The opinion of the court was delivered by: NORGLE
CHARLES RONALD NORGLE, UNITED STATES DISTRICT JUDGE
Before the court is the motion of the defendant, Metra, for summary judgment against the plaintiff, Augusto Maldonado. For the following reasons, the court grants the motion in part and denies the motion in part.
Rule 56(c) of the Federal Rules of Civil Procedure provides that a summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute about a material facts is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A plaintiff cannot rest on mere allegations of a claim without any significant probative evidence which supports his complaint. Id.; see First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 20 L. Ed. 2d 569, 88 S. Ct. 1575, reh. den., 393 U.S. 901, 89 S. Ct. 63, 21 L. Ed. 2d 188 (1968). "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims and defenses." Celotex Corp. v. Catrett, 477 U.S. 317, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Accordingly, the non-moving party is required to go beyond the pleadings, affidavit, depositions, answers to interrogatories and admissions on file to designate specific facts showing a genuine issue for trial. Id.
Both parties have complied with local rules 12(l) and (m). The plaintiff has raised numerous objections to the defendant's statement of undisputed facts. After close examination, the court concludes that the plaintiff has raised genuine issues as to the material facts alleged in paragraphs numbered 9, 10, 11, 12 and 13 of defendant's statement of undisputed facts. The balance of plaintiff's response is either insufficiently supported
or does not present issues of material fact. What remains is sufficient to render summary judgment on the majority of plaintiff's complaint. Therefore, with the exception of the paragraphs mentioned above, the court adopts the defendant's statement of undisputed facts as the facts in this case. While these will not be set out verbatim in this order, for the purposes of this motion, a short summary of the facts is sufficient.
Defendant Metra is a subsidiary of the Regional Transportation Administration and an Illinois municipal corporation
created for the purpose of providing commuter rail service in the northeastern part of Illinois. Plaintiff Augusto Maldonado began his employment at Metra in 1982, after working for the Regional Transportation Administration since 1977. At Metra, plaintiff occupied the position of Personnel Manager. James E. Cole is the Executive Director of Metra and the plaintiff's immediate supervisor. Michael J. Nielsen is his assistant. Although Metra started out as a small operation, retaining thirty to forty employees, by 1987 it had acquired an additional two thousand to three thousand new employees.
In late 1986 or early 1987, plaintiff had two conversations with Nielsen, where plaintiff told him that he believed Metra was engaging in discriminatory practices. Nielsen urged plaintiff to bring this to the attention of Cole. In late February or early March 1987, plaintiff had a conversation with Cole, where plaintiff told him "We may be discriminating against minorities." Cole essentially ignored the remark.
Sometime around July 1987, Cole decided to reorganize Metra's personnel department to accommodate the changing needs of the agency. The reorganization entailed phasing out the personnel department and establishing in its place the new Department of Human Resources. Metra removed from the Department of Human Resources' jurisdiction some functions previously performed by the personnel department, but added the functions of EEOC compliance and employee training. Responsibility for overseeing these functions vested in the new Human Resources Chief. About this same time, Cole became dissatisfied with plaintiff's performance and discussed the possibility of dismissing him with Nielsen and two of Metra's Assistant Executive Directors.
On August 11, 1987, plaintiff was called into Cole's office. He was informed of the restructuring of the personnel department and was told that there was no longer a place for him at Metra. Plaintiff was told he would be given eight weeks severance pay and was dismissed. On January 19, 1989, plaintiff filed this action. The complaint has since been amended and currently consists of four counts. Count one alleges a cause of action under Title VII for disparate treatment based on national origin.
Count two alleges a claim for retaliatory discharge under Title VII. Count three alleges a claim under § 1981 for failure to promote.
Count four alleges a claim for retaliatory discharge under § 1981.
Plaintiff's claim of a cause of action for retaliatory discharge under § 1981 is clearly not actionable in light of Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989). There, the Supreme Court held that § 1981 reaches discrimination only in the contract formation stage, as in the refusal to enter into a contract because of race
or entering into a contract on discriminatory terms, and in the enforcement of contracts, such as impeding access to the courts based on race. Patterson, 109 S. Ct. at 2372-73. Section 1981 does not reach to conduct occurring after the formation of the contract. Id. at 2373-74; see also, Sofferin v. American Airlines, Inc., 717 F. Supp. 597, 599 (N.D.Ill. 1989). Therefore, the court holds that a claim for retaliatory discharge is not actionable under § 1981.
Moreover, and in the alternative to the retaliation claim, the court grants summary judgment as to both of plaintiff's § 1981 claims on the basis that Metra, as a state actor, cannot incur § 1981 liability absent a showing that a municipal custom or policy caused the alleged deprivation, as is required under 42 U.S.C. § 1983.
The leading case on this point is Jett v. Dallas Independent School District, 491 U.S. 701, 109 S. Ct. 2702, 105 L. Ed. 2d 598 (1989). At issue there was whether a state actor could incur liability, under § 1981, for the actions of a subordinate on the basis of respondeat superior. Jett, 109 S. Ct. at 2706. After a lengthy analysis of the legislative history of the Civil Rights Act, the Supreme Court flatly rejected this concept, stating:
We think the history of the 1866 Act and the 1871 Act recounted above indicates that Congress intended that the explicit remedial provisions of § 1983 be controlling in the context of damages actions brought against state actors alleging violations of the rights declared in § 1981 . . . We hold that the express "action at law" provided by § 1983 for the "deprivation of any rights, privileges, or immunities secured by the constitution and laws," provides the exclusive federal damages remedy for the violation of rights guaranteed by § 1981 when the claim is pressed against a state actor. Thus to prevail on his claim for damages against the school district, petitioner must show that the violation of his "right to make contracts" protected by § 1981 was caused by a custom or policy within the meaning of Monell and subsequent cases.
Jett, 109 S. Ct. at 2722; see also, Crowley v. Prince George's County, Md., 890 F.2d 683, 685 (4th Cir. 1989). Accordingly, in order to avoid summary judgment, the plaintiff must show some facts supporting the existence of a municipal custom or policy which violated rights secured under ...