Easley v. General Motors Corporation Brief of Plaintiff-Appellant

    UNITED STATES COURT OF APPEALS 
FOR THE SEVENTH CIRCUIT

89-3613

HAROLD EASLEY, 
Plaintiff-Appellant, 

vs.
GENERAL MOTORS CORPORATION, 

Defendant-Appellee.

On Appeal from the United States District Court 
for the Southern District of Indiana, Indianapolis Division

BRIEF OF PLAINTIFF-APPELLANT

JULIUS LeVONNE CHAMBERS 
RONALD L. ELLIS 
CORNELIA T.L. PILLARD 
NAACP Legal Defense and 

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

Appellant



CERTIFICATE OF INTEREST

The undersigned, counsel of record for Harold Easley, 
plaintiff-appellant, furnishes the following list in compliance 
with Circuit Rule 12(d):

(1) Harold Easley is the sole plaintiff- 
appellant in this appeal;
(2) Mr. Easley is not a corporation;
(3) Mr. Easley appeared pro se in the
district court, and current counsel is the 
only counsel who have represented or are 
currently representi"" +_v,'i,= ar-.r-.cai

Counsel for Plaintiff-Appellant

March 2, 1990



TABLE OF CONTENTS
TABLE OF AUTHORITIES..........................................ii
JURISDICTIONAL STATEMENT.............. ' ...................  1
ISSUES PRESENTED FOR REVIEW .................................  2
STATEMENT OF THE C A S E .......................................  3

Nature of the C a s e .....................................  3
Statement of the Facts......................   4
Course of Proceedings .................................  7
District Court Decision ...............................  9
Civil Rights Act of 1990 ...............................  10

SUMMARY OF ARGUMENT..................  10
A R G U M E N T ...................................................... 13
I. THE COMPLAINT STATES A CLAIM OF 

DISCRIMINATION IN THE FORMATION OF HAROLD 
EASLEY'S EMPLOYMENT CONTRACT WITH GENERAL
MOTORS CORPORATION ..........................  13
A. When GMC Hired Mr. Easley, It 

Intended To Discharge Him Before He 
Completed The 30-Day Probationary
Period Because Of His R a c e ...................13

B. GMC Hired Mr. Easley Into a 
Discriminatory Work Environment And 
Treated Him Unequally From The
Outset of His Employment....................... 16

C. GMC's Discrimination Against Mr. Easley 
During The Probationary Period Was 
Discrimination in the Process of Forming
the Permanent Employment Contract ...........  21

II. THE COMPLAINT STATES A CLAIM AGAINST GENERAL 
MOTORS CORPORATION FOR DISCRIMINATORY 
TERMINATION OF MR. EASLEY'S EMPLOYMENT
C O N T R A C T ......................................... 2 3

III. IT WOULD BE INEQUITABLE TO APPLY THE DECISION 
OF THE SUPREME COURT IN PATTERSON TO THIS 
CASE BECAUSE CONGRESS IS LEGISLATING TO 
REVERSE PATTERSON, AND THE EXECUTIVE BRANCH
SUPPORTS THE REVERSAL .............................  30

CONCLUSION.................................................... 34
1



TABLE OF AUTHORITIES
CASES

Asare v. Svms, Inc.,
1989 U.S.Dist. LEXIS 16023 (E.D.N.Y. Sept. 20, 1989). . 27

Birdwhistle v. Kansas Power and Light Co..
723 F. Supp. 570 (D. Kan. 1989)....................... 28

Black v. Akron.
831 F. 2d 131 (6th Cir. 1987) ......................... 24

Butler v. Sherman. Silverstein & Kohl, P.C..
No. 89-2290, slip op. (D.N.J. Dec. 19, 1989)........  15, 19

Carroll v. Elliott Personnel Services.
No. H-89-1918, slip op. (D.Md. Nov. 22, 1989) ........  20, 27

Carter v. O'Hare Hotel Investors.
1989 U.S. Dist. LEXIS 13156 (N.D.I11. Nov. 1, 1989) . . 22

Chevron Oil Co. v. Huson.
404 U.S. 97 (1971) ...................................  31

Comeaux v. Uniroval Chemical Coro..
849 F. 2d 191 (5th Cir. 1988) ......................... 24

Conley v. Gibson.
355 U.S. 41 (1957) ................................... • 13

Delaware State College v. Ricks.
449 U.S. 250 (1980)...................................  23

Edwards v. Jewish Hosp. of Saint Louis.
855 F. 2d 1345 (8th Cir. 1988)......................... 24

English v. General Development Corp..
50 F.E.P. Cases 825 (N.D.I11. 1989)............  15, 18, 30

Flanagan v. Aaron E. Henrv Community Health Service Center.
876 F. 2d 1231 (5th Cir. 1989)......................... 26

Foster v. Atchison. Topeka and Santa Fe Railway Co..
1990 U.S.Dist. LEXIS 1338 (D. Kan. Jan. 11 1990). . . .  28

French v. Hevne.
547 F. 2d 994 (7th Cir. 1976) ......................... 13

Gairola v. Commonwealth of Virginia Dept, of Gen'l Svcs..
753 F. 2d 1281 (4th Cir. 1985)......................... 24

ii



Gamboa v. Washington.
716 F. Supp. 353 (N.D.I11. 1989) ..................... 28

Gillespie v. First Interstate Bank.
50 F.E.P. Cases 587 (E.D.Wisc. 1989)................... 31

Goodman v. Lukens Steel Co..
482 U.S. 656 (1987)...................................  23

Hall v. Countv of Cook.
719 F. Supp. 721 (N.D.I11. 1989) ..................... 28, 29

Heff T Haul v. Sanitary District.
1989 U.S.Dist. LEXIS 12764 (N.D.I11. Oct. 24, 1989) . . 18

Hunter v. Allis Chalmers Corp..
797 F. 2d 1417 (7th Cir 1986) ......................... 32

Jackson v. Albuquerque,
890 F. 2d 225 (10th Cir. 1990)......................... 26

Jett v. Dallas Independent School District.
491 U.S. ___, 105 L. Ed. 2d 598 (1989) ..............  24

Johnson v. Railway Express Agency.
421 U.S. 454 (1975)...................................  23

Jones v. Pepsi-Cola General Bottlers. Inc..
1989 U.S.Dist. LEXIS 10307 (W.D.Mo. August 29, 1989). . 25

Jung v. K. & D. Mining Co.,
260 F. 2d 607 (7th Cir. 1958) ......................... 4

Kelley v. TKY Refractories Co..
860 F. 2d 1188 (3d Cir. 1988) ......................... 23

Lvtle v. Household Manufacturing. Inc. .
106 L. Ed. 2d 587 (1989)...............................  24

Malhotra v. Cotter & Co..
885 F. 2d 1305 (7th Cir. 1989)......................... 23, 30

McDonald v. Santa Fe Trail Transportation Co..
427 U.S. 273 (1976)...................................  23

Meade v. Merchants Fast Motorline. Inc..
820 F. 2d 1124 (10th Cir. 1987) ....................... 24

Overby v. Chevron USA. Inc. .
884 F. 2d 470 (9th Cir. 1989) ......................... 26

Padilla v. United Air Lines.
iii



716 F. Supp. 485 (D.Colo. 1989)....................... 27
Patterson v. McLean Credit Union,

491 U.S. ___, 105 L. Ed. 2d 132 (1989) ..............  passim
Patterson v. McLean Credit Union,

805 F. 2d 1143 (4th Cir. 1986)......................... 24, 26
Ramseur v. Chase Manhattan Bank.

865 F. 2d 460 (2d Cir. 1989)........................... 23
Rick Nolan's Auto Body Shop, Inc, v. Allstate Ins. Co..

718 F. Supp. 721 (N.D.I11. 1989) ..................... 25
Rowlett v. Annheuser-Busch. Inc..

832 F. 2d 194 (1st Cir. 1987) ......................... 23
Sengupta v. Morrison-Knudsen Co.. Inc..

804 F. 2d 1072 (9th Cir. 1986)......................... 24
Sherman v. Burke Contracting. Inc..

1990 U.S. App. LEXIS 520 (11th Cir. Jan. 16, 1990) . . .  26
Sofferin v. American Airlines.

717 F. Supp. 597 (N.D.I11. 1989) ..................... 23
St. Francis College v. Al Khazraii.

481 U.S. 604 (1987)................................... • 23
Strauss v. City of Chicago.

760 F. 2d 765 (7th Cir. 1985)........................... 13
Thomas v. Beech Aircraft.

1989 U.S.Dist. LEXIS 11284 (D.Kan. September 25, 1989) 31
Vance v. Southern Bell Tel, and Tel Co..

863 F. 2d 1503 (11th Cir. 1989) ....................... 26
Yarbrough v. Tower Oldsmobile, Inc..

789 F. 2d 508 (7th Cir. 1986) ..................... . . 23, 32
Zaklama v. Mt. Sinai Medical Center.

842 F. 2d 291 (11th Cir. 1988)......................... 24
STATUTES

28 U.S.C. § 1 2 9 1 .......................................... 1
28 U.S.C. § 1294 .......................................... 1
28 U.S.C. § 1 3 3 1 .......................................... 1

iv



28 U.S.C. § 1343(a)(4)   1
42 U.S.C. § 1 9 8 1 ....................................... passim
42 U.S.C. § 2000e-2 (a) (1)..............................  32

MISCELLANEOUS
Wright & Miller, Federal Practice and Procedure (1969) . . 13

v



JURISDICTIONAL STATEMENT
This Court has jurisdiction over this appeal pursuant to 28 

U.S.C. §§ 1291 and 1294. Plaintiff-appellant filed his Complaint 
in the United States District Court for the Southern District of 
Indiana, Indianapolis Division, pursuant to 28 U.S.C. §§ 1331, 
1343(a)(4), and 42 U.S.C. § 1981. The district court, per Judge 
Sarah Evans Barker, entered final judgment dismissing the amended 
complaint on November 3, 1989. Plaintiff-appellant noticed this 
appeal on November 28, 1989. On December 13, 1989, this Court 
asked plaintiff to file a memorandum in support of appellate 
jurisdiction explaining why the district court's order was final 
and appealable within the meaning of 28 U.S.C. § 1291. Plaintiff 
submitted the requested memorandum, and on January 10, 1990, the 
Court ordered briefing to proceed.

1



ISSUES PRESENTED FOR REVIEW
This case raises three distinct issues regarding the 

interpretation of 42 U.S.C. § 1981 after the decision of the 
United States Supreme Court in Patterson v. McLean Credit Union, 
491 U.S. ___, 105 L.Ed.2d 132 (1989):

1. Do allegations that defendant General Motors Corporation 
accepted plaintiff Harold Easley as a probationary employee only 
because it was obligated by the collective bargaining agreement 
to do so but never intended to hire him on equal terms because 
plaintiff is Black state a claim of discrimination at the 
contract formation stage in violation of 42 U.S.C. § 1981?

2. Do allegations that General Motors Corporation 
discharged Mr. Easley on the basis of his race state a claim of 
discrimination in violation of 42 U.S.C. § 1981?

3. Should the Court refrain from applying Patterson 
retroactively to this case because there is a clear likelihood 
that legislation pending in Congress will reverse the Supreme 
Court's decision and restore the prior coverage of 42 U.S.C. § 

1981?

2



STATEMENT OF THE CASE
Nature of the Case

Plaintiff Harold Easley, an experienced and qualified Black 
machine repairman, sued General Motors Corporation (GMC) for 
discrimination under 42 U.S.C. § 19811 and Indiana law. Mr.
Easley litigated the case pro se in the district court. He 
alleged that GMC accepted him as a temporary employee with the 
intent not to treat him equally or to employ him in a permanent 
position, that GMC discriminated against him and prevented him 
from completing the 30-day probationary period, and that it 
discharged him after only nine days of work, all on the basis of 
his race. The district court dismissed Mr. Easley's Complaint 
for failure to state a section 1981 claim under the Supreme 
Court's decision in Patterson v. McLean Credit Union. 491 U.S
___, 105 L.Ed.2d. 132 (1989). Because plaintiff has stated
section 1981 claims under Patterson of discrimination in both 
contract formation and termination, the district court's decision 
must be reversed.

Section 1981 states:
All persons within the jurisdiction of the United 
States shall have the same right in every State and 
Territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal 
benefit of all laws and proceedings for the security of 
persons and property as is enjoyed by white citizens, 
and shall be subject to like punishment, pains, 
penalties, taxes, licenses, and exactions of every 
kind, and to no other.

3



Statement of the Facts
General Motors Corporation hired plaintiff, Harold Easley, 

on February 9, 1987 to work in its Fisher Guide Division in 
Anderson, Indiana.2 Complaint, 4, 6, 7 (A5).3 Mr. Easley was 
the only Black machine repairman at the plant. Complaint, 5 7 
(A5). Fisher Guide hired Mr. Easley because it was obligated to 
do so pursuant to the "area hire" provisions of the collective 
bargaining agreement between GMC and the United Auto Workers' 
Union. Amended Claim, f 17 (A28).4 Plaintiff had previously 
worked for GMC at the Hydra-matic plant in Muncie, Indiana from 
1977 to 1985. Complaint, f 5 (A5), Amended Claim, f 20 (A28).
He was a qualified machine repairman who had completed four years 
of a federally approved apprenticeship program, and had

Because plaintiff appeals from dismissal of his 
complaint for failure to state a claim, all the allegations of 
the Complaint and the Amended Claim must be taken as true, all 
reasonable inferences therefrom drawn in plaintiff's favor, and 
all doubts resolved in his behalf. See Jung v. K. & D. Mining 
Co.. 260 F.2d 607, 609 (7th Cir. 1958).

3 Citations in the form "(A#)" refer to pages in the 
separately bound Appendix. The decision appealed from is bound 
with the brief, as required by Circuit Rule 30(a), but is also 
included in the separate Appendix. Accordingly, citations to 
pages in the slip opinion are also accompanied by Appendix 
citations.

The "area hire" provision requires that employees who 
have previously worked for a GMC plant in a given area and 
accumulated seniority before they were laid off must be rehired 
in order of seniority if jobs become available at any one of a 
group of designated plants in the area.

Plaintiff's Amended Claim clearly identifies the area 
hire requirement, but erroneously refers to it as "document 28." 
The area hire policies and procedures are described in document 
number 21 relating to the collective bargaining agreement between 
GMC and the UAW.

4



successfully done hydraulics work as a machine repairman at 
Hydra-matic. Amended Claim, 55 33, 34 (A30). Accordingly, 
plaintiff had accumulated seniority entitling him to priority for 
re-hire at Hydra-matic, his "home plant," or to hire at any one 
of three GMC plants in the area with openings for which he was 
qualified. See Amended Claim, 5 24 (A29). At the time it hired 
Mr. Easley at the Fisher Guide plant, however, GMC did not intend 
to retain him. Amended Claim 55 17, 18, 36 (A28, A30).
Plaintiff was discharged prior to the completion of the 
probationary period. Complaint, 5 39 (A8), Amended Claim, 5 28 
(A29).

Plaintiff worked at Fisher Guide for only nine days out of a 
scheduled thirty-day probation period before he was discharged. 
Id. During those nine days, defendant carried_out its 
discriminatory intent in a variety of ways, including: racial
slurs and threats, Complaint, 55 8, 28, 29-30 (A5, A7), Amended 
Claim, 55 2, 32 (A26, A30); discriminatory imposition of 
discipline, Complaint, 55 10-23 (A5-A7), Amended Claim, 55 37-38 
(A30); failure to provide support and training afforded to white 
co-workers, Complaint, 55 26, 31-34, 35 (A7-A8), Amended Claim,
55 1-2/ 5-6, 8-9, 36 (A26, A27, A30); and racially motivated 
evaluation of skills and job performance, Complaint, 55 24-27, 
35-40 (A7, A8), Amended Claim, 55 2, 5-9, 33-39 (A20, A27, A30).

The discriminatory terms of Mr. Easley's employment at 
Fisher Guide were apparent immediately upon his arrival at the 
plant. The day he reported to work, Mr. Easley asked his

5



foreman, Dennis Robinette, why there were no other Black machine 
repairmen at the plant. Mr. Robinette replied that machine 
repair work requires the employee to get dirty, so he assumed 
that no Black would want to do such work. Complaint,  ̂ 8 (A5), 
Amended Claim, 5 32 (A30).

From Mr. Easley's first day on the job, GMC selectively 
enforced its rules against him. When Mr. Easley's orientation 
ran ten minutes into his lunch period, and he was instructed to 
and did take thirty minutes for lunch, he was reprimanded upon 
his return for arriving ten minutes late. Complaint, 5 10 (A5). 
White employees were not reprimanded when they reported late. 
Complaint, 55 16-18 (A6). Within a few days, Mr. Easley was 
reprimanded a second time, for allegedly wasting time on the job 
by speaking with a Black electrician. Complaint, 5 13 (A6).
White employees were not reprimanded for time away from their 
work stations. Complaint, f 11-15 (A6). He was not assigned to 
work with a co-worker, as were other new employees. Complaint,
5 31-32 (A7-A8) And Mr. Easley's supervisors immediately made 
him susceptible to discharge by assigning him to do work on 
another worker's personal project, not on a GMC project, in 
clear violation of GMC rules. Complaint, 5! 20-23 (A6-A7).

The work environment at Fisher Guide was hostile to Black 
skilled employees from the outset. During Mr. Easley's first few 
days at Fisher Guide, a white co-worker, Dave Smith, asked 
plaintiff whether Mr. Easley considered himself a "nigger or a 
regular person." Complaint, 5 28 (A7). When Mr. Easley

6



subsequently asked to be assigned a partner to help familiarize 
him with the work and to ensure his safety, Complaint, 5 33 (A8), 
the foreman assigned him to work with Mr. Smith. Mr. Smith 
threatened Mr. Easley by telling him that when the two of them 
worked on an injection mode machine, Mr. Smith would make Mr. 
Easley crawl inside the machine to repair it while he stood 
outside, so that Mr. Easley's safety would be in Mr. Smith's 
hands. Complaint, 5^ 29-30 (A7).

Mr. Easley's foreman, Mr. Robinette, stated that he did not 
expect that Mr. Easley would be able to perform as well as white 
employees. Amended Claim, 5 2 (A26). When plaintiff did work 
according to specifications he was given, his supervisors 
asserted that the work was unsatisfactory, but refused to show 
him the flaws in the piece of work itself. Complaint, 55 24-27 
(A7). Defendant designed a hydraulics test which it administered 
solely to plaintiff. Complaint, 55 35-36 (A8), Amended Claim,
5 5 (A27). No other employee, previously or subsequently, was 
required to take the test. Complaint, 5 37 (A8), Amended Claim, 
55 6, 8 (A27). Plaintiff failed the test. Complaint, 5 38 (A8), 
Amended Claim, 55 33-39 (A30). Defendant discharged Mr. Easley 
on February 20, 1987. Complaint, 5 39 (A8).

Course of Proceedings
Mr. Easley filed the original Complaint pro se on February 

14, 1989. (A4). On May 17, 1989, GMC answered the Complaint,
(All), and filed a motion to dismiss the two state-law claims on

7



grounds that the negligence claim was preempted by state and 
federal civil rights law, and that wrongful discharge is not 
actionable under Indiana law. (A17). Mr. Easley did not file a 
brief in opposition to the motion to dismiss, but moved on May 
30, 1989 to stay the action pending completion of the EEOC 
investigation. (A18).

With plaintiff's motion to stay and defendant's motion to 
dismiss pending, GMC on July 7, 1989 filed a motion for judgment 
on the pleadings under the June 15, 1989 Supreme Court decision 
in Patterson v. McLean Credit Union. 105 L.Ed.2d. 132. (A22).
In Patterson. the Supreme Court held that 42 U.S.C. § 1981 did 
not apply to a claim of racial harassment on the job. 105 L.Ed.2d 
at 151. The Court confirmed, however, that racial discrimination 
in the formation of contracts is still actionable under section 
1981, id. at 150-151, and that discrimination in certain 
promotions remains actionable as well. Id. at 156. The Court 
did not address whether section 1981 prohibits discriminatory 
termination of a contract.

In response, Mr. Easley moved on July 21, 1989 to amend his 
section 1981 claim to address the new standards set forth in 
Patterson. (A25). He also filed a motion requesting a ruling on 
his pending motion to stay the proceedings. (A32). The court 
asked GMC to file a reply brief addressed to plaintiff's Amended 
Claim. (A34). Defendant filed its reply brief, and an 
opposition to plaintiff's motion to stay, on October 6, 1989.
(A35). On November 2, 1989, the district court denied

8



plaintiff's motion to stay the action, (A37), granted plaintiff's 
motion to file the Amended Claim, and dismissed the case "without 
prejudice." (A38). Mr. Easley noticed this appeal on November 
29, 1989. (A44).

District Court Decision
The district court dismissed plaintiff's Complaint solely on 

the basis of the Supreme Court's decision in Patterson.5 In the 
district court's view, the "gravamen of plaintiff's Complaint in 
the action at bar is that he was discriminatorily terminated from 
his employment during the probationary period." Slip op. at 4-5 
(A41-A42). Mr. Easley's discriminatory termination "seem[ed] 
clearly to be conduct which followed the formation of the 
contract." Slip op. at 5 (A42). Because the court held 
categorically that discriminatory post-formation actions, 
including promotions and terminations, do not violate § 1981, it 
dismissed the termination claim.

The district judge viewed section 1981 as applicable only to 
discriminatory "refusal to enter into an employment contract," 
id. (emphasis added), and overlooked Mr. Easley's separate 
section 1981 claim that he was hired on discriminatory terms. 
According to the court, "Section 1981 is simply not available to 
a plaintiff alleging discrimination unless there was

The court treated defendant's motion under Federal Rule 
of Civil Procedure 12(c) for judgment on the original Complaint 
and Answer as a motion under Rule 12(b)(6) directed at the 
Complaint as amended but not yet answered, and dismissed the 
Complaint in its entirety. Slip op. at 2-3 (A39-40).

9



at the outset a refusal by a defendant to enter into an 
employment contract. Such a refusal is not the wrong alleged by 
plaintiff in this complaint." Slip op. at 5 (A42).

Civil Rights Act of 1990
On February 7, 1990, the Civil Rights Act of 1990 was 

introduced in the United States Senate and House of 
Representatives. (Attachment A to Appendix). The bill seeks, 
among other things, to overturn the Supreme Court's holding in 
Patterson. The bill has already received the support of a bi­
partisan coalition of 50 Senators and over 140 members of the 
House of Representatives. The Civil Rights Protections Act of 
1990, (Attachment B to Appendix), drafted by the Bush 
Administration and introduced_in Congress on February 20, 1990 
also supports overturning Patterson. No significant opposition 
has been voiced in Congress or the Executive Branch to reversal 
of the Patterson decision.

SUMMARY OF ARGUMENT
Discrimination in contract formation is precisely the kind 

of discrimination that Patterson held actionable under section 
1981, and plaintiff's Complaint6 alleges discrimination at the

6 Plaintiff added factual allegations to his original 
Complaint by way of his Amended Claim. General references herein 
to the Complaint refer to the Complaint as it was supplemented by 
the Amended Claim.

Plaintiff's original Complaint asserted claims of negligence 
and wrongful termination under Indiana law. Because plaintiff's

10



contract formation stage in three separate respects. First, 
defendant hired Mr. Easley only because it was required to do so 
under "area hire" provisions of the collective bargaining 
agreement between GMC and the United Auto Workers' Union, yet 
because he is Black, GMC never intended to retain him at Fisher 
Guide. Second, GMC offered to employ Mr. Easley only on 
discriminatory terms: the preexisting working environment at
Fisher Guide was discriminatory when Mr. Easley was hired, and 
defendant from the outset did not intend to treat him as equal to 
white employees. Third, the probationary period was part of the 
hiring process, and the discrimination plaintiff endured during 
that period was therefore discrimination in the formation of his 
contract.

The Complaint further alleges that GMC discriminated against 
plaintiff when it terminated his employment on the basis of’race. 
Patterson did not address this issue, and prior precedent 
squarely holds that discriminatory termination is actionable 
under section 1981. Termination of a contract is legally 
indistinguishable from a refusal to enter a contract.
Plaintiff's allegations of discriminatory discharge thus states a 
claim of discrimination in the making of contracts which is 
unaffected by Patterson.

Finally, Patterson should not be applied retroactively to

Amended Claim did not amend the state-law counts of the original 
Complaint, but merely incorporated that Complaint by reference, 
see Amended Claim, 55 3, 26 (A26, A29), the court concluded that 
plaintiff had abandoned those claims. That conclusion was in 
error, and those claims accordingly must be reinstated.

11



Mr. Easley's case because legislation to overturn the Patterson 
decision is pending in Congress with bi-partisan support and the 
endorsement of the Executive Branch. It would be arbitrary and 
inequitable to affirm the dismissal of plaintiff's claim merely 
because it is under review in the hiatus between the Supreme 
Court's decision and completion of the legislative process.

12



ARGUMENT
I. THE COMPLAINT STATES A CLAIM OF

DISCRIMINATION IN THE FORMATION OF HAROLD 
EASLEY'S EMPLOYMENT CONTRACT WITH GENERAL 
MOTORS CORPORATION

This court may not uphold the district court's dismissal of 
plaintiff's section 1981 claim "unless it appears beyond doubt 
that the plaintiff can prove no set of facts in support of his 
claim which would entitle him to relief." Conley v. Gibson. 355 
U.S. 41, 45-46 (i957); Strauss v. City of Chicago. 760 F.2d 765, 
767 (7th Cir. 1985) quoting Conley. Pro se complaints in 
particular, "due to the lack of legal expertise that accompanies 
their preparation, are to be liberally construed." French v . 
Hevne. 547 F.2d 994, 996 (7th Cir. 1976); see 5 Wright & Miller, 
Federal Practice and Procedure, §1217 at 132 (1969).

The district court erred in failing to construe plaintiff's 
Complaint to allege discrimination in the formation of his 
contract with GMC. Plaintiff alleged that GMC entered into a 
racially discriminatory contract with him by: (A) never
intending to retain him as a permanent employee because of his 
race; (B) imposing implicit racially discriminatory terms and 
conditions on his contract when it was formed; and (C) 
discriminating against plaintiff while in the process of forming 
a contract with him.

A. When GMC Hired Mr. Easley, It Intended To
Discharge Him Before He Completed The 30-Day 
Probationary Period Because Of His Race

An employment contract that provided for automatic
13



termination within thirty days if the individual hired is Black 
would clearly violate section 1981. Mr. Easley alleged that GMC 
hired him on precisely those terms. He alleged that GMC hired 
him to fulfill nominally its duty under the "area hire" provision 
of the collective bargaining agreement, but with the actual 
purpose of excluding him from the plant by firing him before he 
completed his thirty-day probation because he is Black. Section 
1981 "prohibits, when based on race, the refusal to enter into a 
contract with someone, as well as the offer to make a contract 
only on discriminatory terms." Patterson. 105 L.Ed.2d. at 150. 
GMC's bad-faith offer of permanent employment, which was in fact 
intended to deny Mr. Easley employment on the basis of his race, 
was both an offer to contract only on discriminatory terms, and 
an effective refusal to contract.

Plaintiff's afllegations clearly state that when GMC hired 
him at Fisher Guide, it intended to discharge him before he 
completed his probationary period. Mr. Easley alleged that GMC 
hired him "only because they had to under area hire rights 
[provisions]" of the collective bargaining agreement, and that 
they hired him "only on discriminatory term[s]." Amended Claim, 
f 17 (A28). He alleged that GMC "reserves [the] machine repair 
trade for whites only." Amended Claim, 5 27 (A29). At the time 
the contract was made, defendant had discriminatory expectations 
that Mr. Easley would not work as well as white employees, see 
Amended Claim, J 2 (A26), nor be as willing to work. Id., J 32 
(A30). GMC never intended to permit Mr. Easley to complete the

14



30-day. probationary period that is a prerequisite to permanent 
employment at GM. Amended Claim, f 36 (A30). Instead, from the 
very outset of his employment at Fisher Guide, "racial 
discrimination was used against him to discourage him from taking 
[the] job" as a machine repairman. Amended Claim, 14 (A28). 
These allegations describe discrimination in contract formation, 
which section 1981 squarely prohibits.7

Patterson does not permit defendant to subvert section 1981 
by hiring an employee for a brief period with the intention of 
discharging him on discriminatory grounds. See, e.g., Butler v. 
Sherman. Silverstein & Kohl. P.C.. No. 89-2290, slip op. (D.N.J. 
Dec. 19, 1989)8 (sustaining under Patterson black law associate's 
section 1981 claim based on allegations "that defendant had the 
intent to refuse to enter into the contract with the plaintiff on 
racially neutral terms," and that "defendant was acting pursuant 
to its policy, practice, and/or custom or refusing to offer 
employment to black attorneys" when it contracted with 
plaintiff). As the District Court for the Northern District of 
Illinois explained in denying a motion to dismiss section 1981 
claims in English v. General Development Corp., 50 F.E.P. Cases 
825, 827 (N.D.I11. 1989), employers cannot be permitted "to

7 The extensive on-the-job discrimination Mr. Easley 
suffered in only nine days of employment, described in the 
Statement of Facts, supra, and Section I.B., infra, underscores 
Mr. Easley's allegation that GMC intended to deny him employment 
at the time the contract was formed.

8 Copies of the unpublished slip opinions relied on 
herein are attached to the Appendix.

15



disguise discrimination at the time of contract formation until 
after the employer has hired the employee. Through such 
machinations, the employer would be able to escape damages 
liability for acts prohibited by section 1981, even post- 
Patterson." Because plaintiff has alleged that defendant never 
actually intended to hire him, he has stated a claim under 
Patterson of discriminatory refusal to enter into an employment 
contract on neutral terms. The decision of the district court 
dismissing plaintiff's section 1981 claim accordingly must be 
reversed.

B. GMC Hired Mr. Easley Into a Discriminatory 
Work Environment And Treated Him Unequally 
From The Outset of His Employment

Because racially discriminatory policies and practices were 
the norm at Fisher Guide when Mr. Easley was hired, an implicit 
term of his employment contract was that he endure such 
discrimination. The right under section 1981 to make contracts 
free of racial discrimination is violated when an employer hires 
a Black employee to work under adverse circumstances that do not 
equally apply to white employees. Mr. Easley's allegations that 
when defendants contracted with him they intended to discipline 
and evaluate him more harshly than white employees, to offer him 
unequal training opportunities, and to expose him to racial slurs 
made or countenanced by supervisory personnel, state a claim of 
contract discrimination in violation of section 1981.

The Supreme Court in Patterson held that if a contract is

16



offered on terms different from those ordinarily offered to white 
persons, and the difference is racially motivated, the contract 
violates section 1981. 105 L.Ed.2d. at 150. As even the
respondent in Patterson conceded, "if an employer offers a black 
and a white applicant for employment the same written contract, 
but then tells the black employee that her working conditions 
will be much worse than those of the white hired for the same job 
because 'there's a lot of harassment going on in this work place 
and you have to agree to that,' it would have to be concluded 
that the white and black had not enjoyed an equal right to make a 
contract." Patterson. 105 L.Ed.2d. at 171 (Brennan, J., 
dissenting). When GMC offered Mr. Easley a job as a machine 
repairman, it intended that he would work under racially 
discriminatory and harassing conditions. The offer of employment 
thus violates section 1981.

Racial discrimination was a preexisting policy and condition 
at Fisher Guide when Mr. Easley contracted to work there. See 
Statement of Facts, supra. No other Black machine repairman 
worked in the plant. Complaint, 5 7 (A5). From his first day on 
the job, he was treated differently because he is Black. The day 
he started working he was subjected to a racial slur by his 
supervisor, and to harsher discipline than white employees. 
Amended Claim 32 (A30), Complaint, J 8, 10 (A5). During the 
ensuing nine days, defendant continued to discriminate against 
him in a variety of ways. For example, his foreman assigned him 
to work with Mr. Smith, who had called him a nigger, Complaint,

17



H 28 (A7), and who threatened to crush him in a machine when the 
two of them worked together. Complaint, 55 29-30 (A7) .
Defendant designed a hydraulics test for Mr. Easley alone, which 
was administered only to him, and defendant fired him the day 
that he failed it. Amended Claim, f̂[ 35-39 (A30) . These 
allegations support Mr. Easley's claim that his employment 
contract was discriminatory when formed, in violation of section 
1981.

Defendant's offer to contract with Mr. Easley under racially 
discriminatory terms and conditions violates section 1981 
notwithstanding that it was not a verbally expressed term of the 
employment contract. Whether discriminatory terms are overt or 
covert when an employment contract is formed, they equally 
violate section 1981. The Court in Patterson stated that the 
"critical point" is whether "at the time of the formation of the 
contract, [the defendant] in fact intentionally refused to enter 
into a contract with the employee on racially neutral terms."
105 L.Ed. 2d at 155 (emphasis in original deleted). Thus, the 
focus is not on the formal language of the contract, but on 
whether there was discrimination "in fact" at the time of 
formation. See English. 50 F.E.P. Cases at 829 (sustaining 
section 1981 claim based on allegations of an unwritten policy of 
refusing to enter into non-discriminatory employment contracts 
with Black persons); Heff T Haul v. Sanitary District, 1989 
U.S.Dist. LEXIS 12764, *12 (N.D.I11. Oct. 24, 1989) (sustaining 
section 1981 claim where no discriminatory term was verbally

18



expressed, but defendant initially resisted contracting with 
plaintiff, and "plaintiff was harassed from the very beginning of 
the time it began to perform under the contract and constantly 
thereafter"). Because contracts themselves are rarely 
discriminatory on their face, discrimination ordinarily must be 
inferred from the circumstances surrounding their formation.

The circumstances from which inferences of discrimination in 
contract formation may be drawn include post-formation conduct, 
particularly when the conduct occurs so soon after the contract 
is formed. Mr. Easley's observations of defendant's conduct once 
he started to work at Fisher Guide support his contention that 
GMC had a policy of discrimination when they contracted with him. 
While post-formation conduct itself is not actionable under 
Patterson. it may support a claim that the contract was 
discriminatory at the time it was formed. For example, in Butler 
v. Sherman. Silverstein & Kohl, P.C.. No. 89-2290, slip op.
(D.N.J. Dec. 19, 1989), defendant law firm hired plaintiff as an
associate ostensibly on neutral terms on the mistaken impression 
that she was white, and only manifested its intent to 
discriminate against her when it discovered after the contract 
was made that she was Black. Although the actions alleged to 
show that the defendant discriminated all arose after the 
contract was formed, those actions made clear that "defendant 
would not have contracted with plaintiff if it had known she was 
actually black," so the court inferred that the discrimination 
was present when the contract was formed. Slip op. at 2 (A39).

19



Similarly, in Carroll v. Elliott Personnel Svcs.. No.. No. H-89- 
1918, slip op. (D.Md. Nov. 22, 1989), "the conduct of defendant
found objectionable by plaintiff occurred after plaintiff had 
commenced her employment duties," yet the court held that 
plaintiff had alleged a section 1981 violation because the 
allegations supported a claim that the contract was 
discriminatory when formed. After she was hired as a 
receptionist for defendant employment agency, plaintiff learned 
that she was expected to reject Black applicants for employment 
opportunities. Although the term did not become apparent to 
plaintiff until Black applicants applied and plaintiff was 
instructed to reject them, the court found that the allegations 
supported her contention that the contract was discriminatory 
when made. Similarly, GMC's discriminatory conduct in this case 
demonstrates that defendants neither intended to nor did contract 
with plaintiff on neutral terms.

The district court therefore erred in construing plaintiff's 
Complaint to allege only "conduct which followed the formation of 
the contract," and in dismissing it on that ground. Slip op. at 
5 (A42). The district court overlooked plaintiff's allegation 
that defendant only hired plaintiff because of the "area hire" 
provision —  an allegation that clearly ties the other alleged 
discrimination to the moment of contract formation. Under 
Patterson, "[w]hat presumably would not be cognizable by the 
statute would be the imposition by defendant . . . of a new term
or condition of continuing employment." Carroll v. Elliott

20



Personnel Svcs., slip op. at 12. Because the discrimination 
alleged in this case was not imposed during the course of an 
employment relationship, but was included from the inception of 
the contract, plaintiff has stated a section 1981 claim of 
discrimination in contract formation.

C. GMC's Discrimination Against Mr. Easley During The 
Probationary Period Was Discrimination in the 
Process of Forming the Permanent Employment 
Contract

Mr. Easley's allegations of discrimination in the terms and 
conditions of his probationary employment also support a section 
1981 claim of discriminatory contract formation because the 
probationary period was an integral part of the process of making 
the permanent employment contract. Under the collective 
bargaining agreement governing the employment relationship . 
between Mr. Easley and GMC, the temporary, probationary 
employment period is a necessary step in the process of hiring a 
permanent employee. Amended Claim, 11 (A27). The permanent
contract between the parties does not come into force "until 
successful completion of a thirty day probationary period." Id. 
The purpose of the kind of temporary employment at issue here is 
to permit on-the-job evaluation of applicants for permanent 
employment. It is inconceivable that GMC would hire probationary 
employees as an end in itself; rather, probation is merely an 
evaluative tool in the hiring of permanent employees. Thus, 
discriminatory interference with an employee's completion of 
probation is discrimination in the formation of a permanent

21



employment contract actionable under section 1981.
GMC abused the 30-day probationary period as a sham to hide 

its discriminatory intent not to hire Mr. Easley on a permanent 
basis. GMC was obligated to hire Mr. Easley because of the area 
hire provision in the collective bargaining agreement. Through 
its manipulation of the probationary process, however, GMC 
ensured that he would not complete probation to become a 
permanent employee. An employer faces fewer obstacles to firing 
a mere probationary employee than a permanent employee with full 
seniority rights. GMC accordingly took advantage of its 
opportunities during the probationary period to scrutinize 
plaintiff's work more than the work of white employees in order 
to build a record to use as a pretext for his termination, see 
Amended Claim, 55 5, 6, 8, 37 (A27, A30), and terminated 
plaintiff after he had worked for only nine days, and before his 
seniority took effect. Cf. Carter v. O'Hare Hotel Investors, 
1989 U.S. Dist. LEXIS 13156, *6-*7 (N.D.I11. Nov. 1, 1989)
(sustaining a section 1981 claim of discrimination in contract 
formation, notwithstanding that plaintiff had already worked for 
two months before she was discharged, on the ground that the two 
months "might . . .  be viewed as a sham defendants used to cover 
up their decision not to hire Black reservationists"). Such 
intentional discrimination in the process of forming an 
employment contract violates section 1981 as Patterson construes

22



it.9

II. THE COMPLAINT STATES A CLAIM AGAINST GENERAL
MOTORS CORPORATION FOR DISCRIMINATORY 
TERMINATION OF MR. EASLEY'S EMPLOYMENT 
CONTRACT

The district court erred in construing Patterson to bar Mr. 
Easley's claim of wrongful termination. Slip op. at 5 (A42). 
Under prior cases of the Supreme Court and Courts of Appeal, 
section 1981 prohibits termination of a contract on the basis of 
race.10 This aspect of section 1981's coverage was not before

The district court here overstated the holding in 
Sofferin v. American Airlines. 717 F. Supp. 597 (N.D.I11. 1989), 
when it concluded that "the decision to discharge [a probationary 
employee] is no different than failing to further promote him 
after he has attained non-probationary status, which is clearly 
not actionable under section 1981." Slip op. at 5 (A42) (citing 
Sofferin). To the extent that the holding of Sofferin is 
susceptible to such a broad contruction, it was wrongly decided. 
See Patterson. 105 L.Ed.2d. 156; Malhotra v. Cotter & Co., 885 
F.2d 1305 (7th Cir. 1989).

Even if on its own facts Sofferin correctly decided that 
discrimination in the transition from probationary to permanent 
employment is "discrimination occurring after the formation of an 
employment contract" unrelated to the making of the contract, 
that decision is of limited relevance here; whether probation is 
part of the process of forming a contract or plays some other 
role in a particular employment relation is a question of fact 
that can only be resolved on a case-by-case basis.

10 See. e.g.. Goodman v. Lukens Steel Co., 482 U.S. 656 
(1987); St. Francis College v. A1 Khazraii. 481 U.S. 604 (1987); 
Delaware State College v. Ricks, 449 U.S. 250 (1980); McDonald v . 
Santa Fe Trail Transportation Co.. 427 U.S. 273, 275 (1976); 
Johnson v. Railway Express Agency. 421 U.S. 454, 459-60 (1975).

The Courts of Appeals prior to Patterson were unanimous in 
the view that section 1981 forbids racially motivated contract 
termination. See. e.g.. Yarbrough v. Tower Oldsmobile, Inc., 789 
F.2d 508 (7th Cir. 1986); Rowlett v. Annheuser-Busch, Inc.. 832 
F.2d 194 (1st Cir. 1987); Ramseur v. Chase Manhattan Bank. 865 
F.2d 460 (2d Cir. 1989); Kelley v. TKY Refractories Co.. 860 F.2d

23



the Supreme Court in Patterson.11 and the Patterson decision did 
not disturb it.

Since Patterson. the Supreme Court has indicated that 
contract termination claims are still covered by section 1981. A 
week after the Court decided Patterson, it "assume[d], without 
deciding," that an employee's section 1981 rights were violated 
by his removal from his job for allegedly racial reasons. Jett
v. Dallas Independent School District. 491 U.S. ___, 105 L.Ed.2d
598, 611 (1989). The Patterson majority joined the opinion in 
Jett. A month after Patterson, the Court granted certiorari in 
Lvtle v. Household Manufacturing, Inc.. 106 L.Ed.2d 587 (1989),
in which the petitioner alleged he had been denied his right to a 
jury trial in a section 1981 discharge case. If Patterson 
reversed the long-established proposition that section 1981 
prohibits termination on the basis of race, certiorari in Lvtle 
would have been improvidently granted.12

1188 (3d Cir. 1988); Gairola v. Commonwealth of Virginia 
Department of General Svcs.. 753 F.2d 1281 (4th Cir. 1985); 
Comeaux v. Uniroval Chemical Corp.. 849 F.2d 191 (5th Cir. 1988); 
Black v. Akron. 831 F.2d 131 (6th Cir. 1987); Edwards v. Jewish 
Hosp. of Saint Louis. 855 F.2d 1345 (8th Cir. 1988); Sengupta v. 
Morrison-Knudsen Co.. Inc., 804 F.2d 1072 (9th Cir. 1986); Meade 
v. Merchants Fast Motorline. Inc.. 820 F.2d 1124 (10th Cir.
1987); Zaklama v. Mt. Sinai Medical Center. 842 F.2d 2"91 (11th 
Cir. 1988) .

11 Patterson's complaint included a claim that she was 
discharged because of her race. The jury found in favor of her 
employer on the discharge claim, and plaintiff did not appeal on 
that issue. See 105 L.Ed. 2d at 146; Patterson v. McLean Credit 
Union. 805 F.2d 1143, 1145 (4th Cir. 1986).

12 Lvtle was argued and submitted in the Supreme Court on 
January 7, 1990. In view of the possibility that the Court in 
deciding Lvtle will clarify the continued validity of contract

24



The section 1981 right to "make" and "enforce" contracts on 
racially neutral terms includes a right to be free from 
discriminatory contract termination. Termination is akin to 
refusal to contract, because, where work is available, the 
discharge of an employee is legally indistinguishable from a 
refusal to continue to employ him. If a Black machine repairman 
who had never worked at Fisher Guide applied to work there on 
February 20, 1990, the day Mr. Easley was discharged, and was 
turned away in favor of a white machinist because Fisher Guide 
discriminates against Blacks, he would have a section 1981 claim 
for discriminatory refusal to hire.13 He alleged that he wanted 
to continue to work at Fisher Guide, Complaint, f 9 (A5), and was 
rejected because of his race. Complaint,  ̂40 (A8).

Accordingly, Courts of Appeals have held that a right to be 
free from discriminatory contract termination is part and parcel 
of the right to make and enforce contracts. The Fourth Circuit

termination claims under section 1981, it may be appropriate to 
hold this appeal in abeyance pending the Court's decision in 
Lvtle.

13 Indeed, if Mr. Easley himself turned around upon 
termination and asked to be rehired, and was rejected on racial 
grounds, he would clearly have a section 1981 claim. See Jones 
v. Pepsi-Cola General Bottlers. Inc.. 1989 U.S.Dist. LEXIS 10307 
(W.D.Mo. August 29, 1989) (stating that, where plaintiff requests 
a new job upon his discharge, defendant violates section 1981 "in 
refusing on the basis of race to make a new contract"); but see 
Rick Nolan's Auto Body Shop, Inc, v. Allstate Insurance Co., 718 
F. Supp. 721, 722 (N.D.I11. 1989) (rejecting as "disingenuous" 
the allegation that defendant violated section 1981 in refusing 
to re-contract with plaintiff after termination of prior 
contract). The fact that Mr. Easley has not alleged that he 
undertook that futile endeavor does not negate the fact that a 
discriminatory discharge amounts to a refusal to enter into a 
contract of permanent employment.

25



in Patterson. writing on a point affirmed by the Supreme Court,
stated that "[c]laims of racially discriminatory hiring, firing, 
and promotion," as distinct from racial harassment claims, "go to 
the very existence and nature of the employment contract and thus 
fall easily within § 1981's protection." 805 F.2d at 1145.14 
After Patterson, the Fifth Circuit held that a plaintiff who 
alleged that he was discharged from his job on the basis of race 
stated a claim under both Title VII and section 1981. Flanagan 
v. Aaron E. Henrv Community Health Service Center, 876 F.2d 1231 
(5th Cir. 1989). See also Jackson v. Albuquerque. 890 F.2d 225, 
236, n. 15 (10th Cir. 1990) (holding that the decision in 
Patterson "do[es] not affect either the analysis or the outcome 
of this [section 1981 discriminatory discharge] case").15

14 The Supreme Court commented that the Fourth Circuit's 
formulation "somewhat overstates the case" with respect to 
promotions, 105 L.Ed.2d at 156, but did not take issue with it 
insofar as it applies to terminations.

15 The Eleventh Circuit in Vance v. Southern Bell Tel, and 
Tel Co.. 863 F.2d 1503, 1509 n. 3 (11th Cir. 1989), writing 
between the Fourth Circuit and Supreme Court decisions in 
Patterson, held that a claim "that harassment caused [plaintiff] 
to stop working at Western Way, thereby impairing [plaintiff's] 
ability to make and enforce her employment contract," was 
actionable under section 1981.

But see Overbv v. Chevron USA. Inc.. 884 F.2d 470 (9th Cir. 
1989) (affirming grant of summary judgment for defendants on 
plaintiff's claim of retaliatory discharge on grounds that the 
claim involves only post-formation conduct not implicating the 
section 1981 right to make a contract).

The dismissal of the section 1981 claim affirmed by the 
Eleventh Circuit in Sherman v. Burke Contracting. Inc.. 1990 U.S. 
App. LEXIS 520 (11th Cir. Jan. 16, 1990), is not relevant here. 
Sherman dealt not with discriminatory discharge, but discharge in 
retaliation for the filing of an EEOC complaint. There was no 
allegation in that case that defendant refused on grounds of race

26



Several district courts have also confirmed plaintiff's
right in the wake of Patterson to sue under section 1981 for
discriminatory termination of a contract. In Carroll v. Elliott
Personnel Services, slip op. at 10-12, for example, the court
denied defendant's motion to dismiss plaintiff's claim of
discriminatory discharge on the grounds that the Supreme Court in
Patterson did not review plaintiff's termination claim, and that
the Fourth Circuit in that case had "recognized that a claim of
racially discriminatory firing went to the very existence and
nature of an employment contract and thus fell easily within §
1981's protection." In Padilla v. United Air Lines. 716 F. Supp.
485, 489 (D.Colo. 1989), the court similarly held that "Patterson
is not directly applicable to the present case. . . . the Court
did not say that termination of an employee does not involve the
formation process. . . . termination is part of the making of a
contract. A person who is terminated because of his race, like
one who was denied an employment contract because of his race, is
without a job. Termination affects the existence of the
contract, not merely the terms of its performance." In Asare v .
Svms. Inc.. 1989 U.S.Dist. LEXIS 16023, (E.D.N.Y. Sept. 20,
1989), the court sustained a claim of racially motivated
termination, explaining that:

During section 1981's long history it has never 
seriously been contended that its prohibition against 
racially discriminatory employment practices does not 
embrace racially motivated dismissals such as those

to continue to employ plaintiff.

27



alleged here. . . . This is because claims of racially 
motivated discharge go to the very existence of the 
employment contract . . . and thus fall naturally
within the statute's protection of the right to 
contract.

Id. . *9 —*10 (citations omitted).16
The legislative history of section 1981 makes clear that 

Congress intended it to prohibit racially motivated discharge.
The law was passed during Reconstruction, when plantation owners 
who employed freed slaves attempted to reintroduce slavery in 
practice by ignoring the contract rights of their new employees. 
The hearings of the Joint Committee on Reconstruction, which 
investigated conditions in the South and provided the factual 
foundations for section 1981, were replete with references to 
discriminatory discharges of Black workers. For example, when 
plantation owners determined they no longer had use for their 
Black workers, they drove them off the plantations by the 
thousands without paying them. See Report of the Joint Committee

See also. Foster v. Atchison. Topeka and Santa Fe 
Railway Co.. 1990 U.S.Dist. LEXIS 1338 (D. Kan. Jan. 11, 1990); 
Birdwhistle v. Kansas Power and Light Co.. 723 F. Supp. 570, 575 
(D. Kan. 1989) ("The Supreme Court in Patterson was not asked to 
address, and did not address, whether alleged discriminatory 
discharge is actionable under section 1981. We believe that 
discharge is directly related to contract enforcement and thus is 
still actionable under section 1981 in light of Patterson"); 
Gamboa v. Washington. 716 F. Supp. 353, 358, 359 (N.D.I11. 1989)
(plaintiff who alleged he was "transferred, demoted and 
disciplined because he is Hispanic" could sue under section 1981, 
while he "cannot recover for discipline or harassment not 
amounting to a demotion or a constructive discharge"). But see 
e.q.. Hall v. County of Cook. 719 F. Supp. 721 (N.D.I11. 1989) 
(dismissing plaintiff's claim of discriminatory contract 
termination on the ground that, under Patterson. "once an 
individual has secured employment, the statute's protection of 
the right to make a contract is at an end").

28



on Reconstruction, 39th Cong., 1st Sess., pt. ii, at 52, 188,
222, 225, 226, 228; pt. iii, at 142, 173-74; pt. iv, at 64, 66,
68. Illegal firing often bore more harshly on the freed slaves 
than refusal to hire on equal terms. Congress was aware of that 
particular hardship, and enacted the Civil Rights Act of 1866 to 
redress it. Id.

The district court arrived at its conclusion that section 
1981 does not cover GMC's discharge of Mr. Easley by 
characterizing Patterson as distinguishing "between conduct which 
occurs prior to the formation of a contract and conduct which 
occurs after the formation of the contract." Slip op. at 4 
(A14). In the district court's view, only pre-formation conduct 
is covered by the statute. Because Mr. Easley's discharge "seems 
clearly to be conduct which followed the formation of the 
contract," slip op. at 5 (A42), the court held that it is not 
covered by section 1981.

The Supreme Court did not, however, categorically 
distinguish between pre-formation and post-formation conduct.
For example, the court remanded the case on the issue of failure 
to promote, although denial of promotion, like termination, 
occurs after the employment contract is formed. Both 
discriminatory refusal to promote and discriminatory termination 
relate to the making of a contract, which Patterson held is still 
covered by section 1981, 105 L.Ed.2d. at 150, rather than to the 
continuing conditions of employment that Patterson held are no 
longer covered. 105 L.Ed.2d. at 150-51. As the continued

29



vitality of some section 1981 discriminatory-promotion claims 
shows, see. Malhotra v. Cotter & Co.. 885 F.2d at 1311, Patterson 
does not immunize defendants from section 1981 discrimination 
claims from the moment a contract is formed between two parties.

III. IT WOULD BE INEQUITABLE TO APPLY THE DECISION
OF THE SUPREME COURT IN PATTERSON TO THIS 
CASE BECAUSE CONGRESS IS LEGISLATING TO 
REVERSE PATTERSON, AND THE EXECUTIVE BRANCH 
SUPPORTS THE REVERSAL

If the Court concludes that Patterson bars recovery under 
section 1981 on the facts alleged by plaintiffs, Patterson should 
not be applied retroactively to this case. When Mr. Easley filed 
his Complaint in 1987, section 1981 had been uniformly 
interpreted to prohibit the kinds of racial discrimination he 
alleged.__On June 15, 1989, the Supreme Court radically curtailed 
the scope of section 1981. See English. 50 F.E.P. Cases at 826 
(observing that "Patterson changes the way plaintiffs 
traditionally have approached § 1981"). On February 7 and 
February 20, 1990, however, legislation was introduced in 
Congress seeking to reverse the Patterson decision and to restore 
section 1981's prior coverage. See Civil Rights Act of 1990? 
Civil Rights Protections Act of 1990 (Attachments A and B to 
Appendix). Although the legislative process cannot be predicted 
with certainty, at this point there is no significant opposition 
in Congress or the executive branch to the reversal of Patterson. 
If this case is decided adversely to plaintiffs before Congress 
reverses Patterson. plaintiff will have suffered the inequity of

30



dismissal of his case under an interpretation of section 1981 in 
existence only a few months.

The standards set forth in Chevron Oil Co. v. Huson. 404 
U.S. 97 (1971), determine when it is inappropriate to apply new 
statutory interpretations retroactively to pending cases. In 
Chevron. the plaintiff had brought suit more than a year prior to 
the Supreme Court's decision in a separate case which 
unforeseeably overturned existing legal doctrine. The Court 
identified three factors supporting its decision not to apply the 
new rule to the pending case. First, "the decision to be applied 
nonretroactively must establish a new principle of law, either by 
overruling clear past precedent on which litigants may have 
relied . . . or by deciding an issue of first impression whose 
resolution was not clearly foreshadowed." 404 U.S. at 106 
(citations omitted). Second, the Court considered the "prior 
history of the rule in question, its purpose and effect, and 
whether retrospective operation will further or retard its 
operation." Id. at 106-107. Third, the court weighed "the 
inequity imposed by retroactive application" to avoid "injustice 
or hardship." Id. at 107. In cases such as this one that were 
filed prior to Patterson. some courts have declined to apply that 
case retroactively. See. e.q.. Gillespie v. First Interstate 
Bank. 50 F.E.P. Cases 587, 588 n.2 (E.D.Wisc. 1989); Thomas v. 
Beech Aircraft. 1989 U.S.Dist. LEXIS 11284, *5-*15 (D.Kan. 
September 25, 1989).

Application of the Chevron factors to this case shows that

31



it would be inappropriate to apply Patterson retroactively.
There is no doubt that Patterson was both a case of first 
impression, and that it changed prior applicable law. Before the 
Supreme Court decided Patterson. courts in this Circuit routinely 
upheld section 1981 claims alleging the types of conduct, such as 
racial discrimination in the terms and conditions of employment 
and discriminatory discharge, that the district court held non- 
actionable under Patterson. See e.g.. Yarbrough v. Tower 
Oldsmobile, Inc.. 789 F.2d 508 (7th Cir. 1986) (affirming jury 
verdict in plaintiff's favor on section 1981 claim of 
discriminatory discharge); Hunter v. Allis Chalmers Corp., 797 
F.2d 1417, 1421-22 (7th Cir 1986) (affirming jury verdict in 
plaintiff's favor on section 1981 claim of racial harassment). 
Because this case was initiated under prior law, it should not 
now be decided under Patterson.

Chevron's second prong also indicates that Patterson should 
not be applied retroactively to this case. The purpose of the 
rule announced in Patterson was to interpret section 1981 
according to its express terms and thereby to restrict plaintiffs 
with racial harassment claims to their remedies under Title VII, 
42 U.S.C. § 2000e-2(a)(1). While racial harassment "is 
actionable under Title VII's prohibition against discrimination 
in the 'terms, conditions or privileges of employment,'" the 
Supreme Court held that redressing racial harassment under 
section 1981 is "inconsistent with that statute's limitation to 
the making and enforcement of contracts." Patterson, 105 L.Ed.2d

32



at 152-53. Mr. Easley has not merely alleged racial harassment, 
however, but has alleged that he was discriminatorily denied 
employment on equal terms, and, alternatively, that he was 
discriminatorily discharged. Thus, the purpose of ensuring that 
racial harassment claims are redressed under Title VII rather 
than section 1981 is unaffected by nonretroactive application of 
Patterson here. Particularly where Congress is poised to 
reaffirm that section 1981 applies to discrimination in the 
"making . . . and termination of contracts," see Civil Rights Act
of 1990, it would be inappropriate to apply Patterson in an 
effort to promote a broad interpretation of the Supreme Court's 
purpose.

Finally, applying Patterson here would create grave 
inequities. Decision under this Circuit's pre-Patterson 
interpretation of section 1981 would not prejudice defendant, 
because their challenged conduct took place under pre-Patterson 
standards. In contrast, applying Patterson to bar plaintiff's 
section 1981 claim would arbitrarily distinguish his case from 
legally identical claims decided before the Supreme Court decided 
Patterson. or after Congress' reversal of that decision. Because 
legislative reversal of Patterson is a near certainty, this Court 
should not apply Patterson retroactively to preclude plaintiff's 
claim.17

'7 If this Court views Patterson as applicable to and 
dispositive of plaintiff's claim, plaintiff alternatively 
requests that the court hold this appeal in abeyance pending the 
completion of the legislative process.

33



CONCLUSION
For the foregoing reasons, the decision below should be 

reversed and the case should be remanded to the district court.

Respectfully submitted,

RONALD L. ELLIS 
CORNELIA T.L. PILLARD 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900
Attorneys for Plaintiff-Appellant

Date'd: New York, New York
March 2, 1990

34



UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF INDIANA 

INDIANAPOLIS DIVISION

HAROLD EASLEY, )
)

Plaintiff, )
)

vs. ) CAUSE NO. IP 89-154-C
)

GENERAL MOTORS CORPORATION, )
)

Defendant. )

ENTRY OF DISMISSAL

Defendant General Motors Corporation ("GM") has moved, 
pursuant to Rule 12(c), Federal Rules of Civil Procedure, for 
judgment on the pleadings as to plaintiff's claim under 42 U.S.C.

§ 1981.

Plaintiff's original complaint filed pro se on February 14, 
1989, asserted three causes of action:

1) A discrimination claim based on 42 U.S.C. § 1981;
2) A negligence claim for GM's negligent termination based 

on racial discrimination; and
3) A claim that plaintiff's discharge by GM from his 

employment for racial reasons conflicted with public 
policy and thus was an exception to Indiana's employment 
at will doctrine. (The court is characterizing this as a 
"wrongful termination" claim.)

On May 17, 1989, GM moved to dismiss Counts II (negligence) 
and III (wrongful termination), and thereafter, on July 7, 1989,



m o v e d  for j u d g m e n t  on the p l e a d i n g s  as to C o u n t  I (the section 

1981 claim) of p l a i n t i f f ' s  comp l a i n t .

A p p a r e n t l y  a c c e d i n g  to d e f e n d a n t ' s  a r g u m e n t s  in s u p p o r t  of 

its m o t i o n  to d i s m i s s  Co u n t s  I and II, p l a i n t i f f  r e s p o n d e d  by 

s e e k i n g  to a m e n d  his c o m p l a i n t . — ^ In the a m e n d e d  c o m p l a i n t ,  he 

a b a n d o n e d  the n e g l i g e n c e  and w r o n g f u l  t e r m i n a t i o n  c l a i m s  and 

r e f a s h i o n e d  his c l a i m  o n l y  to a s s e r t  a c a u s e  under 42 U.S.C. § 

1981, ta k i n g  into a c c o u n t  the recent S u p r e m e  C o u r t  d e c i s i o n  in

Patterson v. McClain Credit Union, ___ U.S. ____, 109 S. Ct. 2363,

105 L .E d .2d 132 (1989). In r e s p o n s e  to this c o u r t ' s  request, 

d e f e n d a n t  then f iled a r eply brief, r e s t a t i n g  its a r g u m e n t s  in 

s u p p o r t  of its m o t i o n s  to d i s m i s s  and for j u d g m e n t  on the 

p l e a d i n g s .  P l a i n t i f f  has m a d e  no s u b s e q u e n t  fi l i n g  on- these 

i s s u e s .

A p r e l i m i n a r y  p r o c e d u r a l  c l a r i f i c a t i o n  is r e q u i r e d  b e f o r e  the 

c o u r t  rules on the p e n d i n g  m a t t e r s .  T h e r e  is at this time 

a p p a r e n t l y  no m o t i o n  to d i s m i s s  p e n d i n g  w h i c h  is c a p t i o n e d  as 

such. D e f e n d a n t ' s  p r e v i o u s l y  f i l e d  " m o tions to d i s m i s s "  are m oot  

in light of p l a i n t i f f ' s  m o t i o n  to a m e n d  and his t e n d e r e d  a m e n d e d  

c o m p l a i n t ,  which the c o u r t  has now a l l o w e d  h i m  to file. B e c a u s e  a 

m o t i o n  for judgment on the p l e a d i n g s ,  p u r s u a n t  to R u l e  12(c) is 

a p p r o p r i a t e l y  m a d e  o n l y  "after the p l e a d i n g s  are c l o s e d , "  and 

b e c a u s e  the a m e n d e d  c o m p l a i n t  has- not been a n s w e r e d  by the

—  ̂ Plaintiff's motion to amend is hereby granted.

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d e f e n d a n t ,  the m o t i o n  for j u d g m e n t  on the p l e a d i n g s  is no longer 

the p r o p e r  v e h i c l e  to a t t a c k  the a m e n d e d  c omplaint* H o w e v e r , the 

issues r a i s e d  by the d e f e n d a n t  in the initial m o t i o n  still p e r t a i n  

an d  that m o t i o n  shall now be d e e m e d  a m o t i o n  to d i s m i s s  p u r s u a n t  

to Rule 1 2 (b)(6), p r e m i s e d  on the a l l e g e d  failure of the c o m p l a i n t  

to state a c l a i m  upon w h i c h  relief can be granted. The m o t i o n  for 

j u d g m e n t  on the p l e a d i n g s  is t h e r e f o r e  t r a n s f o r m e d  into a m o t i o n  

to d i s m i s s  and shall now be ruled on a c c o r d i n g l y .

F r o m  the a m e n d e d  c o m p l a i n t  and the br i e f s  filed by the 

p a r t i e s ,  the facts u n d e r l y i n g  this a c t i o n  e s t a b l i s h  that p l a i n t i f f  

was i n i t i a l l y  h i r e d  by G M  as an h o u r l y  rate s k i l l e d  trades' 

m a c h i n e  repair man. His e m p l o y m e n t  was g o v e r n e d  by a c o l l e c t i v e  

b a r g a i n i n g  a g r e e m e n t  b e t w e e n  GM a n d  the .UAW r e l a t i n g  fco the terms 

a n d  c o n d i t i o n s  of his e m p l o y m e n t .  Under that c o n t r a c t ,  p l a i n t i f f  

w a s  c l a s s i f i e d  as a " t e m p o r a r y "  or p r o b a t i o n a r y  e m p l o y e e ,  ’a status 

w h i c h  is c u s t o m a r y  for all h o u r l y  e m p l o y e e s  until t h e y  hav e  w o r k e d  

long e n o u g h  to a c q u i r e  s e n i o r i t y .  P l a i n t i f f  was t e r m i n a t e d  d u r i n g  

this p r o b a t i o n a r y  p e r i o d  of e m p l o y m e n t  and cla i m s  in this lawsuit 

t hat his d i s c h a r g e  was r a c i a l l y  b a s e d  and thus d i s c r i m i n a t o r y .  

P l a i n t i f f  a l l e g e s  that this r a c i a l l y  d i s c r i m i n a t o r y  c o n d u c t  by GM 

"took place before [the] e m p l o y m e n t  c o n t r a c t  was in e f f e c t "  an d  

thus his ability to m a k e  a c o n t r a c t  was i m p a i r e d  " s o l e l y  on the 

b asis of race." The r e m a i n d e r  of his pro se p l e a d i n g  is a 

r e c i t a t i o n  of fact u a l  c i r c u m s t a n c e s  w h i c h  p l a i n t i f f  m u s t e r s  in 

s u p p o r t  of his c l a i m  of d i s c r i m i n a t i o n .

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The q u e s t i o n  w h i c h  the c o u r t  m u s t  d e c i d e  is w h e t h e r  

p l a i n t i f f ' s  t e r m i n a t i o n  from his p r o b a t i o n a r y  e m p l o y m e n t ,  

a l l e g e d l y  for r a c i a l l y  d i s c r i m i n a t o r y  reasons, c o n s t i t u t e s  a 

v i o l a t i o n  of s e c t i o n  1981 in that it has d e p r i v e d  hi m  of an 

o p p o r t u n i t y  to form a p e r m a n e n t  c o n t r a c t  w i t h  GM. S t a t e d  

o t h e r w i s e ,  has p l a i n t i f f  p r e s e r v e d  his c a u s e  of a c t i o n  u nder 42 

U.S.C. § 1981 in a l l e g i n g  that in d i s c h a r g i n g  him, GM d e p r i v e d  h i m  

of the o p p o r t u n i t y  of a new and d i s t i n c t  c o n t r a c t u a l  r e l a t i o n  with 

GM?

In d e c i d i n g  this issue the c o u r t  is b o u n d  by 

P a t t e r s o n  v. M c C l a i n  C r e d i t  U n i o n , 109 S. Ct. at 

d i s t i n g u i s h e s  b e t w e e n  c o n d u c t  w h i c h  o c c u r s  p rior 

of a c o n t r a c t  a n d  c o n d u c t  w h i c h  o c c u r s  a f t e r  the

the d e c i s i o n  in 

2363, w h i c h  

to the f o r m a t i o n  

f o r m a t i o n  of the

c o n t r a c t .  In d e f i n i n g  the s c o p e  of s e c t i o n  1981, the S u p r e m e  

C o u r t  stated, at 2372-73, that this s t a t u t e

p r o h i b i t s ,  w h e n  b a s e d  on race, the r e f u s a l  to e nter  
into a c o n t r a c t  w i t h  s o m eone, as w e l l  as the o f f e r  
to m a k e  a c o n t r a c t  o n l y  on d i s c r i m i n a t o r y  terms.
But the r i g h t  to m a k e  c o n t r a c t s  does not exte n d ,  as 
a m a t t e r  of e i t h e r  l ogic or s e m a n t i c s ,  to c o n d u c t  
by the e m p l o y e r  a f t e r  the c o n t r a c t  r e l a t i o n  has 
been e s t a b l i s h e d ,  i n c l u d i n g  breach of the terms of 
the c o n t r a c t  or i m p o s i t i o n  of d i s c r i m i n a t o r y  
w o r k i n g  c o n d i t i o n s .  Such p o s t - f o r m a t i o n  c o n d u c t  
does not i n v o l v e  the r i g h t  to m a k e  a c o n t r a c t  but 
r a t h e r  i m p l i c a t e s  the p e r f o r m a n c e  of e s t a b l i s h e d  
c o n t r a c t  o b l i g a t i o n s  and the c o n d i t i o n s  of 
c o n t i n u i n g  e m p l o y m e n t ,  m a t t e r s  m o r e  n a t u r a l l y  
g o v e r n e d  by the state c o n t r a c t  law and T i t l e  VII. 
(Emphasis s u p p l i e d ) .

The g r a v a m a n  of p l a i n t i f f ' s  c o m p l a i n t  in the a c t i o n  at bar is that



hs was d i s c r i m i n a t o r i 1y t e r m i n a t e d  from his e m p l o y m e n t  d u r i n g  bhe 

p r o b a t i o n a r y  period. This seems c l e a r l y  to be c o n d u c t  w h i c h 

f o l l o w e d  the f o r m a t i o n  of the c o ntract. It ma y  h a v e  been a br e a c h 

of the c o n t r a c t  or a w r o n g f u l  t e r m i n a t i o n .  If it was a breach, 

the a c t i o n  is a s s e r t a b l e  on the co n t r a c t .  If the t e r m i n a t i o n  was 

w r o n g f u l ,  that is, d i s c r i m i n a t o r y ,  it s h o u l d  be p u r s u e d  under 

T i t l e  VII. S e c t i o n  1981 is s i m p l y  not a v a i l a b l e  to a p l a i n t i f f  

a l l e g i n g  d i s c r i m i n a t i o n  un l e s s  there was at the o u t s e t  a refusal 

by a d e f e n d a n t  to e nter into an e m p l o y m e n t  contract. Such a 

r e f u s a l  is not the w r o n g  a l l e g e d  by p l a i n t i f f  in this c o m p l a i n t .

Thus, the fact that Mr. Easley was a probationary employee at 
the time of his termination, which fact Mr. Easley emphasizes in 
an effort to salvage his claim, actually defeats his claim 
because, as defendant has noted, failing to retain a probationary 
employee presumes the pre-existence of an initial contractual 
relationship and the decision to discharge plaintiff at this stage 
is no different than failing to further promote him after he has 
attained non-probationary status, which is clearly not actionable 
under section 1981. See F. Sofferin v. American Airlines, Inc., 
717 F. Supp. 597 (N.D. 111. 1989).

The court, a c c o r d i n g l y ,  finds that, in d i s c h a r g i n g  Mr. Easley, 

G M  d i d  not v i o l a t e  s e c t i o n  1981 b e c a u s e  that a c t i o n  d i d  not 

d e p r i v e  p l a i n t i f f  of the o p p o r t u n i t y  to form a ne w  a n d  d i s t i n c t  

r e l a t i o n  w i t h  his e m p l o y e r ;  i n s tead, G M  t e r m i n a t e d  the c o n t r a c t u a l

-5-



r e l a t i o n s h i D  a l r e a d y  in e x i s t e n c e  wit h  E a s l e y  w h e n  they fired him 

d u r i n g  his p r o b a t i o n a r y  period. B e c a u s e  the d e c i s i o n  in P a t t e r s o n  

p r e c l u d e s  the b r i n g i n g  of such a c l a i m  u nder s e c t i o n  1981* 

p l a i n t i f f ' s  remedies, if any, lie u nder s tate and fede r a l  labor 

laws or T i t l e  VII. The a m e n d e d  c o m p l a i n t ,  a c c o r d i n g l y ,  fails to 

s tate a c l a i m  upon w h i c h  relief can be g r a n t e d  and w a r r a n t s  

D I S M I S S A L  W I T H O U T  P R EJUDICE.

It is so O R D E R E D  this ~Z day of N o v e m b e r ,  1989 .

-p 'Sy2/iUe_^~______________
Sarah Evans Barker, Judge 
United States District Court 
Southern District of Indiana

C o p i e s  to:

H a r o l d  E a s l e y
220 W e s t  17th S t r e e t
C o n n e r s v i l l e , I n d i a n a  47331

W e n d e l l  R. T u c k e r  
G r e g o r y  L. P a d g e t t  
B e t t y  E. L a n d i s  
B A K E R  & D A N I E L S  
300 N o r t h  M e r i d i a n  S t r e e t  
S u i t e  2700
I n d i a n a p o l i s ,  I n d i a n a  46204

-6-



CERTIFICATE OF SERVICE

This will certify that I have this date served counsel
for defendant in this action with true and correct copies of the
foregoing Brief of Plaintiff-Appellant by placing said copies in
the U.S. Mail at New York, New York postage thereon fully prepaid
addressed as follows:
Wendell R. Tucker 
Gregory L. Padgett 
Betty E. Landis
300 North Meridian Street, #2700 
Indianapolis, Indiana 46204

Executed this 7^  daY of March, 1990 at New York, New
York.

deornelia T.L. Pillard 
for Plaintiffs-Appellees