The opinion of the court was delivered by: ROVNER
ILANA DIAMOND ROVNER, UNITED STATES DISTRICT JUDGE.
In March, 1985, Hall's employment of ten years at Cook County Hospital (the "Hospital") was terminated. Although defendant asserts that the discharge occurred because plaintiff committed a "major cause infraction" of the Hospital's rules concerning safety procedures, Hall believes this reason to be pretextual and the termination to be a racially motivated act. On August 6, 1987, Hall filed this action pro se against Cook County, alleging in his complaint that the termination violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"). On August 26, 1987, Judge Marshall, to whom the case was first assigned, granted Hall's motion for appointment of counsel and appointed Mr. Thomas Buess to represent Hall.
On March 3, 1988, Hall filed an amended complaint, adding a claim under 42 U.S.C. § 1981. On March 22, defendant filed a motion to dismiss the amended complaint on the basis that it was untimely. On May 23, Judge Marshall granted Cook County's motion to dismiss Count I (the Title VII count) but found that the § 1981 claim was not time-barred.
In October, 1988, Judge Marshall stayed trial of this case pending the United States Supreme Court's decision concerning the scope of § 1981 in Patterson, supra. Judge Marshall subsequently took senior status and the case was reassigned to this Court in December, 1988. On August 2, 1989, at a status hearing, the Court noted that trial had been stayed pending the Supreme Court's decision in Patterson, and requested from the parties memoranda regarding the applicability of Patterson to this case. The Court also set a trial date of August 22.
On August 7, 1989, defendant filed a motion to dismiss the case with prejudice in light of Patterson, arguing that the Supreme Court's opinion in that case should be read as holding that discharge is conduct which is not actionable under § 1981.
On June 15, 1989, the Supreme Court, in an opinion by Justice Kennedy, drastically limited the application of 42 U.S.C. § 1981, declaring that "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." Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 2372, 105 L. Ed. 2d 132 (1989). In Patterson, the plaintiff brought an action under § 1981, alleging that the defendant harassed her, denied her a promotion, and discharged her, all for racial reasons. The district court permitted the discharge and promotion claims to reach the jury, but held that the harassment claim was not actionable under § 1981. The Court of Appeals affirmed, as did the Supreme Court. Although the Court refused to overrule Runyon v. McCrary, 427 U.S. 160, 96 S. Ct. 2586, 49 L. Ed. 2d 415 (1976), in which it held that § 1981 prohibits racial discrimination in the making and enforcement of private contracts, the Court concluded that racial harassment claims concerning the conditions of employment are not actionable under § 1981. Justice Kennedy's majority opinion adopted a strict construction of the statute, reasoning that such a construction is dictated by the very language of § 1981, which specifically protects only two rights -- "the same right . . . to make . . . contracts" and "the same right . . . to . . . enforce contracts [as white persons]." See Patterson, 109 S. Ct. at 2372. Harassment, the Court concluded, is conduct which occurs after the formation of a contract and which does not interfere with the right to make a contract or to enforce established contract obligations. Id. at 2376.
The Court in Patterson declined to address whether the defendant's failure to promote the plaintiff constituted an actionable violation of § 1981, because the defendant had never made the argument that a failure to promote was not within the scope of the statute. Id. at 2377. Nevertheless, the Court cast considerable doubt as to the validity of promotion claims, explaining that "only where the promotion rises to the level of an opportunity for a new and distinct relation between the employee and the employer is such a claim actionable under § 1981." Id.
Throughout the Patterson opinion, the Court unequivocally distinguished between conduct which occurs prior to the formation of a contract and conduct which occurs after the formation of a contract in defining the scope of § 1981:
[Section 1981] prohibits, when based on race, the refusal to enter into a contract with someone, as well as the offer to make a contract only on discriminatory terms. But 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 ...