Bush v. Commonwealth Edison Co.

• Decision Date: 22 February 1990
• Docket Number: No. 89 C 0652.,89 C 0652.
• Citation: 732 F. Supp. 895
• Parties: Jay V. BUSH, Plaintiff, v. COMMONWEALTH EDISON COMPANY, Defendant.
• Court: U.S. District Court — Northern District of Illinois

732 F. Supp. 895

Jay V. BUSH, Plaintiff, v. COMMONWEALTH EDISON COMPANY, Defendant.

No. 89 C 0652.

United States District Court, N.D. Illinois, E.D.

February 22, 1990.

Randall Schmidt, Mandell Legal Aid Clinic, Chicago, Ill., for plaintiff.

Jay V. Bush, Chicago, Ill., pro se.

Linzey D. Jones, Pamela B. Strobel, Jean F. Holloway, Sidley & Austin, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

ASPEN, District Judge:

The plaintiff, Jay Bush, alleges that Commonwealth Edison ("Edison") discriminated against him because of his race and physical handicap. He seeks recovery under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Rehabilitation Act, 29 U.S.C. § 794; and Illinois statutory and common law. Edison now moves to dismiss the claims brought under 42 U.S.C. § 1981 and the Rehabilitation Act. As we explain herein, we grant Edison's motion.

Background

For the purposes of this motion to dismiss, we assume the truth of Bush's allegations. Zinser v. Rose, 868 F.2d 938, 939 (7th Cir.1989). In 1978, Edison hired Bush, a black male, as a garageman. He was promoted to the position of mechanic in August of 1980. In June, 1982, Bush suffered a work related injury to his right knee. Although this injury diminished the strength and stability of his knee, Bush was able to perform his duties as a mechanic. However, on July 25, 1985, one month after he filed a workers' compensation claim, Bush was demoted to a clerk's position in Edison's billing department on the pretext that he was physically unable to perform as a mechanic. This job paid less than the mechanic position. He received this demotion despite the fact that Edison did not demote white employees who could not perform because of work related injuries.

In March, 1986, Bush's doctor gave him a medical release to return to his job as a mechanic. Edison refused to restore him to his former assignment. However, it allowed white employees who obtained medical releases to return to the positions they held before their injuries. Edison fired Bush in September of 1986. It claimed that the discharge was based on his total work record. However, the decision to fire Bush was actually made on the basis of his race and physical handicap.

Discussion

Edison moves to dismiss two of Bush's claims. First, it maintains that the § 1981 claims should be dismissed on the authority of the Supreme Court's recent decision in Patterson v. McLean Credit Union, ___ U.S. ___, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). Second, Edison argues that the Rehabilitation Act claim should be dismissed because it is time barred. We consider each of these arguments in turn.

A. The § 1981 Claims.

Bush claims that Edison violated § 1981 when it demoted him, when it failed to promote him, and when it ultimately fired him. The statute provides that:

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.

"By its plain terms, the relevant provision in § 1981 protects two rights: `the same right ... to make ... contracts' and `the same right ... to ... enforce contracts.'" Patterson, 109 S.Ct. at 2372.

As a threshold matter, we note that Bush's claims do not implicate the § 1981 right to enforce contracts. This protection extends only to conduct which impedes a citizen's access to the courts or other non-judicial methods of enforcing contractual rights. There are no allegations in the complaint which suggest that Edison created any such impediment.

Therefore, if Bush's claims are actionable under § 1981, the challenged conduct must infringe the right to make contracts. In Patterson v. McLean Credit Union, the Supreme Court clearly delineated the scope of this right. The Court stated that,

The right to make contracts extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment. The statute prohibits, when based on race, the refusal to enter into a contract with someone, as well as the offer to make a contract only on discriminatory terms. But the right to make contracts does not extend, as a matter of logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions.

Id. 109 S.Ct. at 2372-2373.

Applying Patterson to this case, the § 1981 claims can survive Edison's motion to dismiss only if Bush has alleged that Edison refused to enter into a contract with him, or offered to enter into a contract only on discriminatory terms. Conversely, the claims must be dismissed if the allegations pertain to conduct that arose after the formation of a contract with Edison. We dismiss the claims because the allegations of discharge, demotion and failure to promote involve conduct that took place after the creation of a contract with Edison.

Bush has failed to allege facts sufficient to bring his promotion claim within the ambit of § 1981. Patterson acknowledges that an employer's refusal to promote an employee may be actionable under § 1981 in certain limited circumstances. "The question of whether a promotion claim is actionable under § 1981 depends on whether the nature of the change in position was such that it involved the opportunity to enter into a new contract with the employer." Id. 109 S.Ct. at 2377. "Only where the promotion rises to the level of an opportunity for a new and distinct relation between the employee is such a claim actionable under § 1981." Id.

Patterson gives little guidance as to what constitutes a "new and distinct" relationship, and no clear standard has evolved in the lower courts. See Malhotra v. Cotter & Co., 885 F.2d 1305, 1312 (7th Cir. 1989). However, for present purposes, we need not attempt to create such a standard. As alleged in the complaint, salary and job function are the only distinctions between the mechanic and clerk positions. Although one court has found such differences sufficient under Patterson, Mallory v. Booth Refrigeration Supply Co., Inc., 882 F.2d 908, 910 (4th Cir.1989), we believe that this is far too expansive a reading of the opinion. Standing alone, these differences do not suggest a new and distinct relationship between Bush and Edison. See Crader v. Concordia College, 724 F.Supp. 558, 563 (N.D.Ill.1989) (increase in responsibility and authority insufficient to meet the Patterson standard); Anderson v. U.P.S., Inc., 1989 WL 122307 (N.D.Ill. Oct. 6, 1989). Virtually every job change involves different duties and a different rate of pay; Patterson clearly did not intend every such claim to be actionable under § 1981.¹

Bush contends that his § 1981 discharge claim is viable because, "it constitutes Defendant's refusal to make a contract with Plaintiff and involves a new and distinct employment relationship." (Pltf.Mem., p. 6). We disagree. An employer's decision to fire an employee is not the refusal to make a contract, but the termination of an existing contractual relationship. Edison's discharge of Bush constitutes conduct after the contract relation had been established. While this conduct may be the basis for another cause of action, it is not actionable under § 1981. Overby v. Chevron USA, Inc., 884 F.2d 470 (9th Cir.1989) (Court held that a discharge claim involved postformation conduct, and was not actionable after Patterson); Hall v. County of Cook, State of Ill., 719 F.Supp. 721, 723 (N.D.Ill.1989) (discharge claim not actionable under § 1981); Jones v. Alltech Assoc., Inc., No. 85 C 10345, slip op. at p. 11, 1989 WL 105234 (N.D.Ill. Sept. 1, 1989).²

Similarly, Bush's allegation that Edison violated § 1981 when it demoted him to billing clerk also runs afoul of Patterson; the claim rests on postformation conduct excluded from § 1981 liability. Anticipating the fatal effect of Patterson, Bush attempts to analogize his demotion claim to an actionable promotion claim involving a "new and distinct relation" between employer and employee. According to Bush, his demotion claim is viable because it created a new and distinct relationship with Edison and constituted an offer to make a contract on discriminatory terms.

Although a demotion and promotion may be analogous in some regards, any similarities are unrelated to the characteristics that make some promotions actionable under § 1981. In actionable promotion cases, the new position sought by an employee represents an opportunity to conclude a prior contractual relationship and create an entirely new contract. In this situation, § 1981 protects a citizen's right to make this new contract free from the encumbrance of racial discrimination. Thus, in a promotion case, the protection of § 1981 is focused on eliminating discrimination with regard to the new contract; the old contract is not a point of concern.

In a demotion case, however, the source of discrimination is entirely different. Bush claims that Edison discriminated when it removed him from his position as mechanic and placed him as a clerk in the billing department. The essence of his § 1981 claim is that Edison discriminated on the basis of race when it refused to maintain the contract under which Bush was employed as a mechanic. Thus, the objectionable conduct giving rise to the claim of discrimination is not the creation of a new contract, but the termination of the existing contract. However, the termination of an existing contract constitutes postformation conduct, which is excluded from § 1981 liability. While a new contractual relationship may have arisen after the...