in § 1981 action); Patterson, 109 S. Ct. at 2376 n.5 (approvingly noting Fourth Circuit's comment as to evidentiary value of post-formation conduct). Dangerfield's concern that allowing evidence of post-formation conduct would subvert Patterson should be no more than a concern, one that should inform the court's review of evidence and its decision as to whether the plaintiff has proved a violation of § 1981. Were the courts to overemphasize the concern expressed in Dangerfield, employers would be free to disguise discrimination at the time of contract formation until after the employer has hired the employee. Through such machinations, the employer would be able to escape damages liability for acts prohibited by § 1981, even post-Patterson.
It is too early for the court to determine which post-formation conduct it will admit as evidence of the defendants' alleged discrimination in the making of their contract with Ross. The amended complaint asserts several allegedly discriminatory provisions in Ross's employment contract. Some of these provisions, upon closer examination and discovery, may not be terms of Ross's employment contract, or else may not be discriminatory. See, for example, Amended Complaint at para. 1 (suggesting that Ross's employment contract contained discriminatory provisions as to the scheduling of appointments and marketing to blacks); id. at para. 11 (alleging that contract contained discriminatory provisions as to recruitment of other black employees); id. at para. 16 (alleging that white employees English and Rushing had same contract provision as Ross regarding recruitment of blacks). What the court stated in its earlier order stands: Patterson will force Ross to demonstrate a link between the defendants' conduct at the time they hired her and the harms she suffered. She also will have to indicate which contractual provisions are discriminatory, and how post-formation acts are relevant to showing the impetus for those provisions. Nevertheless, that Ross will have a greater burden in proving her § 1981 claim does not prevent her from asserting the claim, which is the only question presently before the court. Ross has stated a claim, and thus this court will not dismiss it.
The court now turns to English and Rushing's claims. The defendants first contend that the plaintiffs have reworked these claims solely to circumvent Patterson, much as Ross allegedly tried to do. The court stated above that it would not allow the plaintiffs to "subvert" Patterson, but they may use evidence of post-formation conduct to prove discrimination at the time of contract formation. This holds true for English and Rushing as well as Ross.
The defendants next contend that Patterson has ruled out claims by those alleging discharge in retaliation for protesting policies made illegal under § 1981. They refer the court first to Dangerfield, where Judge Hart rejected the argument that retaliatory discharge interferes with a person's right to enforce a contract -- a right which § 1981 protects. Judge Hart noted that the Dangerfield plaintiffs' discharge did not impair their right to enforce their contracts, and thus the plaintiffs did not state a claim. Dangerfield, mem. op. at 3. The defendants also refer the court to Woods v. Miles Pharmaceuticals, No. 87 C 4944, mem. op. 1-2 (N.D. Ill. July 6, 1989), where Judge Shadur dismissed on his own initiative John Woods III's claims under § 1981 that Miles Pharmaceuticals discharged him in part to retaliate against Woods's "complaining of discriminatory and illegal practices" of Miles. See Defendants' Reply Brief, App. B (Woods's Second Amended Complaint).
Neither of these cases controls the court's decision here. Judge Hart in Dangerfield addressed and properly rejected a claim that an employer's policy affected his employees' right to enforce contracts, not make them. As for Woods, the plaintiff there never specified which practice he protested, and on account of Judge Shadur's decision to dismiss the case sua sponte, the plaintiff never presented the court with the argument which English and Rushing present here: namely, that § 1981 gives persons a cause of action for suffering harm on account of protesting policies squarely prohibited by § 1981. The defendants have not pointed to anything which undercuts the wisdom of the decisions which this court cited in its earlier opinion that persons have such a right of action under federal law. While it is true that a retaliatory discharge cannot occur unless a contract has been formed, and thus is always in a sense post-formation conduct, the defendants focus on the wrong contract which is relevant to English and Rushing's claims. English and Rushing allege that the defendants fired them for their protests against the defendants' conduct before the formation of contracts with other employees, not their own employment contracts.
The defendants argue nevertheless that in addition to barring claims under § 1981 for discrimination occurring after formation of a contract, Patterson limits the class of persons who may sue for redress of discrimination under that statute. The defendants base this argument on the Court's acknowledgment that there was evidence that other blacks besides Patterson may have suffered discrimination, and the Court's three uses of the word "her" in describing what Patterson had not proved. See Patterson, 109 S. Ct. at 2373 n.2, 2374 ("none of the conduct which petitioner alleges as part of the racial harassment . . . involves either a refusal to make a contract with her or the impairment of her ability to enforce her established contract rights) (emphasis added).
While this court is loath to rely on dissenting opinions in the Supreme Court to determine the opinion of the Court's majority, it is remarkable that given the many decisions which have held that third parties may bring suit to redress harms to persons denied their rights under § 1981 -- some of which this court cited in its earlier decision -- the Patterson dissenters never chided the majority for remaking the law on standing in suits under § 1981. The question of standing does not appear in the Fourth Circuit's opinion in the case, see Patterson, 805 F.2d at 1143, nor did the Patterson parties petition the Supreme Court for review of this question, see Brief for Petitioner, Patterson v. McLean Credit Union, No. 87-107, 1-2 (U.S. Dec. 3, 1987); Brief for Respondent, Patterson v. McLean Credit Union, No. 87-107, 1-2 (U.S. Jan 12, 1988). Patterson thus does not cast doubt on the many cases which have held that persons in English and Rushing's position can maintain suit for a defendant's refusal to contract on racially neutral grounds with other persons.
The court is aware of the tendency both in the current Supreme Court and among litigants to claim that every civil rights decision rendered these days recreates the entire landscape of civil rights law. Such may be the effect of cases like Patterson. Indeed, Patterson ultimately may prove fatal to English, Rushing, and Ross's claims under § 1981. But suggestions by dissenters on the Court or the public at large that a decision is "significant" should not cause the courts to ignore the standards which should govern their analysis of particular motions. Today the court reiterates its conclusion that the plaintiffs' amended complaint states a claim for relief. The decision whether they are entitled to that relief in the post-Patterson era is left for another day.
The defendants' motion to dismiss the plaintiffs' § 1981 claims is denied.
DATE: August 15, 1989