Coleman v. Domino's Pizza, Inc., Civ. A. No. 89-0073-BH.

• Decision Date: 09 January 1990
• Docket Number: Civ. A. No. 89-0073-BH.
• Parties: Brenda A. COLEMAN, Plaintiff, v. DOMINO'S PIZZA, INC., Defendant.
• Court: U.S. District Court — Southern District of Alabama

728 F. Supp. 1528

Brenda A. COLEMAN, Plaintiff, v. DOMINO'S PIZZA, INC., Defendant.

Civ. A. No. 89-0073-BH.

United States District Court, S.D. Alabama, S.D.

January 9, 1990.

Henry Brewster, Mobile, Ala., for plaintiff.

G. Sage Lyons, Charles L. Miller, Jr., Mobile, Ala., for defendant.

MEMORANDUM OPINION AND ORDER

HAND, Senior District Judge.

This cause comes before the Court on defendant's motion for partial summary judgment, filed September 20, 1989. Defendant seeks summary judgment as to count two of the complaint, which is based on 42 U.S.C. § 1981, alleging there is no genuine issue as to any material fact. After reviewing, considering and weighing all of the pleadings on file in this cause and the applicable law, the Court finds that defendant's motion is due to be and is hereby, GRANTED.

Plaintiff, Brenda Coleman, was originally hired by Defendant on December 5, 1986. She was subsequently promoted to store president, and was working in this capacity at the time of her termination on April 3, 1988. Plaintiff contends that she was terminated from her employment because she was a black female. Based upon this allegation, she filed the present action seeking redress under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. and 42 U.S.C. § 1981.¹ The present motion does not involve plaintiff's Title VII claim, but is only directed toward the 42 U.S.C. § 1981 claim.

The Supreme Court recently delineated the application of § 1981 in the context of employment discrimination in Patterson v. McLean Credit Union, ___ U.S. ___, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). The Court made it forcefully clear that § 1981 does not provide relief for discrimination in the post-contract setting. Rather, § 1981 by its language prohibits discrimination only in the making and enforcement of contracts, and claims outside the narrow protection of these two specific rights are not actionable. The Court stated:

"By its plain terms, the relevant provision in § 1981 protects two rights: `the same right ... to make ... contracts' and `the same right ... to ... enforce contracts.' The first of these protections extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment. The statute prohibits, when based on race, the refusal to enter into a contract with someone, as well as the offer to make a contract only on discriminatory terms. But the right to make contracts does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions. Such postformation conduct does not involve the right to make a contract, but rather implicates the performance of established contract obligations and the conditions of continuing employment, matters more naturally governed by state contract law and Title VII."

Id., ___ U.S. at ___-___, 109 S.Ct. at 2372-2373, 105 L.Ed.2d at 150-51.

As to the second protection provided in § 1981, the Court stated:

"`The same right ... to ... enforce contracts ... as is enjoyed by white citizens,' embraces protection of a legal process, and of a right of access to legal process, that will address and resolve contract-law claims without regard to race. In this respect, it prohibits discrimination that infects the legal process in ways that prevent one from enforcing contract rights, by reason of his or her race, and this is so whether this discrimination is attributed to a statute or simply to existing practices."

Id., at ___, 109 S.Ct. at 2373, 105 L.Ed.2d at 151.

The Patterson Court did not expressly address the issue presently before the Court, that is, whether an alleged discriminatory discharge is actionable under § 1981, but the principles espoused by that decision are directly applicable to this issue. Plaintiff cites in support of her argument to five cases where the Supreme Court has assumed that such discharges were forbidden by § 1981.² However, all of these cases were decided before Patterson, and not being dispositive of the issue, the more recent decision in Patterson controls.

Upon review of the plain language in Patterson, this Court finds clear support for a "bright line" rule which confines the actionable cases under § 1981 to those involving the actual making or enforcement of a contract. This interpretation is directly in line with the strict construction of the statute adopted by the Patterson Court. As the Supreme Court stated:

"Section 1981 cannot be construed as a general proscription of racial discrimination in all aspects of contract relations, for it expressly prohibits discrimination only in the making and enforcement of contracts."

Id., ___ U.S. at ___, 109 S.Ct. at 2372, 105 L.Ed.2d at 150. (Emphasis added) (citation omitted).

Plaintiff would have this Court adopt a broad interpretation of the applicability of § 1981, thereby narrowing the effect of the Patterson decision. Plaintiff relies most strongly in advancing this argument on Padilla v. United Air Lines, 716 F.Supp. 485 (D.Colo.1989), a case in which the District Court of Colorado held that the right to make a contract included the right to enjoy the benefits of the contract. Id. at 490. The Padilla Court stated:

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. Thus, discriminatory termination directly affects the right to make a contract contrary to § 1981.

Id. However, the Supreme Court in Patterson cautioned against just such ingenious construction of the statute. The Court stated:

"In his separate opinion, Justice Stevens construes the phrase `the same right ... to make ... contracts' with ingenuity to cover various postformation conduct by the employer. But our task here is not to construe § 1981 to punish all acts of discrimination in contracting in a like fashion, but rather merely to give a fair reading to scope of the statutory terms used by Congress. We adhere today to our decision in Runyon that § 1981 reaches private conduct, but do not believe that holding compels us to read the statutory terms `make' and `enforce' beyond their plain and common sense meaning."

Patterson, ___ U.S. at ___ n. 6, 109 S.Ct. at 2377 n. 6, 105 L.Ed.2d at 156 n. 6.

After careful consideration of the Supreme Court's opinion in Patterson, this Court finds that plaintiff's argument must fail. As set out above, the Supreme Court in Patterson narrowly interpreted the protection granted under § 1981 by the phrase "right to make a contract". In fact, under Patterson, once a party has secured employment, the protection afforded by § 1981, to make a contract, is at an end. If the employer has breached the contract that was entered into, the individual can sue under state law for its enforcement or under Title VII if the breach was wrongful. This right to access the legal process, to seek enforcement of the terms, conditions or of the contract itself under the above laws, is protected by § 1981. Therefore, a party is not left without a remedy for wrongful acts of the employer under this application of the statute. Were this Court to hold otherwise, it would be contributing to the overlap of coverage between § 1981 and Title VII. The Patterson Court clearly condemned any such interpretation, stating that "unnecessary overlap between Title VII and § 1981 would also serve to upset the delicate balance between employee and employer rights struck by Title VII." Id., ___ U.S. at ___, n. 4, 109 S.Ct. at 2375, n. 4, 105 L.Ed.2d at 154, n. 4.

As was the case in Patterson concerning discriminatory harassment, the present claim of racially motivated discharge is covered by Title VII. Therefore, as the Supreme Court stated, "that egregious racial discharge of employees is forbidden by a clearly applicable law (Title VII), moreover, should lessen the temptation for this Court to twist the interpretation of another statute (§ 1981) to cover the same conduct." Id. at ___, 109 S.Ct. at 2375, 105 L.Ed.2d at 153. The parties do not dispute that Title VII protects against the type of conduct presently at issue, that is, discriminatory discharge; therefore, this Court should not twist § 1981 to also cover the same conduct. By so holding, this Court "preserves the integrity of Title VII's procedures without sacrificing any significant coverage of the civil rights laws." Id., at ___, 109 S.Ct. at 2375, 105 L.Ed.2d at 154.

Whereby, following the rationale set forth by the Supreme Court in Patterson and outlined herein, this Court finds that discriminatory discharge, like racial harassment, is post-contract formation conduct, occurring after the commencement of the employment relationship and not affecting the employee's right to make or enforce a contract. Accordingly, plaintiff's discharge was beyond the scope of protection provided by § 1981.³

Having decided that plaintiff's claim is not actionable under § 1981 after Patterson, the decision must now be made as to whether to apply that decision retroactively. In determining whether to apply a decision retroactively, this Court is guided by the factors handed down in Chevron Oil Company v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971) (citations omitted). The Supreme Court in Chevron proposed a three-part test to determine whether courts should apply a principle of law retroactively. In reaching this decision the Court should balance: (1) whether a judicial principle "establishes 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"; (2) whether retroactive operation will...