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 be subject to like punishment,
pains, penalties, taxes, licenses, and exactions of every
kind, and to no other.
42 U.S.C. § 1981 (1988).
"The most obvious feature of the provision is the restriction
of its scope to forbidding discrimination in the `mak[ing] and
enforce[ment]' of contracts alone." Patterson v. McLean Credit
Union, 491 U.S. 164, 176, 109 S.Ct. 2363, 2372, 105 L.Ed.2d
132 (1988). Section 1981 "cannot be construed as a general
proscription of racial discrimination in all aspects of
contract relations, for it expressly prohibits discrimination
only in the making and enforcement of contracts." Id.
(emphasis supplied). With regard to the "making" of a contract,
a claim is not cognizable under § 1981 for problems occurring
after a contract is entered into and arising from the
conditions of continuing employment. Id.
Moreover, the right to enter into a contract is not inclusive,
"as a matter of either logic or semantics," of the employer's
conduct after the contract was entered. Whitfield was an
at-will employee who worked for Hirsch in excess of one year
before Hirsch allegedly commenced to behave in a fashion
discriminatory to Whitfield. Thus, these allegations of
discrimination, which arose after the contract was entered, are
inapplicable and cannot fulfill the pleading requirements for a
1981 cause of action.
Similarly, the right to enforce a contract does not "extend
beyond conduct by an employer which impairs an employee's
ability to enforce through legal process his or her established
contract rights." Patterson v. McLean Credit Union, 491 U.S.
at 177-78, 109 S.Ct. at 2373. It was never alleged that Hirsch
interfered in any way with Whitfield's right to enforce his
contract by legal means. Whitfield's allegation, "on
information and belief," that Hirsch "offered plaintiff a bribe
. . . [in order to get Whitfield to exempt] Forest Electric
from any future litigation" is illusory and cannot constitute
an impairment of Whitfield's rights to legal process. It does
not rise to the level of, and cannot on that sole basis
predicate an impairment to enforce a 1981 contract right.
"Interpreting § 1981 to cover postformation conduct . . . is
not only inconsistent with that statute's limitation to the
making and enforcement of contacts, but would also undermine
the detailed and well-crafted procedures for conciliation and
resolution of Title VII claims." Patterson v. McLean Credit
Union, 491 U.S. at 180, 109 S.Ct. at 2374. In essence,
Whitfield's allegations arise solely from conditions of his
employment, and reprehensible though it may be, is not
actionable under § 1981. See id. (claim is not actionable
under § 1981 even where plaintiff can prove that she was
subjected to a racially prejudicial work environment created
and/or condoned by defendant).
Whitfield next claims that Hirsch was part of a conspiracy and
neglect or refusal to prevent a conspiracy in violation of
42 U.S.C. § 1985. Specifically, Whitfield alleges that "the
defendant and each of its employees, servants and agents,
failed and/or refused to prevent the wrongs conspired against
him." Section 1985, in pertinent part, states:
If two or more persons in any State or Territory conspire . . .
for the purpose of depriving, whether directly or indirectly,
any person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws or
for the purpose of preventing or hindering the constituted
authorities of any State or Territory from giving or securing
to all persons within such State or Territory the equal
protection of the law . . . the party so injured or deprived
may have an action for the recovery of damages.
42 U.S.C. § 1985 (1988).