Kozam v. Emerson Elec. Co., Civ. A. No. EC 87-313-D-D.

• Citation: 739 F. Supp. 307
• Decision Date: 21 May 1990
• Docket Number: Civ. A. No. EC 87-313-D-D.
• Parties: Makram KOZAM, Plaintiff, v. EMERSON ELECTRIC COMPANY d/b/a Daybrite Lighting, Defendant.
• Court: U.S. District Court — Northern District of Mississippi

739 F. Supp. 307

Makram KOZAM, Plaintiff, v. EMERSON ELECTRIC COMPANY d/b/a Daybrite Lighting, Defendant.

Civ. A. No. EC 87-313-D-D.

United States District Court, N.D. Mississippi.

May 21, 1990.

Jim Waide, Tupelo, Miss., for plaintiff.

David P. Jaqua, Bruce H. Henderson, Kullman, Inman, Bee & Downing, Memphis, Tenn., for defendant.

MEMORANDUM OPINION

DAVIDSON, District Judge.

This cause comes on yet again for consideration of the plaintiff's claim brought under 42 U.S.C. § 1981, as well as the plaintiff's demand for a trial by jury, in the wake of another intervening Supreme Court decision.¹ The court now must consider whether the plaintiff's assertions that he was discharged because of his race and that his employer failed to offer him alternate positions with the company because of his race and in retaliation for his filing of a charge of discrimination with the EEOC state claims cognizable under § 1981 in light of Patterson v. McLean Credit Union, 491 U.S. ___, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). Patterson held that § 1981 did not provide a remedy for post-contract on-the-job racial harassment. Patterson held

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 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....

The second of these guarantees ... 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.

Patterson, at ___, 109 S.Ct. at 2372-73, 105 L.Ed.2d at 150-51. The opinion included, largely in dicta, a general discussion of the construction to be given § 1981.

The following facts will be treated as true for purposes of the instant motion to dismiss. The plaintiff, Makram Kozam, was born in Egypt, is of Arabian ancestry, and is a naturalized American citizen. He was employed by the defendant from August 22, 1978 to approximately September 22, 1986²—a period of some eight years and two months—in a series of positions of increasing responsibility. For the final two years of that period, he was employed as a quality control inspector. The plaintiff states that he was discharged on account of his national origin and that the defendant's assertion that he was terminated for poor job performance is pretexual. The plaintiff further claims that he sought reassignment to other available positions when he was informed of his termination, but that he was refused such alternative positions on account of his national origin and also in retaliation for his filing in the interim of a charge of discrimination with the EEOC. Plaintiff presents these claims under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000-e et seq. and 42 U.S.C. § 1981. The defendant's motion seeks the dismissal of the § 1981 claims and the striking of plaintiff's jury demand. The plaintiff opposes dismissal of his § 1981 retaliation and failure to rehire claims, and further asserts that he is entitled to a trial by jury on his Title VII claims, regardless of the disposition of his § 1981 claims.

I. RETALIATION

The question of the continued viability of retaliation claims under § 1981 has been raised but not reached by the two courts to which this court must look for binding precedent: the United States Supreme Court and the Court of Appeals for the Fifth Circuit. See Lytle v. Household Manufacturing, Inc., ___ U.S. ___, 110 S.Ct. 1331, 108 L.Ed.2d 504 (1990); Rathjen v. Litchfield, 878 F.2d 836, 842 (5th Cir.1989). Since the Supreme Court decided Patterson, a large number of lower courts have considered the effect of the Court's dicta on situations not presented by Patterson. Recently, this court decided Williams v. BLM Co., Inc., 731 F.Supp. 231 (N.D.Miss.1990); the court held that the dicta in Patterson makes clear that § 1981 will not be read to provide a remedy for claims of discriminatory discharge. Accord Lavender v. V & B Transmissions & Auto Repair, 897 F.2d 805 (5th Cir.1990).³ That decision was based upon Patterson's clear indication that the Supreme Court would read § 1981 to exclude such claims. Similarly, as to Kozam's § 1981 claim of discriminatory discharge, the court finds the defendant's motion to dismiss to be well-taken.⁴

The court is now faced with a more difficult question; Patterson does not make clear how the Court would treat a claim for retaliation brought under § 1981,⁵ yet does propound general rules by which that statute is to be construed. On the other hand, there exists clear Fifth Circuit precedent, decided prior to Patterson, which states that § 1981 provides a remedy for retaliation for the filing of a charge of race discrimination with the EEOC or the filing of a suit alleging race discrimination. See Goff v. Continental Oil Co., 678 F.2d 593, 599 (5th Cir.1982); see also Irby v. Sullivan, 737 F.2d 1418, 1430 n. 22 (5th Cir.1984) (questioning, but following, Goff); Pinkard v. Pullman-Standard, A Division of Pullman, Inc., 678 F.2d 1211, 1229 n. 15 (5th Cir. Unit B, 1982). The doctrine of stare decisis requires that a court follow binding precedent in the absence of "special justification." Patterson, ___ U.S. at ___, 109 S.Ct. at 2370, 105 L.Ed.2d at 148 (citing Arizona v. Rumsey, 467 U.S. 203, 212, 104 S.Ct. 2305, 2310, 81 L.Ed.2d 164 (1984)).

In cases where statutory precedents have been overruled, the primary reason for the Court's shift in position has been the intervening development of the law, through either the growth of judicial doctrine or further action taken by Congress. Where such changes have removed or weakened the conceptual underpinnings from the prior decision, see, e.g., Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. ___, ___ 109 S.Ct. 1917, ___, 104 L.Ed.2d 526 (1989); Andrews v. Louisville & Nashville R. Co., 406 U.S. 320, 322-23, 92 S.Ct. 1562, 1564-65, 32 L.Ed.2d 95 (1972), ... the Court has not hesitated to overrule an earlier decision.

Patterson, ___ U.S. at ___, 109 S.Ct. at 2370, 105 L.Ed.2d at 148. Thus, despite the existence of prior Fifth Circuit authority, and despite the lack of even clear dicta in Patterson on the issue of the continued viability of claims for retaliation under § 1981, this court nonetheless departs from the general rule of stare decisis and holds that Patterson is controlling on the issue of retaliation. The court further holds that § 1981 does not, in light of the construction placed upon it by the Supreme Court, support the plaintiff's claim for retaliation.

The Fifth Circuit determined in Goff that § 1981 provided a remedy for adverse employment action taken in retaliation for the filing of a claim of discrimination. Goff, at 599. The rationale for that determination was that it was necessary to imply such a remedy into the statute to avoid the evisceration of the rights protected by § 1981. Under the Patterson ruling, § 1981 does not provide a remedy for the allegedly discriminatory discharge of which the plaintiff complained to the EEOC⁶; it would be anomalous to hold that the plaintiff's underlying claim is not actionable under § 1981 but to hold on the other hand that protection against retaliation for the filing of the charge is a necessary corollary to the statute.⁷ The rationale of the Fifth Circuit in implying the remedy for retaliatory discharge is thus not applicable to the case at bar.⁸ The court therefore holds that, despite the dictates of stare decisis, the Patterson decision may supersede applicable Fifth Circuit authority on the issue of retaliation under § 1981.

The analysis does not stop there, however; the court must determine whether, in light of Patterson, § 1981 provides a remedy for retaliation. In Patterson, the Court was not presented with a claim under the "right ... to ... enforce contracts" provision of § 1981.⁹ Nevertheless, the Court explained that such right

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. It also covers wholly private efforts to impede access to the courts or obstruct nonjudicial methods of adjudicating disputes about the force of binding obligations, as well as discrimination by private entities, such as labor unions, in enforcing the terms of a contract. ... The right to enforce contracts does not, however, extend beyond conduct by an employer which impairs an employee's ability to enforce through legal process his or her established contract rights. As Justice White put it with much force in Runyon, one cannot seriously "contend that the grant of the other rights enumerated in § 1981, that is, other than the right to "make" contracts, i.e., the rights `to sue, be parties, give evidence,' and `enforce contracts' accomplishes anything other than the removal of legal disabilities to sue, be a party, testify or enforce a contract. Indeed, it is impossible to give such language any other meaning." Runyon v. McCrary, 427 U.S. 160, at 195, n. 5 96 S.Ct. 2586, 2606 n. 5, 49 L.Ed.2d 415 (1976) (dissenting opinion).

Patterson, ___ U.S. at ___, 109 S.Ct. at 2373, 105 L.Ed.2d at 151 (emphasis original).¹⁰

Several courts which have held § 1981 inapplicable to claims of retaliation have relied in whole or in part...