell, Judge.

SGES: Kennedy and Ryan, Circuit Judges; and Edwards, Senior Circuit Judge.
| ISIONBY: RYAN
WON: Plaintiff appeals the summary judgment for defendant in this employment 
crimination suit. We agree with the district court that there is no genuine 
ms of material fact to support plaintiff's age and race discrimination 
Unis. Therefore, we shall affirm the district court's decision.
I,
ferva Christian is a black female who was born on May 20, 1946. She was hired 
Beacon Journal Publishing Company ("Beacon") on March 12, 1979 as a truck 
|ver. Christian's employment record at Beacon included a verbal reprimand in 
a written reprimand in 1980, counseling in 1981, another reprimand and two 

“Pensions in 1982. Christian missed seventy-one workdays in 1984, [ *2 ]
ity-eight days in 1985, and seventy-four days in 1986, which Christian blames 
Back problems. In 1986, she requested a transfer to a less physically 
Ending position in Beacon's mailroom, but was denied that request allegedly 
kuse of her poor work record. Christian's absenteeism continued into 1987,
; after a final warning, she was terminated on May 28, 1987 for her "lack of 
Ration, care, trustworthiness, absenteeism, and other good cause" when she 
Jled to report to work after exhausting her sick leave and personal leave 
p  Christian's union grieved her termination unsuccessfully, but refused to 
>sue arbitration on her behalf.
°n May 31, 1988, Christian sued Beacon for wrongful discharge in Summit , Ohio Common Pleas Court. She alleged violations of the Age 
Jcri®ination in Employment Act of 1967 ("ADEA") , 29 U.S.C. @ 621, et seq. and 
icivil Rights Act of 1966, specifically 42 U.S.C. @ 1981. Beacon removed



PAGE 28

s case to federal court, and in due course moved for summary judgment pursuant 
; fed. R. Civ. P. 56.
The district court granted Beacon's motion on August 4, 1989. Christian 
ijeais, requiring us to review the district court's decision de [*3] novo-. 
{Burkhart v. Post-Browning, Inc., 859 F.2d 1245, 1249 (6th Cir. 1988).
#ary judgment may be affirmed only if "there is no genuine issue as to any 
terial fact" and Beacon is entitled to "a judgment as a matter of law." Fed.
Civ. P. 56(c). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50 
!86) .

908 F .2d 972; 1990 U.S. App. LEXIS 12080, *2

I I .

A. The Age Discrimination Claim
In order to establish a prima facie violation of ADEA, plaintiff must prove 
a preponderance of evidence that she belongs to the class protected by the 
itute —  between forty and seventy years old, was performing her job 
tisfactorily, and was discharged under circumstances that give rise to an 
ference that age was the unlawful reason. Grubb v. W.A. Foote Mem. Hosp. Inc., 
IF.2d 1486, 1497-98 (6th Cir. 1984), modified, 759 F.2d 546, cert, denied, 
tu.s. 946 (1985) (citations omitted). If plaintiff meets her burden of' 
oduction as to these prima facie requirements, the employer must produce 
idence showing that the termination was based on a legitimate,
discriminatory reason. Id. at 1498 (citations omitted). If the employer meets 
j:is burden of production, plaintiff, who [*4] maintains the ultimate burden 
proving that her discharge was due to age, must produce evidence sufficient 
demonstrate that the legitimate, nondiscriminatory reason the employer 
ovides is pretextual. Ridenour v. Lawson Co., 791 F.2d 52, 56 (6th Cir. 1986).
The district court dismissed Christian's ADEA claim on the basis of her 
iilure to establish a prima facie claim. Although it found that Christian, who 
s forty-one as of the date of her termination, was within ADEA's protected 
ass, the court concluded that Christian could not show she had performed her 
jb satisfactorily, given her poor attendance record, and could cite no evidence 
« which an inference of age discrimination could be made. Christian now 
lsigns error to that conclusion, relying 1) on a report Beacon had sent to ron, Ohio's housing authority on May 14, 1986 stating that Christian's 
lability of continued employment was "good"; 2) that Beacon recorded 
rthdates on its personnel records; 3) that younger employees dismissed for 
lug abuse had been accorded disability leave, vocational training, and recall 
Idle she had not; and 4) the fact that her 1986 transfer request was denied.
We agree [*5] with the district court that this evidence does not raise a 
jnuine issue”of material fact as to whether Christian has established a prima 
I tie claim of age discrimination. Beacon's "good" report to Akron's housing 
thority in 1986 does not establish Beacon's satisfaction with Christian's work 
itformance, and cannot refute evidence of Beacon's dissatisfaction with 
■fdstian's efforts after 1986. The facts of this case do not suggest that 
fistian was terminated on the basis of age since her work record was so poor 
 ̂she was replaced by drivers aged thirty-nine and forty. Beacon was required 
record employee birthdates under the Equal Employment Occupation Commission's 
C.f .r . @ 1627.3 (a)(3) (1989). Christian's drug abusing comparators were not
dilated similarly to her. We also draw no adverse inference from the fact that 
iir 1986 transfer request was denied.



B. The 18 U.S.C. @ 1981 Claim
In her 18 U.S.C. @ 1981 claim, Christian alleges that Beacon denied her the 

ijilroom transfer and ultimately dismissed her due to her race. She asserts that 
er supervisors, dark-skinned blacks, discriminated against her for being a 
ight-skinned black. In support, she claims that [*6] two white workers were 
j|iven an opportunity to transfer to Beacon's mailroom while she was not, and 
ays a co-worker told her that one of her bosses made a disparaging remark about 
yellow niggers." Christian also asserts that her termination was in 
retaliation for her having filed charges against Beacon with the Ohio Civil 
lights Commission and the Equal Employment Opportunity Commission in 1982 and 
gain in 1987, just before being fired.
The district court dismissed Christian's section 1981 claim primarily in 
sliance on Patterson v. McLean Credit Union, 109 S. Ct. 2363 (1989) . Based 
units reading of Patterson, the court concluded that section 1981 does not 
inpport a claim of wrongful denial of a transfer request or retaliatory 
uscharge. Alternatively, the district court concluded that Christian failed to 
establish a prima facie claim of racial discrimination as to the transfer or 
retaliatory discharge since the white workers who were given an opportunity to 
:ork in the mailroom did not have poor performance records comparable to hers,
Id the disparaging "yellow niggers" comment attributed to her boss was 
admissible hearsay.
We agree with the district court's understanding [*7] of Patterson as 

disposing of Christian's discriminatory transfer denial and retalitory dischargeclaims.

PAGE 29908 F .2d 972; 1990 U.S. App. LEXIS 12080, *5

In Patterson, a black woman sued her former employer under section 1981 for 
acial harassment and for denying her a promotion and discharging her allegedly 
I =cause of her race. The Supreme Court was asked to review the district court's 
isiissal of her harassment claim and the propriety of a jury instruction that 
squired petitioner to show she was better qualified for the promotion than the 
hite applicant who got the job in order to establish a section 1981 claim. The 
®rt held that "racial harassment relating to the conditions of employment is 
•t actionable under @ 1981 because that provision does not apply to conduct 
hich occurs after the formation of a contract and which does not interfere with 
bright to enforce established contract obligations." Id. at 2369. It also 
sld that the district court erred in giving the instruction in question. Id.
The import of the Court's ruling in Patterson was to explain that section 
!8i "cannot be construed as a general proscription of racial discrimination in 
-aspects of contract relations, for it expressly prohibits [*8]
Crimination only in the making and enforcement of contracts." Id. at 2372. 
insistent with that interpretation of section 1981, the Court prefaced its 
ding on the promotion instruction issue by stating, "[ojnly where the 
Motion rises to the level of an opportunity for a new and distinct relation 
•tween the employee and the employer is such a claim actionable under @ 1981."
1 at 2377.
Christian's requested transfer to the mailroom did not implicate the "making 
d enforcement" of "a new and distinct relation" with her employer since her 
l9hts and obligations under her union's collective bargaining agreement with 
Con would not have been altered by the move. Thus, Christian cannot allege 
Criminatory denial of her transfer request under section 1981. See also



PAGE 30

icton v. Burlington N. R.R. Co., No. 86-6136 (6th Cir. July 10, 1989) (per 
iriam) .
We also read Patterson to suggest that claims of retaliatory discharge may 
jt be brought under section 1981. Retaliation and discharge do not involve 
le "making and enforcement of contracts." See Singleton v. Kellogg Co., No.
3-1073 (6th Cir. November 29, 1989) (per curiam).

III .

For the foregoing [*9] reasons, the decision of the district court is 
ffirmed.

!iUCURBY: EDWARDS
jBCUR: EDWARDS, Concurring. The case was submitted on briefs and decided by 
mary judgment for the defendant. The plaintiff here admits she was absent 
i:oi scheduled workdays 71 days in 1984, 68 days in 1985 and 74 days in 1986,
;it claims that she always had legitimate excuses for missing work such as 
;!lness or personal emergency. Defendant states that plaintiff missed over 
lie-third of her scheduled workdays in 1984, 1985, and 1986 and that it cost the 
tacon Journal substantial expenses in hiring and paying overtime to substitute 
I tivers.
All panel members believe that summary judgment for the defendant was 
jipropriate. For the reasons set forth immediately above, I concur with the 
usult reached by my colleagues.

908 F .2d 972; 1990 U.S. App. LEXIS 12080, *8



11TH CASE of Level 1 printed in FULL format.
GAYLE Y. SINGLETON, Plaintiff-Appellant, v. KELLOGG COMPANY,

Defendant-Appellee
No. 89-1073

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION SIXTH CIRCUIT RULE 
24 LIMITS CITATION TO SPECIFIC SITUATIONS. PLEASE SEE RULE 
24 BEFORE CITING IN A PROCEEDING IN A COURT IN THE SIXTH 

CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES 
AND THE COURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF

THIS DECISION IS REPRODUCED.
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

890 F.2d 417; 1989 U.S. App. LEXIS 17920

PAGE 41

November 29, 1989, Filed; 890 F2D 417

■COR HISTORY: [*1]
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF 

ilCHIGAN, No. 86-00367.
jPINION: Before: MARTIN and NORRIS, Circuit Judges; and CONTIE, Senior Circuit
pudge.
PER CURIAM. Plaintiff-appellant, Gayle Y. Singleton, appeals from the order 

if the district court granting Kellogg Company's, defendant-appellee's, motion 
•) dismiss for failure to state a claim or, alternatively, for summary judgment, 
or the following reasons, we affirm the order of the district court.
I.
Kellogg Company hired plaintiff as an associate food technologist on April 

il, 1981. Plaintiff is a black female recruited by Kellogg in an affirmative 
ition outreach effort. On August 22, 1981, plaintiff fell from a man-lift while 
owork, sprained her left knee, and returned to her regular duties on September 
11981. On December 3, 1981, plaintiff had the first of five arthroscopic 
ffgeries. She returned to work on December 21, 1981. Plaintiff stopped working 
'•February 1982 and had a second arthroscopic surgery. She did not return to 
hrk until almost nine months later. During this absence plaintiff had a third 
fthroscopic surgery. She returned to work in November 19 82 with medical 
frictions covering [*2] the amount of walking, lifting, and standing she 
is to do.
Defendant maintains that it accommodated the conditions of plaintiff's 
!Ployment to her medical restrictions by providing her with a cart to transport 

materials, a chair to sit on while working, a handicapped parking space, 
id a flexible work schedule. Other employees were asked to perform her out of 
N  duties and her assigned tasks that exceeded her medical restrictions.
On October 7, 1983, plaintiff took her third medical leave for her fourth 
!throscopic surgery. Plaintiff returned in January 1984 with increased medical 
!strictions and indicated that she could not perform her job. Defendant 
Assigned plaintiff as a project chemist technologist, which defendant



890 F .2d 417; 1989 U.S. App. LEXIS 17920, *2 PAGE 42

escribes as a sedentary position in a laboratory requiring virtually no 
alking, climbing, or lifting. In March 1984, plaintiff had a fifth arthroscopic 
urgery at the Mayo Clinic. In April of 1984, plaintiff attended a pain clinic 
i Lansing, Michigan. On December 22, 1984, plaintiff and her physician 
idicated that she needed a vacation. Plaintiff returned to work on January 1,
985, and indicated that her leg bothered her. On January 2, 1985, plaintiff 
i3] provided defendant with a medical slip on her condition. After that date, 
ilaintiff did not return to work.

In February or March of 1985, defendant decided to have independent 
iysicians evaluate plaintiff's condition. On May 16, 1985, Dr. Wallace B. 
iff in, an orthopedic surgeon, examined plaintiff. His report indicated that the 
itient must have an incredibly low pain tolerance and that he had never known 
iaintiff's condition to be completely disabling. He could not eliminate the 
ossibility that strong secondary Gain motives kept her from returning to her 

On June 21, 1985, Dr. Anthony Petrilli, a psychiatrist, interviewed 
laintiff. In his report of July 12, 1985, Dr. Petrilli indicated that plaintiff 
as not psychologically disabled from performing her job, but that secondary 
ain motives could be influencing her.
On June 12, 1985, plaintiff filed a fair employment practice charge with the 
.chigan Department of Civil Rights (MDCR) and with the Equal Employment • 
iportunity Commission (EEOC). On August 19, 1985, defendant discharged • 
laintiff. Defendant maintains that the discharge was based on the medical 
?aluations by the two independent physicians, which indicated that [*4] 
laintiff removed herself from employment when she was, in fact, able to perform 
er assigned duties. On August 21, 1985, plaintiff filed a second discrimination 
large with the MDCR and the EEOC. On July 30, 1986, an MDCR investigator 
otified plaintiff that her charge was not supported by sufficient evidence. On 
anuary 28, 1985, plaintiff filed a petition with the Bureau of Workers' 
sability Compensation. Plaintiff's petitions were heard during the summer and 
11 of 1987. A Workers' Disability Compensation magistrate awarded plaintiff 
anefits on March 9, 1988.

In October 1985, plaintiff filed a lawsuit against Kellogg in state court, 
Heging sex and race discrimination. This lawsuit was voluntarily dismissed on 
member 8, 1986. The initial complaint in the present action was filed on 
aptember 23, 1986. Pursuant to stipulation on January 21, 1988, the court 
isiissed several counts from this action. The remaining claims consist of: (1) 
®ially discriminatory discharge in violation of Title VII of the Civil Rights 
’t of 1964, 42 U.S.C. § 2000e et seq. ; 42 U.S.C. @ 1981; and the Michigan 
iiot-Larsen Civil Rights Act. Mich. Comp. Laws @@ 37.2101-. 2804; (2)
^taliatory [*5] discharge for filing a workers' disability compensation 
tition and civil rights charge in violation of Title VII, 42 U.S.C. @
|OOe-3 (a) and Elliot-Larsen Civil Rights Act, Mich. Comp. Laws @ 37.2202; and 
defendant's failure to accommodate plaintiff's handicap from September 2,

!83; to February 1984, in violation of the Michigan Handicappers' Civil Rights 
(HCRA). Mich. Comp. Laws §@ 37.1101-.1607.
°n June 3, 1988, defendant filed a motion to dismiss, or alternatively, for 

I®ary judgment with respect to the remaining claims. The district court, after 
:̂ring oral argument and reviewing the entire record, concluded that plaintiff 
I n°t satisfied the applicable legal standards to avoid summary judgment on 
*r racially discriminatory discharge and retaliatory discharge claims. The 
J,Jrt also concluded that plaintiff was not a handicapped person within the



890 F .2d 417; 1989 U.S. App. LEXIS 17920, *5 PAGE 4 3

janing of the HCRA and dismissed that claim. Plaintiff timely filed this 
ipeal.
II.

Because the district court considered affidavits and other record evidence 
jitside the pleadings, we will consider its order to dismiss the discriminatory 
id retaliatory discharge claims as an order for summary judgment. Fed. R. 
y. [*6] P. 12(b)(c). The general standard an appellate court applies in 
jjviewing a grant of summary judgment is the same as the district court employs 
litially under Federal Rule of Civil Procedure 56(c). Gutierrez v. Lynch,* 826 
j,2d 1534, 1536 (6th Cir. 1987); 10 C. Wright, A. Miller, & M. Kane, Federal 
itactice and Procedure @ 2716 (1983) . The burden on the moving party may be 
iischarged by showing that there is an absence of evidence to support the 
(moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). 
unary judgment is warranted if the non-moving party fails to make a sufficient 
(lowing to establish each material factual element of a valid claim. As the 
jipreme Court in Celotex states:
dour view, the plain language of Rule 56(c) mandates the entry of summary 
idgment after adequate time for discovery and upon motion, against a party who
1 tils to make a showing sufficient to establish the existence of an element
jsential to that party's case, and on which that party will bear the burden of 
:roof at trial. In such a situation, there can be 'no genuine issue as to any
iiterial fact, ' since a complete failure of proof concerning an essential
dement [*7] of the nonmoving party's case necessarily renders all other 
nets immaterial. The moving party is 'entitled to judgment as a matter of law' 
ticause the nonmoving party has failed to make a sufficient showing on an 
lisential element of her case with respect to which she has the burden of proof.
jl. at 322-23 .
Defendant argues that one of the principal purposes of the summary judgment 
;ile is to isolate and dispose of factually unsupported claims and that there is 
dabsence of evidence to support plaintiff's case.
A.

In order to establish a prima facie case of racially discriminatory discharge 
violation of Title VII, plaintiff has the burden of proof to establish the 
jistence of racially discriminatory intent in her firing. See McDonnell Douglas 
rP- v. Green, 411 U.S. 792, 802 (1973); Leonard v. City of Frankfort Elec, and 
êr Plant Bd. , 752 F.2d 189, 193 (6th Cir. 1985). The same analysis and 

Hentiary burdens apply to Elliot-Larsen claims. See Nixon v. Celotex Corp.,
F. Supp. 547, 54-55 (W.D. Mich. 1988). To establish a prima facie case, 

dntiff must show that (1) she was a member of a protected class; (2) she was 
-barged without valid cause; [*8] (3) she was treated differently than
r̂ larly situated non-minorities: and (4) the employer solicited applicants for 
16 position from which she was discharged. Potter v. Goodwill Indus., 518 F.2d 
865 (6th Cir. 1975) .

After the plaintiff establishes a prima facie case, the burden of proof 
;lfts to the employer who must then articulate some legitimate 
discriminatory reason for the discharge. The burden then shifts back to the 
‘dntiff to establish that the reason proffered by defendant for discharge



PAGE 44

■merely pretextual. Burdine, 450 U.S. 248, 256 (1981); Brooks v. Ashtabula 
inty Welfare Dep't, 717 F.2d 263, 266 (6th Cir. 1983), cert, denied, 466 U.S. 
|l(1984).
Plaintiff claims that defendant's purported reason for firing plaintiff was 
{textual because it was manifestly false. Plaintiff alleges that at the time 
at defendant fired her she was clearly unable to perform her job due to her 
?s surgeries and severe psychiatric illness. Plaintiff alleges that 
fendant's use of two independent physicians' reports is "incredibly phony" and 
lonstrates that her firing was a pretext. In support of this argument, 
aintiff refers to the later determination [*9] of a Worker's Compensation 
reau administrative law judge that Dr. Petrilli's report was "at best 
accurate." nl
nl Plaintiff was represented by counsel before the district court. On appeal 
,r pro se brief contains medical records which were not before the district 
art and which, plaintiff argues, demonstrate that she was fired so that 
fendant would not have to pay her disability benefits under its employment 
tract. The breach of employment contract claim was dismissed by the district 
art by stipulation. This court is a reviewing court and will not consider 
idence not before the district court.
Plaintiff also argues that five similarly situated white co-workers, who had 
sn injured, were accommodated and not discharged. Defendant argues that the 
icts of plaintiff's case are unigue as she missed approximately 21 months of 
irk in her 52-month period of employment after the company had made great 
jforts to accommodate her physical problems and that it had justifiably relied 
medical reports in discharging her. Courts have recognized that a defendant 
• iployer can inquire into a plaintiff employee's health and rely on the medical 
ports of the examining physicians [*10] in making employment _
terminations. Edwards v. Whirlpool Corp. , 678 F. Supp. 1284, 1290 (W.D. Mich.
187) .
We find that plaintiff has not set forth facts showing that there is a 
.muine issue for trial. Plaintiff has not established a prima facie case of 
jicial discrimination because she has not demonstrated that her discharge was 
ithout cause or that she was treated differently than similarly situated white 
i-workers. Plaintiff has merely conclusorily denied the validity of the _ 
jivsicians' reports upon which defendant relied. Even if the information m  the 
(■ports were inaccurate, this does not establish a lack of good faith on behalf 
f defendant. Plaintiff concedes that at the time of her discharge she was 
(tally disabled and that she has not sought further employment. Thus, by her _ 
jin admission, plaintiff was not physically capable of the employment from which 
?. alleges she was discharged because of race.
Plaintiff also fails to establish that she was treated differently than 

fmilarly situated white employees. She has not established that any of the 
flegedly comparable white employees were similarly situated as she did not show 
(at they were engaged in comparable [*11] activities. Stotts v. Memphis
lire Dep't, 858 F.2d 289, 298 (6th Cir. 1988). Nor did she specify in what way 
tey were treated differently, other than that they were not discharged.
(reover, her allegations of disparate treatment are not supported by the 
fidence as defendant made considerable efforts to accommodate plaintiff and 
(signed her to a less physically demanding job. Only after plaintiff indicated 
fiat she could not perform her employment at all, which was contradicted by

890 F .2d 417; 1989 U.S. App. LEXIS 17920, *8



890 F.2d 417; 1989 U.S. App. LEXIS 17920, *11 
le independent physicians' reports, was she discharged.
Because of the failure of proof concerning an essential element of 

.[aintiff's prima facie case, we hold that defendant is entitled to summary 
idgment as a matter of law on the racially discriminatory discharge claims 
rsuant to Title VII and the Michigan Elliot-Larsen Civil Rights Act.

PAGE 4 5

B.
We affirm the district court's dismissal of defendant's @ 1981 claim, but on 
le basis of a different analysis than that used by the district court. In 
fatterson v. McLean Credit Union, 109 S. Ct. 2363 (1989), the Supreme Court 

1 Id that @ 1981 covers only racially discriminatory conduct at the initial 
inriation of an employment contract and conduct which [ *12 ] impairs the right 
i enforce contractual obligations through legal process. Id. at 2373. Plaintiff 
id not contend that the alleged discriminatory discharge involved impairment of 
iir right to "make" or "enforce" contracts. In light of Patterson, plaintiff's 
laim of racially discriminatory discharge is no longer cognizable under section 

1181. Becton v. Burlington Northern R.R. Co., No. 86-6136, slip op. at (6th
iir. July 10, 1989) (per curiam) (claim of racial harassment and job demotion is 
1) longer cognizable under section 1981 because it involves "postformation 
:induct") .
III.

Plaintiff's claims of retaliatory discharge are based on Section 704(a) of 
1 itle VII, 42 U.S.C. @ 2000e-3(a), which provides:
; shall be an unlawful employment practice for an employer to discriminate 
qainst any of his employees . . . because he has made a charge, testified, 
isisted, or participated in any manner in an investigation, proceeding, or 
faring under this subchapter.
(lilarly the Elliot-Larsen Civil Rights Act also prohibits retaliatory 
induct. Mich. Comp. Laws @ 37.22 02.
A prima facie case of retaliatory discharge requires that: (1) plaintiff 
iigage in activity [*13] protected by fair employment statutes; (2) the 
iiercise of her civil rights was known by defendant: (3) defendant adversely
:fected plaintiff's employment: and (4) a causal connection exists between 
aintiff's protected activity and defendant's adverse employment action. Wrenn 
Gould, 808 F.2d 493, 500 (6th Cir. 1987). The mere fact that an employee is 
;ischarged after filing a discrimination claim is by itself insufficient to 
ipport an inference of retaliation. Edwards v. Whirlpool, 678 F. Supp. at 182.
The shifting burden analysis developed for racially discriminatory discharge 
tions in McDonnell Douglas and also applies to retaliatory discharge claims.
v. Bronson Methodist Hosp. , 489 F. Supp. 1066, 1069-70 (W.D. Mich. 1979). 

ps conclusory allegations by plaintiff are legally insufficient to controvert 
Pendant's articulated reason for plaintiff's discharge as pretextual. 
teover, summary judgment is proper if the protected conduct is not a 
qlgnificant factor," even though it may factor into the decision to discharge.
^ v. Yellow Freight Sys., Inc., 801 F.2d 190, 199 (6th Cir. 1986) (under 
’icWgan law plaintiff's protected activity must be [* 14] a "significant



890 F .2d 417; 1989 U.S. App. LEXIS 17920, *14
PAGE 4 6

nctor" in causing plaintiff's discharge) .
We find that plaintiff has failed to sustain her burden to demonstrate that a 
j inline issue of material fact exists regarding the retaliatory discharge 
aim. The only evidence offered by plaintiff consists of conclusory allegations 
Jan insistence that the sequence of events supports an inference of 
etaliation. Defendant has an articulated legitimate reason for discharge and 
aintiff has failed to introduce any concrete evidence that this reason is 
etextual. Furthermore, plaintiff has not set forth specific facts which 
sonstrate that either her unfair employment practice claim or her worker's 
ipensation claim was a "significant factor" in defendant's decision to 
ischarge her. For these reasons, we affirm the district court's decision to 
rant summary judgment on the retaliatory discharge claim.

IV.

The Michigan Handicappers' Civil Rights Act (HCRA) prohibits an employer from 
^charging or otherwise discriminating against an employee "because of a 
indicap that is unrelated to the individual's ability to perform the duties of 
particular job or position." Mich. Comp. Laws § 37.1201 (1) (b) . A handicap is 
(fined [* 15] to include a determinable physical characteristic or history 
;such characteristic that is "unrelated to the individual's ability to perform 
|e duties of a particular job or position, or is unrelated to the individual's 
lalifications for employment or promotion." Mich. Comp. Laws @ 37.1103(b)(i). 
le Michigan Supreme Court in Carr v. General Motors Carp, held that the plain 
janing of the statute dictates that an employee with a job-related handicap is 
It a handicapped person under the HCRA. 425 Mich. 313, 321-22 (1986).
| Plaintiff has admitted that her alleged handicap, the injury to her knee, is 
jlated to her ability to perform the duties required by her employment. Because 
(aintiff's alleged handicap is job-related, she is not a handicapped person 
(thin the meaning of the HCRA. Because plaintiff fails to state a cause of 
Ition under the HCRA, we affirm the decision of the district court to dismiss 
lis claim.
For the reasons stated above, we affirm the decision of the district court to 
ant defendant's motion for summary judgment regarding the claims for racially 
^criminatory and retaliatory discharge. We affirm the district court's order 
dismiss the HCRA claim [*16] for failure to state a claim upon which
■ lief can be granted pursuant to Fed. R. Civ. P. 12(b)(6).



5TH CASE of Level 1 printed in FULL format.
PAGE 5

ALBERT BOHANAN, JR. Plaintiff-Appellant, V. UNITED PARCEL 
SERVICE, et al. Defendant-Appellee

No. 90-3155
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT 

918 F.2d 178? 1990 U.S. App. LEXIS 20154

November 14, 1990, Filed

IlICE: [*1]
j! RECOMMENDED FOR FULL-TEXT PUBLICATION SIXTH CIRCUIT RULE 24 LIMITS CITATION 
SPECIFIC SITUATIONS. PLEASE SEE RULE 24 BEFORE CITING IN A PROCEEDING IN A 
[!RT IN THE SIXTH CIRCUIT. IF CITED, A COPY MUST BE SERVED ON OTHER PARTIES AND 
SCOURT. THIS NOTICE IS TO BE PROMINENTLY DISPLAYED IF THIS DECISION IS 
PRODUCED.

<I0R HISTORY:
Appeal from the United States District Court for the Southern District of 
Uo? No. 85-00371; Smith, Judge.
DGES: Jones and Wellford, Circuit Judges, and Engel, Senior Circuit Judge. 
Ilford, Circuit Judge, concurring.
INIONBY: PER CURIAM
INION: This suit involves two claims: denial of promotion on the basis of race 
violation of 42 U.S.C. @ 1981, and retaliatory discharge. The district j art granted summary judgment on both claims in favor of defendants. We affirm.
I

Defendant-appellee United Parcel Service (UPS) is a package delivery company 
ploying both part-time and full-time hourly and management personnel. In 1974,
Shired plaintiff-appellant Albert Bohanan, Jr., as a part-time 
der/unloader. Two years later UPS promoted Bohanan to part-time operations 
pervisor. One year later, Bohanan moved into the Personnel Department as a 
ft-time supervisor. Bohanan [*2] desired to become a full-time supervisor, 
ich involved increases in benefits, pay, and responsibility. A prerequisite to 
Coining a full-time supervisor was ninety days as a package delivery driver, 
feanan turned down an opportunity to drive in 1981. J. App. at 789 (Bohanan 
position). Bohanan was again considered for and denied promotion to full-time 
*1984 . Id. at 178 (Welborn deposition).
Bohanan, Dauryce Sowell, and Clement Shanklin, Jr., who at the time were all 
jft-time supervisors, filed this suit on February 27, 1985 in the U.S. District 
wrt for the Southern District of Ohio, Judge George Smith presiding, against 
*3 and UPS supervisory employees Jim Ross, Ronald Welborn, Harold Lustgarten, 
fillip Lambert, Thomas Rhodes, Robert Withrow, John Browne, and John Spriggs.
!s complaint alleged that Bohanan, Sowell, and Shanklin were denied promotions 
I salary increases on the basis of race in violation of 42 U.S.C. @ @ 1981,



35, 1986 , and the fourteenth amendment of the U.S. Constitution.
Following the filing of this, action in February 1985, UPS deposed Bohanan in 
itober 1985. Bohanan was asked if he had ever disseminated personnel documents 
-tout authorization. [*3] Bohanan stated that he had never improperly 
jsclosed personnel office documents. J. App. at 792 (Bohanan deposition) . On 
Umber 10, 1985, Bohanan met with several of his supervisors. Following this 
feting, Bohanan filed a charge with the Ohio Civil Rights Commission (OCRC) 
ieging that he was harassed and reprimanded at the December 10 meeting for 
Ling the lawsuit. Id. at 687. In responding to the charge, UPS subpoenaed a 
le from an earlier OCRC charge filed by (then) co-plaintiff Sowell. This file 
Intained a confidential document known as the Personnel Report System (PRS) 
iich contained employment data for all supervisory employees in the region. At 
|e top of the PRS was a note in Bohanan's handwriting which read "Bruce, PT to 
•are marked in red ink."
On January 16, 1986, UPS again deposed Bohanan. Bohanan acknowledged that he 
Mgiven the PRS to Sowell to help Sowell prepare for his OCRC charge. Id. at 
It. Bohanan testified that he knew that "you can't take company documents away 
:om the premises", but that he had only sent Sowell a copy of the original 
iitrieved from the trash, and that his supervisor, Ed Rouchion, a black male who 
longer worked at UPS, [*4] had told him he could keep it. Id. at 974-75.

IS then deposed Rouchion, who testified that the PRS report was in a file 
irked "Do not remove from office", that the outdated reports were shredded, not 
irown in the trash, and that he never authorized Bohanan to take a copy. Id. at
17.

PAGE 6
918 F .2d 178; 1990 U.S. App. LEXIS 20154, *2

On March 14, 1987, UPS fired Bohanan for violation of the company's integrity 
licy. Plaintiffs then filed an amended complaint on June 11, 1987, alleging 
at the discharge was in retaliation for this lawsuit. The amended complaint 
(so added John Steinbrink as a defendant.
Under the terms of a stipulated dismissal filed on September 29, 1987, 
jaintiffs voluntarily dismissed the section 1985, section 1986, and fourteenth 
Jendment claims. On November 2, 1987, defendants filed two motions for partial 
•nary judgment relating to plaintiffs' promotion claims and Bohanan's section 
181 discriminatory discharge claim. The district court granted the motions for 
rtial summary judgment on July 28, 1989. Defendants then filed a motion for 
iiiimary judgment on the section 1981 salary and racial harassment claims. On 
muary 25, 1990, the district court granted defendants' motion for summary 
%ment [*5] and dismissed the case.
Plaintiffs filed their notice of appeal on February 15, 1990. On September 5, 

190, defendants filed a motion to dismiss the appeals of Sowell and Shanklin 
cause they were not named as appellants in the notice of appeal as required by 
jfi. R. App. P. 3(c) and Minority Employees v. Tennessee Dep't of Emp. Sec., 901 
*2d 1327 (6th Cir. 1990) (en banc) . Defendants' motion was granted on September 
1990. Albert Bohanan, Jr., then, is the only plaintiff before this court on 

ipeal.
II
We review de novo the district court's grant of summary judgment. Summary 
figment is appropriate if the plaintiff does not make a showing sufficient to 
t̂ablish the existence of an element essential to his case and on which



918 F .2d 178? 1990 U.S. App. LEXIS 20154, *5
PAGE 7

pint iff bears the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322 
*86) . It is not sufficient for plaintiff to point to a mere scintilla of 
jldence; our inquiry is "whether the evidence presents a sufficient 
[agreement to require submission to a jury or whether it is so one-sided that 
■party must prevail as a matter of law." Anderson v. Liberty Lobby, 477 U.S.
S, 251-52 (1986)
Bohanan's failure to promote claim [*6] under section 1981 was treated by 
■district court as a disparate treatment action, nl As a result, the district 
irt applied the framework established in McDonnell Douglas Corp. v. Green, 411 
5, 792, 802 (1973). McDonnell Douglas initially places the burden on Bohanan 
demonstrate that he applied for an available position for which he was 
ilified, that he was rejected, and that UPS continued to seek applicants. Id. 
■employer can rebut the presumption that the action was taken for 
jemissible reasons by articulating "some legitimate, nondiscriminatory reason 
[the employee's rejection." Id.

-Footnotes- - - - - - - - - - - - - - - - - -

nl UPS argues that Bohanan's section 1981 failure to promote claim should be 
smpted in light of Patterson v. McLean Credit Union, 109 S. Ct. 2 3 63 
189) . Patterson states that failure to promote claims are not actionable under 
iition 1981 unless the "promotion rises to the level of an opportunity for a 
land distinct relation between the employee and the employer." Id. at 2376. 
the instant case, a promotion to full-time supervisory status brings with it 
ireases in pay, shares of stock, and the opportunity to evaluate part-time 
lrly and supervisory employees. We assume, therefore, that full-time 
lervisory status is a new and distinct relationship under Patterson. See 
lory v. Booth Refrigeration Supply Co., Inc., 882 F.2d 908, 910 (4th Cir.
19) ("Promotion from clerk to supervisor with a consequent increase in 
onsibility and pay satisfies this ['new and distinct'] test.

-End Footnotes-

Bohanan applied for the available full-time supervisor's position, but the 
itrict court found that Bohanan failed to designate specific facts showing 
ihe was qualified. The district court found that Bohanan's .claim that he was 
Ilified was based solely on his own subjective evaluation. J. App. at 1418. 
ban was required to prove only that he was qualified for the full-time 
lervisory position, "not that he was more qualified than the successful 
jlicant." Bernard v. Gulf Oil Co., 841 F.2d 547, 570 (5th Cir. 1988). In this 
je, Bohanan arguably demonstrated his qualifications for the full-time _
!ervisory position. He had been a UPS employee since 1974 and a part-time 
lervisor since 1977. Bohanan also had three years of undergraduate hours in 
tegement courses. J. App. at 834 (Bohanan deposition). In addition, UPS failed 
Promote Bohanan in 1984 not out of a concern about his qualifications, but 
[ause of rumors that Bohanan was dating an hourly employee. J. App. at 177 
■ilborn deposition) .
"The burden of establishing a prima facie case of disparate treatment is not 
pous." Texas Dept, of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). 
timing [*8] that Bohanan has met this burden, we next examine whether UPS' 
■fence "would allow the trier of fact rationally to conclude that the 
l-oyment decision had not been motivated by discriminatory animus." Id. at



918 F .2d 178; 1990 U.S. App. LEXIS 20154, *8 PAGE 8

17. The district court found that UPS submitted evidence rebutting the 
tesumption of discrimination: (1) deposition testimony indicating that some 
jill-time supervisory positions. went to blacks; (2) statistics showing blacks 
ere promoted to full-time positions in higher proportions than whites; n2 and 
|lj testimony establishing that black management employees participated in the 
jialuation process. Id. Given this evidence, we find that UPS has rebutted any 
sference of discrimination Bohanan may have raised.

-Footnotes- - - - - - - - - - - - - - - - - -
n2 UPS' statistical evidence showed that blacks received 14.9% of the 

iomotions from part-time to full time, although only 11.2% of the part-time 
jipervisors were black. Of course, any racial discrimination against Bohanan 
aid not be justified by evidence of a racially-balanced workforce, but such 
idence may assist an employer in rebutting the inference that [a] particular 
tion had been intentionally discriminatory." Connecticut v. Teal, 457 U.S.
3, 454 (1982) .

-End Footnotes-
9]

The final inquiry under McDonnell Douglas is whether Bohanan can establish 
fat UPS' proffered reasons for failing to promote him were a pretext for 
iiscrimination. 411 U.S. at 804. Bohanan can meet this burden by either (1) 
Persuading the court that a discriminatory reason more likely motivated the 
Iployer", or (2) "showing that the employer's proffered explanation is unworthy 
t credence." Burdine, 450 U.S. at 256 (citation omitted). In this respect, we 
free with the district court's conclusion that Bohanan offered "no evidence 
Pat defendants intentionally discriminated in the promotion process, but rather 
r a t e s  a dissatisfaction with the employer's discretionary power to choose." J .  

fp. at 1419. In addition, Bohanan testified that dissatisfaction with the 
(emotional system among part-time supervisors was widespread and that "at the 
pe [it] was not a black/white issue ... it was a concern of the entire 
jnagement group." J. App. at 674. Bohanan failed to establish that UPS' 
^discriminatory reasons for not promoting him were a pretext for racial 
iscrimination.
Bohanan argues that the district court incorrectly applied the McDonnell 
Ittglas test by requiring [*10] that he produce direct evidence of 
^criminatory intent. TWA Inc. v. Thurston, 469 U.S. Ill, 121 (1985) (McDonnell 
taglas test designed to assure "'plaintiff [has] his day in court despite the 
Availability of direct evidence.'"). Bohanan states that "intent can be 
-erred by circumstantial evidence" and points to the following to demonstrate 
^crimination in failure to promote: (1) after a white woman received a 
Amotion he requested, Bohanan's white supervisor told him in 1981 he could 
jin his career at UPS; (2) another white supervisor gave him a low performance 
ting; and (3) he was removed from drivers' training because he was dating an 
wiy employee.
After reviewing the record, however, we do not find even circumstantial 
pence which would indicate that UPS' failure to promote was a pretext for 
^crimination. UPS "has discretion to choose among equally qualified 
widates, provided the decision is not based on unlawful criteria." Burdine, 
U.S. at 259. Bohanan's allegations do not establish, as is required by 

Wine, 450 U.S. at 256, either that a discriminatory reason motivated UPS or



It U P S  ' reasons were not worthy of belief. Without any [ *11] further 
pence, we find that the district court correctly granted summary judgment on 
sissue. See Irvin v. Airco Carbide, 837 F.2d 724, 726 (6th Cir. 1988) (to 
jonstrate "pretext" in discriminatory demotion case under McDonnell Douglas, 
plaintiff must take the extra step of presenting evidence to show that the 
isons given are an attempt to cover up the employer's alleged real 
criminatory motive.").

I l l

PAGE 9
918 F.2d 178; 1990 U.S. App. LEXIS 20154, *10

tohanan also asserts a section 1981 retaliatory discharge claim. The 
irict court stated that this claim was properly put forth under Patterson v .  

lean Credit Union, 109 S. Ct. 2363 (1989) , because Patterson held that 
don 1981 covers "conduct which impairs the right to enforce contract 
ligations through legal process." Id. at 2374. As Bohanan argues that he was 
t d  for bringing an OCRC charge, we agree that this claim is not preempted by 
person.

Jin order to prevail on his retaliatory discharge claim, Bohanan must 
jablish that: (1) he engaged in protected activity; (2) that he was "the
Ject of an adverse employment action; and (3) that there is a causal link 
jreen [the] protected activity and the [employer's] adverse [*12] action." 
(er v. City of North Olmstead, 795 F.2d 1265, 1272 (6th Cir. 1986). The 
‘riot court found that "Bohanan has proven that he was discharged and that he 
iengaged in protected enforcement of contractual obligations." J. App. at 
I. However, the district court also found that there was no causal link 
seen the lawsuit and the discharge other than the fact that Bohanan was 
fcharged soon after filing this suit and the OCRC charge. Moreover, UPS has 
ptified a non-discriminatory reason for the discharge: Bohanan's release of 
^confidential PRS document. Bohanan- argues that his actions were not grounds 
• firing because deposition testimony of defendants indicating that the PRS 
■•customarily given to supervisory employees such as Sowell, and that he was 
’■aware he could not pass on the information.
•PS introduced testimony showing that the PRS files were not intended to be 
| for unauthorized purposes. J. App. at 433-34. UPS also introduced evidence 
•a former part-time clerk had been terminated after being caught copying 
sonnel documents for unauthorized use in a union grievance proceeding. J.
!■ at 248. Ed Rouchion, Bohanan's supervisor at the [*13] time, also 
Rfied that Bohanan was not authorized to disseminate the PRS documents.
Iven if Bohanan's claim that passing on the PRS did not violate UPS policy is 
fPted, the causal link necessary to establish retaliatory discharge is not 
■•ssarily established. In Jeffries v. Harris Cty. Community Action Ass'n, 615 
•1025 (5th Cir. 1980), a plaintiff who had filed an EEOC charge was fired 
t disseminating another employee's personnel file without authorization. The 
ft rejected the retaliatory discharge claim, holding that "where an 
|°yer wrongly believes an employee has violated company policy, it does not 
timinate . . .  if it acts on that belief." Id. at 1036 (emphasis in 
pal). In any event, the discrepancy in Bohanan's deposition testimony 
jading whether he had disseminated documents is uncontested, and supports a 
png of a violation of the honesty policy. We conclude, therefore, that the 
«ry judgment for UPS should be affirmed because Bohanan fails to raise any 
le of material fact which would preclude judgment for UPS.



918 F .2d 178; 1990 U.S. App. LEXIS 20154, *13
PAGE 10

I V

As Bohanan has failed to meet his evidentiary burden with respect to the 
iilure to promote and retaliatory [*14] discharge claims, we AFFIRM the 
[strict court's grant of summary judgment for defendants.
fCURBY: WELLFORD
ICUR: WELLFORD, Circuit Judge, concurring.
I concur, in most respects with the well considered per curiam opinion. I do 
; agree, however, with the references made to Patterson v. McLean Credit 
ion, 109 S. Ct. 2363, 2377 (1989), in several respects. First, the promotion 
[solved here may not fall outside the perimeter of Patterson which admonishes 
it to be actionable under © 1981 the failure to promote must fall in the 
text of "a new and distinct relation between the employee and employer." 
sanan was already a supervisory employee and he sought a better paying 
isrvisory position. I am not at all sure that we can even assume this would 
solve a new and distinct employment relationship. It is not necessary to reach 
Jecision or make an assumption on this question under Patterson to reach the 
frect result attained in this case as to promotion.
As to the retaliatory discharge claim under © 1981, I similarly doubt that 
js claim is cognizable under Patterson. I am disposed to believe that 
(taliation relates to "terms or conditions" of employment [*15] as 
tterson indicates in the Title VII context. Patterson, 109 S. Ct. at 2374. See 
fitor Savings Bank v. Vinson, 477 U.S. 57 (1986). I would be disposed to treat 
taliation as relating to the "conditions of employment" covered clearly 
ier Title VII and not properly conduct "which impairs the right to enforce 
tract obligation" under © 1981. Id. at 2374.
[In any event, I concur with the conclusion carefully drawn on the merits of 
[s case that Bohanan has proved neither a discriminatory failure to promote 
' retaliation due to his race, and thus I concur in the affirmance of the 
fit of summary judgment to defendant.



54 FEP Cases 1424 THOMPKINS v. DEKALB COUNTY HOSP. AUTH.
purposes,’ it  is clear th a t  counties are  
never considered p a r t  of the  S tate. Mt. 
Healthy City School Dist. Bd. of Ed. v. 
Doyle, 429 U.S. 274 [1 DER Cases 76] 
(1977); Moor v. County of Alameda, 411 
U.S. 693 (1973); Lincoln County v. Lun- 
ning, 133 U.S. 529 (1890); Hall v. Medi­
cal College of Ohio at Toledo, 742 F,2d 
299 (6th Cir. 1984); Lenoir v. Porters 
Creek Watershed Dist., 586 F.2d 1081 
(6th Cir. 1978).* 10 Consequently, under 
th e  ru le  of Monell and Will, K entucky 
counties m ust be considered persons 
for purposes of 42 U.S.C. Section 1983. 
Accordingly, th e  P lain tiff will be al­
lowed to  proceed w ith  her 42 U.S.C. 
Section 1983 claim  against Jefferson 
C ounty .11

’  T h e  D e fe n d a n t ’s a rg u m e n t  is  based  o n  th e  f a c t  
th a t ,  u n d e r  K e n t u c k y  s ta te  law , t h a t  th e  c o u n t ie s , 
u n l ik e  m u n ic ip a l  c o rp o ra t io n s , a re  “ a n  a rm  o f 
s ta te  g o v e rn m e n t”  a n d  a re  “ c lo th e d  w it h  th e  s a m e  
s o v e r e ig n  im m u n it y  (as th e  s ta te ).”  C u llin a n  v . J e f ­
f e r s o n  C o u n t y , 418 S .W .2 d  407, 400 (K y .  1968) (em ­
p h a s is  added). S in c e  th e  s ta te s  a re  g ra n te d  so ve r­
e ig n  im m u n it y  in  fe d e ra l c o u r t ,  H a n s  v . L o u is ia n a ,  
134 U .S , 1 (1890), a n d  s in c e  th e  c o u n t ie s  e n jo y  th e  
sa m e  so v e re ig n  im m u n it y ,  t h e n  th e  c o u n t ie s  lo g i­
c a l ly  a re  e n t it le d  to  th e  E le v e n th  A m e n d m e n t ’s 
p ro te c t io n s .

H o w e ve r , th e  D e fe n d a n t ’s a rg u m e n t  b lu r s  th e  
d is t in c t io n  be tw een  so v e re ig n  im m u n it y  in  s ta te  
c o u r t  a n d  so v e re ig n  im m u n it y  in  th e  fe d e ra l c o u r t  
sy s tem . I n  s ta te  c o u r t ,  th e  p a ra m e te r s  o f so v e re ig n  
im m u n it y  a re  d e te rm in e d  e x c lu s iv e ly  b y  s ta te  la w . 
T h u s ,  s in c e  J e f fe rs o n  C o u n ty  is  e n t it le d  to  so ve r­
e ig n  im m u n it y  in  s ta te  c o u rt , th e  above  s ty le d  
a c t io n  c o u ld  n o t  be  m a in ta in e d  in  a  K e n t u c k y  s ta te  
c o u r t . I n  c o n t ra s t , in  fe d e ra l c o u rt , th e  b o u n d a r ie s  
o f s o v e re ig n  im m u n it y  a re  se t b y  th e  E le v e n th  
A m e n d m e n t  a nd , to  th e  e x te n t  t h a t  i t  h a s  th e  
p o w e r  to  o v e r r id e  th e  E le v e n th  A m e n d m e n t , b y  
C o n g ress. See  F it z p a t r ic k  v . B it z e r ,  427 U .S . 445 [12 
F E P  C a se s  1586] (1976) (Cong ress , in  e xe rc ise  o f th e  
p o w e r  c o n fe r re d  b y  S e c t io n  5 o f th e  F o u r te e n th  
A m e n d m e n t ,  c o u ld  o v e r r id e  th e  so v e re ig n  im m u ­
n i t y  o f t h e  s ta te s  e s ta b lis h e d  b y  th e  E le v e n th  
A m e n d m e n t) ;  P e n n s y lv a n ia  v . U n io n  G a s  [491 U .S . 
11, 109 S .C t .  2273 (1989) (C ong re ss , in  e x e rc ise  o f  th e  
p o w e r  e s ta b lis h e d  b y  th e  C o m m e rc e  C la u se , c o u ld  
o v e r r id e  t h e  so v e re ig n  im m u n it y  o f th e  s ta te s  es­
ta b lis h e d  b y  th e  E le v e n th  A m e n d m e n t) . C o n se ­
q u e n t ly ,  th e  fa c t  t h a t  K e n t u c k y  la w  co n fe rs  so v e r­
e ig n  im m u n it y  o n  th e  c o u n t ie s  is  ir r e le v a n t .  W h a t  
m a t te r s  is  w h e th e r  th e  E le v e n th  A m e n d m e n t ’s 
g r a n t  o f  so v e re ig n  im m u n it y  e x te n d s  to  c o u n t ie s .

10 See  a ls o  F o u c h e  v . J e k y U  I s la n d  S t a t e  P a r k  A u ­
t h o r it y ,  713 F .2 d  1518 [33 F E P  C a se s  3032] (11 th  C ir .  
1983); T u v e s o n  v . F lo r id a  G o v e r n o r ’s  C o u n c il O n  
I n d ia n  A f f a ir s ,  I n c . , 734 F .2 d  730 [35 F E P  Ca se s  264] 
(11 th  C ir .  1984); H o lle y  v . L a v in e ,  605 F .2 d  638 (2d 
C ir .  1979); M a c k e y  v . S t a n t o n ,  586 F .2 d  1126 (7 th  
C ir .  1978); L y t le  v . C o m m is s io n e r s  o f  E le c t io n  o f  
U n io n  C o u n t y , 541 F .2 d  421 (4 th  C ir .  1976); G a l­
la g h e r  v . E v a n s , 536 F .2 d  899 (10 th  C ir .  1976); G i l ­
lia m  v . C it y  o f  O m a h a , 524 F .2 d  1013 [16 F E P  C a se s  
917] (8 th  C ir .  1975).

"  O f  co u rse , in  p ro v in g  a  42 U JS .C . S e c t io n  1983 
c la im  a g a in s t  a  c o u n ty ,  th e  P la in t i f f  m u s t  p ro v e  
th e  sa m e  e le m e n ts  a s r e q u ire d  in  a  s u i t  a g a in s t  a  
m u n ic ip a l i t y .  T o  h o ld  o th e rw is e  w o u ld  be to  s u b ­
je c t  th e  c o u n ty  to  a  lo w e r  s ta n d a rd  o f l ia b i l i t y  t h a n  
t h a t  im p o se d  o n  th e  c it ie s .

THO M PK IN S v. DEKALB 
COUNTY HOSP. AUTH.

U.S. D istrict Court, 
N o rth ern  D istrict of Georgia, 

A tlan ta  Division

TH O M PK IN S v. DEKALB COUN­
TY  HOSPITAL AUTHORITY d /b /a  
D ekalb G eneral Hospital, No. l:87-cv- 
303-RLV, February  7, 1990

CIVIL BIGHTS ACT OF 1866
1. Coverage <-106.0624
42 U.S.C. §1981 does no t cover te rm i­

nation , despite contention th a t  term i­
n a tio n  is p a r t of m aking of contract.

2. Coverage *-106.0624
42 U.S.C. §1981 does no t cover for­

m er employee’s claim th a t  denial of 
h e r grievance im paired h er r ig h t to 
enforce h er em ploym ent contract, 
even though  U.S. Suprem e C ourt spe­
cifically sta ted  th a t  §1981 covers con­
d u c t th a t  im pairs rig h t to enforce con­
t r a c t  obligations “th ro u g h  legal 
process,” since Suprem e C ourt did no t 
discuss adm inistrative remedies or 
grievance procedure.

W illiam  R. K ing (Lipshutz, G reen- 
b la tt  & King), A tlanta, Ga., for p la in ­
tiff.

M arth a  C. P errin  (Ogletree, Dea- 
kins, Nash, Smoak & Stew art), A tlan­
ta , Ga., for defendant.

Full Text of Opinion
R O B ER T L. VINING, D istric t 

Judge: — By order dated April 17, 
1989, th is  court granted th e  p la in tiff’s 
m otion to vacate the judgm ent th a t  
h ad  been entered dismissing both  h er 
T itle  VII and  section 1981 claims. The 
basis for th a t  order was th a t  the  p la in ­
tiff was entitled  to a ju ry  tr ia l on h er 
section 1981 claim. Subsequent to th a t  
order th e  Suprem e Court decided Pat­
terson v. McLean Credit Union [491 U-S. 
164], 109 S.Ct. 2363 [49 FE P Cases 1814] 
(1989), and  the defendant moved for 
sum m ary  judgm ent. By order dated 
J a n u a ry  22, 1990, th is cou rt gave th e  
p la in tiff the  notice required  by Grif­
fith v. Wainwright, 772 F.2d 822 [44 
F E P  Cases 938] (11th Cir. 1985), and  
th e  m otion for sum m ary judgm ent is 
now ripe for consideration.

T he plain tiff’s section 1981 claim  is 
based upon h er allegations th a t  she 
was term inated  from em ploym ent be­
cause of her race and th a t  th e  defend­
a n t  re ta lia ted  against h er because she



THOMPKINS v. DEKALB COUNTY HOSP. AUTH. 54 FEP Cases 1425
h ad  filed a  charge of discrim ination 
w ith the  E qual Em ploym ent O pportu­
n ity  Commission.

[1] In  Patterson th e  Suprem e C ourt 
held th a t  section 1981 “covers only 
conduct a t  th e  in itia l form ation of the  
co n trac t and  conduct w hich im pairs 
the  rig h t to  enforce th e  con trac t obli­
gations th ro u g h  legal process.” 109 
S.Ct. a t  2374. The p lain tiff argues th a t  
te rm ination  is “a  p a r t  of th e  m aking of 
a co n trac t.” However, th is court con­
cludes th a t  Patterson should no t be 
read  so expansively, since the  Suprem e 
C ourt was careful to  lim it its reading 
of section 1981 to those situations in ­
volving ac tu a l in itia l form ation of a 
con trac t or a  prom otion w hich would 
rise “to th e  level of a n  opportun ity  for 
a  new and  d istin c t relation  between 
employee an d  em ployer.” 109 S.Ct. a t 
2377.

[2] The p la in tiff fu r th e r  argues th a t  
th e  denial of h er grievance th ro u g h  
the  grievance procedure im paired her 
rig h t to enforce h e r em ploym ent con­
trac t. T his co u rt declines to extend 
Patterson to  include grievance proce­
dures. In  Patterson the  Suprem e C ourt 
specifically referred  to  im pairm ent of 
the  r ig h t to enforce contracts 
“th ro u g h  legal process,” and did no t 
discuss adm in istra tive  remedies or 
grievance procedures.

As h er la s t argum ent, th e  p lain tiff 
contends th a t  Patterson should no t be 
applied retroactively to her. T his a rg u ­
m en t has already been im plicitly re­
jected by th e  E leventh C ircuit. In  
McGinnis v. Ingram Equipment Co., 
888 F.2d 109 [51 FE P Cases 521] (11th 
Cir. 1989), the  tr ia l court found the  
defendant liable for violating section 
1981 and  aw arded dam ages to the  
plaintiff. However, th e  court of ap­
peals, a fte r no ting  th a t  th e  tr ia l court 
h ad  considered claim s of harassm ent 
and  discrim inatory  work conditions in  
m aking his aw ard, rem anded the  case 
so th a t  “th e  d istric t cou rt should have 
th e  opportun ity  to reconsider its judg­
m en t and  aw ard of dam ages” in  ligh t 
of Patterson's holding th a t  such  claims 
“are  no longer actionable un d er sec­
tion  1981.” 888 F.2d a t  111.

For the  foregoing reasons, th e  defen­
d a n t’s m otion for sum m ary  judgm ent 
is GRANTED.

SO ORDERED.

THOM PKINS v. DEKALB 
COUNTY HOSP. AUTH.

U.S. C ourt of Appeals, 
E leventh  C ircuit (A tlanta)

TH O M PK IN S v. DEKALB COUN­
TY  HOSPITAL AUTHORITY d /b /a  
Dekalb G eneral Hospital, No. 90-8276, 
Septem ber 17, 1990

CIVIL BIG H TS ACT OF 1866
Coverage ►106.0624 ►106.0637
42 U.S.C. §1981 does no t cover claim  

of d iscrim inatory  discharge or claim  of 
re ta lia tion  for filing EEOC charge.

Appeal from  the  U.S. D istric t C ourt 
for th e  N orthern  D istric t of G eorgia 
(54 FE P Cases 1424, 750 F .Supp. 1133). 
Affirmed.

K a trin a  L. Breeding, A tlan ta , Ga., 
for appellant.

M arth a  C. P errin  (Ogletree, Deakin, 
Nash, Sm oak & Stewart), A tlan ta , Ga., 
for appellee.

Before TJOFLAT, Chief Judge, and  
FAY an d  BIRCH, C ircuit Judges.

Full Text of Opinion
PE R  CURIAM: — Appellant b rough t 

th is  su it in  th e  d istrict cou rt un d er 
T itle  VH of the  Civil R ights Act of 
1964, 42 U.S.C. §2000e et seq., an d  42 
U.S.C. §1981. T he d istrict court, adopt­
ing  th e  m ag istra te’s report an d  recom ­
m endation  (which, like the  E qual Em ­
ploym ent O pportunity  Commission 
(EEOC), found no reasonable cause to 
believe any  of appellan t’s allegations 
of race or sex discrim ination), ru led  
aga in st appellan t on her T itle  VH 
claim. T he court subsequently  gran ted  
sum m ary  judgm ent against appellan t 
on h er section 1981 claims of discrim i­
na to ry  discharge and  re ta lia tion  (be­
cause she filed the EEOC claim), hold­
ing th a t  Patterson v. McLean Credit 
Union, 491 U.S. 164, 109 S.Ct. 2363, 105 
L.Ed.2d 132 [49 FEP Cases 1814] (1989), 
foreclosed them . Appellant now chal­
lenges the  d istric t court’s disposition 
of h er section 1981 claim.

We agree w ith  the  d istric t co u rt th a t  
Patterson forecloses th is  claim . P u t­
tin g  Patterson’s bar aside, we also find 
n o th ing  in  th e  record before u s  th a t  
would perm it a  ju ry  to find for appel­
la n t on h er section 1981 claim. T he 
en try  of sum m ary judgm ent was 
therefore appropriate.

AFFIRM ED.