parties agree that January 12, 1988 falls within the 300-day limitations period. Memorandum in opposition at 3 n.1; Reply at 2, n.2. Dicker alleges that two white women, who were less qualified than she, were given promotions in the spring of 1988. Dicker affidavit para. 2. Dicker also alleges that at the same time her pay raise was delayed several months. Id. P 3. Moore alleges that four positions were given to white women who were less qualified than she during 1988. Moore affidavit paras. 5-8. Hood alleges two positions were given to white women that she was as or more qualified for in the spring and fall of 1988. Hood affidavit paras. 3, 4. Each of these alleged discriminatory acts occurred after January 12, 1988. Therefore, plaintiffs timely filed their claim. Evidence of discriminatory acts prior to January 12 are properly alleged to prove a continuing violation. Malhotra, slip op. at 6.
Accordingly, plaintiffs' Title VII claim is not time-barred.
Allstate also moves for summary judgment on Count II, arguing that plaintiffs do not state a claim under 42 U.S.C. § 1981. Section 1981 protects minorities 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). An employer's refusal to promote an employee because of race is actionable under § 1981 when the promotion involves an opportunity to enter into a new contractual relationship with the employer. Id. 109 S. Ct. at 2377. Only those promotions reflecting a new and distinct relation between the employer and employee constitute an opportunity to enter a new contract. Id. Examples of a new and distinct relation include a promotion from associate to partner in a law firm, id.; from clerk to supervisor, Mallory v. Booth Refrigeration Supply Co., 882 F.2d 908 1989 U.S. App. LEXIS 12541 (4th Cir. 1989); and from project inspector to supervisory engineer, Luna v. City and County of Denver, 718 F. Supp. 854, 1989 U.S. Dist. LEXIS 10368 (D.Colo. 1989). In contrast, a promotion that just provides an increase in pay does not offer a new and distinct, relation. Williams v. National Railroad Passenger Corp., 716 F. Supp. 49 (D.D.C. 1989), and one that is merely a routine advancement for existing employees is not actionable under § 1981. Malhotra v. Cotter & Co., 885 F.2d 1305 slip op. 8 (7th Cir. 1989).
Plaintiffs argue that a promotion from a non-exempt position to an exempt position involving supervisory and managerial responsibilities is a new and distinct relation. Plaintiffs, however, do not allege that they were directly denied such a promotion. Rather, plaintiffs allege they were denied promotions within a line of progression of non-exempt positions that ultimately might result in an exempt position as unit manager. Based upon plaintiffs' affidavits, the promotions plaintiffs were denied would not have offered a new and distinct employment relationship.
Plaintiffs cite Malhotra to argue that they state a § 1981 violation because outside applicants received positions that Allstate denied plaintiffs. However, the Seventh Circuit expressly declined to decide whether the new and distinct relation test embraced promotions that were nonroutine, but did not involve a change in the terms of the employment contract. Id. slip op. at 9. By limiting § 1981 claims to new contractual relations, the Supreme Court sought to preserve the integrity of Title VII's mediation and conciliation procedures. Patterson, 109 S. Ct. at 2375. Plaintiffs' employment represents an ongoing employer-employee relationship to salvage, in contrast with a non-Allstate employee denied a similar position. In order to preserve the integrity of Title VII's administrative procedures, plaintiffs are not permitted to bring parallel § 1981 and Title VII actions under the circumstances alleged here. The motion for summary judgment as to Count II is granted.
If an attorney signs pleadings that are not reasonably based in law or fact, or are meant to harass, the court must impose an appropriate sanction. Fed.R.Civ.P. 11. Rule 11 has both a subjective and an objective component. Mars Steel Co. v. Continental Bank, 880 F.2d 928, 932 (7th Cir. 1989). A filing interposed for any improper purpose is sanctionable, whether or not it is supported by the facts and the law. Id. Alternatively, a filing made in good faith is sanctionable if not based upon a reasonable inquiry into the facts and the law. Id.
Allstate argues that Count I was filed in bad faith because plaintiffs' counsel intentionally disregarded this court's order of July 31, 1989 requiring plaintiffs to file an amended complaint that satisfied Fed.R.Civ.P. 8(a). However, Count I of plaintiffs' amended complaint satisfies Rule 8(a) and there is no basis to conclude that it was filed in bad faith. Sanctions therefore are inappropriate.
Allstate argues that Count II was filed without any basis in law, citing Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989). Allstate's motion for summary judgment on Count II is granted because Patterson bars plaintiffs' § 1981 claims for discriminatory promotions that do not rise to the level of a new contractual relationship. Rule 11 should not be used to penalize attorneys for taking novel, innovative positions. Mars Steel, 880 F.2d at 932. It is particularly significant that Patterson is a recent decision and its dimensions are not yet clearly known. Malhotra, 885 F.2d 1305, slip op. at 9. Plaintiffs addressed Patterson in their memoranda and adequately researched relevant § 1981 case law. Plaintiffs adequately investigated both the facts and the law. Accordingly, Allstate's motion for sanctions is denied.
Plaintiffs' Title VII claim is not time-barred. Allstate's motion for summary judgment on Count I is denied. The amended complaint fails to state a claim under 42 U.S.C. § 1981. Judgment is granted for Allstate and against plaintiffs on Count II.
Allstate's motion for sanctions is denied.
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