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July 31, 1989


The opinion of the court was delivered by: REVERCOMB


 This is a suit alleging racial discrimination and retaliation in violation of 42 U.S.C. § 1981. Oral argument was heard on April 4, 1989, on the defendant's motion for summary judgment. While the motion was under advisement, the Supreme Court handed down Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989), which reshaped the proper judicial interpretation of § 1981. Both the defendant and the plaintiff have filed supplements to their pleadings concerning the effect of Patterson on this case and questions left to be decided by the lower courts. *fn1" In this Opinion and Order, the Court grants the defendant's motion for summary judgment.

 Section 1981 and Patterson

 Enacted in its original form as part of the Civil Rights Act of 1966, ch. 31, 14 Stat. 27, the current § 1981 states that all persons in the United States "shall have the same right . . . 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 . . . ." Rev. Stat. § 1977 (codified at 42 U.S.C. § 1981).

 In Patterson, the Supreme Court held that § 1981 is not a right of action to sue for all forms of racial discrimination in the employment context. Noting that the key phrase of the provision concerns the right "to make and enforce contracts," the Court held that

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. Such postformation conduct does not involve the right to make a contract, but rather implicates the performance of established contract obligations and the conditions of continuing employment, matters more naturally governed by state contract law and Title VII.

 109 S. Ct. at 2373. Moreover, the Court added that

iinterpreting § 1981 to cover postformation conduct unrelated to an employee's right to enforce her contract, such as incidents relating to the conditions of employment, is not only inconsistent with that statute's limitation to the making and enforcement of contracts, but would also undermine the detailed and well-crafted procedures for conciliation and resolution of Title VII claims.

 Id. at 2374. Finally, the Court also held that the "right to enforce contracts 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." Id. at 2373.

 Using this interpretation, the Court in Patterson concluded that the plaintiff's claim for racial harassment was not actionable under § 1981. Id. In addition, the Court ruled that "whether a promotion claim is actionable under § 1981 depends upon whether the nature of the change in position was such that it involved the opportunity to enter into a new contract with the employer." Id. at 2377.

 Applying Patterson

 In the instant case, most of the claims of the plaintiff -- who was a Manager II of mail baggage and express when the suit was filed -- revolved around the allegation that "she is treated differently from the other managers" on account of her race. Amended Complaint paras. 5, 7. She claimed that she was the only manager reporting to another manager, that she was the only manager without an office, that she often was excluded from meetings, and that she was given raises that resulted in her being paid at a level too low for her position. Amended Complaint paras. 5, 6, 8. Applying Patterson, the Court concludes that none of these claims are actionable under § 1981. First, the claims involving conditions of employment were specifically excluded from § 1981's purview by Patterson, 109 S. Ct. at 2374. Second, the claim concerning pay -- even if it is considered a claim about "promotion" -- clearly does not meet the requirement that promotion claims under § 1981 involve the "opportunity for a new and distinct relation between the employee and the employer." Patterson, 109 S. Ct. at 2377. Although the Supreme Court did not clarify exactly what is meant by a "new and distinct relation," the Court did state that, in making the determination, "a lower court should give a fair and natural reading to the statutory phrase 'the same right . . . to make . . . contracts,' and should not strain in an undue manner the language of § 1981." Id. This Court concludes that the concept of a "new and distinct relation" certainly does not include a situation in which the employment relationship would not be altered in any way except for a change in pay. Higher pay is a part of nearly all promotions and by itself can hardly make a promotion a "new and distinct relation."

 In addition, the plaintiff claims that after she filed this suit her supervisor downgraded her position from "Manager" to "Chief" in retaliation for her bringing the suit, in violation of § 1981. The plaintiff appears to have two theories about how ...

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