Kenneth G. Hicks, Appellee/cross-Appellant v. Brown Group, Inc., D/B/A Brown Shoe Company, Inc., Appellant/cross-Appellee

gress is not free to party entice a into a Congress reimbursements. was free to by contract making pledges certain and build in some enforcing method of then withdraw those pledges. Perry requirement, transfer and we hold that the States, 330, 350, United 294 U.S. 55 S.Ct. withholding of reimbursements until the 432, 434, (1934) 79 L.Ed. 912 (Perry). excess reserves recaptured are was a con- Perry, Supreme Court noted that Con- stitutionally permissible method of enforce- gress is gratuities “free to reduce deemed ment. Locke, See United States v. excessive power ... without [b]ut re- 84, 107, 1785, 1799, U.S. 105 S.Ct. expenditures duce by abrogating contractu- (1984) L.Ed.2d (“Regulation of property obligations al of the United States.” Id. at private does not ‘take’ property 352, 55 S.Ct. at Supreme 436. The Court when reasonable, an individual’s invest- reiterated in “Congress Bowen that does ment-backed expectations can continue to power not have the repudiate its own be realized long complies as he debts, ‘property’ constitute regulatory reasonable legis- restrictions the lender, simply in money.” order save imposed.”). lature has Bowen, 477 U.S. at at (citing Perry, 350-51, IV. 434-35). above, For the reasons stated we affirm We do not believe the language in the the decision of the district court. We hold 1987 amendments conditioning EAC’s con- Secretary’s denial of re- EAC’s right tractual on compli- reimbursement quest for a waiver was not arbitrary or ance with the requirement repudi- transfer capricious. We also hold that the reserve ates a debt of the United States. Although fund is not property purposes of the Congress has added another condition to fifth amendment and Secretary that the did EAC’s contractual reimbursement, not breach its contract with EAC with- the condition does not amount to a com- holding reimbursements in order to enforce plete unmaking of the contract admonished compliance with the requirement. transfer the Sinking- Cases, Fund and in Bow- en, 477 U.S. at 106 S.Ct. at 2398. The

purpose of the 1987 amendments was not government

to relieve the obligation to reimburse guaranty agencies. Indeed HICKS, Kenneth G. EAC still has a contractual right to reim- Appellee/cross-appellant, Rather, bursement. purpose amendments was recapture funds being held agencies Congress GROUP, INC., deemed BROWN d/b/a were not necessary continued func- Company, Inc., Shoe tioning of the agency. 1987 USCCAAN at Appellant/cross-appellee. 2313-1264. Gilliard, Bowen v. Cf. 88-2769, Nos. 88-2817. 97 L.Ed.2d 485 United Appeals, States Court of (1987)(addressing the constitutionality of a Eighth Circuit. requirement in the Deficit Reduction Act of family’s that a eligibility for welfare Sept. Submitted benefits take into account the income of April Decided parents and siblings living in the same Rehearing Rehearing En Banc house). The merely amendments add to Denied June statutory numerous and regulatory re- quirements with guaranty which a agency comply.

must Only the enforcement of the

amendments involves the withholding of 79 L.Ed. (striking government down obligations). bond attempt by Congress abrogate gold clause Mo., Louis, for Hanna, St. M.

Thomas appellant/cross-appellee. Louis, Mo., ap- Hoare, St.

Michael J. pellee/cross-appellant. Judge, McMILLIAN, Circuit

Before HEANEY, Judge, Circuit Senior FAGG, Judge. Circuit McMILLIAN, Judge. Circuit I. Facts corporation is a New York Inc., Group, d/b/a Brown Shoe engaged in the business manufacturing (Brown Company, Group), Inc. appeals selling 1970s, early shoes.2 In the judgment from a final entered the Unit- Group Brown operated approxi- owned and ed States District Court1 for the Eastern mately manufacturing plants in located District upon of Missouri a verdict Missouri, Illinois, Tennessee, Kentucky and finding that it violated 42 U.S.C. § 1980s, Arkansas. Until early Brown (1982) (Section 1981), by discharging Ken- Group’s warehouse facilities and raw mate- (Hicks) neth G. Hicks on the basis of his rials terminals were located in St. Louis. race. The found that Hicks enti- was declining Because of sales caused for- tled to no damages, actual but awarded eign competition, Group Brown was forced $10,000 him punitive damages on the gradually close ten of its northernmost ground Group’s that Brown action was will- factories ful. The district court modified the actual In Group Brown relocated its raw damages to and awarded $1.00 Hicks attor- materials terminal from St. Louis to Ben- neys’ fees and appeal, costs. On Brown ton, (Benton terminal) Missouri in order to Group major raises four issues for rever- better service its southern factories.3 Be- (1) judgment sal: cannot stand because delivery cause of delays operational discriminatory discharge cognizable is not problems terminal, at the Benton Brown 1981; (2) under Section the district court Group Service, decided to hire CMR Parcel in denying erred judgment its motion for a an trucking outside company, presort notwithstanding (JNOV) the verdict be- raw materials and take over some of the cause the jury’s finding of discrimination delivery result, routes. As a the amount of clearly was erroneous and supported by work at the sig- Benton terminal decreased evidence; (3) sufficient the district court nificantly. Group Brown decided that the submitting erred in jury instructions and required loss of work a reduction of force special interrogatories permitted at the Benton Page, terminal. Neil Brown jury to find a Section 1981violation without Group’s distribution, assistant director of proof discrimination; of intentional Williams, directed Rich the Benton terminal the district court denying erred in its mo- superintendent, to decrease the number of tion for punitive a JNOV on the damages hourly employees by five, union from 17 to award. Group also claims that the 12, and reduce the supervisory staff punitive damage award supported was not one, from Page three to two. gave by sufficient evidence. cross-appeal, On guidelines Williams no concerning who alleges Hicks that the district court erred should be terminated or what factors denying post-trial his motion for rein- should be in making considered the deci- equitable statement and related relief after sion. This action arises from Brown successfully proven he had that he would Group’s Hicks, decision to terminate a 51- not have discharged except been for his year-old white supervisor, male and retain race. For the below, reasons discussed we Chester, Alvin 36-year-old black male judgment affirm the of the district supervisor.4 court. Noce, 1. The factories, Honorable David D. United Group States nal to Brown transport Magistrate Missouri, for the Eastern District of goods finished from the factories back to Ben- to whom the matter was referred for trial and goods ton. Finished are not warehoused at the entry judgment by parties consent of the Benton terminal. 636(c) pursuant (1982 Supp. 28 U.S.C. § & V 1987). supervisor 4.The Carbrey, third was Robert approximately years age. white male Car- Group production is well known for its brey superintendent was the assistant terminal of the "Buster Brown” line of children’s shoes. responsibility Benton and had more than 3. The designed Benton terminal to increase Hicks and Chester. He was not a candidate for efficiency and discharge. facilitate distribution. Drivers challenge Hicks does not the reten- transport raw materials from Carbrey. the Benton termi- tion of before6 half month and for Brown working started Hicks again transferred He Hicks and 16-year-old. trained as a February 1948 evening over the took years, Hicks day when shift Group for for Brown worked in 1982. age 51 discharged at shift.7 was until he clerk order working as an began Hicks working on began July Chester warehouse, held goods finished hourly union dock as raw materials December years. On position for Ave- Group’s Gravois at Brown employee a foreman promoted 1972, Hicks was He in St. Louis. manufacturing plant nue warehouse Avenue Gustine position January foreman in to dock promoted Avenue, at Gustine Louis. While in St. or five supervised four 1973,8 he where department every supervised Hicks Avenue the Gravois When employees. filling pack- and warehouse, overseeing transfer- was Chester in closed plant late Between good orders. finished ing of warehouse, Avenue Gustine red evening held Hicks May 1977 and eight ten between supervised he where Ave- the Gustine at position foreman utility dock. materials raw on the employees to15 in for he filled warehouse, where nue warehouse Avenue the Gustine When absent were who foremen 20 other to the assigned was Chester in closed vacation, per- illness, because work warehouse, he su- where Avenue Chouteau Hicks During period, reasons. sonal materials raw on operations pervised manu- supervising experience obtained 1982. April facility closed until dock May In dock. materials facturing or raw ter- the Benton transferred was Chester warehouse Avenue the Gustine 1982.9 April minal was dock materials raw closed, and the su- warehouse terminal Williams, the Benton Avenue Chouteau Rich moved to termi- the decision made Louis. perintendent, in St. the time At Chester. Hicks and retain nate to su assigned was Hicks June for terminated, had Hicks worked was he mate the raw on evening shift pervise years, more than Group for Brown Avenue ware the Chouteau at dock rials supervisor. aas years a half nine and last working this began Hicks When house. retained, he had was Chester the time At trained briefly was he position, new Group, and Brown for years service super evening Chester, who held Alvin as experience supervisory same about Avenue Chouteau position visor he decided that testified Williams Hicks.10 After arrival.5 to Hicks’ prior warehouse was bet- Chester because Chester to retain assigned trained, was Chester was Hicks material the raw supervise qualified ter When Chou- day shift. supervise Hicks terminal. Benton at the operation closed, was Hicks warehouse Avenue teau because retained was Chester claimed evening shift supervise assigned (Hicks) was black, he he was began Chester, who terminal. the Benton policy company aof in violation a terminated about terminal Benton working at the Chester Group claims that Although Brown long trained Chester dispute parties how 5. The January supervisor full-fledged since been a Chester has testified Hicks at Chouteau. Hicks listed evaluations performance schedules the truck Chester’s with him familiarized recently Supervisor” a two as eight over position hours about as "Assistant his procedures for trained he testified period. Chester night September 1978. weeks. to three two Hicks position termi- promoted to was Chester working at the Benton begin did 6. Chester in 1985. at Benton superintendent nal ob- he May because until terminal undergo a needed approval to company tained one supervisor about been had Hicks transferring Benton. operation before hernia promot- was Hicks longer Chester. than month long Chester dispute how parties also 7. The followed December supervisor in ed to Hicks Benton terminal. at the Hicks trained January 1973. Chester two with him for worked that Chester testified that he testified days, Chester whereas or three period. a two week over Hicks trained to make employment decisions based on The case was tried before on Octo- seniority. 3-5,1988. ber jury rejected age Hicks’ claim,12 discrimination Special Interrogato- supervisor, Williams notified his Neil 1-3, ries Nos. but found Group that Brown Page, that he had decided to terminate intentionally had against discriminated Hicks, Page agreed with the decision. Hicks on the basis of race “in his that his On June Hicks was summoned to race awas discernible or motivating factor corporate Group’s offices for a in his termination from employment,” Spe- meeting Page Page Williams. cial Interrogatory No. 7. The informed Hicks that he was chosen found that “intentionally dis- terminated as a changes result of the against criminated operation ... Hicks on account the Benton Page terminal. his race that his determining race told Hicks that was being Chester was retained factor in his employ- termination from experience he had more raw ment,” Special dock, Interrogatory materials No. 5. The knew more about the Ben- jury found that ton terminal Hicks operation, and was entitled to no able better job. compensatory damages, to handle the but awarded him $10,000 in punitive damages finding after After his June meeting 1982 Group that Brown “acted out of evil motive Page and Clayton, Williams in Hicks re- intent, or or acted with callous indifference turned that same afternoon to the Benton federally protected rights,” Spe- [Hicks’] gather terminal personal his belongings cial Interrogatory No. Finally, 8. in re- say and good-bye to his on the co-workers sponse Special Interrogatory No. night shift. terminal, heWhile was at the jury found Group that Brown would have Hicks asked Williams whether he had been terminated Hicks even if his age race or terminated because he was white and Ches- had “not been a discernible or motivating ter was black. Hicks that al- testified factor or determining factor in the deci- though Williams heard and understood his sion jury to terminate.” The was not re- question, Williams did deny that race quested to question consider the of nominal consideration, was a replying “Ken, instead damages. that, you said not me.” did not Hicks understand response, this so he asked modifying After jury verdict through Williams a second time whether race made grant of additur in amount of $1.00 a difference. Hicks testified Williams damages, nominal the district court en smirk, looked at him said, with a side and jury forced the verdict by awarding Hicks “Again, you that, said not me.” After $10,000 in punitive damages. Brown termination, Hicks’ Williams transferred Group’s motion for a JNOV and Hicks’ evening shift, Chester to the Page or- and post-trial for equitable motion relief were dered given that Chester be raise. $25.00 denied. The district court subsequently did not supervi- hire another $18,562.50 awarded Hicks in attorneys’ replace sor to Hicks. $2,189.00 fees and in timely costs. This Hicks appeal exhausted his and cross-appeal administrative reme- followed. After dies and filed court, suit federal district United States Court decision alleging Group’s that Brown decision to Union, Patterson McLean Credit discharge him violated Section U.S. -, and S.Ct. 105 L.Ed.2d 132 Age in Employment Act, (1989), Discrimination granted court leave for the (1982 U.S.C. 1987). 621-634 Supp. & parties §§ V supplemental to file briefs. 11. Williams admitted that he had a conversation was inconsistent and had been embellished over with Hicks on the afternoon of June jury evidently time. The reject chose but testified told Hicks he that race was not a Group’s testimony contention that Hicks' on this factor in his termination. Williams testified incident was fabricated or inconsistent. question that he directly Hicks’s answered it, first time asked Hicks and that did not he cross-appealed has Hicks 12. verdict smirk at Group argued Hicks. Brown age on the discrimination claim. description that Hicks’s of this conversation discharge longer is no

II. Section 1981 A under careful actionable Section question we must ad The threshold analysis of Patterson demonstrates that race discrimination in this reverse dress discharge discussed, was not issue discriminatory dis racially whether case is requires nothing opinion in that us to under charge is actionable Section long-settled overrule the numerous and as follows: provides cases this circuit which hold discrim jurisdiction of the persons All within the discharge inatory is actionable Sec under shall have the same United States See, e.g., tion 1981. Estes v. Dick Smith Territory make every State Ford, (8th F.2d 1100-01 Cir. contracts, sue, parties, give enforce Airlines, 1988); Trans Williams v. World evidence, equal and to the full and bene- (8th Cir.1981); Inc., 660 F.2d proceedings for the all fit of laws Co., 640 Person v. J.S. Alberici Constr. property as is security persons Cir.1981). citizens, and shall be enjoyed white penal- punishment, pains, to like subject procedur- first examine the facts and We taxes, ties, licenses, of ev- and exactions history al of Patterson order to better kind, ery and to no other. analysis understand Patterson, U.S.C. In § make and enforce contracts. plaintiff was a black woman who was Union, v. McLean Credit employed as a teller and file coordinator U.S. -, 105 L.Ed.2d years being ten laid off. She before {Patterson), the United States brought an action in the United States Dis- scope of Section Supreme Court limited the meaning trict Court for the Middle District of North interpreted The 1981. Court Carolina, rights alleging “to en her had scope employer of the make and and contracts,” her, promote her, held that neither and force harassed failed prohibit right racial harass discharged extended of race in her because her viola- relationship. employment Id. ment in of Section 1981.13 109 S.Ct. at 2368- tion at The decision did 2373-74. The district court submitted the Sec- 69. discharge discriminatory address whether promotion claims discharge tion 1981 rights ambit to make falls of within for returned a verdict jury, to the Based on our exam and enforce contracts. district court deter- employer. The discharge and our of the nature of ination claim for racial mined that Patterson’s 1981, as well as interpretation of Section Sec- was not actionable under harassment 1981, we legislative history of Section 1981, granted a directed verdict discriminatory a claim for conclude that employer. of the favor cognizable under discharge continues to be appeal,14the Fourth Circuit affirmed. On Section Union, 805 Credit Patterson v. McLean Cir.1986). (4th The court held A. cognizable was not that racial harassment 1981, noted that evidence under Section but whether a fair We must first determine implicate the may racial harassment requires us to find of reading of Patterson 1143, Union, pendent v. 805 F.2d plaintiff law son McLean Credit also raised state The Cir.1986). (4th ap- plaintiff for the intentional infliction emotional The also claim granted a directed testimony The district court proffered distress. verdict for the pealed the exclusion issue, employer on witnesses, support one in of her harassment two affirmed. See Patterson Mc- Fourth Circuit promotion support her and the other in claim Union, Credit Lean Finally, plaintiff at 1147. claim. Id. Cir.1986). required appealed jury her instruction which qualified prove more than the that she was plaintiff appealed the district court’s The prevail her person promoted in order in favor of the em- award directed verdicts plain- promotion claim. Id. The Section 1981 ployer on the Section 1981 racial harassment rejecting her appeal verdict did not tiff pendent and the state law claim inten- claim discharge claim. Section 1981 tional infliction of emotional distress. Patter- employment terms and conditions of under 1981. The Court noted that the most obvi- Rights Title of the VII Civil Act of 42 ous feature of Section 1981 is that it for- (1982), seq. proba- U.S.C. 2000e et only or be bids discrimination making § discriminatory required contracts, tive of the intent enforcement and that it could prove a general Section 1981violation. Id. at 1145. not construed proscription as a discussing ruling on the harassment aspects racial discrimination all claim, the expressly Fourth Circuit noted contract relations. Id. at 2372. discriminatory that a claim discharge rights pro- The two enumerated contract goes very employ- essence of the tected Section 1981 are the contract, ment easily and thus falls within make and enforce The contracts. first of protection. Section 1981’s Id. rights, contracts, right these to make certiorari, granted Court prohibits discriminatory refusal to en- someone, see 108 S.Ct. at 98 ter into a contract with as well as (1987), questions: L.Ed.2d to decide two the offer to only make a contract on dis- (1) whether criminatory Patterson’s racial harassment terms. Id. 2372. The Court claim right was actionable under Section held that “the to make contracts does requiring extend, and whether a instruction logic as a matter of either prove semantics, her to qualified that she was better employer to conduct af- promotion to establish her Section 1981 ter the contract relation has been estab- Patterson, lished, claim including was erroneous. breach terms of the argument, 2369. After initial oral imposition contract or requested parties working to brief and conditions.” Id. at 2373. The argue whether or not the Court postformation should Court noted that such con- interpretation reconsider the of Section duct naturally governed by is more state adopted in Runyon McCrary, 427 contract law and Title VII. Id. The sec- right 49 L.Ed.2d 415 protected by ond contract Section (1976) (Runyon), which held that contracts, prohib- enforce prohibited discrimination the mak legal process its racial discrimination in the ing private and enforcement of prevents contracts. which enforcing individuals from 617, 108 485 U.S. S.Ct. 99 rights. L.Ed.2d their contract Id. The (1988). 879 statutory enforce contracts covers and “wholly private impede efforts to access to unanimously agreed The Court that Run- nonjudicial the courts or obstruct methods yon should not be overruled. Justice Ken- adjudicating disputes” to enforce the nedy, writing majority, for a 5-4 held that (emphasis origi- terms of a contract. Id. Runyon should not be overruled because nal). The interpreting Court held that Sec- special justification no was shown to war- protecting tion 1981 as rights enumerated departure principle rant from the of stare general rather than as a proscription of decisis, proved the decision had not un- “preserve[d] racial discrimination also workable, “Runyon entirely and con- [was] integrity procedures of Title VII’s without society’s deep sistent with our commitment sacrificing any significant coverage of the to the eradication of discrimination based rights civil laws.” Id. at 2375. person’s on a race or the color of his or her Patterson, skin.” 109 S.Ct. at 2371.15 Applying The principles these to the issues Court then considered whether plaintiff, Patterson’s raised the Court held that promote racial harassment and failure to her racial harassment claim was not action- claims fell within either of the two enumer- able under Section 1981 because it involved rights protected ated contract postformation Section relating conduct to the Brennan, concurring judgment 15. Justice argued Runyon Brennan that should not be part dissenting part, joined by and correctly Justices overruled because it was decided. See Blackmun, agreed Patterson, 2379-85, Runyon Marshall and that v. 109 at and because McCrary, 427 Congress effectively U.S. interpretation 49 L.Ed.2d ratified the (1976), overruled, 415 should not be adopted Runyon. but for of Section 1981 See id. at majority. different reasons than the Justice 2385-88.

637 purposes of these for Court employ- continuing “assume[d] conditions terms and petitioner’s deciding, cases, that without to make a refusal ment, than rather violated 1981 have been ability to her under impairment § anor contract Id. rights. reassignment.” and contract his removal established her enforce contrast, recently held re Court Court Supreme In The 2710. Id. claim promote not resolve Patterson failure did plaintiffs that that affirmed “ris- promotion discharge denied action discriminatory if the is actionable was whether new for a opportunity Lytle v. level es under Section able — employee between relation Inc., and distinct Mfg., Household Supreme The at 2377. Id. employer.” 108 1331, 1336 n. -, - n. 3, -, S.Ct. dismis- Fourth Circuit’s affirmed Court J., concurring) (O’Connor, L.Ed.2d 504 1981 racial Section of Patterson’s sal 20, 1990). (Mar. judgment claim, vacated but harassment the Patterson that the fact We believe discriminatory to Patterson’s it related discharge reach intend to did not Court for the case remanded claim and promotion by the conclusively established question is The Id. at 2377. proceedings.16 further any refer make decision that failure discharge whether not discuss opinion does unfavorable, sub ence, or favorable rights to make within encompassed is Section Supreme Court body of stantial contracts.17 enforce in developed in cases jurisprudence Jett decision Supreme Court’s discharge claims. volving Section — District, School Independent Dallas Co., v. Lukens Steel See, e.g., Goodman L.Ed.2d U.S. -, 2617, L.Ed.2d 572 656, 107 S.Ct. Pat after (Jett), one week (1989) decided discriminatory dis involving (1987) (case re did not terson, clarifies held Supreme Court charge where claims discharge whether solve person limitations state statute under Section to be actionable continues governs Section injury actions al con Jett, Supreme intentionally fails claims, union that U.S.C. sidered Sec claims violates discrimination assert First Amend process, (1982) due § College Al- Francis 1981); Saint claims discrimination ment, reverse 2022, 95 604, 107 S.Ct. Khazraji, coach and football male teacher a white (discriminatory dis L.Ed.2d coaching his removed had been who Court held charge where ease posi teaching to another duties, reassigned protec entitled Arab national school, constructive a different tion at he he can show if of Section tions Id. employment. his discharged from ly intentional discrimination subjected a munici addressing whether 2708. Before State Delaware birth); Arab of his because Section held liable could be pality 250, Ricks, 449 U.S. 101 College v. re- employees under its violations 1981 (1980) (discharge case 431 498, 66 L.Ed.2d noted that Court superior, spondeat that Sec held Court Supreme which in had the school proceedings stage of the no begins run limitations statute 1981 tion con right to make argued that district allegedly discriminato date ning on the injuries suffered not reach did tracts occurred); denial ry act —the Accordingly, tenure — Id. at 2709. petitioner. 1981. brought Section under may be still tions in court district erred that the held The Court Servs., 51 Personnel e.g., v. Elliott prove was better See Carroll she plaintiff to requiring the (D.Md. 1173, (BNA) 1175 promoted Empl.Prac.Cas. order in individual Fair qualified than the Inc., Airlines, promotion claim. 716 1989); Section 1981 v. United her to establish Padilla Patterson, not- The Court 485, (D.Colo.1989); 2377-79. v. Union S.Ct. at Bush 109 F.Supp. 489 qualified was establishing 10936, (W.D.Mo. better she was ed that only *4 Bank, Dist. LEXIS U.S. 12, 1989); plaintiff could ways of several one Greggs Distrib. v. Hillman September for its employer’s reason stated prove 552, (S.D.Tex.1989); Hall v. Co., F.Supp. pretextual. promote her failure to 721, (N.D.Ill. Cook, F.Supp. County 1989). post-Patterson cases have noted Several discharge ac- whether did not decide Co., Transp. Fe Schwab, Importance McDonald Santa Trail The Eisenberg & 275, 273, 1981, 427 U.S. Section 73 Cornell L.Rev. 599- (1976) (employer L.Ed.2d 493 dis- who (1988) (analyzing number of Section charges employee a white of his employment discrimination claims Johnson v. 1981); race violates Section filed in three federal district courts in fiscal Railway Express Agency, 1980-81). year light large In of the num- 459-60, 1719-20, 44 L.Ed.2d discharge ber of Section 1981 claims (1975) (Supreme Court cites lower court courts, brought in the federal we believe discharge support Section 1981 cases Supreme would have least holding that Section 1981 affords a federal expressed continuing doubt about via- remedy wrongful discharge against in case bility of such causes of action after Patter- private employment discrimination in son. race).18 if basis We believe that important It is to note that intend or we Supreme ques- Court intended to call into imply Supreme no criticism of the Court for body tion or overrule this substantial Patter- reaching discharge in issue employment precedent discrimination in son. plaintiff appeal did not Patterson, it would have said so. We do claim, rejecting discharge her verdict not believe that the Court would hence this issue was not before the Court. reject by implication such seminal Section Legal questions are best decided in cases 1981 cases without so much as even a present concrete controversies.19 word. decline, simply light We of Patterson’s significant major- We also find it that the scope, apply oblique uncertain deci- ity portions took issue with substantial undisputed sion to overrule the clear and opinion dissenting Justice Brennan’s precedent of this circuit. Patterson, see part, 109 S.Ct. at n. 2376-77, object did but to his statement B. provide that Section 1981 continues to Having established that Patterson did cause of action for dis- discharge prohibited not address whether is id. (in charge. enacting Sec- Section we now must decide Congress go beyond intended “to discriminatory discharge whether protecting is action- the freedmen from refusals right able under either the to make or the contract for their labor discrimi- them”) (em- right natory discharge decisions to protec- to enforce contracts. Because added) (Brennan, J., phasis racially deprivations tion from motivated concurring in judgment part dissenting enjoyment contracts essential to the full part). contracts, make We also note that one of the most we hold common uses of Section discriminatory discharge 1981 is discrimi- continues to discharge generally natory actions. under actionable Section 1981.20 Dis- addition, prior 18. to Patterson this court and controversies. A court cannot be assumed to virtually every other circuit had held that dis address and resolve in the case in which it criminatory discharges are lays every covered controversy first down rule with- See, Ford, Inc., e.g., Estes Dick Smith in the semantic reach of the rule. (8th Cir.1988) (Estes); Co., 856 F.2d Malhotra v. Cotter & 1417, Corp., Hunter v. Allis-Chalmers (7th Cir.1989) 797 F.2d (Malhotra) (implying but not de- (7th Cir.1986); 1420 Connor v. Fort Gordon Bus ciding retaliatory discharge claims continue Co., 1495, (11th Cir.1985). 1498-99 to be actionable under Section 1981 after Patter- ). son agree Judge eloquent 19. We Posner’s dis- Patterson, scope cussion of the uncertain of discharge impairs right 20. While the to make necessity the of further cases to flesh out its contracts, ordinarily impair right it does not the parameters: to contracts as described in Patterson. enforce disrespect Supreme We show no discharged employee to the Court See 109 S.Ct. at 2373. The by suggesting scope simply go that the of Patterson is is free to into court and file suit. However, glory Anglo-American employer uncertain. The of the against when an retaliates system adjudication general princi- employee by discharging is that attempting an her for ples are rights, very tested in the crucible of concrete to enforce her Section 1981 well

639 (1968) 2186, 2202, 1189 20 L.Ed.2d ra- from fundamentally different is charge Price, v. States U.S. United 383 (quoting discrimination or cial harassment 1160, L.Ed.2d 1152, 16 787, 801, An employment. conditions or terms Sec- to construe (1966)).21 to refuse subjected We or 267 harassed who is employee from employer prohibiting em- an as conditions tion 1981 or discriminatory terms race, on her hire someone based refusing fundamental to receives still ployment of that discharge con- employment permitting her but then his or benefit race though of her employee because employment itself —even same tract —the de- Such an absurd unpleasant, year later. may or a be month employment distinction, discriminatory dis- In allow interpretation would or obnoxious. grading, very right ex- effectively discharge goes annihilate discharge to criminatory con- con- employment right to make of the contracts. make and nature to istence com- discharge virtually mean- discriminatory rendered be A would tracts tract. her right to of his employee encompasses deprives unless it ingless pletely right discriminatory deprivations very essence from employment, free be meaning give contracts. to employment In order make contracts. such from free make contracts right 1981, are we construing Section When from discrimination, right to be free to construe obligation of our mindful implied. discharge must be meaningful gives which in a fashion statute States, 9, 24, v. United U.S. 231 See Luria negate confers, it rights effect (that (1913) 101 58 L.Ed. Heidler, 204, F.2d v. 527 McCown them. is as in a implied statute clearly is fact, re- are Cir.1975). we (10th 207 is ex- as what part of law much a the Civil interpret generously quired dis- Accordingly, we hold pressed).22 1866, Section from which Act of Rights “ directly affects discharge criminatory sweep as it a ‘according] derived, is 1981 ” contracts, therefore make right v. Jones language.’ its Alfred broad 1981.23 Section under cognizable Co., 409, 437, 88 S.Ct. Mayer H. U.S. 392 standing to evidence,” third-party has “give ability to enforce employee’s may impair the right to 1981 blacks’ Section meaning a violation Sec assert rights within her contract contracts). her into may make intimidate it because 1981 tion legal process to resorting refraining rights. Malho 1981 See urgency Section her Recognizing vindicate the extent J., (Cudahy, concur tra, n. 1314 1 F.2d at 885 civil the Reconstruction in which crisis discharge retaliatory (noting ring) dicta promulgated, were statutes ); Patterson after actionable to be interpretation continues policy of broad has extended 628, F.Supp. Corp., 717 Dev. English v. General rights statutes civil Era Reconstruction to other (Patterson retali (N.D.Ill.1989) leaves 88, 632-33 Breckenridge, 403 v. as well. Griffin intact); v. Jordan discharge atory action 1796, 338 L.Ed.2d 29 S.Ct. 91 Co., F.Supp. 1368-69 716 Direct Price, West (1982)); 1985(3) § 42 U.S.C. (interpreting af (retaliation actionable claims (D.Colo.1989) (interpreting at 1160 contract). right to enforce under ter Assocs., (1988)). also Triad § U.S.C. Inc., Contracting, Burke v. Sherman But see Auth., F.2d 583 Chicago Hous. v. Inc. (retaliatory Cir.1990); (11th 1527, 1534-35 F.2d Cir.1989) (noting construc (7th broad 591-92 under longer discharge actionable no 1985(3) to rule, interprets § U.S.C. court tion USA, Patterson); Overby Chevron after ani racial conspiracies motivated civil cover Cir.1989) (same); (9th Inc., F.2d whites). towards mus F.Supp. College, 721 Medical v. N.Y. Alexander (same); v. Na Williams (S.D.N.Y.1989) Malhotra, at 1314 22. See F.Supp. 51- Corp., 716 Passenger R.R. tional J., (A prohibi- concurring) (Cudahy, Cir.1989) un (retaliation not actionable (D.D.C.1989) adjunct” "necessary is a against retaliation right con to enforce because Section 1981 der may employee ”[i]f to Section Press, Dangerfield v. Mission unimpeded); tracts discrimination, his complaining fired be (N.D. (BNA) Empl.Prac.Cas. 50 Fair against is not to discriminated her] [or Corp., McCrory Ill.1989) (same). Fowler Cf. vitiated”). surely (white employee (D.Md.1989) F.Supp. 228 727 complaint with local filing discharged after noteworthy the for dissent We find him not employer directed claiming that agency resolves, raises questions it for the but it issues under of action has a cause all blacks to hire instance, the dis- For unanswered. right and leaves his own violation 1981 for Section 640 construing right right

We believe that to determine whether to make contracts has been violated. See encompassing right make contracts as discriminatory discharge at 2376-77. to be free from unduly language does not strain the permitting Nor will Section 1981 actions Patterson, 109 Section 1981. at discriminatory discharge Title subvert deny right We do not preference for and concilia- VII’s mediation reasonably susceptible make contracts is tion. See id. at 2374-75. After an employ- interpretation which does not extend its discharged, employment ee is relation- protection prohibit discrimination after ship point, At there no is severed. is the contract has been formed.24 None- salvage. relationship to The absence of an theless, view, postformation in our dis- employment relationship discharge makes charge continues to be actionable under the to contract. Patter- to a equivalent refusal totally right to make contracts when it son notes that a to enter a contract refusal deprives the of the fundamental ben- victim on the basis of race would continue to be right intend- efit the to make contracts was under Title actionable Section 1981 and relationship contractual VII, 2375, ed to secure —the id. at but the Court was not Indeed, the Patterson Court indi- itself. overlap troubled because the inter- post- appropriate preserving integrity cated that it is to examine Title est VII procedures considerably in certain circumstances is lessened formation conduct when suggests applied plaintiff that we have a different Section in case where had claimed sent 1981 analyzing culminating standard in Hicks’ claim than the racial harassment in constructive Patterson, Supreme applied post discharge). 656, explain particularity but fails to generally These courts have reasoned that dis- departed respect what we have from Patterson. criminatory discharge postformation is conduct Moreover, although the dissent concedes that longer under Patterson and therefore no action- discharge Patterson did not address whether is However, able under Section 1981. none of 1981, 656, post actionable under Section it these decisions discuss the fundamental differ- discharge purports nevertheless to resolve the discharge relating ences between conduct by quoting holding issue on employment. Many these the conditions harassment, substituting “harassment" with the seriously implications cases fail consider "discriminatory discharge” parenthe- words discharge of Patterson's failure to resolve the agree ses. Post at 657. We that Patterson held issue. These decisions also do not consider the obligation that racial harassment is not actionable under give meaningful pro- courts to However, we do Section 1981. not believe that contracts, right tection to the absurdity to make and the "discriminatory merely inserting discharge” into employer that would result if the holding Court’s on harassment nondiscriminatory hiring must be but can light question sheds natory discharge on the of whether discrimi- impunity. Finally, then fire with none of these prohibited by is legislative history decisions consider the make and enforce contracts. Congress’ Act or desire to 1866 secure to the right freedmen full exercise to make recognize 24. We a number of federal courts regardless employed contracts of the devices found, summarily, discharge have often opponents compliance. to avoid Because these longer no actionable under Section 1981 after adequately were factors considered See, e.g., Patterson. Rivera v. A.T. & T. Informa finding discharge courts Inc., 962, 1981 actions (D.Colo. Sys., F.Supp. 719 964-65 precluded, persuaded by Cook, Illinois, we are not them. 1989); County Hall v. 719 agreed 721, We also note that (N.D.Ill.1989); several courts have F.Supp. 723-24 Crader v. (N.D.Ill. with our conclusion that dis College, F.Supp. Concordia 724 562 charge Inc., 1989); continues to be actionable under Section Systems, v. Norden WL 1989 Alvarez See, (S.D. e.g., 1981 after Patterson. Padilla v. United 1989 U.S.Dist LEXIS at 15 Airlines, (D.Colo.1989)(dis 24, 1989); Bank, F.Supp. August N.Y. Bush v. Union criminatory discharge directly affects the 1989WL 1989 U.S.Dist. LEXIS 1981); (W.D.Mo.1989); contrary Copperidge to make a contract v. Terminal to Section Co., Servs., Handling Empl. Freight Empl.Prac.Cas. 50 Fair Carroll Elliott Personnel 51 Fair (BNA) (W.D.Tenn.1989); (BNA) (D.Md.1989); Greggs v. Hillman Prac.Cas. 1173 Birdwhistle Co., (S.D.Tex.1989); Distributing F.Supp. Light, F.Supp. v. Kansas Power & (D.Kan.1989) Hotels, Leong Empl.Prac.Cas. (discharge directly v. Hilton 50 Fair related to con (BNA) (D.D.C.1989). Carroll v. General tact enforcement and is still actionable after Cf. Co., Patterson); Int'l, Inc., Ins. Accident Cir. Booth v. Terminix 1990) (without issue, (D.Kan.1989); discussing discharge Washing F.Supp. court Gamboa v. ton, (N.D.Ill.1989) (constructive holding F.Supp. relies on Patterson harassment to re portions solely discharge). verse verdict based

641 possible, the two sec where has held that relationship not does exist. employment an stage interpreta given be a common held tions should The Court “[a]t Recrea Title VII’s v. Wheaton-Haven relation employee/employer Tillman tion, procedure would Ass’n, and conciliation mediation 431, 439, 1090, tion 410 93 S.Ct. U.S. effect, yet a there is not for minimal be of (1973), 1094, in fact the 403 35 L.Ed.2d and Id. Similarly, allow- salvage.” to relation consistently given has the sections Court her challenge his or ing employee to an see id. at 440, interpretations, 93 consistent either Sec- discriminatory discharge under Runyon, 170-73, 1094; 427 at at U.S. S.Ct. undermine will not or Title 1981 VII tion Congre Shaare 2594-96; at 96 S.Ct. Tefile proce- conciliation and mediation Title VII’s Cobb, 617-18, v. gation 615, 107 481 U.S. longer em- no an dures, there is because (1987) 2019, 2021, 594 95 L.Ed.2d S.Ct. salvage.25 relationship to ployment governs Section (same of race definition to discharge continues holding that Our In Sullivan actions). 1982 1981 and ful 1981 also Section under be actionable Park, Inc., Hunting 229, Little 396 U.S. 1981 interpret Section obligation to our fills 400, 404-05, 236-37, 24 L.Ed.2d (Section (1982) 198226 42 U.S.C. and § (1969) (Sullivan), Supreme Court 386 1981 1982) coextensively. Both Sections when a 1982 was violated held that Section 1 of from Section are derived and 1982 deprived of his property owner was white 1866.27 See General Rights Act of Civil advocating rights of a property for Pennsyl Assoc. Building Contractors Sullivan thus Court black tenant. 3141, vania, 375, 384, 102 S.Ct. right protects Section 1982 found that (1982); Runyon, 427 3146, L.Ed.2d 835 73 property and keep right to acquire to 2594; Jones, 392 at 96 at S.Ct. U.S. to include construing 1981 By Section it. 2194. Because U.S. right job as the keep a as well to origin, common their provides citizens "[a]ll U.S.C. 1982 holding § 26. 42 noting does not under 25. By that our right, the same preference mediation and States have for the United shall Title VII’s mine conciliation, suggest enjoyed by Territory, mean to white every we do not as is and State vary depending lease, sell, on inherit, should scope of Section 1981 purchase, citizens thereof hold, statutory as parallel scheme such whether property.” convey personal and real and prohibits discrim exists. 1981 Title VII Section con making and enforcement ination in the Rights Act of 1866 the Civil 1 of 27. See, McCrary, e.g., Runyon v. generally. tracts follows; provided as L.Ed.2d S.Ct. House of and enacted Senate Be it (Section private (1976) prohibits a school States in Con- of the United Representatives refusing contract with black students from assembled, persons born in gress That all race); v. Wheaton-Ha Tillman of their foreign subject any and Ass'n, United States S.Ct. Recreational ven taxed, here- (Section excluding are pro power, Indians not L.Ed.2d States; United community association citizens of the recreational to be hibits a declared race). color, membership citizens, denying every based and race and such ("Section Patterson, at 2390 regard any previous condition of without extending general application, servitude, is a statute except involuntary as slavery or all con employment but to just contracts party shall punishment crime whereof for J., (Brennan, tracts”) original) con (emphasis in convicted, duly have the same shall have been dissenting part judgment and curring Territory every in the Unit- right, State and Moreover, is not limited part). Section 1981 contracts, States, and to make ed enforce more with 15 or in businesses to discrimination inherit, evidence, sue, give parties, and be 2000e(b) (Title VII employees, § 42 U.S.C. cf. sell, hold, lease, convey real and purchase, industry engaged an "person[s] applies to equal bene- property, and to personal full affecting fifteen or more who has commerce security proceedings all laws and fit of ...”), may protect hence employees enjoyed by white property, as is person and of citizens, not cover approximately the workforce 15% of subject punish- like and shall only Title We refer to VII Title VII. Id. ed other, ment, penalties to none pains, as discharge cases such that in to demonstrate ordinance, law, statute, regulation, cus- any this, coverages Sec of Title VII and where notwithstanding. tom, contrary overlap, and concili the mediation 1981 do 14 Stat. § C. April Act of procedures VII are not under Title ation currently codified text (emphasis added to by allowing Section 1981 actions because mined 1982). longer Sections 1981 relationship exists. employment no one, Court, acquire Supreme effectuate the rule fa- we we will infer that dis- voring interpretations of consistent Sec- charge employment, from the most severe tions 1981 and 1982. all, employment injury longer of cog- is no nizable under Section 1981.30

Moreover, holding discharge our that continues to be actionable under Section unwavering is in consonance with C. commitment of all three branches of legislative history Rights of the Civil government

federal to the eradication of (1866 Act) supports Act of 1866 our conclu- discrimination,28 special racial and the obli- prohibits discharges sion that Section 1981 gation protect of the federal courts to civil rights.29 clear on Absent direction from the based race.31 We will consider the eon- Patterson, See, (^‘Run (“racial may trigger. e.g., 109 S.Ct. at 2371 See id. at 1349 discrimina- yon entirely society’s deep is consistent with our tion takes its most malevolent form when it commitment to the eradication of discrimina employment, prejudice occurs in for here not person’s effect, tion based on race or the color of his only has an immediate economic it has a ("The skin”), her reflects or society’s id. law now fulminating integrant perpetrates pesti- on consensus discrimination based degraded housing, unsatisfactory lences of profound wrong is a color one’s skin amenities, neighborhood unequal edu- tragic dimensions. Neither our words nor our cation") (citation omitted). interpreted signaling decisions should be one Congress’ policy inch of retreat from to forbid meaning 31. Because to make private, discrimination in the as well as the opinion in the contracts as formulated J., (Brennan, public, sphere”), id. at 2380 con ambiguous encompasses is as to whether it dis curring judgment part dissenting in the charge, legislative appropriate it is to turn to the (commitment part) to eradicate discrimina history of Section 1981 to ascertain it whether "product tion the of a national consensus light problem. sheds on the See Public Citizen incompatible racial discrimination is with our — Justice, U.S. -, Dep’t v. United States life, conception best of our communal and with 2558, 2566, (1989) 109 S.Ct. 105 L.Ed.2d 377 rightful expectation each individual's that her (“[wjhere reading statutory the literal of a term participation community full will not be result,’ ‘compel would an odd we must search race”); contingent upon her Bob Univ. v. Jones congressional for other evidence of intent States, 574, 593, United 461 U.S. S.Ct. proper scope”) (quoting lend the term its Green (1983) ("every pronounce 76 L.Ed.2d 157 Co., -, Laundry v. Bock Mach. - U.S. myriad Congress ment of this Court and Acts of 1981, 1984, (1989)). S.Ct. 104 L.Ed.2d 557 poli and Executive Orders attest a firm national legislative history sup Our resort to is further cy prohibit segregation racial and discrimina ported by Supreme tion”); the fact that the Court has Emporium Capwell Co. v. Western Addi 50, 66, consistently interpreted Community Org., both Sections 1981 and tion 420 U.S. 95 S.Ct. 977, 986, See, (1975) legislative history. ("[pjlainly, L.Ed.2d 12 1982 with reference to na —Dist., policy e.g., principles Indep. Jett tional labor embodies the v. Dallas School -, 2702, 2711-15, highest priori- nondiscrimination as a matter of 109 S.Ct. 105 L.Ed.2d 598 ty”)- (1989) (post-Patterson case in which legislative history Court considers of Section See, e.g., Patsy Regents, v. Bd. 457 U.S. length 1981 at to determine whether 39th Con 2557, 2561, (1982); 102 S.Ct. 73 L.Ed.2d 172 gress intended to create a cause of action for Foster, Mitchum v. 2151, 2162, 407 U.S. damages against municipal actors and others (1972); parte 32 L.Ed.2d 705 Ex who violated the now enumerated in Sec 339, 346, Virginia, (1880). 100 U.S. 25 L.Ed. 676 1981); College Al-Khazraji, tion Saint Francis generally Belknap, Federalism and Pro- 604, 612-13, 2022, 2027-28, 481 U.S. 107 S.Ct. Rights, tection (1986); Civil 86 Colum.L.Rev. 1741 (1987) (discusses (Al-Khazraji) L.Ed.2d 582 Chambers, Rights: Protection Civil A Congress regarding statements members of Constitutional Mandate the Federal Govern- understanding their of "race” to ascertain ment, (1989). 87 Mich.L.Rev. 1599 protec whether Arab national is entitled to the 1981); Congrega tions of Section Shaare holding discriminatory discharge 30. Our is Tefile Cobb, 615, 617-18, tion v. 481 U.S. prohibited Section 1981 also furthers the (1987) (based 95 L.Ed.2d purposes deterrent of Section 1981. See Ed- legislative history developed Al-Khazraji, Hosp., wards v. Jewish Cir.1988) (Edwards) Court holds that Jews were viewed (acknowledging as distinct deterrent 1981). Rights underlying race at the time purposes Facilitating the Civil Act of 1866 was passed, objectives protections the deterrence of Section thus entitled to Sec 1981 in em- 1982); ployment relationships particularly important Transp. McDonald v. Santa Fe Trail Co., 273, 287-95, debilitating 2574, 2582-86, chain reaction that discharge racially employment (Court motivated legisla- 49 L.Ed.2d 493 relies on gradually Union was preserve war passed, Act was the 1866 within text slavery time it into a war abolish at the Congress transformed before evidence the Sullivan, on race. See Congressional Act, the based inequality the and and considered Reconstruction, Reconstruc- Historical themselves.32 debates Scope Proper and the History, tion of of question considering the Before 1981, 541, 548-49 Section 98 Yale L.J. fall discharges racially motivated whether Reconstruction). De- envi- {Historical (1989) as 1866 Act of the scope the within important pri- victory, it is and Congress, public 39th northern spite the the sioned in which subjugation the context note of the take to continue efforts vate passed.33 and proposed, debated Act was the freed slaves were of degradation and changes occa- and fundamental radical The South. rampant in the of the abolition andWar Civil sioned the was ratified amendment The thirteenth elsewhere and well-documented slavery are the rat- 6, Despite 1865.35 December length great at recounted not be need amendment, many members of the ification country that this it to state Suffice here.34 and that broader Congress believed of War, a the through Civil just had suffered statutory guarantees were explicit more the most lives cost conflict which terrible were to newly freed slaves necessary if the history. The Civil in American any war of rights.” J. parchment than “more have present it did unique because was War (1965). Law, at 175 tenBroek, Equal Under country, enemy, divided the but an external well was 1866, Congress 39th early In systems economic competing two pitting private public and ubiquitous aware of another, each one against life ways of and in the against the freedmen discrimination began What dominance. vying dangers in- cautioned on have Historians entitled are that whites history determine tive citing quotations from Recon- 1981); isolated Runyon, 427 herent Section protections of congressional debates without (discusses 8, Era 2593 8 struction understanding n. n. 96 S.Ct. at 168 U.S. legislative Congress faced conditions Rights of 1866 to history Act of Civil Republican ideological beliefs of significance of its reenactment and the determine Foner, 1874); Recon- Congress. Tillman See E. majorities codification 1870 Revolution, 431, Ass'n, 410 U.S. Unfinished Recreation America’s struction: Wheaton-Haven (1973) 1093, (Reconstruction). 1090, (1988) 435, 1863-77, 403 L.Ed.2d 35 53 S.Ct. at 257 n. 93 developed “a (construction 1982 of Section wrought changes history"); legislative discussions 34. For of the detailed review scope 422-37, the increase Jones, at 2194-95 War and the Civil 392 resulted, history see Recon- authority legislative to deter- (detailed federal review McPherson, Cry 228-80; struction, 1982 Battle Section J. types of discrimination mine what Note, Era, generally at 859-62 prevent). See War Civil The was intended of Freedom: Cases, Court, Leading Kaczorowski, of Judicial Term: Politics (1988); The The R. (1989). Courts, 137, Department & 336-37 n. Federal Interpretation: Harv.L.Rev. 1866-1876, at 1 Rights, Civil of Justice legis- reading into wary too much We are 1873, a ("Between years (1985) legislative history, but believe lative history rights enforcement theory civil legal of national sufficiently compelling of the 1866 Act United emerged authority in the courts interpretation of our and buttress to illuminate revolutionary impact of that manifested States Sullivan, Recon- Historical Section struction, legal upon the constitutional War the Civil Proper History and the Reconstruction federalism.”); Historical of American structure 541, 1981, 98 Yale L.J. Scope Section 561-64; 547-56, Reconstruction, Yale L.J. at ("most Reconstruction) mat- (Historical (1989) Kaczorowski, Revolutionary Constitutionalism necessarily interpretation in- ters of historical Reconstruction, War and Era Civil certainties"). probabilities, not volve (Revolution- (1986) 61 N.Y.U.L.Rev. ary Constitutionalism). v. Penn- Bldg. Ass’n Contractors General 33. See sylvania, provides: amendment thirteenth 35. The (when interpreting Sec- L.Ed.2d involuntary slavery nor 1. Neither Section of the events be mindful one “must servitude, for crime punishment except aas law in which passions of the time and formed") (citation duly con- been party shall have whereof omitted); States v. United States, or victed, United within the shall exist Price, jurisdiction. subject to their any place scope (1966) ("The purpose and L.Ed.2d power en- Congress shall have be viewed must 1870 enactments the 1866 and legislation. by appropriate time"). this article force passions of against events and planta- the demise of the tract would seal Many Republicans believed South.36 bitterly system, and resisted its tion labor threatened to make a such discrimination sum, amendment, implementation. the 39th Con- if mockery the thirteenth passed the 1866 Act gress debated slavery. actually precipitate a return to by the end a context characterized within Reconstruction, 98 Yale Historical War, anger fear and northern Civil Many northerners had come L.J. at 548. rights in the deprivations of freedmen over uneasy “that somehow the conviction South, to the im- and southern resistance really after had never surrendered South sys- plementation of the free labor contract Kaczorowski, Revolutionary all.” See tem.37 in the Era the Civil Constitutionalism Reconstruction, 61 N.Y.U.L.Rev. and Act, War the time it considered the 1866 At (1986) (Revolutionary Constitu- Congress had before it substantial the 39th result, tionalism). Congress As a some denials documenting widespread evidence legis- that the enactment of enjoy came to believe the mean- the freedmen’s neces- protecting the freedmen was The ingful lation of contract. debate benefits military sary codify effectively began into Act with in order to law over the 1866 report by Major major Congress’ receipt A of a Gen- of the Civil War. Id. resolution in the South. eral Carl Schurz on conditions point the Re- focal of the conflict between Cong., No. 39th 1st Sess. S.Exec.Doc. Congress concerned publican and South (Schurz Jones, (1865) Report). See contract of a free labor establishment 2197-98; 428-29, at 88 S.Ct. at Histor- system replace slavery. On the one Reconstruction, 98 Yale L.J. at 553. ical hand, many northerners black leaders and documenting emergence In addition to system vigorous free contract saw a labor Codes, Report Black the Schurz de- key practical They be- as a freedom. private the various devices used tailed the free contract would be lieved that labor rights. e.g., their deny the freedmen slavery and constitute the a substitute (persecution 17-20 Report at Schurz totally system. of a new backbone freedmen), (“Gener- against violence Reconstruction, 98 Yale L.J. at Historical Of Whites Concern- al Ideas And Schemes 549-50, southerners, on the White Freedmen”). report The ing The Schurz hand, creation “bitterly other resisted the if all stat- noted that even implied by free market as eman- of a labor repealed, equal treat- utes and orders were Foner, cipation.” E. Reconstruction: Jones, ment would still not be secured. Revolution, 1863-77, America’s Unfinished at 88 S.Ct. at 2198. Schurz (Reconstruction) (citation at 132 equal careful to note that the denial of was omitted). “[fjree insisted that Southerners in con- particularly common treatment was assumptions rationality, labor —economic tract relations. self-discipline, responsiveness to internal placed Report of the market —could never The substantial the incentives Schurz applied emphasis to blacks.” Id. White resistance to ... be southern replacement of recognized things” con- order of planters that the free labor “new —the states, Jones, necessarily called for the U.S. at 88 S.Ct. at 2197 the Southern 36. See South, (" newspapers system, North and ‘Accounts for “the for- creation of a new labor Bureau and other official doc Freedmen’s arrangements.” mation of new civil uments, private reports correspondence la- Southern whites likewise conceived of the outrage ‘private adduced’ to show that were all driving public question bor as the issue of atrocity’ 'daily were inflicted on freedmen pre- policy ... Former masters neither were tenBroek, Law, ...’”) (quoting Equal J. Under pared disposed nor to deal with former slaves (1965)). at 181 grounds ide- on the assumed free labor struggled ology. They disci- to recreate the importance The of the free labor contract for system, pline and control of a slave while reordering society, the resistance southern struggled Freedmen to discover freedom as succinctly engendered, its introduction has been independent workers. as follows: described Reconstruction, at Historical 98 Yale L.J. [Republican] recognized leaders that the abo- (citation omitted). slavery, having destroyed lition of the labor system that had existed for two centuries implementation of the free labor con- contract free labor labor slave key system that one his recommen- 21-22, 16-19, 37- tract See, at e.g., id. system. period was to extend the time dations majority the vast observed 40. Sehurz control southern states over federal that blacks whites believed of southern into the (and postpone readmission their physical without not work simply would Union) system labor contract until free only and that compulsion, id. (“The at 39 firmly established. See id. at- were southern whites minority of small report, as well as enumerated facts new contract labor adopt tempting from the news we receive [S]outh warned Sehurz system. Id. every it evident to day, must make day attempting employers were southern free observer unadulterated unbiased laborers, treatment “[ajdhere, as to the present, unless cannot be had labor to the traditions possible as much protective holds its government national be- where relations system, even old it.”). controlling hand over had been and laborers employers tween Congress 39th considered at 19. Id. by contract.” fixed Howard, Major Oliver of General O. report reported that for- Significantly, Sehurz H.R. Freedmen’s Bureau. head of the the to not refuse generally did mer masters 1st Cong., 39th Sess. No. Exec.Doc. slaves, in- but former their contract with Re- (1866) (Howard Report). The Howard of the establishment undermined the stead widespread corpo- of the use port detailed wages refusing pay to system free labor deprivation punishment, fraudulent ral the practical to reintroduce by trying or earned com- wages, the of formation of freedmen’s onerous imposition of slavery through the freedmen, and the the to extort binations (“many in- at id. terms. See contract their refusal of whites fulfill general to solve set about heads genious [southern] Re- Howard with contracts freedmen. free com- make labor how problem, the 25, 28, 30, 32. Howard believed at port Reconstruction, 98 Historical pulsory”); reluctance embrace the southerner’s Many southerners L.J. at 553-54. Yale from “the system arose contract labor the contract of the introduction impeded the of employer, and want of the prejudice in its “throw[ing] obstacles system by system knowledge any of other practical “adulterating] way,” id. he has been which the one under than of by the admixture things of new order at 32. Howard also up Id. brought ...” of system slav- belonging to elements of the important role documented at 40. ery.” Id. implementing Bureau Freedmen’s problem cogently exhorting parties summarized the system Sehurz labor free Congress resolving as follows: dis- facing 39th their contracts fulfill at 32-35. they arose. See id. putes of the when difficulties nature of the true The Sehurz, General Major Major General govern- general Like The is this: situation practical resistance focused on has, by proclaiming Howard republic ment system the contract implementation slaves, com- emancipation of the private parties. See through the devices in the revolution great social menced Reconstruction, L.J. 98 Yale Historical has, completed it. South, yet, not but it accom- part of negative Only the emancipated are The slaves

plished. on Re- of Fifteen Joint Committee yet free labor has point of form but Committee) conducted (Joint construction point slavery in put place in the been in the conditions hearings to examine fact. contemporaneously states southern Act. of the fact, Congress’ consideration Sehurz Report Sehurz es- Joint Committee Testimony before resistance over southern so concerned only Reconstruction, (“The the white South to convince ferment combined through at 198 could history of coerced labor countryside, societies some other form resumed.”). emancipation, staples experienced plantation and ideol- production had which slavery, ogies prejudices inherited from although January masters 1866 Act. On less than tablished “[f]ormer generally willing go through were month after the ratification of the thir- one ‘contracting’ with the Freedmen motions amendment, teenth Senator of Il- Trumbull labor,” emancipated did for their slaves Bill linois introduced Senate the true the contract not receive benefits of eventually Rights became the Civil Act of system labor the need 1866. Senator Trumbull described wages imposition of low and onerous work- introducing it to the for the 1866 Act when ing conditions. Because masters former Senate: paying wages, no balked at fair “there was President, regard I Mr. the bill to which possibility that the freedmen would be able attention of the Senate is now called meaningfully to contract to sell their la- important measure that as the most has (citing congressional Id. at 555 n. 95 bor.” since the been under its consideration added). testimony) (emphasis adoption of the constitutional amendment passed Congress debated and the 1866 abolishing slavery. de- That amendment against Act this substantial evidence persons clared that all in the United resistance to the creation of an “unadulter- should be free. This measure is States system. The ated” contract labor evidence give effect to that declaration intended Congress before documented persons and secure to all within the Unit- emancipated generally de- slaves were not practical ed States freedom. There is rela- nied the to enter into contractual very importance general little dec- se, tionships per but instead were denied principles laration of abstract truths and meaningful rights the and attend- benefits effect, they unless can carried into be relationships. ant to fide contractual bona persons the to affect- unless who are be Congress therefore aware that was by availing ed them have some means of right to make and enforce contracts needed themselves of their benefits. fully protected in order to insure the to be Globe, Cong., Cong. 39th 1st Sess. 474 slavery replacement of with a free labor (1866). Trumbull, According to Senator system. purpose of the 1866 Act was to “break rights We believe the “to make and en- all discrimination between men down black interpreted force contracts” must be in ref- and men.” at 599. white Id. Congress erence to the abuses had knowl- supporters opponents Both and of the edge and intended The to address. scope 1866 Act understood the broad rights conferred Section 1981 come “freighted meaning imparted rights According spon- to it to secured.39 its sor, Trumbull, them the to be remedied and Senator the Act would af- mischief contemporaneous discussion. such firmatively secure those “fundamental history is a teacher that conditions is not to rights belonging every man as a free Evans, ignored.” Duparquet Co. v. man,” including right to make and en- 412, 414, 80 L.Ed. rights force contracts. Id. at 476. The (1936) (Cardozo, J.) added) (emphasis specified in the Act were those omitted). (citation in- The 1866 Act was life, thought liberty, to be essential to effectively respond tended to to the abuses property. Revolutionary See Constitu- Congress specified. Its means were com- tionalism, 61 at In- N.Y.U.L.Rev. 924-25. perceived. mensurate with the evils See deed, congressional much of the debate Reconstruction, 98 Yale Historical L.J. language centered on the broad of the act. Note, Is A Race Not A When Race?: Contemporary Issues Under the Civil The debates themselves also demonstrate Congress’ meaningful Rights intention to accord Act 61 N.Y.U.L.Rev. (1986). protection rights to the enumerated Jones, greatest danger by 39. See 392 U.S. at 88 S.Ct. at 2200 friends and as its its enemies ("That sweeping none."). the bill would indeed have disputed by so but was great seen as its effect was virtue rights person other enumerated in the who is not Like the hired because of race is Act, Congress to accord full right. intended denied this Congress protect- When protection rights to make and en- rights ed the to make and enforce con- Although tracts, there no ex- force contracts. protect right it intended to rights plicit discussion about whether the right contract to receive the bene- prohibit to make and enforce contracts dis- fits of contract.

criminatory discharge, it is clear that Con- legislative replete debates are also gress wanted to assure the economic inde- with references to the fact that the 1866 pendence by protecting of freedmen their necessary give Act was in order to real acquire keep job: meaning thirteenth amendment. provides merely safe- Act] [The See, Globe, e.g., Cong. Cong., 39th 1st Sess. guards to shield freedmen] [the (1866) (remarks Trumbull) of Senator wrong outrage, protect and to them (“This give measure is intended to effect to right enjoyment of that lowest thirteenth and secure to [the amendment] nature, right Its human exist. persons all prac- within United States poor, object is to secure to a weak class freedom.”); (remarks tical id. right to make contracts of laborers (1866 Representative Thayer) Act neces- labor, power for their to enforce the sary rendering to avoid the thirteenth wages, payment of their and the means paper guarantee”). amendment “a mere holding enjoying proceeds Jones, 88 S.Ct. at deny can them this? their toil. Who (“like Senate, the House was Globe, Cong., Cong. 39th 1st Sess. 1159 by larger objective passing moved [when Windom) (em- (remarks Representative giving the 1866 real content Act]—that Moreover, added). phasis Congress was guaranteed by to the freedom the Thir- protecting right not concerned with Amendment”). majority teenth A in Con- abstract; make contracts in the the inten- gress that section believed two protect the freedmen’s gave authority posi- amendment it to enact enjoy the rewards of their labor free from legislation badges tive to remove the discrimination: slavery.40 incidents of Section two of the “ say It is idle to that a citizen shall have amendment Con- thirteenth ‘clothe[d] life, right yet deny the to to him the gress power pass with to all laws neces- labor, right whereby to alone he can live. proper abolishing badges sary and all mockery say may It is a to that a citizen slavery and incidents in the United of ” live, right yet deny him have a to the Jones, 392 U.S. at States.’ right make to a contract to secure the Jones) (emphasis (quoting at 2203 Civil privilege and the rewards labor. Cases, 3, 20, 18, 28, Rights of (1883)).41 Globe, 27 L.Ed. We believe that Cong., Cong. Cong., 39th 39th 1st race, (remarks discharge based on like the refusal to Representative of Sess. contract, Lawrence) added). view, (emphasis would have been viewed as anoth- our discharged er resistance to the creation of a person a who is because of form of his. right system, or her race is denied the to labor and true free labor and was one of the way slavery “badges secure its benefits in the same that a and incidents” of that Con- See, Globe, Cong., legislation e.g., authority positive 39th 1st Sess. 322 to enact (remarks Trumbull) ("I of Senator have no the resistance of slaveholders to the combat may doubt that under ... we [Section two] property’’). “loss of their rights destroy all these discriminations in civil man; cannot, against the black and if we our Edwards, 41. See also amendment amounts to noth- constitutional ing’’); Cir.1988) (pursuant to section two of the thir- (remarks Representative id. at amendment, Congress power teenth has to ra- (“when Thayer) I voted for second section of badges tionally determine what are the and inci- amendment, I felt ... [thirteenth certain] slavery dents of and to translate that determina- given Congress ability protect that I had (citations legislation) omit- tion into effective ted). ...”); rights gave ... which the first section (remarks Howard) (Section id. at 503 of Senator gave Congress two of the thirteenth amendment former insure the slaves in order to prohibit- eradicate when intended to gress in the rights of their meaningful exercise making and en- ing discrimination resistance. manifold southern face of contracts. forcement acquaintance with Congress’ Given byAct the 1866 passed The Senate southern forms of the varied about than a concern less February 83-12 vote have it would intransigence, we doubt introduced Trumbull after Senator month interpretation an subscribed measure on passed the House it. The right equal secures the 1981 that 111 to margin of by a March forma- at the to make contracts freedmen voting. On March 34 not with after them then abandons stage, but the Act. vetoed Andrew Johnson President could not Congress is formed. contract large majorities Similarly overrode that noth- naive as believe been so have veto, April 1866 the and on President’s than done other needed to be ing more debated Congress law.42 Act became into contracts. to enter secure Act with full con- the 1866 passed Congress would believe do not rights it We unprecedented sciousness interpretation countenanced of have expansion dramatic and the conferred such susceptible to it which made 1866 Act Despite it authority entailed. federal have been This could easy subversion. was seen scope, the 1866 Act far-reaching Act, which the 1866 fate of the intended precip- the crisis necessary response to as a in fact.” “freedom designed to secure War, was emancipation, and by the Civil itated (re- Globe, Cong., 1st Sess. Cong. 39th Senator resistance. post-war southern Trumbull). Because of marks of Senator many the sentiment expressed Morrill contract free labor importance of the spe- remarked, “I admit that he when the South transformation the envisioned absolutely revolution- legislation is cies of imple- to its of resistance and the evidence midst of not in But are ary. we considered, we be- Congress mentation Globe, Cong., 1st 39th Cong. revolution?” intend- only Congress could have lieve 570.43 Sess. se- interpreted to 1866 Act ed that the debate, context of review the This exercise of meaningful cure the Congress, and the de- before the evidence histor- contracts. The make and enforce key in two is instructive themselves bates context, Congress, evidence before ical First, slavery replacement respects. thus 1866 Act history of the legislative system contract free labor right to that the our conclusion buttress poli- of northern reconstruction cornerstone discriminatory dis- forbids make contracts system was seen as free contract cy. The charge. reordering of south- to the radical essential above, hold we For reasons discussed quite Congress was society. Secondly, ern discriminatory discharge continues that of devices used of the multitude conscious 1981, and under Section cognizable meaningful be exer- deny the freedmen Group’s argument that Patterson including rights, their their cise of discriminatory dis- actions Congress precludes for enforce contracts. make and act, rejected.44 charge is intentionally broad passed an therefore necessary “to ary Act as and the 1866 measure” of President Congress’ override 39th 42. great just legitimate carry result Rights Civil Act of 1866 veto of the Johnson’s referred”). I to which have revolution Congress humane had overridden time ever was the first ' Reconstruction, L.J. Yale Many See also Historical major political issue. on a the President & n. 38. at 546-47 fact that Congress in the took satisfaction in guaranteeing a statute favor override discriminatory dis hold that we 44.Because all, dispute than a over equal rights rather for 1981, we charge under Section is actionable imposition of as the such an issue economic be should need address whether Jones, U.S. at n. See tariff. Compare retroactively applied Hicks’s case. at 2201 n. Cook, F.Supp. County 725 n. 3 Hall (Patterson retroactively (N.D.Ill.1989) Globe, decision Cong., Cong. Sess. 39th 1st 1151— 43. dis plaintiff's applied dismiss Thayer by Representative (remarks describ- claim) Gillespie v. Interstate charge First ing Amendment as a “revolution- Thirteenth deny- err that the district court did not Sufficiency the Evidence III. Group’s motion for a ing Brown JNOV.45 Group argues that next Viewing light most the evidence denying its motion district court erred Hicks, it is clear that at a favorable finding jury’s because the for a JNOV minimum, jurors as to the could differ clearly erroneous discrimination was that could be drawn from the conclusions We supported by sufficient evidence. evidence. Brown maintains of a mo court’s denial review the district terminated Chester had Hicks was the well-settled for a JNOV under tion experience more on the raw materials dock forth in McGee v. South standards set qualified job. to handle the and was better District R-V: Pemiscot School that he also Rich Williams testified based must and this Court on the fact that he the trial court his decision believed Both supervisor Hicks was emotional who light most (a) the evidence consider verbally his hands and abuse would waive (b) as- prevailing party, favorable to the Williams also testified his subordinates. jury resolved all conflicts sume happy that Hicks had told him he was not (c) party, in favor of that of evidence relocating to the Benton terminal or about par- all facts which that assume as true accept pay being forced to cut.46 Brown (d) give prove, tended to ty’s evidence Group claims that Hicks did not contradict of all favorable party the benefit explanation pretex- or show that it was reasonably may be inferences disagree. We While it is true that tual. facts, (e) deny proved from drawn general challenge did not Chester’s Hicks reason- light if in of the above the motion qualifications, present Hicks did evidence the conclu- jurors could differ as to able challenging assessment of his Williams’ the evi- that could drawn from sions job. qualifications for the the last writ- dence. performance ten evaluation received Cir.1983) {McGee). Hicks, 712 F.2d grade he received Williams find- principles jury’s company representa- Applying acceptability these as a “[ejxcel- discrimination, community was plant tive in ing we hold of intentional Southeast, prima plaintiff F.Supp. and whether the has made out Bank Wisconsin (E.D.Wis.1989) (Patterson relevant”); longer n. 2 decision not v. Levi facie case "is no Tolan retroactively applied Co., (8th Cir.1989) award to reverse Strauss & {Tolan) (On harassment and dis- based on Section 1981 finding appeal from a of discrimi- claims). charge nation, court does not review the evidence "this any given stage parties presented disagree Group’s with Brown contention 45. We Instead, proceedings. we must review is a reverse race discrimina- that because this sup- whether the evidence record to determine case, prove required the exist- Hicks was finding jury’s discrimi- ports the ultimate of ... sup- “background circumstances ence of Estes, (8th Cir.1988) nation.”); F.2d at 1100 suspicion porting] that defendant is the (court rejects “case-within-a-case” defendant’s against employer discriminates unusual who prove plaintiff the suffi- must contention Prokop, majority.” Lanphear (citation (D.C.Cir.1983) ciency prima before the (Lanphear) or her facie case of his omitted). Bishopp regarding sufficiency proof v. District Colum- defendant’s intent bia, (D.C.Cir.1986) {Bishopp). addressed). F.2d only We need decide wheth- can be er, impact Lanphear We need not decide the light viewing evidence in the most favor- they or Bishopp because both address whether Hicks, jurors that reasonable could find able to majority race has come not a member of the against Group Hicks. See Brown discriminated out a with sufficient evidence to make forward R-V, id.; Pemiscot School Dist. McGee v. South prima race discrimination. In this case of facie Cir.1983) {McGee). (8th We case, evidence, hearing jury after all of the opinion prima express the elements of a no on against Group that Brown discriminated found case. facie reverse race discrimination his race. We do not review Hicks because of whether or not Hicks the evidence to determine Benton, relocating to 46. As a condition for prima United States made out a facie case. See pay required accept were a Hicks and Chester Aikens, Postal Serv. Bd. Governors per per week. $414.00 $325.00 cut from week to L.Ed.2d 403 and Chester took After Hicks was terminated court, (after all the evidence is before the shift, night given a raise. $25.00 over the he was if the defendant in- the factfinder must decide tentionally plaintiff, against discriminated existed competent evidence Other highly com- requirements, lent, job exceeds that inferred have jury could which the con- mendable, Williams creative thinker.” discharge. Hicks’ a difference race made Hicks’ nothing about he knew that ceded have chosen jury could example, the For the Chouteau performance Chester’s evasive testimony about Hicks’ credit warehouse, they had worked where Avenue given smirk” and “side answers 1982 trans- their years before over two for he him whether asked Hicks when Williams Williams Benton terminal. fers he white was because terminated was any with not consult that he did admitted A decisionmaker’s black. was Chester Hicks and worked people who articulating inconsistency in or evasiveness ware- Avenue the Chouteau Chester found discharge has been a for the reasons job per- respective their regarding house discrimination. evidence to constitute acknowl- further Williams formances. Freight, Motor v. Woodline Brooks Benton at the operations edged that Cir.1988); (8th 1061, Inc., F.2d arrived. Hicks before were chaotic terminal 1387, 1395 Wolf, 839 States United performance Hicks’ also observed Williams hears, Cir.) person a (“[wjhere n. 5 deciding to before a month only for about opportunity and has understands performance completed no him, and fire in his made accusatory statement deny an he was at the while his work evaluation failure and his the statement presence, admit- Group also Brown terminal. Benton him as an against admissible deny it are his duties performed trial that Hicks ted at — denied, admission”), cert. adoptive manner. satisfactory competent in a (1988). -, 102 L.Ed.2d he that was telling Williams Hicks denied Hicks’ credited could have jury also The or that he terminal the Benton unhappy at superiors told his testimony that he was on these money. Based more wanted seniority separate three occasions on facts, have concluded jury could supervisor would decide which was used discharging Group’s explanation Brown The assignments. jobs or available receive pretextual. Hicks was that Brown have found jury could employment decisions policy to make found that had also have jury could The that it seniority, and violated on than based qualified as well better Hicks was the fact terminating despite Hicks policy greater to Hicks’ In addition Chester. supervisory had more he overall Group, the Brown experience with overall Group fur Brown than Chester. seniority Hicks had may have believed an affirma it had acknowledged that ther supervi- full-fledged experience as more considered jury also policy. The tive action forms de- evaluation Chester’s sor because Informa Employer Group’s EEO-1 supervi- position “assistant his scribed paucity which documented Report, September 1978. recently as sor” as jobs catego important employees black was bet- that Hicks have found jury could Group’s affirmative on Brown ries. Based supervisor night shift to be the ter suited report, the EEO-1 and the plan action he had su- terminal Benton at the re that Chester inferred could have materi- on raw night shift pervised order Hicks terminated tained and ware- the Chouteau Avenue als dock of minorities percentage increase his immediately before years for two house positions. supervisory terminal, whereas to the Benton transfer evidence de not to review was on the Our role experience of Chester’s the bulk whether opinion no express We novo. day shift.47 absolutely no evi- Holley, plaintiff presented suggestion, Group’s we do Contrary to reasonably jury could from which Holley Sanyo dence decision that our not believe Mfg., Estes, animus.” Cir.1985) (Holley), infer Inc., 771 F.2d clearly here. case Such is finding at 1101. Viewing jury’s of inten requires us to reverse light favorable First, in the most Holley the evidence is an race discrimination. tional jury Hicks, from which existed case, evidence unclear wheth and it is age discrimination race reasonably inferred intentional could have race dis principles apply to Section er its importantly, discrimination. ’’[i]n More claims. crimination discharged purposeful Hicks was in fact be- discrimination to establish a or not that, only his race. We hold view- Section 1981 violation. The district court cause of light ing jury most favorable instructed the that Section 1981 the evidence made Hicks, reasonably jury employer discharge could have it “unlawful for an a discharged person intentionally per inferred that he was because because of that Ford, Dick his race. See Estes v. Smith race.” son’s Instruction No. 7. Instruc Inc., 856 F.2d (8th Cir.1988). No. tion 8 elaborated that act is done “[a]n dif- jurors Because reasonable could have ‘intentionally’ knowingly if it is done could mistake, fered as to the conclusions that be voluntarily and not because of ac evidence, the court cident, drawn from the district proper or other reason.” Instruc denying Group’s Brown mo- did not err provided tion No. 10 further that “an em McGee, 712 F.2d at tion for a JNOY. ployer may lawfully employee terminate an younger employee and retain a of a who is race, employer’s

different unless deci Discrimination intentionally IV. Intentional sion to do so is motivated age.” Special Interrogatories race or and5 alleges jury Group Brown also specifically 7 also asked about intentional special interrogatories instructions race discrimination. “Where the instruc permitted by the district court submitted tions, whole, adequately considered as a to find a Section 1981 violation sufficiently generally applica state the proof of intentional discrimination. without law, the fact that ble instructions are trial, to Instruc- Group objected At Brown technically imperfect or are not a model of ground that it lessened tion No. 9 on the clarity charge does not render the errone proof in a Section requisite standard Washington, ous.” Tribble v. 669 F.2d provided No. 9 1981 case. Instruction (8th Cir.1982) (citations omitted), “[pjlaintiff required prove that his denied, cert. 460 U.S. age determining race or his was either a (1983). long L.Ed.2d 342 as the So motivating a or factor factor or discernible stated, fairly generally applicable law is plain- in the defendant’s decision to remove required to utilize the district court is not position.”48 Group tiff from his specific language adopt any given or se Special Interrogatory No. objected instructing jury. The quence when objected 749 for the same reason that it Special Interrogato jury instructions and Instruction No. 9. adequately conveyed ries this case a Section order to establish necessity finding intentional discrimina violation, purposeful or intentional for a 1981 violation. General proven. must discrimination Pennsylvania, Ass’n v. Bldg. Contractors Damages V. Punitive 375, 391, 102 S.Ct. (1982); argues Edwards v. Jewish next the dis-

L.Ed.2d 835 (8th Cir.1988) Hosp., denying court erred in its motion for a trict (Edwards). whole, damages may punitive Considered as JNOV Special Interrogato or nominal dam- jury instructions and be awarded without actual court’s adequately ages, instructed the and the district award ries required prove damages by intentional additur after the Hicks was or nominal $1.00 control, “determining necessarily No. defines the decision whether or Instruction plaintiff. retain or terminate motivating not to factor” as factor" and “discernible follows: Interrogatory provides: No. 7 "determining factor" means a factor The term you, jury, unanimously find “Do determining which made a difference in preponderance of the evidence that the defen- plaintiff Inc., whether or not was to be retained or intentionally Group, dis- dant Brown terminated. against plaintiff Hicks on criminated Kenneth motivating term "discernible or factor" account of his race in that his race was a among motivating means a factor which was one two or termi- discernible or factor in his in, played part employment more factors that but did not nation from defendant?" 652 only compensate damages punitive should be awarded

jury awarded violated right jury or, exemplary injury amendment a trial. in the case of seventh actual that the Group further contends punish Brown damages, to deter punitive supported punitive damage award was not rights. deprivations of the malicious of evil motive or sufficient evidence due right procedural the Because to Hicks’ reckless or callous indifference it in sense that process is “absolute” the rights. federal civil depend claim- on merits a does assertions, and because substantive ant’s Claim A. Seventh Amendment society importance organized general agree that additur is We observed, process procedural due be that ly impermissible federal actions because procedural the denial of we believe that right to it the seventh violates amendment process due should be actionable Schiedt, Dimick v. jury trial. a 293 proof of actual damages nominal without 296, 474, 486-87, 301, 55 79 L.Ed. U.S. S.Ct. injury. Gramm, Novak v. (1935); 469 F.2d 603 (citations 266, omit Id. 98 at 1054 S.Ct. However, 430, (8th Cir.1972). 432 Clinton, Hogue v. ted). significance Group misapprehends denied, Cir.), cert. (8th U.S. viola jury’s finding of a Section 1981 (1986). L.Ed.2d 704 S.Ct. Group’s seventh amendment tion. Brown it jury to a trial was satisfied when right Carey, we held in Ed Relying a trial on Hicks’ Section 1981 jury received right to be wards that Section rights amendment claim.50 Its seventh absolute and free from discrimination is implicated by not further the district were plaintiff proof of its violation entitles damages, additur of nominal $1.00 court’s damages. 855 F.2d at 1350. nominal proof 1981 vio Hicks’ of Section Edwards court reasoned as follows: automatically nominal entitled him to lation seriously disputed be cannot [I]t damages. right from intentional racial to be free Carey Piphus, employment discrimination is absolute (1978) {Carey), 55 L.Ed.2d 252 procedur- right the same sense [as held that the violation process]. implicit al This much is due rights may of certain entitle absolute twenty-two years of hundred and one damages plaintiff to award of nominal an history American social since decision damages, proof even without actual slavery to eliminate and the was made process procedural due was one found badges and incidents thereof. right: such absolute ra- Id. We reiterate here that intentional traditionally have Common-law courts discrimination, regardless against cial deprivations of certain “abso- vindicated directed, place it has no Ameri- whom is rights to have lute” that are not shown grants society. can thus through injury actual the award caused right free discrimination absolute to be money. By making sum of of a nominal making and enforcement of con- deprivation rights such actionable tracts, the violation which entitles damages proof without for nominal damages irrespective of victim to nominal recognizes the im- injury, law actual injury. actual hold that Hicks was We organized society that those portance to damages upon entitled to at least nominal observed; scrupulously but at showing a of his Section 1981 time, violation it the same remains true damages rights. substantial principle Co., that Brown had vio- Novak Investment found

50. In Setser v. Cir.), denied, "a cert. insofar as Hicks’ race was lated Section 1981 (1981), we held L.Ed.2d 601 determining and “a discernible or moti- factor" parties action had in Section 1981 Special vating Inter- factor” in his termination. legal their claims. Hicks and to a trial of rogatories Nos. & 7. trial, required jury Group received the

653 a of Section to determine whether the award can stand. proof Because of violation automatically Hicks to nom- entitled According Group, 1981 to Brown Missouri law of the district damages regardless inal recovery punitive damages forbids the of damages, additur of nominal $1.00 court’s recovery damages. a of absent nominal did not err in find that the district court we Compton Pipeline v. Bros. See Williams legal conse- using clarify additur Co., 795, (Mo.1973). 499 S.W.2d 797 We damages) (e.g., presumed nominal quences disagree applies.53 Missouri law findings discrimination in jury’s of There is no need to resort to Missouri law The nominal of Section 1981.51 violation because federal law has addressed and re- sup- entitled damages to which Hicks was Group. solved issue raised Brown $10,000 punitive ported the award dam- Mitchell, See (appropriate 752 F.2d at 390 ages.52 Group received the to look to state law when federal law is required by the seventh amendment. trial provisions necessary “deficient in the complain It cannot now be heard about Carey remedies”). furnish suitable Under consequences jury’s deter- legal of Edwards, Section 1981 confers an ab- Hicks’ mination that it had violated abso- right solute free of discrimination in discrimination in right lute to be free from contracts, making and enforcement of making of contracts. and enforcement right automatically and the violation of this Keith, Citing Mitchell v. 385, F.2d 752 plaintiff entitles the to an award of nominal denied, cert. 1028, (9th Cir.), 472 390 damages support which can an award of 3502, 87 L.Ed.2d 633 damages proof if punitive the standard of (Mitchell), Group argues Weir, v. See Basista met. 340 F.2d is punitive damage question of whether a (3d Cir.1965) (“[a]s a matter of 87 federal or nominal can stand absent actual award necessary allege common law it is not damages resolved federal has been damages law, damages nominal and nominal are urges us to look to Missouri law entry damages judicial could be said to bear a reason- directed the of awards 51. This court has damages relationship when an award of actual nominal damages to the amount of a nominal able Jasperson Edwards, cannot be sustained. v. Pu damages F.2d at 1352. award.” 855 Corp., rolator Courier Civiletti, Cir.1985); v. 670 F.2d Dean assuming applies, we 53.Even that Missouri law (8th Cir.1982) ("having prevailed on the discrim stripped are not that Hicks would be convinced [plaintiff] is entitled to recover ination issue ... damages punitive his award under Missouri damages $1.00 of at least as well as nominal Wright Applying v. law. the law of Missouri in attorney's proceedings fees for in the reasonable Restaurant, Inc., F.Supp. Jasper’s Italian Underhill, court”). Stepter district F.Supp. (citation omitted), District the United States (S.D.Ohio 1988) ($1.00 nom noted Court for the Western District of Missouri upon jury finding damages inal entered court injury" a distinction between “direct torts discrimination); Wright Jasper’s race Ital "pecuniary a torts loss constitutes those where Restaurant, Inc., (W.D. F.Supp. ian part of action.” The court found of the cause circumstances, Mo.1987) (“[U]nder appropriate issue, impris- assault and false that the torts at judges independently entry can direct the onment, injury trespass, torts like legal were direct damage judgments. implica A nominal wrong regardless damages legal right a where the is committed tion of arises whenever (citation omitted). violated.”) plaintiff Reasoning legal pecuniary is im- loss. Id. that a damages legal plication arises whenever dispute does not that nominal 52. Brown violated, upheld plaintiff the court punitive damage damages support award can $55,000 totaling despite punitive damage awards proof imposition the standard of where dam- the fact that the did not award actual damages punitive v. Cir is met. Goodwin prohibi- ages. is an absolute Id. Section 1981 Court, (8th Cir.) (nom cuit making en- tion of discrimination award), damages damages support punitive inal necessary to forcement of contracts. It is not denied, cert. damages prove to establish a Section actual (1984); Edwards, 855 F.2d at 1352 L.Ed.2d 55 Edwards, violation. 855 F.2d at 1352. $25,000 (nominal damages supports punitive Consequently, courts we believe that Missouri award). damage requirement Nor is there a injury as a direct tort would view Section 1981 which, punitive damage award bear a reason that the violation, legal upon proof raises a damages. relationship able to the nominal "To damages implication sufficient to of nominal proportionality apply rule to a nominal punitive damages damages punitive support award. award would invalidate most very damages only punitive awards because low mo- Group’s Brown denied properly court right to aof deprivation proof of by proved damages punitive on the a JNOV entitled”). Applying tion for plaintiff which could jurors reasonable because Hicks’ award entitlement determine law to federal Group Brown to whether damage award have differed punitive 1981 to the Section to callously indifferent that dam- or requirement was reckless satisfies McGee, F.2d 712 rights. accordance federal determined Hicks’ ages issues be furthers standard a federal Sulli- rights statutes. civil of the purpose found have jury could example, the For 238-40, at 405-06 van, 396 or with recklessly Group acted Brown Norman, 788 F.2d v. (1969); see Gordon federally pro to Hicks’ indifference callous (court refuses to Cir.1986) (6th 1194, 1199 34 him after by discharging rights tected in 42 damages award punitive reverse race, and of his because of service years though such even action 1983 U.S.C. § despite employee junior a job his to giving state under damages are recoverable deci employment to make company policy fed- reasons, we find law). For these Block, 712 seniority. See on sion based automatically be- Hicks applies, law eral race (finding purposeful F.2d at upon damages nominal to entitled came may in 1981 Section under discrimination violation, and the proving dam punitive justify award itself and of Group’s Brown did not violate court district dis was Moreover, Hicks after ages). by jury trial to amendment seventh Williams, his Rich asked charged, he twice damages. nominal $1.00 its additur person who supervisor and immediate him, wheth discharge to decision made Evidence Sufficiency of the B. his race. because he was terminated er district that the also contends Hicks evasive, that the have found could jury for a denying motion erred in court to Williams of Rich teasing responses punitive award jury’s JNOV callous inquiries constituted earnest Hicks’ by sufficient supported damages was federally Hicks’ indifference or reckless Wade, v. In Smith evidence. facts, these rights. Based protected 75 L.Ed.2d and cred observing the demeanor and after United States (1983)(Smith), the have witnesses, jury could ibility may permitted jury be “a held that callously Group was Brown concluded action damages in an punitive to assess federally protected Hicks’ indifferent defen when the § under U.S.C.] [42 damages punitive or not Whether rights. to be motivated is shown conduct dant’s determination jury is a awarded should intent, it involves or when or motive evil City See Garza rarely disturbed. that is the fed indifference or callous reckless Cir.1987). (8th 553, 556 Omaha, F.2d of As stated This of others.” erally protected in Goodwin by this court damages punitive applied the Smith court suit uniquely Court, “[jjuries are Circuit v. R.H. actions Block test to Section judgment.” of moral kind make this ed to (8th Cir. Co., Macy & denied, Cir.), cert. 1983) (Block). 83 L.Ed.2d 828, 105 S.Ct. instruct- was note that We first jury instruc proper of the (1984). Because punitive could award it properly ed discrimina intentional tion, finding of firing was Hicks’ it found that damages if we responses, evasive tion, and Williams’ interest, or motive evil “motivated substi Group’s invitation Brown decline callously indifferent was that defendant for that judgment moral tute our In- protected rights.” federally plaintiff’s jury. evidence, as Viewing the No. struction most favorable must, light we Relief Equitable Cross-Appeal: VI. was sufficient that there Hicks, we hold raised issues none of Having found conclude that jury to for the evidence reversal, turn we merit Group to damages. punitive entitled Hicks argues Hicks cross-appeal. Hicks’ now to The district Tolan, F.2d at denying determine, that the district court erred his trial in order for the post-trial motion given for reinstatement and re- played that race a role in his dis- equitable despite lated relief the fact that charge, whether it made a difference in successfully proven he had that he would determining the outcome of that decision. discharged except not have been for his does not respond to the argues race. Hicks that the district court apparent Special conflict between Interrog allowing Special erred in to answer atories Nos. argues 5 and but instead Interrogatories Nos. 7 and 10 after the — that Hopkins, Price v. Waterhouse Special Interrogatory found in 5 that No. U.S. -, 104 L.Ed.2d 268 “determining race was a factor in his ter- (Price (plurality opinion) Water- employment.” mination from ), requires judgment house be entered Special Interrogatories The three in in jury’s its favor because the answer to dispute provided as follows: Special Interrogatory No. 10 established Special Interrogatory No. 5. discharged Hicks would have been you, jury, unanimously by Do find a even if his race was not taken into account. preponderance of the evidence that the Price Waterhouse is a mixed-motive Title Inc., Group, defendant Brown intention- by VII case decided ally against plaintiff discriminated Ken- appeal while this cross-appeal were neth Hicks on account of his race in that pending. Waterhouse, plurali Price determining his race was a factor in his ty plaintiff proves held that once a that a employment by termination from defen- prohibited “played motivating part factor a dant? decision, employment in an the defendant Answer: Yes. may finding avoid a liability only by Special Interrogatory No. 7. proving by preponderance a of the evidence you, jury unanimously Do find that it would have made the a same decision preponderance of the evidence that the if it [impermissible even had not taken the Inc., Group, defendant Brown intention- into account.” Id. 109 S.Ct. at 1795 factor] ally against plaintiff discriminated Ken- added). (emphasis Group argues neth Hicks on account of his race in that implicitly that Price Waterhouse overruled motivating his race was a discernible or Block, (8th Bibbs v. 778 F.2d in his employ- factor termination from Cir.1985)(en banc), which held that an em ment defendant? ployer who shows that it would have made Answer: Yes. may promotion the same decision avoid or reinstatement, liability under Title but Special Interrogatory No. 10. argues, further VII. Brown with you, jury, unanimously Do find purposes discussing out the different preponderance of the evidence the defen- legislative histories of Title VII and Section Inc., Group, dant Brown would have ter- 1981, that also under Price Waterhouse plaintiff minated Kenneth Hicks from mines court’s Section 1981 decisions this employment, plaintiffs even had race Special Interrogatories in and the this case. age been discernible moti- vating determining factor or a factor Interrogatories in Special While the the decision to terminate? confusing, case were indeed we need not Answer: Yes. they address constitute whether reversible object error. Hicks’ counsel failed to argues Special Interrogatories Hicks Special Interrogatory despite No. 10 at trial question, numbers 5 and 10 ask the same having opportunity to do so. Conse- namely whether Hicks’ race was the “but quently, preserved the issue was not of his for” cause termination. Hicks ar- appellate Carey, review. v. gues Special Interrogatory No. United States (8th Cir.1990); disregarded surplusage, should be 898 F.2d 642 at 644 United (8th Elem, requests grant this court to him reinstate- States Cir.1988); States, equitable ment and related relief. In the Patterson v. United alternative, Cir.1966). requests (8th Hicks partial new F.2d need not We denied, Cir.1974), (4th cert. cross-appeal 1294 of Hicks’ the merits

address (1975). L.Ed.2d leave for Group’s response, and and Brown pre- day the determination another majority did not the Patterson Because (if any) that Price Waterhouse cise effect of the lan expressly limit its construction Title 1981 and this court’s Section has on factual cir of section 1981 guage precedent. VII Court, “it is the before the cumstances specific not the principle controls [that] CONCLUSION principle was decided.” facts [on] (1) racially summarize, hold that we To Cir. Georgia, 417 Walker discharge continues to Nevertheless, lamely court de 1969). our after Patter- under Section apply actionable clines to “[dis err in did not son; (2) the court at issue or discharge was not criminatory] district a JNOV Group’s nothing motion for in denying Patterson], discussed [in discrimi- jury’s finding of race the to overrule the requires us [Patterson] evi- supported by sufficient in this cases cir long-settled nation numerous Special dence; (3) instructions and the dis hold that cuit which instructed adequately [sjection Interrogatories 1981.” charge actionable under is dis- prove intentional has mis jury on need I our court at 635. believe Ante 1981 vio- a Section to establish is not takenly crimination Patterson concluded that violate lation; (4) court did not the district in case. controlling precedent Group’s seventh amendment factually distin Although is Patterson in by $1.00 its additur of trial is Supreme Court's decision guishable, the punitive dam- damages, and the nominal decision it is a legally relevant because by supported sufficient ages award was v. law. Levine area of the the identical evidence; (5) not reach the court need 457, n. 8 F.2d 460 & Heffernan, 864 cross-appeal Brown merits of Hicks’ — U.S. -, denied, Cir.1988), cert. Hicks failed to response because Group’s (1989). aWhen 204, L.Ed.2d 157 S.Ct. appellate this issue for preserve properly factually “a appeals is faced court of judgment of Accordingly, the review. legally relevant Su distinguishable but court is district decision, may ... preme Court [the court] AFFIRMED. in analyz standard employ a different to do ing different facts so] [because dissenting. FAGG, Judge, Circuit Supreme Court’s both the would [ ] limit[ ] analysis to a and its method my opinion In decision respectfully I dissent. at 460. of facts.” Id. particular set Supreme is controlled this case McLean in Patterson v. Court’s decision racial claims of and Hicks’s Patterson’s — -, Union, Credit employment were their discrimination (1989). 2363, 105 L.Ed.2d facts—racial clearly triggered different and racial dis harassment for Patterson Patterson, Supreme con Court In Despite discharge for Hicks. criminatory coverage of 42 meaning and sidered differences, Supreme so, factual doing these U.S.C. 1981. § 1981 in section Pat construction of “[wjhere alleged act Court’s Court declared of Hicks’s case controls the mak outcome [impair terson does of discrimination brought and Hicks contracts], because both ing and enforcement [section] racial claims of discrimination This their relief.” Id. provides no Our statute. binding workplace under identical 1981 is of section construction rigorously apply “obliged is appeals. [to] In re court [] the courts of Continental Cir.1978), majority precedent” Pat (1st prevailing, Corp., Inv. States, 340 F.2d Ferina United denied, terson. 440 U.S. S.Ct. cert. denied, (8th Cir.), 837, 839 cert. (1979); v. Herr United States L.Ed.2d (1965); L.Ed.2d 284 Cir.1978); (2d era, 584 F.2d Quijas v. Shear- LeFaivre, Rodriguez De see United States — U.S. -, Express, son/American 1917, 1922-23, 104 L.Ed.2d 526 J., (court appeals

(Stevens, dissenting) controlling Supreme to follow a

refusal “an indefensible brand precedent is activism”). judicial “prohibits discrimi-

Because section 1981 making and enforcement only

nation contracts,” Patterson, 109 S.Ct. at must fail. Hicks’s claim of

Hicks’s claim

discriminatory discharge “involves [nei- a refusal to make a contract with

ther ability impairment or the of [his]

[him] rights. contract

enforce established [his]

Rather, the conduct which labels as [Hicks] discharge] [discriminatory racial

actionable employer postformation conduct of con-

relating to the terms and conditions

tinuing employment_ type This of con- is not under

duct ... actionable [section] Id. at 2374.

1981....” controlling decision in binding our court.

in this case and

Thus, I reverse the district court. would BATTLES, Appellant,

Wilma J. SULLIVAN, Secretary,

Louis

Department of Health and Services, Appellee.

Human

No. 89-1875. Appeals,

United States Court

Eighth Circuit. March

Submitted April

Decided

Case Details

Case Name: Kenneth G. Hicks, Appellee/cross-Appellant v. Brown Group, Inc., D/B/A Brown Shoe Company, Inc., Appellant/cross-Appellee

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Jun 4, 1990

Citation: 902 F.2d 630

Docket Number: 88-2769, 88-2817

Court Abbreviation: 8th Cir.