Craig v. Ohio Dept. of Administrative Services, No. 92-3383

• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)
• Writing for the Court: MERRITT
• Citation: 1 F.3d 1240
• Parties: NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Stanley R. CRAIG, Plaintiff-Appellant, v. OHIO DEPARTMENT OF ADMINISTRATIVE SERVICES, et al., Defendants-Appellees.
• Docket Number: No. 92-3383
• Decision Date: 09 August 1993

Page 1240

1 F.3d 1240 NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit. Stanley R. CRAIG, Plaintiff-Appellant,
v.
OHIO DEPARTMENT OF ADMINISTRATIVE SERVICES, et al.,
Defendants-Appellees. No. 92-3383. United States Court of Appeals, Sixth Circuit. Aug. 9, 1993.

Before: MERRITT, Chief Judge; KEITH and SUHRHEINRICH, Circuit Judges.

MERRITT, Chief Judge.

This is a civil rights case brought under 42 U.S.C. Sec. 1981, alleging racial discrimination in relation to a demolition contract. Plaintiff Craig appeals the district court's grant of summary judgment dismissing his complaint. He challenges the district court's holding that the Civil Rights Act of 1991 should not be applied retroactively, and its holding that Craig failed to raise any genuine issue of material fact precluding summary judgment. We affirm the district court's decision.

I.

Stanley Craig is a black man and the owner and operator of a wrecking company. He bid on and was awarded a minority set-aside contract for demolition services and asbestos removal at Ohio State University's McCracken Power Plant. He alleges that the defendants violated Sec. 1981 by conspiring to induce him to enter into the contract on discriminatory terms under which performance of the contract was impossible, and of conspiring to refuse to enter into new agreements for additional work required for completion of the project but not anticipated by the parties.

In May 1984, Craig attended a pre-bid meeting held at the Power Plant. He and all other interested contractors received a set of plans and specifications detailing the plant. Prospective bidders were also shown a 30 square-inch cutout of one of the boilers. Craig alleges that the defendants possessed more detailed plans of the plant which were shown to white contractors working on other projects, but which were not shown to prospective bidders on the minority set-aside project. Craig also alleges that the cutout was not representative of the condition of other boilers in the plant.

Craig claims that the misleading information presented at the pre-bid meeting caused him to submit a bid which was much too low. This bid was accepted. When he began to work on the project, Craig realized that he had significantly underbid, and he requested "change orders" to allow additional work to be done for additional remuneration. According to Craig, all but one of his requests for change orders were denied, while similar requests from white contractors were granted.

Five defendants remain in the case. Fosdick & Himler is the architectural firm which was responsible for preparing the plans and specifications as well as the sample cutout provided to bidders on the minority set-aside project. Otto Himler is an architect for Fosdick & Himler. Walt Gaub is the State Architectural Office Field Representative who was responsible for approving Craig's asbestos removal plan and inspecting his work. Daniel Shield is the Deputy Director of the Division of Public Works who oversaw the entire McCracken Power Plant project. Burt Myers is a manager at the Power Plant. As proof of discriminatory intent, Craig asserts that all of these defendants treated him in a highly disrespectful manner. He cites several examples of racist remarks. He further asserts that the defendants refused to accept his asbestos removal plans, insisted that he remove all asbestos from the plant prior to demolition, confiscated his equipment, and eventually replaced him with a white contractor.

II.

Craig's claims are limited to the formation of the initial contract and later negotiations for change orders by Patterson v. McClean Credit Union, 491 U.S. 164 (1989). In Patterson, the Supreme Court held that Sec. 1981 protection "extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment." Id. at 176. Craig's complaint seemed to be based upon the theory that defendants terminated the contract for discriminatory reasons--a claim not available under Patterson. When the district court asked the parties to file summary judgment motions addressing the applicability of Patterson, Craig changed his theory to allege discrimination in the formation of the initial contract and refusal to enter into change orders. Craig v. Ohio Dept. of Admin. Services, 790 F.Supp. 758, 759 (S.D.Ohio 1992).

While this case was pending below, Congress passed...