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BUSH v. COMMONWEALTH EDISON CO.

February 22, 1990

JAY V. BUSH, Plaintiff,
v.
COMMONWEALTH EDISON COMPANY, Defendant



The opinion of the court was delivered by: ASPEN

 MARVIN E. ASPEN, UNITED STATES DISTRICT JUDGE

 The plaintiff, Jay Bush, alleges that Commonwealth Edison ("Edison") discriminated against him because of his race and physical handicap. He seeks recovery under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Rehabilitation Act, 29 U.S.C. § 794; and Illinois statutory and common law. Edison now moves to dismiss the claims brought under 42 U.S.C. § 1981 and the Rehabilitation Act. As we explain herein, we grant Edison's motion.

 Background

 For the purposes of this motion to dismiss, we assume the truth of Bush's allegations. Zinser v. Rose, 868 F.2d 938, 939 (7th Cir. 1989). In 1978, Edison hired Bush, a black male, as a garageman. He was promoted to the position of mechanic in August of 1980. In June, 1982, Bush suffered a work related injury to his right knee. Although this injury diminished the strength and stability of his knee, Bush was able to perform his duties as a mechanic. However, on July 25, 1985, one month after he filed a workers' compensation claim, Bush was demoted to a clerk's position in Edison's billing department on the pretext that he was physically unable to perform as a mechanic. This job paid less than the mechanic position. He received this demotion despite the fact that Edison did not demote white employees who could not perform because of work related injuries.

 In March, 1986, Bush's doctor gave him a medical release to return to his job as a mechanic. Edison refused to restore him to his former assignment. However, it allowed white employees who obtained medical releases to return to the positions they held before their injuries. Edison fired Bush in September of 1986. It claimed that the discharge was based on his total work record. However, the decision to fire Bush was actually made on the basis of his race and physical handicap.

 Discussion

 Edison moves to dismiss two of Bush's claims. First, it maintains that the § 1981 claims should be dismissed on the authority of the Supreme Court's recent decision in Patterson v. McLean Credit Union, U.S. , 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989). Second, Edison argues that the Rehabilitation Act claim should be dismissed because it is time barred. We consider each of these arguments in turn.

 A. The § 1981 Claims.

 Bush claims that Edison violated § 1981 when it demoted him, when it failed to promote him, and when it ultimately fired him. The statute provides that:

 
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

 "By its plain terms, the relevant provision in § 1981 protects two rights: 'the same right . . . to make . . . contracts' and 'the same right . . . to . . . enforce contracts.'" Patterson, 109 S. Ct. at 2372.

 As a threshold matter, we note that Bush's claims do not implicate the § 1981 right to enforce contracts. This protection extends only to conduct which impedes a citizen's access to the courts or other nonjudicial methods of enforcing contractual rights. There are no allegations in the complaint which suggest that Edison created any such impediment.

 Therefore, if Bush's claims are actionable under § 1981, the challenged conduct must infringe the right to make contracts. In Patterson v. McLean Credit Union, the Supreme Court clearly delineated ...


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