Andrews v. Lakeshore Rehabilitation ( 1998 )


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  •                                                                  [PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 96-7080
    ________________________
    D. C. Docket No. CV-95-AR-3298-S
    JANICE ANDREWS,
    Plaintiff-Appellant,
    versus
    LAKESHORE REHABILITATION HOSPITAL,
    HEALTHSOUTH CORPORATION,
    Defendants-Appellees.
    ________________________
    Appeal from the United States District Court
    for the Northern District of Alabama
    _________________________
    (May 15, 1998)
    Before EDMONDSON and HULL, Circuit Judges, and CLARK, Senior Circuit
    Judge.
    HULL, Circuit Judge:
    Plaintiff Janice Andrews brought racial discrimination and retaliation claims
    against her employer under section 1981. Plaintiff appeals the district court’s sua
    sponte dismissal of her retaliation claim as not cognizable under section 1981.
    Plaintiff also appeals the district court’s subsequent order granting HealthSouth’s
    12(b)(6) Motion to Dismiss her racial discrimination claim against HealthSouth and
    denying Plaintiff’s Motion to Join LSSI as a party. After review, we reverse.
    I. FACTUAL BACKGROUND
    A.    LSSI and HealthSouth
    Plaintiff worked at Lakeshore Rehabilitation Hospital (“the Hospital”) from
    1980 until her termination on February 14, 1994. During that time, Lakeshore
    Foundation (“the Foundation”) owned and operated the Hospital. The Foundation
    contracted with Lakeshore Systems Service, Inc. (“LSSI”) to provide administrative
    services to the Hospital.
    After Plaintiff’s termination, the Foundation leased the Hospital building and
    equipment to LSSI on October 1, 1994, and LSSI employed all Hospital employees.
    LSSI also operated the Hospital under the same name of “Lakeshore Rehabilitation
    Hospital.” LSSI’s parent company was ReLife, Inc. After LSSI began operating the
    Hospital, ReLife merged with HealthSouth Corporation (“HealthSouth”). Thus,
    2
    HealthSouth became LSSI’s parent company.
    B.    Complaint Served on LSSI’s Hospital
    Plaintiff’s Complaint names “Lakeshore Rehabilitation Hospital” as the sole
    Defendant. The Complaint was filed on December 21, 1995, and delivered by
    certified mail on January 4, 1996, to the Hospital’s address at Lakeshore
    Rehabilitation Center, 3800 Ridgeway Drive, Homewood, Alabama.1 At this point,
    LSSI was leasing and operating the Defendant Hospital as LSSI’s business.
    The Defendant Hospital’s Answer, however, states that it is filed by “Lakeshore
    Foundation, successor-in-interest to Jefferson Tuberculosis Sanatorium d/b/a/
    Lakeshore Hospital.” The record does not indicate how the Complaint got from the
    Defendant Hospital, operated by LSSI, to the Foundation, the prior operator. In any
    event, the Answer admits that the Defendant Hospital was Plaintiff’s employer and
    is an entity subject to suit. Even though Plaintiff was requesting reinstatement at the
    Defendant Hospital, the Answer did not assert that Plaintiff had sued the wrong entity
    or failed to join an indispensable party.
    C.    District Court Sua Sponte Dismisses Retaliation Claim
    As the first affirmative defense, the Defendant Hospital’s April 26 Answer
    The signature on the certified receipt is not clear but appears to be signed
    1
    “Anthony Davis.” The record does not indicate for whom this person works.
    3
    asserts that Plaintiff failed to state a claim upon which relief could be granted. No
    party as yet had filed a motion to dismiss. On May 6, however, the district court sua
    sponte dismissed Plaintiff’s retaliation claim as not cognizable under section 1981.2
    The case proceeded on the racial discrimination claim alone.
    D.    Plaintiff’s Motion to Amend Complaint to Add HealthSouth
    The parties filed a “Report of Parties’ Planning Meeting,” in which the parties
    jointly agreed that “Plaintiff(s) should be allowed until October 1, 1996 to join
    additional parties and to amend the pleadings.” Adopting that agreement, the district
    court’s scheduling order states as follows: “Joinder of additional parties–Plaintiff(s)
    shall have until 10/01/96 to join additional parties. Defendants shall have until
    11/01/96 to join additional parties.”
    Although Plaintiff’s Complaint was filed timely against the Defendant Hospital
    on December 21, 1995, the statute of limitations expired on February 14, 1996. On
    August 23, 1996, Plaintiff filed a Motion to Amend the Complaint to add HealthSouth
    as a defendant, which the district court immediately granted on August 29 in light of
    the scheduling order allowing such joinder. Defendant HealthSouth filed a verified
    Answer and a separate Motion to Dismiss based on, inter alia, the statute of limitations
    2
    The clerk’s docket sheet lists entry number 5 as an “Answer” and a “Motion
    12(b)(6)”; however, number 5 is only one pleading entitled an “Answer,” and no
    separate motion to dismiss is filed or referred to in that Answer.
    4
    and Plaintiff’s failure to join an indispensable party, namely LSSI.
    E.    Plaintiff’s Motion to Add LSSI
    As soon as HealthSouth’s September 16 verified Answer revealed that LSSI
    was operating the Defendant Hospital, Plaintiff filed a September 30 Motion to Join
    LSSI as a defendant. Because this Motion also was filed before the court’s deadline
    for adding parties, the district court’s order found that the Motion to Add LSSI was
    “timely filed.” Regarding LSSI, the district court’s order states, “[a]s an initial matter
    this court must determine whether the applicable statute of limitations has expired,
    because if the statute has not expired then the motions to add additional defendants
    were timely filed.”
    Since HealthSouth was a party already and the court found that Plaintiff’s
    Motion to Add LSSI was “timely filed,” the district court’s order treated both
    HealthSouth and LSSI as added Defendants and proceeded to examine the sole issue
    of whether Plaintiff’s claims against them were barred by the statute of limitations.
    Thus, we review whether Plaintiff’s claims against HealthSouth and LSSI are barred
    by the statute of limitations.
    II. STATUTE OF LIMITATIONS
    5
    A.    Applicability of the Statute of Limitations
    Plaintiff asserts that the statute of limitations does not apply because her
    amendments against HealthSouth and LSSI fall under Rule 25, which allows
    substitution of parties when a transfer in interest has occurred. Fed. R. Civ. P. 25(c).
    However, as the district court explained, Rule 25(c) applies only to transfers of
    interest occurring during the pendency of litigation and not to those occurring before
    the litigation begins. See National Ind. Theatre Exhibitors, Inc. v. Buena Vista
    Distrib. Co., 
    748 F.2d 602
    , 610 (11th Cir. 1984); Mizukami v. Buras, 
    419 F.2d 1319
    ,
    1321 (5th Cir. 1969). In this case, Rule 25(c) does not apply because any transfer of
    interest in the Defendant Hospital to LSSI and HealthSouth occurred before the
    litigation began. Plaintiff cites two cases, but neither involves a transfer of interest
    prior to litigation. See Virgo v. Riviera Beach Assocs., Ltd., 
    30 F.3d 1350
    , 1357 (11th
    Cir. 1994) (defendant’s assets transferred during the litigation to the substituted
    party); In re National Airlines, Inc., 
    700 F.2d 695
    , 696 (11th Cir. 1983) (enforcing a
    decree against a company that acquired the original defendant after the decree was
    entered). The district court correctly concluded that Rule 25(c) does not save
    Plaintiff’s amendments from the statute of limitations.
    Plaintiff also argues that she avoids the statute of limitations because joining
    HealthSouth and LSSI was appropriate under Rule 19, which calls for joinder of
    6
    parties needed for just adjudication, or under Rule 21, which allows the district court
    to order joinder “on such terms as are just.” Fed. R. Civ. P. 19, 21. We agree with the
    district court that these arguments also fail because the provisions for joinder of
    parties under Rules 19 and 21 are not immune from statutes of limitations. See 7
    Wright, Miller & Kane, Federal Practice and Procedure § 1688; McLellan v.
    Mississippi Power & Light Co., 
    526 F.2d 870
    , 872 (5th Cir. 1976), vacated on other
    grounds, 
    545 F.2d 919
     (5th Cir. 1977).
    B.     Relation Back Under Rule 15(c)
    Even if the statute of limitations applies, Plaintiff contends her claims against
    HealthSouth and LSSI are not barred because they relate back under Rule 15(c) to the
    timely filing of her initial Complaint. See Fed. R. Civ. P. 15(c).3 In holding that
    Plaintiff’s claims did not relate back under Rule 15(c), the district court made these
    findings of fact in its order:
    It is clearly evident that HealthSouth and LSSI did not receive notice of
    this lawsuit until after the April 19, 1996 deadline had come and gone.
    3
    Under Rule 15(c), an amendment adding a party may relate back to the date
    the complaint was filed if (1) the amendment arises out of the conduct, transaction, or
    occurrence in the complaint, and (2) within the period provided by Rule 4(m) for
    service, the party to be added (a) receives “such notice of the institution of the action
    that the party will not be prejudiced in maintaining a defense on the merits,” and (b)
    “knew or should have known that, but for a mistake concerning the identity of the
    proper party, the action would have been brought against the party.” Fed. R. Civ. P.
    15(c).
    7
    . . . Andrews could have easily discovered the true identity of
    HealthSouth and LSSI before expiration of the limitations provision.
    . . . HealthSouth and LSSI could have reasonably assumed that
    because they were not sued for successor liability in the original pleading,
    Andrews made a conscious strategic decision to proceed solely against
    the legal entity, Lakeshore, which actually terminated her. . . . There is
    nothing to suggest that HealthSouth and LSSI knew or should have
    known that but for a mistake in identity an action would have been
    brought against them.
    This case was decided on a Rule 12(b)(6) Motion to Dismiss. While rulings on
    motions to dismiss generally are based on the pleadings, the district court here
    went well beyond the pleadings and found facts not supported by any evidence
    in the record as the basis for granting the Motion to Dismiss. Except for
    HealthSouth’s verified Answer, the sparse record contained only unverified
    pleadings and a mail receipt regarding service.4 There were no admissions in the
    pleadings to support these facts.
    For example, there is no evidence in the record to support the court’s
    finding of fact that LSSI and HealthSouth never received notice of this lawsuit
    prior to April 9, 1996. HealthSouth and LSSI did not file any affidavits or
    4
    A lease agreement between Lakeshore and LSSI was attached to
    HealthSouth’s Reply opposing Plaintiff’s Motion to Join LSSI but was filed without
    an affidavit or anything authenticating it. Indeed, the letter that accompanied the
    Reply states that the lease agreement is “not offered as evidence” but will be filed
    promptly as Exhibit A “[i]f the Court so directs.”
    8
    evidence. If anything, the limited record showed that LSSI may have had notice
    because at the time the Complaint was delivered by certified mail on January 4
    to the Defendant Hospital, LSSI operated the Defendant Hospital and employed
    all of its employees.5
    Likewise, the court found that the “true identity of HealthSouth and LSSI
    was easily discoverable,” but HealthSouth’s verified Answer admitted that LSSI
    operated the Hospital under the same name of “Lakeshore Rehabilitation
    Hospital” as the prior operator, and retained the same employees. The limited
    record thus showed that the outward appearance of the Hospital was the same
    when Plaintiff sued in 1995 as when she was fired in 1994. Also, the Hospital’s
    Answer did not assert that Plaintiff had sued the wrong entity or failed to join
    an indispensable party. The district court’s findings of fact represent speculation
    without supporting evidence about what LSSI and HealthSouth knew or should
    have known or reasonably could have assumed.
    5
    Under the law of this circuit, if LSSI had notice of Plaintiff’s Complaint, then
    HealthSouth, as the 100% owner of LSSI, is deemed to have had notice for purposes
    of Rule 15(c)(3). See Itel Capital Corp. v. Cups Coal Co., 
    707 F.2d 1253
    , 1258 (11th
    Cir. 1983); Marks v. Prattco, Inc., 
    607 F.2d. 1153
    , 1156-57 (5th Cir. 1979). This
    Court has indicated that notice of a complaint to a wholly owned subsidiary may be
    attributed to its parent under Rule 15(c)(3) because a parent company is not prejudiced
    by having amendments naming it relate back to the filing of a complaint against its
    wholly owned subsidiary. See Itel, 
    707 F.2d at 1258
    ; Marks, 697 F.2d at 1156-57.
    9
    In short, we do not decide whether the district court abused its discretion
    in applying the facts of the case to the requirements of Rule 15(c).6 We do not
    say these facts are not true. We simply hold that there was no evidence in the
    sparse record to support the findings of fact against which the district court
    applied the requirements of Rule 15(c) and exercised its discretion.7 Therefore,
    we reverse the district court’s order granting HealthSouth’s Motion to Dismiss
    6
    Application of Rule 15(c) is reviewed for abuse of discretion. See Hunt v.
    Department of the Air Force, Div. of USA, 
    29 F.3d 583
    , 587 (11th Cir. 1997); Marks
    v. Prattco, Inc., 
    607 F.2d 1153
    , 1156-57 (5th Cir. 1979); Woods Exploration &
    Producing Co. v. Aluminum Co. of America, 
    438 F.2d 1286
    , 1299-1300 (5th Cir.
    1971).
    7
    The dissent states that “Civil Rule 15(a) controls whether or not a party will
    be joined; and in the light of Civil Rule 15(a), I cannot say the district court abused
    its discretion in denying Plaintiff’s motion to join LSSI.” As outlined above, neither
    do we. Also, since the district court found that the motion to add LSSI as an
    additional defendant was “timely filed,” the district court, and the parties’ briefs on
    appeal, correctly never cite nor discuss Rule 15(a) but examine solely whether the
    amended claim against LSSI related back under Rule 15(c) for purposes of the statute
    of limitations. Thus, abuse of discretion under Rule 15(a) is not even an issue here.
    The district court’s denial of the motion to join LSSI under Rule 15(c) effectively was
    a determination that although the motion to join was “timely filed,” it was futile to
    join LSSI because Plaintiff’s claim against LSSI did not relate back under Rule 15(c)
    and was barred by the statute of limitations.
    The dissent also states that the motion to add LSSI “was filed after the statute
    of limitations had ‘expired’; so, in this sense at least the motion was untimely.”
    However, the August 23 motion to join HealthSouth was also filed after the statute of
    limitations had expired on February 14, and the district court granted that motion to
    join on August 29.
    10
    and denying Plaintiff’s Motion to Add LSSI. Because the relation back issue
    under the particular facts here necessarily requires consideration of matters
    outside the pleadings, the issue is more appropriately treated as one for summary
    judgment and disposed of as provided in Rule 56. See Fed. R. Civ. P. 12(b).8
    III. PLAINTIFF’S SECTION 1981 RETALIATION CLAIM
    We turn to the district court’s sua sponte dismissal of Plaintiff’s
    retaliation claim and whether retaliation claims are cognizable under section
    1981 as amended by the 1991 Civil Rights Act (“1991 Act”).9 We first review
    the recent history of retaliation claims under section 1981 because of the
    changing law in this area during the past decade.
    A.    Section 1981 before 1991 Act
    Before the 1991 Act, section 1981 provided only that “[a]ll persons . . .
    8
    Rule 12(b) states that “[i]f, on a motion asserting the defense numbered (6) to
    dismiss for failure of the pleading to state a claim upon which relief can be granted,
    matters outside the pleading are presented to and not excluded by the court, the motion
    shall be treated as one for summary judgment and disposed of as provided in Rule 56,
    and all parties shall be given reasonable opportunity to present all material made
    pertinent to such a motion by Rule 56.” Fed. R. Civ. P. 12(b).
    9
    The alleged retaliatory conduct occurred here on February 14, 1994, well after
    the November 21, 1991 effective date of the 1991 Act. Whether retaliation claims are
    cognizable under § 1981 is a question of law reviewed de novo. See, e.g., Jackson v.
    Chater, 
    99 F.3d 1086
    , 1092 (11th Cir. 1996).
    11
    shall have the same right in every State and Territory to make and enforce
    contracts . . . as is enjoyed by white citizens. . . .” 
    42 U.S.C. § 1981
    (a). Prior
    to 1989, circuits interpreting “make and enforce contracts” held that section
    1981 encompassed an employee’s claim for an employer’s race-based retaliation
    during the employment contract. See, e.g., Pinkard v. Pullman-Standard, 
    678 F.2d 1211
    , 1229 n.15 (5th Cir. Unit B 1982); see also Jurado v. Eleven-Fifty
    Corp., 
    813 F.2d 1406
    , 1411 (9th Cir. 1987); Benson v. Little Rock Hilton Inn,
    
    742 F.2d 414
    , 416 (8th Cir. 1984); Choudhury v. Polytechnic Institute of New
    York, 
    735 F.2d 38
    , 42-43 (2d Cir. 1984); Goff v. Continental Oil Co., 
    678 F.2d 593
    , 597-99 (5th Cir. 1982). Specifically, in Pinkard v. Pullman-Standard, 
    678 F.2d 1211
     (5th Cir. Unit B 1982), this Court held that “[a] claim under § 1981
    may be based upon retaliatory action taken against an employee for the
    employee’s lawful advocacy of the rights of racial minorities.” Id. at 1229
    n.15.10
    B.    Supreme Court’s Patterson Decision
    However, in 1989, the Supreme Court narrowed the reach of section 1981.
    10
    This Court adopted as binding precedent all Fifth Circuit decisions prior to
    October 1, 1981 and all Fifth Circuit Unit B decisions after October 1, 1981. Bonner
    v. City of Prichard, 
    661 F.2d 1206
    , 1209 (11th Cir. 1981) (en banc); Stein v. Reynolds
    Securities, Inc., 
    667 F.2d 33
    , 33 (11th Cir. 1982).
    12
    In Patterson v. McLean Credit Union, 
    491 U.S. 164
     (1989), the Supreme Court
    held that the “make and enforce contracts” language in section 1981 covered
    “only conduct at the initial formation of the contract and conduct which impairs
    the right to enforce contract obligations through legal process,” 
    id. at 179
    , and
    not “conduct which occurs after the formation of a contract and which does not
    interfere with the right to enforce established contract obligations.” 
    Id. at 171
    .
    This holding drew into question many circuit court decisions recognizing
    post-hiring discrimination claims under section 1981. Thereafter, this circuit
    and others held that Patterson foreclosed most retaliation claims under section
    1981. In Sherman v. Burke Contracting, Inc., 
    891 F.2d 1527
     (11th Cir. 1990),
    this Court explained that because of Patterson’s definition of “make and
    enforce,” “an employer’s retaliatory conduct falls under section 1981 only when
    the employer aims to prevent or discourage an employee from using legal
    process to enforce a specific contract right.” 
    Id. at 1534-35
    ; see also Vance v.
    Southern Bell Telephone & Telegraph Co., 
    983 F.2d 1573
    , 1577 (11th Cir.
    1993) (reaching the same conclusion regarding other post-hiring claims); Jones
    v. Firestone Tire & Rubber Co., 
    977 F.2d 527
    , 534 (11th Cir. 1992) (same).
    C.    1991 Act Amends Section 1981
    In response to Patterson and its progeny, Congress enacted the 1991 Act
    13
    and added the current subsection (b) to section 1981, which gives a new, broader
    definition to the terms “make and enforce contracts” in subsection (a).
    Subsection (b) states that “‘make and enforce contracts’ includes the making,
    performance, modification, and termination of contracts, and the enjoyment of
    all benefits, privileges, terms, and conditions of the contractual relationship.”
    
    42 U.S.C. § 1981
    (b).
    Both the Supreme Court and this Court have acknowledged that the 1991
    Act was a direct response to Patterson and its progeny. See Landgraf v. USI
    Film Prods., 
    511 U.S. 244
    , 251 (1994); Rivers v. Roadway Express, Inc., 
    511 U.S. 298
    , 302 (1994) (explaining that section 1981's prohibition against racial
    discrimination now “applies to all phases and incidents of the contractual
    relationship, including discriminatory contract terminations”); Vance, 
    983 F.2d at 1577
    ; Jones, 
    977 F.2d at 534
    . This Court has noted that “one effect of the
    1991 Act . . . is to make the rule in Patterson obsolete by statutorily adding
    certain categories of post hiring discrimination to the list of practices liable to
    suit under section 1981.” Vance, 
    983 F.2d at 1577
    .
    In 1994, the Supreme Court next faced whether to apply the 1991 Act
    retroactively to claims arising prior to the Act’s effective date.             See
    generally Rivers, 
    511 U.S. 298
    . In Rivers, the plaintiff contended that the 1991
    14
    Act should apply retroactively, arguing that the 1991 Act only restored pre-
    Patterson law. 
    Id. at 304
    . The Supreme Court disagreed and held that the 1991
    Act does not apply retroactively. 
    Id. at 304-314
    . The Court described the Act’s
    function as “‘expanding the scope of relevant civil rights statutes in order to
    provide adequate protection to victims of discrimination,’” 
    id. at 308
     (quoting
    Civil Rights Act of 1991, Pub. L. No. 102-166 § 3(4), 
    105 Stat. 1071
     § 3(4)
    (1991)), and concluded that “the text of the Act does not support the argument
    that §101 of the 1991 Act was intended to ‘restore’ prior understandings of §
    1981 as to cases arising before the 1991 Act’s passage.” Id.11
    D.    Retaliation Claims Arising after 1991 Act
    Against this background and shortly after Rivers, the district courts in this
    circuit began addressing the effect of the 1991 Act on post-enactment retaliation
    claims. Although the district court in this case held that post-enactment
    retaliation claims are not cognizable even after the 1991 Act, numerous district
    courts in this Circuit for several years consistently have concluded that the
    amended section 1981 now covers post-hiring retaliation claims arising after the
    1991 Act. Most have relied primarily on the expanded language of section 1981
    11
    Section 101 of the 1991 Act adds the new subsection (b) defining “make and
    enforce contracts” in subsection (a). Civil Rights Act of 1991, Pub. L. No. 102-166
    § 101, 
    105 Stat. 1071
     § 101 (1991).
    15
    in the 1991 Act. See Collins v. Executive Airlines, Inc., 
    934 F. Supp. 1378
    ,
    1382 (S.D. Fla. 1996); Cabiness v. YKK (USA), Inc., 
    859 F. Supp. 582
    , 588
    (M.D. Ga. 1994), aff'd without opinion, 
    98 F.3d 1354
     (11th Cir. 1996); Lightner
    v. Ariton, 
    902 F. Supp. 1489
    , 1495-96 (M.D. Ala. 1995). Others have cited the
    legislative history of the 1991 Act, replete with expressions of Congress’s intent
    to broaden section 1981 specifically to cover race-based retaliation in all phases
    of contractual relations. See Williams v. Carrier Corp., 
    889 F. Supp. 1528
    ,
    1530 (M.D. Ga. 1995); Patterson v. Augat Wiring, 
    944 F. Supp. 1509
    , 1519-21
    (M.D. Ala. 1996).12 One district court viewed the 1991 Act as restoring this
    Circuit’s pre-Patterson law, which recognized in Pinkard a retaliation claim
    under section 1981. Crumpton v. St. Vincent’s Hospital, 
    963 F.Supp. 1104
    ,
    12
    For example, the House Committee’s Report states that the list in subsection
    (b) is illustrative and not exhaustive and that subsection (b) includes claims for race-
    based harassment, discharge, demotion, promotion, transfer, retaliation, and hiring,
    as follows:
    Section 210 would overrule Patterson by adding at the conclusion of
    section 1981 a new subsection (b) . . . . The Committee intends this
    provision to bar all race discrimination in contractual relations. The list
    set forth in subsection (b) is intended to be illustrative rather than
    exhaustive. In the context of employment discrimination, for example,
    this would include, but not be limited to, claims of harassment,
    discharge, demotion, promotion, transfer, retaliation, and hiring.
    H.R. Rep. No. 40(I), 102d Cong., 1st Sess. 92 (1991) reprinted in 1991 U.S.C.C.A.N.
    549, 630.
    16
    1118-19 (N.D. Ala. 1997) (citing Pinkard, 
    678 F.2d at
    1229 n. 15).
    This Circuit Court did not address the effect of the 1991 Act on post-
    hiring retaliation claims until 1997.13 This Court’s first published section 1981
    retaliation decision involving conduct after the 1991 Act was Little v. United
    Technologies, 
    103 F.3d 956
     (11th Cir. Jan. 22, 1997). Appellees in this case
    contend that Little suggests that the amended section 1981 still does not
    encompass post-enactment retaliation claims. However, Little concludes only
    that a prima facie case was not presented by the white plaintiff because the
    plaintiff did not allege discrimination “due to his race; that is, Little [did] not
    contend that [his employer] discriminated against him because he was white.”
    
    Id. at 961
    . Instead, Plaintiff Little alleged retaliation occurred because he
    complained that a coworker on one occasion had made a comment to him that
    was a racial slur derogatory toward blacks. 
    Id. at 956, 959
    .
    Moreover, in a case shortly after Little, this Court noted that the Eleventh
    Circuit had “not yet addressed the types of retaliation claims cognizable under
    13
    No other circuit has discussed the issue directly. However, two cases from
    other circuit courts appear to presume a retaliation claim may be brought under the
    amended section 1981. See Steverson v. Goldstein, 
    24 F.3d 666
    , 670 (5th Cir. 1994)
    (affirming a jury verdict finding retaliation in a claim brought under the amended
    section 1981); Barge v. Anheuser-Busch, Inc., 
    87 F.3d 256
    , 258 (8th Cir. 1996)
    (listing the elements of a section 1981 retaliation claim before holding that the
    plaintiff had failed to establish a prima facie case).
    17
    § 1981 in light of the Civil Rights Act of 1991.”               Reynolds v. CSX
    Transportation, Inc., 
    115 F.3d 860
    , 868 n. 10 (11th Cir. June 20, 1997).
    Thus, the issue remained open when this Court briefly discussed
    retaliation claims under section 1981 in a third 1997 decision: Jackson v. Motel
    6 Multipurpose, Inc., 
    130 F.3d 999
     (11th Cir. Dec. 10, 1997). The main issues
    in Jackson were whether the district court abused its discretion in certifying a
    class and in allowing communication with proposed class members before class
    certification. 
    Id. at 1104-07
    . The Jackson court did state that “Plaintiffs’ claim
    for retaliation, however, may proceed under section 1981(b).” 
    Id. at 1007
    . The
    Court then cited with approval both Pinkard and Augat Wiring as “allowing
    section 1981 retaliation claims after passage of Civil Rights Act of 1991 and
    enactment of section 1981(b).” 
    Id.
     at 1007 (citing Pinkard, 
    678 F.2d at
    1229
    n.15; Augat Wiring, 
    944 F. Supp. at 1518-21
    ). Thus, Jackson’s recognition of
    post-hiring retaliation claims under section 1981 appears based not only on the
    pre-Patterson law of this Circuit in Pinkard, but also on the 1991 Act expanding
    section 1981.
    We have reviewed the history of section 1981 from Pinkard to Patterson
    and Sherman, to the 1991 Act and Rivers, and finally to Little and Jackson, so
    that the differing results in these retaliation cases can be put in the context of the
    18
    prevailing law at the time of each decision. This review reveals that despite the
    changing definition of “make and enforce,” retaliation claims have remained
    viable to some limited extent throughout this time period.
    Nonetheless, this history also indicates that the type of retaliation claims
    that may be proved still depends on when the retaliation occurred and the
    specific nature of the retaliation claim. As to retaliatory conduct occurring
    before the effective date of the 1991 Act, only a limited class of claims is
    cognizable because of Patterson’s narrow definition of “make and enforce.” See
    Sherman, 
    891 F.2d at 1534-35
     (explaining that because of Patterson, “an
    employer’s retaliatory conduct falls under section 1981 only when the employer
    aims to prevent or discourage an employee from using the legal process to
    enforce a specific contract right”). Even as to retaliation after the 1991 Act, not
    all retaliation claims are necessarily cognizable. See Little, 
    103 F.3d at 961
    (finding no prima facie case of retaliation under section 1981 when a white
    plaintiff claimed he was fired for complaining about a co-worker’s derogatory
    remark against blacks). But see Jackson, 
    130 F.3d at 1007
     (indicating that
    plaintiffs’ section 1981 retaliation claim may proceed based on plaintiffs’
    allegations that they were fired for refusing to participate in employer’s
    discrimination against non-white customers).
    19
    Turning to the particular facts here, Plaintiff Andrews claims that her
    employer retaliated by terminating her in February 1994 for filing a December
    1992 EEOC claim for discrimination based on her race. Plaintiff’s claim alleges
    discrimination based on her race and retaliation due to filing a race-based claim
    with the EEOC. Thus, Plaintiff’s retaliation claim differs markedly from the
    retaliation claim in Little.14 The above history indicates that this specific type
    of post-1991 retaliation claim brought by Plaintiff Andrews is cognizable under
    the amended section 1981. See Jackson, 
    130 F.3d at 1007
    ; Pinkard, 
    678 F.2d at
    1229 n.15. Thus Plaintiff’s retaliation claim may proceed under section 1981.
    IV. CONCLUSION
    For these reasons, we REVERSE the district court’s dismissal of
    Plaintiff’s section 1981 retaliation claim. We also REVERSE the district court’s
    order granting Defendant HealthSouth’s Motion to Dismiss and denying
    Plaintiff’s Motion to Add LSSI as a defendant. This case is REMANDED for
    further proceedings consistent with this opinion.
    14
    In this case, we need not address the differences in Jackson and Little because
    Plaintiff’s claim of retaliation for her filing an EEOC racial discrimination charge is
    significantly different from the claims in those cases and is a type of retaliation claim
    now clearly cognizable under the amended section 1981.
    20
    EDMONDSON, Circuit Judge, concurring in the result in part, and
    dissenting in part:
    I concur in the result, except I dissent from that part of the
    decision requiring LSSI to be added as a defendant.
    I do not understand the district judge’s opinion and -- more
    important -- his decision about LSSI in the same way that today’s
    court responds to what he wrote. I do not understand, for example,
    that the district judge held that plaintiff’s motion to join LSSI was
    timely filed. The district judge wrote that the motion was filed after
    the statute of limitations had “expired”; so, in this sense at least the
    motion was untimely. And I cannot say that the district court erred in
    finding that plaintiff’s “inexcusable neglect” was the reason LSSI was
    not earlier named as a party: the burden was on plaintiff, as the
    21
    movant, to show cause for her neglect and the delay. As I understand
    the law, Civil Rule 15(a) controls whether or not a party will be
    joined; and in the light of Civil Rule 15(a), I cannot say the district
    court abused its discretion in denying plaintiff’s motion to join LSSI.
    About 
    42 U.S.C. § 1981
    , I accept that it includes claims for
    retaliation such as this one. In this circuit, a retaliation claim was part
    of our section 1981 law pre-Patterson. (By the way, this view --
    whether accurate or inaccurate -- of the law seems to have been
    prevalent in the federal courts nationwide.) And, I think that Congress
    in the 1991 Civil Rights Act did not intend to cut back on section
    1981's scope as the scope was understood before Patterson.
    22