Craig v. Ohio Dept. of Administrative Services, No. C-2-87-0987.

CourtUnited States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
Writing for the CourtTerrence L. Gallagher, Columbus, Ohio, for plaintiff
Citation790 F. Supp. 758
Decision Date20 March 1992
Docket NumberNo. C-2-87-0987.
PartiesStanley R. CRAIG, Plaintiff, v. OHIO DEPARTMENT OF ADMINISTRATIVE SERVICES, et al., Defendants.

790 F. Supp. 758

Stanley R. CRAIG, Plaintiff,
v.
OHIO DEPARTMENT OF ADMINISTRATIVE SERVICES, et al., Defendants.

No. C-2-87-0987.

United States District Court, S.D. Ohio, E.D.

March 20, 1992.


Terrence L. Gallagher, Columbus, Ohio, for plaintiff.

Timothy J. Mangan, Asst. Atty. Gen., Columbus, Ohio and Gary Herfel, Dinsmore & Shohl, Florence, Ky., for defendants.

AMENDED OPINION AND ORDER1

KINNEARY, Senior District Judge.

This matter comes before the Court to consider the Defendant's motion for summary judgment. Fed.R.Civ.P. 56(b).

I. STATEMENT OF THE CASE

This is an action for money damages and the return of property alleged to have been converted by the Defendants. As originally filed, the Plaintiff sought relief for alleged racial discrimination under several theories, including 42 U.S.C. §§ 1981, 1983, 1985, and 1986. The only claim which remains is his section 1981 claim.

The Plaintiff, Stanley Craig, is a black man and the owner and operator of a business known as the Craig Wrecking Company. On August 29, 1984, the Plaintiff entered into a contract to perform demolition services and asbestos removal at the Ohio State University for the Ohio Department of Administrative Services (ODAS). The specifications upon which the Plaintiff prepared his bid were supplied by the Defendant Fosdick & Hilmer, Inc., an architectural firm, (hereinafter "the firm"), and its officer, the Defendant Otto Hilmer.

In his Complaint, the Plaintiff alleges that the Defendants conspired to render performance of the contract impossible, while simultaneously rendering assistance to white contractors to facilitate their projects at the worksite. He claims that

790 F. Supp. 759
the firm refused to provide him with timely plans and specifications despite the fact that such cooperation was afforded to similarly situated white contractors. It is also claimed that the Defendant Daniel Shields, the Deputy Director of Public Works, required the Plaintiff to perform substantial duties outside the scope of his contract without a corresponding increase in remuneration or extensions of time within which to complete the additional tasks. He further claims that the Defendant Walter Gaub, the State's Architect's Office Field Representative, refused to provide the requisite approval for the Plaintiff's asbestos removal plan until five months after the expected completion date of the contract. Gaub is also alleged to have issued a negative progress report relative to the Plaintiff's work despite the fact he never personally reviewed the actual worksite. Shields terminated the Plaintiff's contract on August 15, 1985

At the request of this Court, the parties filed motions for summary judgment dealing with the applicability of Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) to this action. In response to these motions, the Plaintiff filed a set of affidavits apparently changing the theory which was set forth in the Complaint. The Plaintiff now refers the Court to the events occurring in May of 1984 when he attended a pre-bid meeting for minority contractors in which the specifications for the demolition job were made available. Based on the information presented at that meeting, the Plaintiff prepared a bid which he later discovered was seriously deficient in the estimate of the work to be done. He further claims that, unbeknownst to the attendees at the meeting, the Defendants were in possession of information which was far more complete with respect to the scope of the job, and, at the direction of the Defendant Myers, this information was made available to white contractors and deliberately withheld from minority contractors.

Once it became evident to the Plaintiff that the job exceeded the scope of his original proposal, he requested a change order, pursuant to the terms of his original contract, which would have allowed for additional work to be performed for additional remuneration. The Plaintiff argues that change orders are standard in the industry, and are routinely entered into whenever the parties discover that there has been a mistake as to the extent of the work contemplated in the original contract. He asseverates that such changes constitute new contracts. Craig alleges that his request was denied, despite the fact that white contractors were routinely granted such requests. Only one change was approved for the Plaintiff, which he characterized as insignificant.

Therefore, while in the Complaint the Plaintiff averred facts which indicated that the contract was terminated for discriminatory reasons, it is now Craig's contention that the Defendants discriminated against him in the formation of the contract by refusing to provide him information necessary to adequately estimate the scope of the work he would need to perform. Thus the discriminatory withholding of information rendered performance of the contract impossible. In addition, Craig also contends that his ability to enter into new agreements was hindered because of his race. This theoretical switch was no doubt prompted by the holding in Patterson that section 1981 "protection extends only to the formation of a contract, but not to problems that may arise later from the conditions of continuing employment." Patterson, 491 U.S. at 176, 109 S.Ct. at 2372.

During the pendency of this motion Congress passed the Civil Rights Act of 1991 (hereinafter "the Act"). The Act expands the scope of section 1981 to include discrimination which occurs after the formation of a contract. Thus, under the Act, the postformation conduct alleged in the original complaint would also be cognizable in this action. The Court requested that the parties address the question whether the Act applies to this case. Thus the Court must determine whether the new theory of liability creates factual issue for determination at trial, and whether the additional remedies

790 F. Supp. 760
available under the amended section 1981 are available to the Plaintiff

II. STANDARD OF REVIEW

In considering the Plaintiff's motion, the Court is mindful that summary judgment is appropriate only in limited circumstances. Rule 56(c) of the Federal Rules of Civil Procedure provides, in pertinent part:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

The moving party bears the burden of establishing the absence of a genuine issue as to any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The United States Supreme Court has held, however, that the standard of summary judgment "mirrors the standard for a directed verdict under Federal Rule of Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). This is true where, for instance, the dispute turns only on a legal question and the moving party must prevail as a matter of law even if the Court were to resolve all factual disputes in favor of the non-moving party. See Ross v. Franzen, 777 F.2d 1216, 1222 (7th Cir.1985); 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2725, at 79 (2d ed. 1983).

A summary judgment motion also requires special treatment of the record. The Court "must view the evidence presented through the prism of the substantive evidentiary burden" and determine "whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict." Anderson, 477 U.S. at 252, 254, 106 S.Ct. at 2512, 2513; see also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Nonetheless, in making this determination the Court may not impinge upon the proper function of the jury. Therefore, all of "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. With this standard in mind, the Court will address the Plaintiff's motion.

III. STATUTORY PRESUMPTION

Until recently, section 1981 provided in part:

All persons within the jurisdiction of the United States shall have the same right ... to make and enforce contracts ... as is enjoyed by white citizens.

42 U.S.C. § 1981 (1988). In Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the Supreme Court interpreted section 1981 to protect individuals from racial discrimination in the formation of contracts and in access to judicial and non-judicial dispute resolution of disputes arising from such discrimination.

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.... Such postformation conduct does not involve the right to make a contract, but rather implicates performance of established contract obligations and the conditions of continuing employment, matters more naturally governed by state contract law and Title VII.

Patterson, 491 U.S. at 177, 109 S.Ct. at 2373. However, on November 21, 1991, section 1981 was amended by section 101 of the Act, and now includes the following provisions in addition to that stated above:

(b) For purposes of this section, the term "make and enforce contracts" includes
790 F. Supp. 761
the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual
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2 practice notes
  • Harris v. BD. OF EDUC. OF COLUMBUS, OHIO, Civ. A. No. C-2-86-909.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • June 26, 1992
    ...which have considered the question of the retroactive application of the Act. See, Craig v. Ohio Department of Administrative Services, 790 F.Supp. 758, 768 and n. 6 (S.D.Ohio 1992) (Kinneary, J.) (collecting cases and noting that of forty-eight opinions interpreting provisions of the 1991 ......
  • Craig v. Ohio Dept. of Administrative Services, No. 92-3383
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 9, 1993
    ...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 While this case was pending below, Congress passed the Civil Rights Act of 1991, which extended Sec. 1981 protection to eve......
2 cases
  • Harris v. BD. OF EDUC. OF COLUMBUS, OHIO, Civ. A. No. C-2-86-909.
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • June 26, 1992
    ...which have considered the question of the retroactive application of the Act. See, Craig v. Ohio Department of Administrative Services, 790 F.Supp. 758, 768 and n. 6 (S.D.Ohio 1992) (Kinneary, J.) (collecting cases and noting that of forty-eight opinions interpreting provisions of the 1991 ......
  • Craig v. Ohio Dept. of Administrative Services, No. 92-3383
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • August 9, 1993
    ...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 While this case was pending below, Congress passed the Civil Rights Act of 1991, which extended Sec. 1981 protection to eve......

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