English v. General Development Corp., 88 C 9735.

• Decision Date: 15 August 1989
• Docket Number: No. 88 C 9735.,88 C 9735.
• Citation: 717 F. Supp. 628
• Court: U.S. District Court — Northern District of Illinois
• Parties: Jack ENGLISH, Sandra Rushing, and DeMona Ross, Plaintiffs, v. GENERAL DEVELOPMENT CORPORATION, and Gina Battaglia, Defendants.

717 F. Supp. 628

Jack ENGLISH, Sandra Rushing, and DeMona Ross, Plaintiffs, v. GENERAL DEVELOPMENT CORPORATION, and Gina Battaglia, Defendants.

No. 88 C 9735.

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

August 15, 1989.

Jeffrey L. Taren, Kinoy, Taren, Geraghty & Potter, Chicago, Ill., for plaintiffs.

James W. Gladden, Jr., David B. Ritter, Mayer, Brown & Platt, Chicago, Ill., for defendants.

MEMORANDUM OPINION

BRIAN BARNETT DUFF, District Judge.

On July 13, 1989, this court gave Jack English, Sandra Rushing, and DeMona Ross leave to amend their complaint, one which they originally filed in November 1988. The amended complaint sought damages and other relief from General Development Corporation and its Senior Marketing Manager, Gina Battaglia, for violating 42 U.S.C. § 1981 and §§ 2000e et seq. (1982). At the time that the court granted the plaintiffs leave to amend, pending before the court was the defendants' motion to dismiss the plaintiffs' § 1981 claims. The defendants argued that the recent decision in Patterson v. McLean Credit Union, ___ U.S. ___, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), drastically limited the scope of § 1981, such that the plaintiffs could no longer seek relief under that statute. Apparently the plaintiffs agreed, for the plaintiffs' new § 1981 counts were significantly different from those filed in 1988.

At the time the plaintiffs presented their motion to amend their complaint to this court, all of the parties and the court were aware of the defendants' motion. Nevertheless, the defendants agreed to stand on their motion, and informed the court that they would adhere to a previously set schedule for briefing the motion. Because of a miscommunication, however, the court denied the defendants' motion prior to receiving the defendants' reply brief—an unfortunate circumstance for the defendants, as this reply brief was their first shot at the plaintiffs' new complaint.

The court will now reconsider its decision in light of the defendants' reply. First the court will reprint its earlier decision, omitting only its discussion of the posture of the defendants' motion:

This is the first time that this court has had to gauge the effect of Patterson upon § 1981 cases pending before this court. Two points which are pertinent to the present motion are clear from the decision. First, § 1981 continues to prohibit racial discrimination in the making and enforcement of private contracts. Second, the prohibition against discrimination in the making of contracts applies only at the time of formation of a contract, and not to "problems that may arise later from the conditions of continuing employment." Patterson, 109 S.Ct. at 2369-70, 2372-73. Plaintiffs thus must draw a link between discrimination at the time of contract formation and the harm suffered in order to state a claim under this portion of § 1981.

This said, the plaintiffs sufficiently allege § 1981 claims. Plaintiff Ross alleges that at the time the defendants hired her, they were unwilling to enter into a nondiscriminatory employment contract with black individuals. As a result of this unwillingness, Ross—who is black— was forced to quit. See Amended Complaint, ¶¶ 1, 4, 11, 16. Ross has alleged the link between the defendants' policy at the time they hired Ross and the harm which she suffered, and so she can proceed with her § 1981 claim.

English and Rushing provide the link which Patterson requires twice over. First, they allege that their protests against the defendants' policy of not contracting with black persons resulted in their discharge. Amended Complaint at ¶ 12. The federal courts have held repeatedly that a person who is fired in retaliation for protesting conduct prohibited by § 1981 can himself or herself seek relief under § 1981. See, for example, Winston v. Lear-Siegler, Inc., 558 F.2d 1266, 1268-70 (6th Cir.1977); Goff v. Continental Oil Co., 678 F.2d 593, 598-99 (5th Cir.1982); Pinkard v. Pullman-Standard, A Div. of Pullman, Inc., 678 F.2d 1211, 1229 n. 15 (5th Cir. Unit B 1982); Garcia v. Rush Presbyterian St. Luke's Medical Ctr., 80 F.R.D. 254, 265-66 (N.D.Ill.1978). While Patterson would have dampened the exuberance reflected in these opinions had the courts considered it, the policy supporting relief for those suffering from retaliation under § 1981 is still good, and Patterson leaves it untouched.

The defendants' method of compensating English and Rushing provides the second link between their allegedly illegal policy and harm to English and Rushing. Both of these plaintiffs received commissions based on sales of persons whom they supervised. See Amended Complaint at ¶ 14. The defendants' policy thus could have directly reduced English and Rushing's earnings. This gives them yet another interest in seeing to it that the defendants' illegal policy ends.

For these reasons, the defendants' motion to dismiss the plaintiffs' § 1981 claims is denied.

Now for the defendants' arguments in reply. The defendants submit at various points in their brief that the plaintiffs are trying to deceive the court by reworking their § 1981 claims. The defendants go so far as to append to their brief a line-by-line comparision of the plaintiffs' complaints to make apparent to the court what the plaintiffs openly admitted in opposing the defendants' motion: Patterson changes the way plaintiffs traditionally have approached § 1981.

Perhaps the plaintiffs have reworked their case. Maybe the parties will have to reopen discovery as a result. But these points are irrelevant to the present motion.¹ The only time that a court may dismiss a claim under Rule 12(b)(6) Fed.R. Civ.P., is when "it appears beyond doubt that the plaintiff can prove no set of facts to support his claims that would entitle him to relief." This standard is stringent, and in applying it, the court "must resolve all reasonable inferences in the plaintiff's favor." Rutan v. Republican Party of Illinois, 868 F.2d 943, 954 (7th Cir.1989).

The court will first reassess DeMona Ross's claims for relief. As noted earlier, the plaintiffs allege that the defendants were unwilling to enter into non-discriminatory employment relationships with black persons in May-June 1987. Ross, who is black, joined General Development during this time, but because of the defendants' alleged policy, she was forced to quit.

The defendants attack Ross's claim in a number of ways. They first assert that Judge Hart dismissed an identical claim in Dangerfield v. The Mission Press, No. 88 C 7199, mem. op. at 3-4 (N.D.Ill.1989). The defendants ignore, however, the language of Dangerfield plaintiffs' complaint, which asserted that The Mission Press "harassed them because of their race, and condoned and fostered a `racially hostile atmosphere.'" Id. at 2-3. The Dangerfield plaintiffs did not plead, unlike Ross, that a practice prohibited by § 1981 was in force at the time of their hiring. Dangerfield thus does not control the present motion.²

The defendants next contend that Ross gave an entirely different motivation for her leaving General Development in her original complaint. This is true, but it does not mean that her present complaint does not state a claim upon which this court can grant relief. The defendants are free to use Ross's equivocation to their advantage on a motion for summary judgment or at trial,³ but it has no bearing on the present motion.

The defendants' most substantive attack on Ross's § 1981 claim is that it is an impermissible attempt to avoid Patterson, as much of Ross's amended § 1981 claim reads as challenging the defendants' conduct after Ross entered into an employment relationship with General Development. See especially Amended Complaint at ¶ 11. The defendants echo the concern expressed by Judge Hart in Dangerfield: a plaintiff who claims to use post-formation conduct to establish only pre-formation discrimination could end up proving too much.

The defendants' remedy for this situation —dismissing Ross's claims altogether— is too drastic, and unwarranted even after Patterson. The Patterson majority did reject Justice Brennan's suggestion that a plaintiff could seek redress under § 1981 when the defendant's post-formation conduct is "`sufficiently severe or pervasive as effectively to belie any claim that the contract was entered into in a racially neutral manner.'" Patterson, 109 S.Ct. at 2376, quoting id. at 2389 (Brennan, concurring in part and dissenting in part). But the Court further held that a plaintiff could use post-formation conduct to attribute "a divergence in the explicit terms of particular contracts" to racial animus.

Thus, for example, if a potential employee is offered (and accepts) a contract to do a job for less money than others doing like work, evidence of racial harassment may show that the employer, at the time of formation, was unwilling to enter into a nondiscriminatory contract. However, and this is the crucial point, the question under § 1981 remains whether the employer, at the time of the formation of the contract in fact intentionally refused to enter into a contract with the employer on racially neutral terms.

Id. at 2376-77 (emphasis in original).

The Court's example in Patterson was exactly that: an example. It does not exhaust the possible different terms which employers could place in their contracts, nor does it limit the types of post-formation conduct which the plaintiff could use to demonstrate the motivation for the different term. See Patterson v. McLean Credit Union, 805 F.2d 1143, 1145-46 (4th Cir. 1986) (racial harrassment, standing alone, does not abridge right to make contracts free from racial discrimination, but it may be probative of discriminatory intent required in § 1981 action); Patterson, 109 S.Ct. at 2376 n. 5 (approvingly noting Fourth Circuit's comment as to evidentiary value of post-formation conduct). Dangerfield's concern that allowing evidence of post-formation conduct would subvert Patt...