In March, 1985, plaintiff filed written charges of
discriminatory employment practices by defendant with the New
York State Division of Human Rights and the Equal Employment
Opportunity Commission ("E.E.O.C."). Plaintiff alleged that
defendant discriminated against him on the basis of his
Hispanic national origin. Plaintiff took time off from work to
file these charges.
Following this filing, plaintiff received a formal written
disciplinary notice for poor attendance.
In April, 1985, plaintiff filed a second charge with the
E.E.O.C. again alleging defendant discriminated against him on
the basis of his national origin.
This second charge was later amended on Friday, May 10, 1985.
Plaintiff was given four hours without pay to file this
amendment; he was told to be at work by 12:45 p.m. Plaintiff
was unable to complete his business at the E.E.O.C. office and
return to work by 12:45 p.m. and thus, called work to explain
that he would not arrive by 12:45 p.m.. Plaintiff then went to
the Department of Motor Vehicle.*fn1
Plaintiff's employment with defendant was terminated on
Monday, May 13, 1985.
On May 16, 1985, plaintiff again amended his second E.E.O.C.
charge adding allegations of retaliatory acts by defendant for
plaintiff having engaged in protected activities.
Plaintiff received "Notices of Right to Sue" on October 11,
1985 and February 5, 1986. The notices were the basis of two
complaints which were combined in an amended complaint. The
complaint asserted that both Title VII and § 1981 were violated
by: i) defendant failing to transfer/promote plaintiff in June,
1980 because of his national origin; ii) defendant inadequately
compensating plaintiff for the supervisory services performed
by plaintiff between 1982 and August, 1983 because of his
national origin; iii) plaintiff being improperly demoted in
August, 1983 because of his national origin; iv) defendant
denying plaintiff a transfer/promotion to Senior Mechanical
Buyer in November, 1983 because of his national origin; v)
plaintiff being denied a transfer/promotion to Senior
Mechanical Engineer in January, 1984 because of national
origin; vi) plaintiff being denied a transfer/promotion to
Senior Mechanical Buyer in October, 1984 because of national
origin; vii) defendant retaliating against plaintiff for
engaging in protected activities by disciplining him in April
1985; and viii) defendant retaliating against plaintiff for
engaging in protected activity by firing him on May 13, 1985.
In July 1987, defendant moved for summary judgment. By
Memorandum and Order, dated November 13, 1987, this Court
dismissed all the Title VII claims except for (vi) that
alleging failure to transfer/promote in October, 1984, (vii)
that alleging retaliation in April, 1985, and (viii) that
alleging retaliation in May, 1985. The other Title VII claims
were dismissed because were not timely filed with the EEOC. At
that time, this Court also dismissed the § 1981 claim (i)
alleging defendant failed to transfer/promote plaintiff in
June, 1980 as time barred.
Defendant now moves for summary judgment on the remaining
§ 1981 claims, i.e. (ii)-(vii).
Before deciding whether any of plaintiff's § 1981 claims
should be dismissed, this Court must first determine whether
Patterson v. McLean Credit Union,*fn2 should be applied
retroactively in the case at bar. While courts generally
presume that decisions will be applied retroactively, see Solem
v. Stumes, 465 U.S. 638, 104 S.Ct. 1338, 79 L.Ed.2d 579 (1984),
this is not an absolute rule. See Chevron Oil Co. v. Huson,
404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). In Chevron Oil
Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), the
Supreme Court laid out a three part test for courts to apply
when determining whether a decision should be applied
retroactively. Courts should balance: 1) whether the decision
"establishes a new principle of law, either by overruling clear
past precedent on which litigants may have relied, or by
deciding an issue of first impression whose resolution was not
clearly foreshadowed"; 2) whether retroactive operation will
further or retard the new rule, in light of its purpose and
effect; and 3) whether applying the new rule retroactively will
produce substantial inequitable results.
Here, the new rule in question, the Patterson decision,
overruled clear precedent. Since a number of circuit courts had
interpreted 42 U.S.C. § 1981 to reach private employment
discrimination,*fn3 Patterson's ruling that discrimination
relating to conditions of employment is not actionable under §
1981 may be said to overrule clear precedent. See E.E.O.C. v.
Vucitech, 842 F.2d 936, 940-42 (7th Cir. 1988) (new Supreme
Court interpretation of statute meets first Chevron requirement
where it is contrary to prior interpretation).
While the first factor weighs in favor of not applying the
decision retroactively, the second and third factor seem to
weigh in favor of applying the Patterson decision retroactively
in the case at bar. The Court reached the result it did in
Patterson not only because interpreting § 1981 to cover
post-formation conduct unrelated to the enforcement of the
contract would be "inconsistent with that statute's limitation
to the making and enforcement of contracts" but also because it
would undermine "the detailed remedial scheme constructed in
[Title VII]." Patterson, 109 S.Ct. at 2374, 2375. That one of
plaintiff's reasons for retaining his § 1981 claims is that he
may obtain compensatory damages for his physical injuries and
punitive damages which are unavailable under Title VII
demonstrates that not applying the rule retroactively will
retard the rule's ability to protect Title VII's remedial
scheme; and hence, the second factor weighs in favor of
applying Patterson retroactively. Brackshaw v. Miles, Inc.,
723 F. Supp. 60 (N.D.Ill. 1989).
Similarly, the third factor also weighs in favor of applying
Patterson in the case at bar. Plaintiff argues that applying
Patterson in his case would produce "substantial inequitable
results" because he would have no redress for those claims
which were time barred under Title VII and because plaintiff's
counsel would go without compensation for work which had
already been completed. However, plaintiff may not argue that
he relied on pre-Patterson precedent and consciously allowed
the time to run on his Title VII claims since he also asserted
each of his claims under Title VII. Further, it is unlikely
that plaintiff's counsel engaged in a great extent of work
solely for the purpose of prosecuting § 1981 claims since the
burden of proof and evidence necessary to prove plaintiff's
Title VII claims are identical to those necessary to prove his
§ 1981 claims.*fn4 Patterson, 109 S.Ct. at 2377-78. Finally,
the majority of cases which have considered this issue have
applied Patterson retroactively. See Brooms v. Regal Tube Co.,
881 F.2d 412 (7th Cir. 1989); Morgan v. Kansas City Area
Transp. Auth., 720 F. Supp. 758 (W.D.Mo. 1989); Brackshaw,
supra; Williams v. National R.R. Passenger Corp., 716 F. Supp. 49
(D.D.C. 1989).*fn5 In conclusion, this Court holds that
should be applied retroactively to plaintiff's case.
In Patterson, the Supreme Court strictly limited the
application of 42 U.S.C. § 1981 in employment discrimination
cases. The Court held that discrimination relating to "the
conditions of employment is not actionable under § 1981 because
that provision does not apply to conduct which occurs after the
formation of a contract and which does not interfere with the
right to enforce established contract obligations." Patterson,
at 2369. The Court reasoned that "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'."