Harvis v. Roadway Exp., Inc.

Decision Date13 October 1992
Docket NumberNo. 91-3348,91-3348
Citation973 F.2d 490
Parties61 Fair Empl.Prac.Cas. (BNA) 91, 59 Empl. Prac. Dec. P 41,699 James T. HARVIS, Jr., Plaintiff, Maurice Rivers and Robert C. Davison, Plaintiffs-Appellants, v. ROADWAY EXPRESS, INC., Defendant-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

Cornelia T.L. Pillard (argued and briefed), NAACP Legal Defense & Educational Fund, New York City, Ellis Boal, Detroit, Mich., for plaintiffs-appellants.

Thomas J. Gibney (argued and briefed), Thomas A. Dixon, John T. Landwehr, Eastman & Smith, Toledo, Ohio, for defendant-appellee.

Before: GUY, BOGGS, and SILER, Circuit Judges.

BOGGS, Circuit Judge.

In this race discrimination case, the appellants originally claimed they were discharged because of racial discrimination and now state that the claim was also for retaliatory discharge for winning a grievance, exercised for racial reasons. The claim was dismissed by the district court based upon the United States Supreme Court ruling in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). On appeal, appellants argue that the district court misapplied Patterson, but that even if their claim had been properly dismissed, this court should reinstate their claim by retroactively applying to this case the new Civil Rights Act of 1991 (CRA of 1991), Pub.L. No. 102-166, 105 Stat. 1071-1100, 42 U.S.C. § 1981, which explicitly enacted the interpretation of § 1981 rejected in Patterson. We reverse on the grounds that the district court misapplied Patterson to dismiss appellants' retaliatory discharge claim. We affirm the district court's dismissal of the race discrimination in firing claim, and hold that the CRA of 1991 should be not applied retroactively to this case.


Plaintiffs-appellants Maurice Rivers and Robert C. Davison are Black garage mechanics who were employed by defendant Roadway Express, Inc. since 1972 and 1973 respectively. On the morning of August 22, 1986, Roadway verbally informed Rivers and Davison that they were required to attended disciplinary hearings that same day related to their accumulated work record. Both plaintiffs refused to attend, alleging inadequate notice. Roadway was contractually required to provide prior written notice of such hearings and allegedly routinely did so for white employees. The hearings resulted in two-day suspensions for both appellants. Appellants filed grievances with the Toledo Local Joint Grievance Committee (TLJGC), which granted the grievances based on "improprieties" and awarded each appellant two days of back pay.

Shortly after these initial hearings, disciplinary hearings were again called by Roadway's Labor Relations Manager, James O'Neil, who announced that he would hold disciplinary hearings against Rivers and Davison within seventy-two hours. Rivers and Davison again refused to attend, claiming inadequate notice. As the result of the hearings, both Rivers and Davison were discharged on September 26, 1986, for refusing several direct orders to attend the hearings and for their accumulated work record.

In February 1987, Rivers and Davison, along with James T. Harvis, filed this suit, alleging that Roadway discriminated against them on the basis of race, in violation of 42 U.S.C. § 1981 and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. They also alleged that Roadway violated the Labor Management Relations Act of 1947 (LMRA), 29 U.S.C. § 185(a), and brought an unfair representation claim against their union. Both of these latter claims were dismissed on summary judgment by the district court.

The district court then separated Harvis's case, which went to trial and ended in a jury verdict on the § 1981 claim for Roadway. The district court ordered judgment against Harvis on his § 1981 and Title VII claims. Harvis's appeal to this court was denied and the trial court's judgment affirmed. Harvis v. Roadway Express, Inc., 923 F.2d 59 (6th Cir.1991).

On June 15, 1989, shortly after Harvis's verdict and before appellants went to trial, the Supreme Court decided Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), which held that the right to make contracts protected by § 1981 does not apply to conditions of employment, but only covers discrimination in the formation of the employment contract or the right to enforce the contract. The district court, while holding that Patterson was not retroactive with respect to Harvis's jury verdict, held it did have retroactive effect on the untried and pending § 1981 claims of Rivers and Davison. The district court concluded that appellants' claims were for discriminatory discharge and thus, based on Patterson, could not be maintained under § 1981. Rivers and Davison argued that their claims were not simply for discriminatory discharge, but rather for retaliation for their success in enforcing contract rights in a grievance hearing. However, the district court held that these were only basic breach of contract claims, and not claims based on the right to enforce contracts, which would fall under § 1981. After dismissing the § 1981 claims, the district court held a bench trial on plaintiffs' Title VII claims and ruled in favor of Roadway, holding that Rivers and Davison failed to establish that their discharge from employment was based upon their race.

Rivers and Davison appeal the district court's dismissal of their § 1981 claims on two grounds. First, they argue that Patterson does not preclude this action, as it is not an action for discriminatory discharge, but rather an action based on retaliation for attempting to enforce the labor agreement, thus squarely falling under § 1981. Second, while this appeal was pending, the CRA of 1991 was enacted, explicitly contradicting the Patterson decision. Appellants argue that the CRA of 1991 should be applied retroactively to their § 1981 claims, thus invalidating the district court's decision. The case, they argue, should be remanded for a new determination under this new legislation.


42 U.S.C. § 1981 provides:

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.

The Patterson court limited the scope of § 1981 actions by holding that § 1981 does not apply to discrimination in conditions of employment, but only prohibits discrimination in the formation of the employment contract or the right to enforce the contract. Patterson, 491 U.S. at 176, 109 S.Ct. at 2372. Thus, under Patterson, § 1981 "covers only conduct at the initial formation of the contract and conduct which impairs the right to enforce contract obligations through legal process." Id. at 179, 109 S.Ct. at 2374.

While Patterson did not directly address the issue of whether § 1981 applied to discriminatory discharges, this court, along with a majority of other courts, has held that claims of discriminatory discharge are no longer cognizable under § 1981 because discharge does not involve contract formation. See Prather v. Dayton Power & Light Co., 918 F.2d 1255 (6th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 2889, 115 L.Ed.2d 1054 (1991); Hull v. Cuyahoga Valley Bd. of Educ., 926 F.2d 505 (6th Cir.1991), cert. denied, --- U.S. ----, 111 S.Ct. 2917, 115 L.Ed.2d 1080 (1991). The plaintiffs, below and on appeal, argue that theirs were not discriminatory discharge claims, but rather, claims of retaliatory discharge where plaintiffs were punished for attempting to enforce their contract rights to be treated equally with white people. The district court rejected this claim as "bootstrapping" and held that this was solely a discriminatory discharge case.

Before deciding whether or not Patterson was correctly applied, we must first address whether the district court was correct in retroactively applying Patterson to the claims of Rivers and Davison. Our circuit has twice held that Patterson does apply retroactively to pending cases. In Prather v. Dayton Power & Light Co., supra, we applied Patterson retroactively to a pending discriminatory discharge case based on three factors used to determine whether an exception mandating non-retroactivity exists, as discussed by the Supreme Court in Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). Under these factors, a decision will not be applied retroactively if, first, it

establishes a new principle of law, either by overruling clear past precedent on which litigants have relied ... or by deciding an issue of first impression whose resolution was not clearly foreshadowed.

Id. at 106, 92 S.Ct. at 355 (citations omitted). The second retroactivity factor is the "prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation." Id. at 107, 92 S.Ct. at 355. Finally, the third factor involves weighing "the inequity imposed by retroactive application" to avoid "injustice or hardship." Id. at 107, 92 S.Ct. at 355.

Weighing these factors, the Prather court held that applying Patterson retroactively would not "retard its operation," nor would it produce "substantial inequitable results" that might otherwise be avoided and concluded that applying Patterson would not unduly prejudice the plaintiff. Prather, 918 F.2d at 1258. This decision was reaffirmed in Hull v. Cuyahoga Valley Bd. of Educ., supra. The district court correctly found that Patterson applied retroactively to the pending § 1981 claims of Rivers and Davison.


Appellants argue that, even if Patterson is applied...

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