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ENGLISH v. GENERAL DEV. CORP.

August 15, 1989

JACK ENGLISH, SANDRA RUSHING, and DEMONA ROSS, Plaintiffs,
v.
GENERAL DEVELOPMENT CORPORATION, and GINA BATTAGLIA, Defendants



The opinion of the court was delivered by: DUFF

 BRIAN BARNETT DUFF, UNITED STATES DISTRICT JUDGE

 On July 13, 1989, this court gave Jack English, Sandra Rushing, and DeMona Ross leave to amend their complaint, one which they originally filed in November 1988. The amended complaint sought damages and other relief from General Development Corporation and its Senior Marketing Manager, Gina Battaglia, for violating 42 U.S.C. § 1981 and §§ 2000e et seq. (1982). At the time that the court granted the plaintiffs leave to amend, pending before the court was the defendants' motion to dismiss the plaintiffs' § 1981 claims. The defendants argued that the recent decision in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989), drastically limited the scope of § 1981, such that the plaintiffs could no longer seek relief under that statute. Apparently the plaintiffs agreed, for the plaintiffs' new § 1981 counts were significantly different from those filed in 1988.

 At the time the plaintiffs presented their motion to amend their complaint to this court, all of the parties and the court were aware of the defendants' motion. Nevertheless, the defendants agreed to stand on their motion, and informed the court that they would adhere to a previously set schedule for briefing the motion. Because of a miscommunication, however, the court denied the defendants' motion prior to receiving the defendants' reply brief -- an unfortunate circumstance for the defendants, as this reply brief was their first shot at the plaintiffs' new complaint.

 The court will now reconsider its decision in light of the defendants' reply. First the court will reprint its earlier decision, omitting only its discussion of the posture of the defendants' motion:

 
This said, the plaintiffs sufficiently allege § 1981 claims. Plaintiff Ross alleges that at the time the defendants hired her, they were unwilling to enter into a nondiscriminatory employment contract with black individuals. As a result of this unwillingness, Ross -- who is black -- was forced to quit. See Amended Complaint, paras. 1, 4, 11, 16. Ross has alleged the link between the defendants' policy at the time they hired Ross and the harm which she suffered, and so she can proceed with her § 1981 claim.
 
English and Rushing provide the link which Patterson requires twice over. First, they allege that their protests against the defendants' policy of not contracting with black persons resulted in their discharge. Amended Complaint at para. 12. The federal courts have held repeatedly that a person who is fired in retaliation for protesting conduct prohibited by § 1981 can himself or herself seek relief under § 1981. See, for example, Winston v. Lear-Siegler, Inc., 558 F.2d 1266, 1268-70 (6th Cir. 1977); Goff v. Continental Oil Co., 678 F.2d 593, 598-99 (5th Cir. 1982); Pinkard v. Pullman-Standard, A Div. of Pullman, Inc., 678 F.2d 1211, 1229 n.15 (5th Cir. Unit B 1982); Garcia v. Rush Presbyterian St. Luke's Medical Ctr., 80 F.R.D. 254, 265-66 (N.D. Ill. 1978). While Patterson would have dampened the exuberance reflected in these opinions had the courts considered it, the policy supporting relief for those suffering from retaliation under § 1981 is still good, and Patterson leaves it untouched.
 
The defendants' method of compensating English and Rushing provides the second link between their allegedly illegal policy and harm to English and Rushing. Both of these plaintiffs received commissions based on sales of persons whom they supervised. See Amended Complaint at para. 14. The defendants' policy thus could have directly reduced English and Rushing's earnings. This gives them yet another interest in seeing to it that the defendants' illegal policy ends.
 
For these reasons, the defendants' motion to dismiss the plaintiffs' § 1981 claims is denied.

 Now for the defendants' arguments in reply. The defendants submit at various points in their brief that the plaintiffs are trying to deceive the court by reworking their § 1981 claims. The defendants go so far as to append to their brief a line-by-line comparison of the plaintiffs' complaints to make apparent to the court what the plaintiffs openly admitted in opposing the defendants' motion: Patterson changes the way plaintiffs traditionally have approached § 1981.

 Perhaps the plaintiffs have reworked their case. Maybe the parties will have to reopen discovery as a result. But these points are irrelevant to the present motion. *fn1" The only time that a court may dismiss a claim under Rule 12(b) (6) Fed.R.Civ.P., is when "it appears beyond doubt that the plaintiff can prove no set of facts to support his claims that would entitle him to relief." This standard is stringent, and in applying it, the court "must resolve all reasonable inferences in the plaintiff's favor." Rutan v. Republican Party of Illinois, 868 F.2d 943, 954 (7th Cir. 1989).

 The court will first reassess DeMona Ross's claims for relief. As noted earlier, the plaintiffs allege that the defendants were unwilling to enter into non-discriminatory employment relationships with black persons in May-June 1987. Ross, who is black, joined General Development during this time, but because of the defendants' alleged policy, she was forced to quit.

 The defendants attack Ross's claim in a number of ways. They first assert that Judge Hart dismissed an identical claim in Dangerfield v. The Mission Press, No. 88 C 7199, mem. op. at 3-4 (N.D. Ill. 1989). The defendants ignore, however, the language of Dangerfield plaintiffs' complaint, which asserted that The Mission Press "harassed them because of their race, and condoned and fostered a 'racially hostile atmosphere.'" Id. at 2-3. The Dangerfield plaintiffs did not plead, unlike Ross, that a practice prohibited by § 1981 was in force at the ...


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