Count I: Race Discrimination
Judgment on the pleadings is appropriate where no material facts are in dispute and the movant is entitled to judgment as a matter of law. Nat'l Fidelity Life Ins. Co. v. Karaganis, 811 F.2d 357, 358 (7th Cir. 1987). In this case, the City is entitled to prevail on its motion. Torres claims that the City intentionally discriminated against her in violation of Section 1981 by cancelling her contract solely because she is Hispanic. Section 1981, however, only applies to race discrimination in the formation and enforcement of contracts. Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132, slip op. at 7-14 (1989). It does not apply to post-formation conduct where, as here, a contract allegedly is breached. Id.
Torres concedes the applicability of Patterson to the facts of this case. Response brief at 4. However, she contends that under the Supreme Court's recent decision in Jett v. Dallas Independent School District, 491 U.S. 701, 109 S. Ct. 2702, 105 L. Ed. 2d. 598 (1989), the City is vicariously liable for the post-formation conduct of its employees. This argument is without merit. Jett explicitly holds that municipalities are liable for violating the rights guaranteed by Section 1981 only if the plaintiff can show discrimination arising from a municipal custom or policy. Jett, U.S. at , slip op. at 32. See Perrijean East v. City of Chicago, 719 F. Supp. 683 slip op. at 10-11 (N.D.Ill. 1989) (Shadur, J.). A municipality cannot be held liable under Section 1981 on a respondeat superior theory. Id.
Applying Jett to this case, Torres cannot prevail under Section 1981. Torres fails to allege that her injuries were caused by a municipal policy or custom. See Monell v. New York City Dep't of Social Services, 436 U.S. 658, 691, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). Even assuming that Ware or DuPrey had final policy-making authority, and thus could bind the City by their acts, see City of St. Louis v. Praprotnik, 485 U.S. 112, 108 S. Ct. 915, 924, 99 L. Ed. 2d 107 (1988), Torres cannot prevail. This is because she alleges breach of contract and not discrimination in the formation or enforcement of her contract as required by the express language of both Patterson and Jett. Patterson, 491 U.S. at 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132, slip op. at 7-14; Jett, 491 U.S. at 701, 109 S. Ct. at 2702, 105 L. Ed. 2d 598, slip op. at 32. Accordingly, the City is entitled to judgment on Count I as a matter of law.
COUNT II: Breach of Contract
Count II alleges that the City breached its contract with Torres. Because the City is entitled to judgment on Count I as a matter of law, the court declines to exercise its pendent jurisdiction over Torres' breach of contract claim. United Mine Workers v. Gibbs, 383 U.S. 715, 726, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966).
The City of Chicago's motion for judgment on the pleadings on Count I is granted. Judgment is granted for the City of Chicago and against Rosee Torres on Count I. Count II is dismissed without prejudice.
August 7, 1989
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