Weldon v. Kraft, Inc.

¶1MEMORANDUM AND ORDER

¶2Pending before this court is defendant’s motion for partial summary judgment. Defendant contends that plaintiffs claim under 42 U.S.C. § 1981 (“section 1981”) is barred by the Supreme Court decision in Patterson v. McLean Credit Union, — U.S.-, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). For the reasons set forth below, I shall grant defendant’s motion.

¶3I. STANDARD OF REVIEW

¶4Summary judgment is appropriate if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Small v. Seldows Stationery, 617 F.2d 992, 994 (3d Cir.1980). Defendant’s motion for partial summary judgment and plaintiff’s response present this court with purely legal issues, which are ripe for disposition by way of summary judgment.

¶5II. DISCUSSION

¶6Defendant contends that plaintiff’s claim of racially discriminatory discharge is no longer cognizable under section 1981 in light of Patterson v. McLean Credit Union.

¶7In response,1 plaintiff does not dispute defendant’s contention that Pattersonbars plaintiff’s claim under section 1981. Instead, plaintiff maintains that Pattersonis not applicable to the present action because (1) Pattersonshould only be applied prospectively and (2) even if Pattersonshould be applied retroactively, defendant waived the right to argue Pattersonby not raising *973it in its first motion for summary judgment2 and not raising it on appeal to the Third Circuit 896 F.2d 793.3

¶8Both plaintiffs contentions are without merit.

¶9With respect to plaintiffs first argument, the normal presumption is that every decision should be applied retroactively. Solemn v. Stumes, 465 U.S. 638, 642, 104 S.Ct. 1338, 1341, 79 L.Ed.2d 579 (1984); Al-Khazraji v. Saint Francis College, 784 F.2d 505, 510 (3d Cir.1986). Moreover, it is incumbent upon plaintiff to establish that retroactive application of Pattersonis inappropriate according to the factors delineated in Chevron Oil Co. v. Huson, 404 U.S. 97, 106-07, 92 S.Ct. 349, 355-56, 30 L.Ed.2d 296 (1971). In making his conclusory statement that Pattersonshould be applied only prospectively and offering no cases to support that contention, plaintiff has clearly failed to carry his burden.

¶10Furthermore, the vast majority of cases faced with the decision of whether to apply Pattersonretroactively have either implicitly or explicitly determined that Pattersonshould, in fact, be applied retroactively.4See, e.g., Courtney v. Canyon Television & Appliance Rental, Inc., 899 F.2d 845 (9th Cir.1990) (retroactive application of Pattersonapproved because consistent with factors delineated in Chevron ); Lavender v. V & B Transmissions & Auto Repair, 897 F.2d 805, 806-07 (5th Cir.1990) (retroactive application of Pattersonappropriate where Chevron factors weigh in favor of retroactivity); Bush v. Commonwealth Edison Co., 732 F.Supp. 895, 899-901 (N.D.Ill.1990) (presumption in favor of retroactivity not rebutted by plaintiff where balancing of three Chevron factors show that plaintiff had recourse under Title VII); Thompson v. Johnson & Johnson Management Information Center, 725 F.Supp. 826, 826-28 (D.N.J.1989) (retroactive application of Pattersonwould further the operation of section 1981 and would not be inequitable to plaintiff in light of the fact that plaintiff could still pursue Title VII remedy); Hall v. County of Cook, 719 F.Supp. 721, 724-25 (N.D.Ill.1989) (retroactive application of Pattersonapproved); Williams v. National Railroad Passenger Corp., 716 F.Supp. 49, 50 n. 1 (D.D.C.1989) (no special equitable reasons existed to depart warrant departing from the general rule in favor of applying new judicial decisions to pending cases). In the present case, retroactive application of Pattersonwill not leave plaintiff without a remedy because he has a claim under Title VII.

¶11With respect to plaintiffs second argument, it is clear that defendant has not waived its right to argue the applicability of Pattersonto the present action. The United States Supreme Court did not render its decision in Pattersonuntil June 15, 1990&emdash;which is one and a half months after this court filed its Memorandum and Order granting defendant’s motion for summary judgment. In addition, it would not have been proper for defendant to raise the Pattersonissue on appeal to the Third Circuit because it was not an issue which was *974decided by the district court. “It is a general rule, of course, that a federal appellate court does not consider an issue not passed upon below.” Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976).

¶12As plaintiff has implicitly acknowledged, there is no question that Pattersonappreciably narrows a plaintiff’s right to proceed under section 1981. See, e.g., Matthews v. Freedman, 882 F.2d 83, 85 (3d Cir.1989). In Patterson v. McLean Credit Union, — U.S.-, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), the United States Supreme Court directly addressed the scope of section 1981 in the context of conduct occurring after the formation of an employment contract. The plaintiff in Patterson, a black woman, brought an action against her employer alleging that her employer had violated section 1981 by harassing her, failing to promote her, and ultimately discharging her because of race. The Court held that the conduct of the employer, regardless of whether it was racially motivated, was post formation conduct and, therefore, did not fall within the scope of section 1981. The Court stated:

This type of conduct [racial harassment] reprehensible though it be if true, is not actionable under § 1981, which covers only conduct at the initial formation of the contract and conduct which impairs the right to enforce contract obligations through legal process. Rather, such conduct is actionable under the more expansive reach of Title VII of the Civil Rights Act of 1964. The latter statute makes it unlawful for an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment.” 42 U.S.C. § 2000e-2(a)(l).

¶13Id. at 2374.

¶14III. CONCLUSION

¶15Plaintiffs claim for racially motivated discharge under section 1981 is no longer cognizable in light of Patterson, which substantially narrowed the scope of section 1981. In addition, plaintiff has not met his burden of proving to this court that Pattersonshould be applied prospectively and, thus, not to this case. Applying Pattersonto this case will not pose a hardship on plaintiff because he has a claim under Title VII. Consequently, defendant’s motion for partial summary judgment as to plaintiff’s claim under section 1981 is granted.