Humphries, Hedrick G v. CBOCS West, Inc

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 05-4047
HEDRICK G. HUMPHRIES,
Plaintiff-Appellant,
v.
CBOCS WEST, INC.,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 03-C-3765—Charles P. Kocoras, Judge.
____________
ARGUED MARCH 28, 2006—DECIDED JANUARY 10, 2007
____________
Before EASTERBROOK, Chief Judge, and POSNER and
WILLIAMS, Circuit Judges.
WILLIAMS, Circuit Judge. Hedrick Humphries filed a
suit alleging claims of discrimination and retaliation
under Title VII and 42 U.S.C. § 1981 against CBOCS West,
Inc., based upon his discharge as an associate manager at
one of defendant’s Cracker Barrel restaurants. After
dismissing Humphries’s Title VII claims as procedurally
barred, the district court granted summary judgment in
favor of CBOCS West, Inc. (hereinafter “Cracker Barrel”),
holding that Humphries could not establish his prima
facie burden of showing that a similarly situated individ-
ual in a non-protected class was treated more favorably.
2 No. 05-4047
We reverse the district court’s grant of summary judg-
ment as to Humphries’s retaliation claim because
Humphries made a sufficient showing under the indirect
method to establish a prima facie case of retaliation under
section 1981. We affirm the judgment as to Humphries’s
discrimination claim because Humphries forfeited this
claim by failing to present an adequate argument before
the district court.
I. BACKGROUND
The following facts are recounted in the light most
favorable to Humphries, the non-movant. Humphries, an
African-American male, was an associate manager at a
Cracker Barrel restaurant in Bradley, Illinois. Associate
managers at Cracker Barrel are supervised by a general
manager, who in turn is supervised by a district manager.
In this case, three general managers cycled through dur-
ing Humphries’s three-year tenure: Don Sessions, Steve
Cardin and Ken Dowd. His performance during his first
two-and-a-half years (roughly February 1999 through mid-
July 2001) was generally excellent. For instance, he re-
ceived annual merit raises and bonuses, and his supervisor
(Sessions) testified that he considered Humphries to be
his best associate manager. Circumstances changed for
Humphries when Cardin took over (as a temporary re-
placement) for Sessions. According to Humphries, Cardin
routinely made racially derogatory remarks, such as
stating that all African-Americans are “drunk or high on
drugs” or that “all Mexicans have a bunch of kids.”
Humphries alleges that other employees confirmed
Cardin’s inappropriate comments, and told Humphries
that Cardin had stated that he was there “for the white
people” and was “going to take care of the white people.”
Within Cardin’s initial month of being the general
manager, he issued Humphries five disciplinary reports,
No. 05-4047 3
called Employee Counseling Reports (ECRs). The ECRs
covered a wide range of alleged misconduct, including
bank deposit shortages and inappropriate use of Gold
Cards to provide complaining customers a free meal.
Humphries claims that the ECRs were groundless and
reflected Cardin’s racial animus. In response, in August
or September 2001, Humphries complained to Cardin’s
supervisor, district manager William Christensen.
Christensen, however, appears not to have conducted any
investigation of Humphries’s claims, contrary to Cracker
Barrel policies.
In September 2001, Ken Dowd became general manager
(Cardin returned, as planned, to his store). Shortly there-
after, Joe Stinnett, one of Humphries’s fellow associate
managers, fired an African-American food server, Venis
Green, because she purportedly failed to show up for a
shift. Humphries complained to both Dowd and
Christensen that Stinnett’s firing of Green was discrimina-
tory because, among other things, Green had informed
both Humphries and another associate manager that
she could not work that shift. Moreover, according to
Humphries, a white employee had failed to appear at work
on several occasions without notice, but was not fired.
Humphries also reminded Christensen of his earlier
complaints regarding former-general manager Cardin.
According to Humphries, Christensen berated him for
“going outside the management group” (i.e., turning to
Christensen, rather than Dowd, to complain) and de-
manded that Humphries schedule a meeting with Dowd
for the following week.
This scheduled meeting never occurred because on
December 5, 2001 (the day before Humphries’s scheduled
meeting with Dowd), Christensen fired Humphries, based
upon Stinnett’s complaint that Humphries had left the
store safe unlocked during the evening—a charge that
Humphries disputes. Humphries also claims that prior to
4 No. 05-4047
his firing (and before his alleged failure to lock the safe),
a cashier warned him that he should watch himself
because Christensen and Stinnett were “up to something.”
After being informed by Stinnett that Humphries had left
the safe unlocked, Christensen immediately terminated
Humphries—without interviewing him or investigating
the incident to determine whether Humphries had actu-
ally left the safe open.
Humphries subsequently brought claims of discrimina-
tion and retaliation under Title VII and section 1981. The
district court dismissed Humphries’s Title VII claims due
to procedural deficiencies (and Humphries does not ap-
peal this determination). The district court also granted
summary judgment in favor of Cracker Barrel on
Humphries’s section 1981 claims, finding that Humphries
failed to establish his prima facie case under either the
direct or indirect method. Humphries now appeals.
II. ANALYSIS
A. Historical Overview of Retaliation Claims under
Section 1981
Before we turn to the merits of this appeal, we must
decide whether Humphries’s retaliation claim is cog-
nizable under section 1981. Although Cracker Barrel
failed to raise this issue in the district court, it now claims
that our decision in Hart v. Transit Management of Racine,
Inc., 426 F.3d 863 (7th Cir. 2005), precludes Humphries’s
retaliation claim. In the normal course, when a party
fails to present an argument in the trial court, it forfeits
the argument on appeal. See Republic Tobacco Co. v.
N. Atl. Trading Co., 381 F.3d 717, 728 (7th Cir. 2004);
McKnight v. Gen. Motors Corp., 908 F.2d 104, 107-10 (7th
Cir. 1990). At oral argument, counsel for Cracker Barrel
explained that he did not raise this issue in the district
No. 05-4047 5
court because Hart, which he contended created a change
in the law in this circuit, had not yet been issued. Al-
though (as we will explain later), we do not believe that
Hart changed our jurisprudence regarding section 1981
retaliation claims, we will not penalize Cracker Barrel for
failing to raise its argument below.1
Of course, we retain the right to consider forfeited
arguments, and may choose to do so “in the interests of
justice.” Mass. Bay Ins. Co. v. Vic Koenig Leasing, Inc., 136
F.3d 1116, 1122 (7th Cir. 1998); see also Amcast Indus.
Corp. v. Detrex Corp., 2 F.3d 746, 749-50 (7th Cir. 1993)
(holding that “[i]n the rare case in which failure to pre-
sent a ground to the district court has caused no one—not
the district judge, not us, not the appellee—any harm of
which the law ought to take note, we have the power and
the right to permit it to be raised for the first time to us”).
In this instance, given that our recent Hart decision
1
We note that there is some confusion in this circuit as to
whether an appellee—as opposed to an appellant—who failed to
raise to a particular argument in the district court in support
of his motion for summary judgment is precluded from raising
new arguments in this court to affirm the district court’s ruling.
Compare, e.g., Gray v. Lacke, 885 F.2d 399, 409 (7th Cir. 1989)
(holding that appellees waived a claim by failing to raise it in
the district court), and Baskin v. Clark, 956 F.2d 142, 146 (7th
Cir. 1992) (same), with Transamerica Ins. Co. v. South, 125 F.3d
392, 399 (7th Cir. 1997) (“We certainly agree that the failure of
an appellee to have raised all possible alternative grounds for
affirming the district court’s original decision, unlike an appel-
lant’s failure to raise all possible grounds for reversal, should not
operate as a waiver. The urging of alternative grounds for
affirmance is a privilege rather than a duty.” (quoting Schering
Corp. v. Ill. Antibiotics Co., 89 F.3d 357, 358 (7th Cir. 1996))). We
need not resolve this question because we choose to review this
issue, irrespective of whether Cracker Barrel forfeited the issue
or not.
6 No. 05-4047
appears to have created some confusion in the district
courts and has already been misapplied in several deci-
sions, it is in the interests of justice to clarify the issue
of whether retaliation claims are cognizable under section
1981 (and, in so doing, clarify our ruling in Hart). See
Amcast, 2 F.3d at 749-50 (reaching issue not raised be-
low because it was fully briefed on appeal, rested “entirely
on a pure issue of statutory interpretation, as to which
the district judge’s view, while it would no doubt be
interesting, could have no effect on our review, which is
plenary on matters of law[, and] there is no reason to de-
fer its resolution to another case. There will be no better
time to resolve the issue than now.”); Mass. Bay Ins. Co.,
136 F.3d at 1122 (reaching forfeited choice-of-law issue
because “we clearly think it is in the interest of justice to
insure that district courts conduct choice-of-law analyses
when conflicts questions are presented to them”).
1. Section 1981’s Origin in the Civil Rights Act of 1866
The language codified in section 1981 derives from
section 1 of the Civil Rights Act of 1866, a Reconstruction-
era statute that is generally recognized as the first signifi-
cant civil rights legislation enacted by Congress, and is
considered the “initial blueprint of the Fourteenth Amend-
ment.” Gen. Bldg. Contractors Ass’n, Inc. v. Pennsylvania,
458 U.S. 375, 389 (1982); see generally Jones v. Alfred H.
Mayer Co., 392 U.S. 409, 422-37 (1968) (discussing legisla-
tive history and historical context of the Civil Rights Act
of 1866); Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701,
711-22 (1989) (same); Patterson v. McLean Credit Union,
491 U.S. 164, 192-200 (1989) (Brennan, J., concurring
in part and dissenting in part) (same); Robert J.
Kaczorowski, Comment, The Enforcement Provisions of
the Civil Rights Act of 1866: A Legislative History in Light
of Runyon v. McCrary, 98 Yale L.J. 565 (1989). The
No. 05-4047 7
legislative history of the Civil Rights Act of 1866 is
complicated—and not without substantial interpretive
disagreement. See generally George Rutherglen, The
Improbable History of Section 1981: Clio Still Bemused
and Confused, 2003 Sup. Ct. Rev. 303. The Civil Rights
Act of 1866 was passed pursuant to section 2 of the
Thirteenth Amendment, which provided Congress with
the legislative power to enforce the Thirteenth Amend-
ment’s prohibition on slavery. U.S. Const. amend. XIII,
§ 2. The Act was a direct response to the so-called “Black
Codes,” a series of legislative acts by many southern (and
some northern) states in protest of, and as a tacit attack
upon, the recently enacted Thirteenth Amendment. The
Black Codes imposed onerous legal limitations on newly-
freed former slaves in an attempt to circumvent the
requirements of the Thirteenth Amendment, and essen-
tially continued a pattern of legal enslavement. See
Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 70 (1873)
(noting that following the passage of the Thirteenth
Amendment, “[a]mong the first acts of legislation adopted
by several of the States in the legislative bodies which
claimed to be in their normal relations with the Federal
government, were laws which imposed upon the colored
race onerous disabilities and burdens, and curtailed
their rights in the pursuit of life, liberty, and property to
such an extent that their freedom was of little value”); see
generally Robert J. Kaczorowski, Congress’s Power to
Enforce Fourteenth Amendment Rights: Lessons from
Federal Remedies the Framers Enacted, 42 Harv. J. on
Legis. 187, 240-46 (2005) (discussing the Black Codes).
In response to the states’ attempts to circumvent the
requirements of the Thirteenth Amendment, section 1 of
the Civil Rights Act of 1866 conferred a series of legal
rights, including the right to contract, and to hold and
8 No. 05-4047
convey property, equally to citizens.2 Portions of section 1
are now codified in section 1981, which states, in pertinent
part:
All persons within the jurisdiction of the United States
shall have the same right in every State and Territory
to make and enforce contracts, to sue, be parties, give
evidence, and to the full and equal benefit of all laws
and proceedings for the security of persons and prop-
erty as is enjoyed by white citizens, and shall be
subject to like punishment, pains, penalties, taxes,
licenses, and exactions of every kind, and to no other.
42. U.S.C. § 1981(a). Other portions of section 1 are now
codified in section 1982, which states:
All citizens of the United States shall have the same
right, in every State and Territory, as is enjoyed by
2
In 1870, after ratification of the Fourteenth and Fifteenth
Amendments, Congress re-enacted the Civil Rights Act of 1866
(via the Enforcement Act of 1870), and then codified it in sections
1977 and 1978 of the Revised Statutes of 1874. The 1870 re-
enactment, which followed passage of the Fourteenth Amend-
ment, has caused significant debate regarding whether sec-
tions 1981 and 1982 apply to private actors or, instead, are
limited to state actors, pursuant to the Fourteenth Amendment.
Compare, e.g., Jones, 392 U.S. at 436 (concluding that “it
certainly does not follow that the adoption of the Fourteenth
Amendment or the subsequent readoption of the Civil Rights
Act were meant somehow to limit its application to state ac-
tion”), and Runyon v. McCrary, 427 U.S. 160, 168-69 n.8 (1976)
(same), with Jones, 392 U.S. at 449-76 (Harlan, J., dissenting)
(evaluating the legislative history and concluding that the
Act was intended to reach only state actors), and Runyon, 427
U.S. at 195-205 (White, J., dissenting) (same). In any event, it is
now well-settled that section 1981 applies to private actors. See
Patterson, 491 U.S. at 171-76 (refusing to overturn Runyon’s
determination that section 1981 applied to private conduct).
No. 05-4047 9
white citizens thereof to inherit, purchase, lease, sell,
hold, and convey real and personal property.
42 U.S.C. § 1982.
2. Sullivan v. Little Hunting Park, Inc. Leads Courts
To Conclude that Section 1981 Protects Against
Retaliation
The Supreme Court has interpreted section 1981 as
providing a broad-based prohibition (and federal remedy)
against racial discrimination in the making and enforcing
of contracts. See, e.g., Runyon v. McCrary, 427 U.S. 160
(1976); Johnson v. Ry. Express Agency, Inc., 421 U.S. 454,
459-62 (1975). The issue of what types of adverse actions
are subsumed under the “make and enforce contracts”
provision in section 1981 is not without complication,
particularly with respect to so-called “postformation
conduct” (i.e., adverse acts, such as harassment or re-
taliation, that occur after an initial contractual relation-
ship has been established). Before its decision in Patterson,
491 U.S. 164 (which we shall address below), the Supreme
Court had not clearly determined whether section 1981
applied to retaliatory conduct. The closest it came to
deciding this issue was in Sullivan v. Little Hunting Park,
Inc., 396 U.S. 229 (1969). In Sullivan, a Virginia nonprofit
corporation, created to operate a community park and
playground facilities for the benefit of residents, refused a
proposed assignment of a membership interest to an
African-American man. Id. at 234-35. The white home-
owner who intended to assign his membership interest
protested the corporate board’s refusal, and the board
expelled him from the corporation. Id. at 235. He, along
with the would-be assignee, brought suit under sections
1981 and 1982. Id. The Court initially noted the “broad
and sweeping nature of the protection meant to be afforded
by § 1 of the Civil Rights Act of 1866, 14 Stat. 27, from
10 No. 05-4047
which § 1982 was derived.” Id. at 237. Relying on the
broad protective nature of the Civil Rights Act of 1866, the
Court held that the white homeowner had standing to
bring a claim under section 1982 (the companion statute to
section 1981 pertaining to property rights):
We turn to Sullivan’s expulsion for the advocacy of
Freeman’s cause. If that sanction, backed by a state
court judgment, can be imposed, then Sullivan is
punished for trying to vindicate the rights of minori-
ties protected by § 1982. Such a sanction would give
impetus to the perpetuation of racial restrictions on
property. That is why we said in Barrows v. Jackson,
346 U.S. 249, 259, 73 S. Ct. 1031, 1036, 97 L. Ed. 1586,
that the white owner is at times “the only effective
adversary” of the unlawful restrictive covenant. Under
the terms of our decision in Barrows, there can be no
question but that Sullivan has standing to maintain
this action.
Id. at 237. Although the Sullivan court did not explicitly
use the term “retaliation” in its decision, it was clear that
the white landowner’s basis for standing was that he had
suffered retaliation for asserting the rights of another (i.e.,
he had been “punished for trying to vindicate the rights of
minorities”). Id. (And, indeed, as will be discussed further
below, the Supreme Court later interpreted Sullivan
precisely in this manner in Jackson v. Birmingham Board
of Education, 544 U.S. 167 (2005).)
Following Sullivan, and prior to Patterson, the general
consensus among the circuits was that section 1981
broadly prohibited discrimination in all contractual facets
of the employment relationship, including “postformation”
adverse acts, such as retaliation. See, e.g., Choudhury v.
Polytechnic Inst. of New York, 735 F.2d 38, 42-43 (2d Cir.
1984) (retaliation cognizable under section 1981); Goff v.
Cont’l Oil Co., 678 F.2d 593, 597-99 (5th Cir. 1982) (same);
No. 05-4047 11
Winston v. Lear-Siegler, Inc., 558 F.2d 1266, 1268-70 (6th
Cir. 1977) (same); Setser v. Novack Inv. Co., 638 F.2d 1137,
1147 (8th Cir. 1981) (same); London v. Coopers & Lybrand,
644 F.2d 811, 819 (9th Cir. 1981) (same). This court,
however, did not definitively decide this issue in the pre-
Patterson era. See Malhotra v. Cotter & Co., 885 F.2d 1305,
1313 (7th Cir. 1989) (noting that although “[t]here is a
substantial body of court of appeals precedent” holding
that section 1981 forbids retaliation, there was “nothing
in this circuit”).
3. Patterson v. McLean Credit Union Narrows the
Reach of Section 1981
In 1989, the Supreme Court issued its decision in
Patterson, which severely curtailed the reach of section
1981 claims. The Patterson court held that section 1981
protections applied exclusively to two types of rights: the
right to make contracts and the right to enforce them. 491
U.S. at 176. The first right is violated by a “refusal to enter
into a contract with someone, as well as the offer to make
a contract only on discriminatory terms.” Id. at 177.
Importantly, however, that right “extends only to the
formation of a contract, but not to problems that may
arise later from the conditions of continuing employment.”
Id. at 176. The second right, the right to enforce contracts,
“does not . . . extend beyond conduct by an employer which
impairs an employee’s ability to enforce through legal
process his or her established contract rights.” Id. at 177-
78. Thus, section 1981’s prohibition did not include so-
called “postformation” discriminatory conduct of an em-
ployer, including the breach of the terms of the contract or
imposition of discriminatory working conditions, such as
racial harassment. Id. at 178-82. Patterson, however, was
silent as to the issue of retaliation.
Even though Patterson involved only racial harassment
and the term “retaliation” appears nowhere in the opinion,
12 No. 05-4047
several circuits—including this one—interpreted Patterson
as precluding retaliation claims under section 1981
because such employer behaviors purportedly involved
now-unprotected postformation conduct. See, e.g., Gonzalez
v. Home Ins. Co., 909 F.2d 716 (2d Cir. 1990); Carter v.
South Cent. Bell, 912 F.2d 832, 838-41 (5th Cir. 1990);
McKnight v. Gen. Motors Corp., 908 F.2d 104, 107-10 (7th
Cir. 1990); Courtney v. Canyon Television & Appliance
Rental, Inc., 899 F.2d 845, 849 (9th Cir. 1990); Sherman v.
Burke Contracting, Inc., 891 F.2d 1527, 1535 & n.17 (11th
Cir. 1990); Gersman v. Group Health Ass’n, Inc., 931 F.2d
1565 (D.C. Cir. 1991); see also Foley v. Univ. of Houston
Sys., 355 F.3d 333, 339 (5th Cir. 2003) (noting that
Patterson “marked a dramatic change in § 1981 juris-
prudence”); but see Hicks v. Brown, 902 F.2d 630, 635-38
(8th Cir. 1990) (holding that Patterson did not address
retaliation claims and should not be read as foreclosing
such claims under section 1981). In the immediate after-
math of Patterson, we decided Malhotra v. Cotter & Co.,
885 F.2d 1305 (7th Cir. 1989), in which we observed that
“Patterson might be thought to foreclose any suggestion
that retaliation could be actionable under” section 1981.
Malhotra, 885 F.2d at 1312. Specifically, we noted that
“retaliation and discrimination are separate wrongs. A
white person who opposes discrimination against blacks
and is fired in retaliation for doing so is not being discrimi-
nated against because of his race . . . .” Id. (citations
omitted). At the same time, we also observed that “it can
be argued that someone who retaliates against a person
who has a claim of employment discrimination that
might be actionable under section 1981 . . . is interfering
with the person’s ability to make or enforce contracts on
the same footing with white persons and such interference
could be thought itself a violation of section 1981.” Id. at
1313 (citations omitted) (emphasis in original). Of particu-
lar note here, we did not decide whether Patterson defini-
No. 05-4047 13
tively precluded retaliation claims, and even hinted that
such claims “may well survive Patterson.” Id.
In a concurring opinion in Malhotra, Judge Cudahy
concluded that Patterson did not preclude retaliation
claims.3 Specifically, Judge Cudahy observed that there
was “little parallel between harassment and retaliation.
Hence, the refusal of Patterson to countenance harass-
ment claims under section 1981 has only the most super-
ficial application to claims for retaliation.”4 Id. at 1314
(Cudahy, J., concurring); see also Hicks, 902 F.2d at 635-
38 (holding that Patterson applied solely to the unique
context of racial harassment and did not preclude retalia-
tion claims). And, in prescient comments that anticipated
the Supreme Court’s result in Jackson, 544 U.S. 167,
Judge Cudahy stated:
A prohibition against retaliation is a necessary adjunct
to the anti-discriminatory provision itself. If an em-
ployee may be fired for complaining of discrimination,
3
See also Mozee v. Am. Commercial Marine Serv. Co., 940 F.2d
1036, 1053 (7th Cir. 1991) (suggesting that Patterson may not
have foreclosed all retaliation claims).
4
Judge Cudahy also noted that “to the limited extent Patterson
is relevant here, it would appear to support the recognition of
a cause of action for retaliatory conduct” because the Patterson
court recognized that section 1981’s right to “enforce contracts”
prohibits efforts to “impede access to the courts or obstruct
nonjudicial methods of adjudicating disputes about the force of
binding obligations.” Malhotra, 885 F.2d at 1314 n.1 (citations
omitted). “Clearly, when an employer punishes an employee
for attempting to enforce her rights under section 1981, this
conduct ‘impairs the employee’s ability to enforce her contract
rights.’ ” Id. This is an intriguing argument, but one that we
need not re-visit in light of our conclusion that retaliation claims
are now covered under section 1981’s “make and enforce con-
tracts” provision.
14 No. 05-4047
his right not to be discriminated against is surely
vitiated. . . . The recognition of a right of action for
retaliation under section 1981 is simply another
application of a straightforward syllogism: if an
employee is granted certain substantive rights against
his or her employer, the employer may not punish
the employee’s assertion of those rights, since this
would allow the employer to take away a right to
protection conferred by statute.
Id. at 1314-15.
Judge Cudahy’s view in Malhotra did not carry the day
in this circuit during the brief post-Patterson era. Shortly
thereafter, we issued our McKnight decision, where we,
like most other circuits, interpreted Patterson as foreclos-
ing section 1981 coverage of retaliation claims. See
McKnight, 908 F.2d at 107-08; see also Von Zuckerstein v.
Argonne Nat’l Lab., 984 F.2d 1467, 1471-72 (7th Cir. 1993);
McCarthy v. Kemper Life Ins. Co., 924 F.2d 683, 688 (7th
Cir. 1991). But see Hicks, 902 F.2d at 635-38 (holding
that Patterson did not foreclose retaliation claims). In
McKnight, the plaintiff brought suit under section 1981
and Title VII, claiming that his employer had discrimi-
nated against him based on his race and had fired him in
retaliation for complaining about the discrimination.
McKnight, 908 F.2d at 107-08. Although we noted that
“Patterson was a racial-harassment case rather than a
discharge case,” we nonetheless held that Patterson’s
“wide-ranging reexamination of section 1981 indicated
(as it seems to us) that claims of racially motivated dis-
charge are not actionable under that statute.” Id. at 108.
Judge Fairchild, however, concurred and dissented in
part from the majority’s opinion, because, in his view,
Patterson “did not expressly assert that a racially dis-
criminatory termination would not be a violation of
§ 1981.” Id. at 117. Instead, he reasoned that the analysis
No. 05-4047 15
in Patterson was limited to the narrow issue of whether a
change in the conditions of employment following the
formation of the employment contract (specifically, racial
harassment)—but not a termination—violated section
1981. Id. As a result, Judge Fairchild concluded that
the right to make contracts established in section 1981
protected “the right to continue to work, in the face of
racially discriminatory termination”—a result unaltered
by Patterson. Id. But see Rivers v. Roadway Express, Inc.,
511 U.S. 298, 312 (1994) (noting that “Patterson did not
overrule any prior decision of this Court; rather, it held
and therefore established that the prior decisions of the
Courts of Appeals which read § 1981 to cover discrimina-
tory contract termination were incorrect.” (emphasis in
original)).
4. The Civil Rights Act of 1991 Supercedes Patterson
Whether the majority opinion in McKnight or Judge
Cudahy’s or Judge Fairchild’s reading of Patterson was
correct is now irrelevant because Patterson’s influence
was short-lived. Unhappy with the result issued in
Patterson, Congress legislatively superceded the Patter-
son decision by enacting the Civil Rights Act of 1991. See
Rivers, 511 U.S. at 305-06, 305 n.5 (noting that the Civil
Rights Act of 1991 was based on Congressional and
Presidential disapproval of the Patterson decision); Walker
v. Abbott Labs., 340 F.3d 471, 475 (7th Cir. 2003) (noting
that “Congress, however, quickly responded [to Patterson]
with the Civil Rights Act of 1991, which, inter alia,
overruled Patterson”). The legislative history of the Civil
Rights Act of 1991 makes clear that Congress was dis-
satisfied with the Supreme Court’s narrow reading of
section 1981, which strongly curtailed claims that had
been cognizable in the pre-Patterson period. See Rivers,
511 U.S. at 306 n.6 (citing S. Rep. No. 101-315, pp. 12-14
16 No. 05-4047
(1990)). Among other things, Congress added subsection (b)
to section 1981, which made clear that section 1981 was to
be read broadly to include all aspects of the contractual
relationship between parties, including the postforma-
tion conduct, which Patterson had concluded was not
actionable under section 1981:
For purposes of this section, the term “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). And the legislative history pertain-
ing to this subsection confirms that Congress intended
retaliation to be included under this provision. See An-
drews v. Lakeshore Rehab. Hosp., 140 F.3d 1405, 1411 n.12
(11th Cir. 1998) (citing H.R. Rep. No. 40(I), 102d Cong., 1st
Sess. 92 (1991), as reprinted in 1991 U.S.C.C.A.N. 549,
630, which states, in part, “[t]he list set forth in subsec-
tion (b) is intended to be illustrative rather than exhaus-
tive. 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.” (emphasis added)).
The Civil Rights Act of 1991 led several circuits to
reverse course (again) and to allow retaliation claims
under section 1981. See Foley v. Univ. of Houston Sys., 355
F.3d 333, 339 (5th Cir. 2003); Hawkins v. 1115 Legal Serv.
Care, 163 F.3d 684, 693 (2d Cir. 1998); Andrews, 140 F.3d
at 1412-13; see also Barge v. Anheuser-Busch, Inc., 87 F.3d
256, 259 (8th Cir. 1996) (listing the elements for a prima
facie case of retaliation under section 1981). For instance,
in Andrews, the Eleventh Circuit noted that prior to
Patterson, circuits interpreting section 1981’s “make and
enforce contracts” provisions had held that it “encom-
passed an employee’s claims for an employer’s race-based
No. 05-4047 17
retaliation during the employment contract.” 140 F.3d at
1410. It observed that while Patterson “drew into question
many circuit court decisions recognizing post-hiring
discrimination claims under section 1981,” the Civil Rights
Act of 1991 reversed whatever limits Patterson placed
on imposing liability for postformation conduct. Id. at
1410-12. As a result, the Eleventh Circuit concluded that
retaliation claims remained viable under section 1981. Id.
at 1412.
B. Humphries’s Retaliation Claim Is Cognizable Under
Section 1981
1. We Hold that Section 1981 Protects Against Retalia-
tion
This is the first opportunity we have had since the
enactment of the Civil Rights Act of 1991 to re-visit the
issue of whether section 1981 forbids all retaliatory
discharge claims.5 Cracker Barrel contends that our
decision in Hart has already foreclosed retaliation claims
under section 1981. See Hart, 426 F.3d at 866. This is
incorrect. Unfortunately, Hart has already been cited for
this inaccurate proposition. See Williamson v. Denk &
Roche Builders, Inc., No. 04 C 4051, 2006 WL 1987808,
at *4 (N.D. Ill. July 11, 2006) (citing Hart for the proposi-
tion that “the Seventh Circuit has made clear that a
retaliation claim is not viable under Section 1981”);
5
In Von Zuckerstein v. Argonne Nat’l Lab., 984 F.2d 1467, 1472
n.2 (7th Cir. 1993) we noted that the Civil Rights Act of 1991 had
“overruled” Patterson, but nonetheless applied the holding of
Patterson because the Civil Rights Act of 1991 did not have
retroactive reach. We also noted, however, that, as a result, “this
case represents one of the few in which we still apply the
Patterson standards.” Id.
18 No. 05-4047
Franklin v. U.S. Steel Corp., No. 2:04 CV 246, 2006 WL
905914, at *2 (N.D. Ind. Apr. 7, 2006) (same); Welzel v.
Bernstein, 436 F. Supp. 2d 110, 117 (D.D.C. 2006) (citing
Hart for the proposition that this circuit, unlike other
circuits, precludes retaliation claims under section 1981).
Our analysis in Hart was limited to the narrow issue of
whether an individual who was not the subject of dis-
crimination could assert claims of retaliation for com-
plaining about the discrimination of others.6 We held that
section 1981 did not protect against retaliation in such
circumstances. Hart, 426 F.3d at 866. But Hart has no
application to the facts here, where the plaintiff is plainly
asserting retaliation stemming from discriminatory acts
targeting him. (And, as we shall see below, even Hart’s
limited holding is no longer good law in light of the
Supreme Court’s Jackson decision.)
Thus, the issue before us is whether section 1981, as
amended by the Civil Rights Act of 1991, applies to claims
of retaliation. We hold that it does. The plain text of the
statute, as amended in 1991, makes clear that section 1981
encompasses the “termination of contracts,” and there
can be no doubt that a retaliatory discharge is indeed a
termination of the employment contract.7 Indeed, the
Supreme Court subsequently interpreted the amended
provisions of section 1981 as protecting against “discrimi-
natory contract terminations.” Rivers, 511 U.S. at 302
6
Our decision in Hart was initially issued as an unpublished
order, but, upon motion to publish it filed by a member of the
bar, the order was converted to a published opinion.
7
The at-will nature (i.e., no formal written contract and no
specific terms of employment) of the plaintiff ’s employment here
does not preclude the plaintiff from relying on section 1981’s
provisions pertaining to contracts. See Walker, 340 F.3d at 475-77
(holding that at-will employees can state claims under sec-
tion 1981).
No. 05-4047 19
(stating that “Section 101 of that Act provides that § 1981’s
prohibition against racial discrimination in the making
and enforcement of contracts applies to all phases and
incidents of the contractual relationship, including dis-
criminatory contract terminations”). Now, it may be that,
strictly speaking, a discriminatory “termination of con-
tract” is not the same thing as a retaliatory discharge—for
instance, analytically, retaliation need not have a discrimi-
natory intent behind it. See Malhotra, 885 F.2d at 1312;
Jackson, 544 U.S. at 185-87 (Thomas, J., dissenting). But
the Civil Rights Act of 1991 dispensed with this height-
ened degree of formalism, and the legislative history
confirms that Congress intended retaliation to be included
within section 1981. See Andrews, 140 F.3d at 1411 n.12.
As a result, whatever concerns Patterson raised about
the postformation nature of retaliatory discharges evapo-
rated with the passage of the Civil Rights Act of 1991. See
id.; Rivers, 511 U.S. at 306 n.6. But see Rivers, 511 U.S. at
309 n.8 (noting that the “legislative history of the 1991 Act
reveals conflicting views about whether § 101 would
‘restore’ or instead ‘enlarge’ the original scope of § 1981”)
and id. at 305 (“A legislative response does not necessarily
indicate that Congress viewed the judicial decision as
‘wrongly decided’ as an interpretive matter. Congress may
view the judicial decision as an entirely correct reading of
prior law—or it may be altogether indifferent to the
decision’s technical merits—but may nevertheless decide
that the old law should be amended, but only for the
future.”).
2. Our Holding Is Consistent with Jackson v. Birming-
ham Board of Education, which Affirmed Sullivan’s
Continuing Validity
Even if the statute were unclear on this issue—after all,
the specific word “retaliation” still does not appear in
20 No. 05-4047
section 19818—and without turning to the pertinent
legislative history, the Supreme Court’s recent decision
in Jackson v. Birmingham Board of Education, 544 U.S.
167 (2005) compels the same result. In Jackson, the male
coach of a girls’ high school basketball team sued the
Birmingham Board of Education under Title IX of the
Education Amendments of 1972, claiming that the Board
retaliated against him for complaining about sex discrimi-
nation in the high school’s athletic program. Id. at 171.
Title IX prohibits sex discrimination by recipients of
federal education funding, but, like section 1981, it con-
tains no express mention of “retaliation.” Id. at 173.
Instead, Title IX simply prohibits “discrimination.” The
Supreme Court, however, determined that Title IX’s
proscription on discrimination necessarily subsumed (and
implied) acts of retaliation, which it viewed as simply
different forms of discrimination:
Retaliation against a person because that person has
complained of sex discrimination is another form of
intentional sex discrimination encompassed by Title
IX’s private cause of action. Retaliation is, by defini-
tion, an intentional act. It is a form of “discrimination”
because the complainant is being subjected to dif-
ferential treatment. Moreover, retaliation is discrimi-
nation “on the basis of sex” because it is an inten-
tional response to the nature of the complaint: an
allegation of sex discrimination. We conclude that
when a funding recipient retaliates against a person
because he complains of sex discrimination, this
8
Cf. 42 U.S.C. § 2000e-3(a) (Title VII) (providing that it is an
“unlawful employment practice” for an employer to retaliate
against an employee because he has “opposed any practice
made an unlawful employment practice by [Title VII], or be-
cause he has made a charge, testified, assisted, or participated
in any manner in an investigation, proceeding, or hearing.”).
No. 05-4047 21
constitutes intentional “discrimination” “on the basis
of sex,” in violation of Title IX.
Id. at 173-74 (citations omitted) (emphasis in original).
The Jackson court relied heavily on its prior decision
in Sullivan, 396 U.S. 229, where it held that section 1981’s
companion statute, section 1982, which prohibits dis-
crimination with respect to property rights, contained an
implied prohibition against retaliation. Jackson, 544 U.S.
at 176. Specifically, the Jackson court interpreted Sullivan
as holding that section 1982’s general prohibition on racial
discrimination, which, like section 1981, makes no men-
tion of retaliation, nonetheless covered “retaliation against
those who advocate the rights of groups protected by
that prohibition.” Id. The Jackson court also observed
that the statutory objective of preventing discrimination
would be severely hampered if retaliatory practices were
not also banned: “If recipients were permitted to retaliate
freely, individuals who witness discrimination would be
loathe to report it, and all manner of Title IX violations
might go unremedied as a result.” Id. at 180 (citing
Sullivan, 396 U.S. at 237). “Indeed, if retaliation were
not prohibited, Title IX’s enforcement scheme would
unravel.” Id.
Thus, the Jackson court appears to have jettisoned our
prior observation that “retaliation and discrimination are
separate wrongs.” Cf. Malhotra, 885 F.2d at 1312; see
Jackson, 544 U.S. at 185-87 (Thomas, J., dissenting)
(noting that “[a] claim of retaliation is not a claim of
discrimination on the basis of sex” and that “[r]etaliation
therefore cannot be said to be discrimination on the
basis of anyone’s sex, because a retaliation claim may
succeed where no sex discrimination ever took place”).
Instead, at least for the purpose of interpreting broad
statutory discrimination prohibitions that omit specific
retaliation provisions, the Supreme Court has determined
22 No. 05-4047
that retaliation is simply a different form of discrimina-
tion, and one that is included within broad-based prohibi-
tions of discrimination. See Jackson, 544 U.S. at 175
(distinguishing between the structure of Title VII, which
includes express retaliation provisions, and Title IX’s
“implied” cause of action). Moreover, the Jackson court
noted that a statute targeting discrimination would
necessarily be undercut if retaliatory acts evaded its
purview. Id. at 180. And although Jackson directly tar-
geted Title IX, there is no meaningful analytic distinction
that renders the conclusion in Jackson inapplicable to
section 1981.9 That is, like Title IX, section 1981 broadly
prohibits discrimination (although only Title IX, enacted
roughly a century after section 1981, contains the more
contemporary term of “discrimination”), fails to list
specific discriminatory practices, and omits specific ref-
erences to retaliation. See id. at 175-76.
9
Our colleague in dissent argues that the analysis in Jackson
was particularized to Title IX and thus not applicable to our
discussion of section 1981. We disagree. In Jackson, the Supreme
Court relied in large part upon Sullivan, a case concerning
section 1982. See, e.g., Jackson, 544 U.S. at 176 (“Congress
enacted Title IX just three years after Sullivan was decided, and
accordingly that decision provides valuable context for under-
standing the statute.”); id. at 177 (“Retaliation for Jackson’s
advocacy of the rights of the girls’ basketball team in this case
is discrimination on the basis of sex, just as retaliation for
advocacy on behalf of a black lessee in Sullivan was discrim-
ination on the basis of race.”). Therefore, Jackson’s reasoning
did not depend upon features unique to Title IX, and Jackson
has implications for cases involving section 1982 and its com-
panion statute—section 1981. Moreover, the Jackson Court’s
reliance upon Sullivan affirms Sullivan’s continuing validity.
Irrespective of our impression of Sullivan’s interpretive method,
then, we are bound by its holding. That holding, in part, leads
us to conclude (as has every circuit to address the question) that
a retaliation claim is cognizable under section 1981.
No. 05-4047 23
Indeed, the fact that Title IX omitted any mention of
retaliation, even though it was enacted in 1972, eight years
after Title VII and its specific inclusion of retalia-
tion provisions, did not trouble the Jackson court nor
lead it to conclude that Congress must have intended to
exclude retaliation from Title IX’s coverage. See id. To the
contrary, the Court looked to its Sullivan decision (which
was issued three years before the passage of Title IX) and
concluded that it provided “a valuable context for under-
standing” Title IX. Id. at 176. Specifically, the Court stated
“it is not only appropriate but also realistic to presume
that Congress was thoroughly familiar with [Sullivan] and
that it expected its enactment [of Title IX] to be inter-
preted in conformity with [it].” Id. (quoting Cannon v.
Univ. of Chi., 441 U.S. 677, 699 (1979)).
Thus, the foundation of the Jackson decision is built
squarely upon the Court’s prior determination in Sullivan
that section 1 of the Civil Rights Act of 1866 was in-
tended as a broad prohibition on discrimination that
contained an implied cause of action for retaliation. Id.; see
Sullivan, 396 U.S. at 237 (“A narrow construction of the
language of § 1982 would be quite inconsistent with the
broad and sweeping nature of the protection meant to
be afforded by § 1 of the Civil Rights Act of 1866, 14 Stat.
27, from which § 1982 was derived.”). And there can be no
doubt that Sullivan’s examination of section 1982 with
respect to implied prohibitions on retaliation readily
applies to its companion statute, section 1981, given that
sections 1981 and 1982 are simply carve-outs of the same
section of the Civil Rights Act of 1866, sharing identical
historical origins and concerns. See, e.g., Gen. Bldg.
Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 384
(1982) (noting the shared legislative history between
section 1981 and its “companion” section 1982); Runyon,
427 U.S. at 170-71 (noting that the holding in Jones, 392
U.S. at 437 pertaining to section 1982 necessarily impli-
24 No. 05-4047
cated section 1981, given their shared legislative history);
Tillman v. Wheaton-Haven Recreation Ass’n, Inc., 410 U.S.
431, 440 (1973) (holding that “[i]n light of the historical
interrelationship” between sections 1981 and 1982, there
was no reason to construe the sections differently solely
on the basis that the defendant was a private party); see
also Winston v. Lear-Siegler, Inc., 558 F.2d 1266, 1270 (6th
Cir. 1977) (holding that “in view of both Sections 1981 and
1982 being derived from the Civil Rights Act of 1866 and
in view of the similarity in language and intent, no reason
is seen not to apply the rationale of Sullivan in inter-
preting Section 1981”); DeMatteis v. Eastman Kodak Co.,
511 F.2d 306, 312 n.9 (2d Cir. 1975) (same).
3. Our Holding Is Sensible and Aligned with the
Weight of Authority
Accordingly, we join the other circuits that have ad-
dressed this issue in the post-Civil Rights Act of 1991
era—all of whom uniformly conclude that retaliation
claims are cognizable under section 1981. See Foley, 355
F.3d at 339; Hawkins, 163 F.3d at 693; Andrews, 140 F.3d
at 1410-11; Barge, 87 F.3d at 259. Not only is this result
compelled by the Civil Rights Act of 1991 and correspond-
ing Supreme Court authority, but it is also the sensible
result. To hold that section 1981 allows unfettered retalia-
tion is to invite wholesale circumvention (and eventual
undermining) of the statute, and it would create perverse
incentives for the employer to fire complainants as quickly
as possible to thereby limit (or entirely avoid) damages
under section 1981. See, e.g., Goff, 678 F.2d at 598 (noting
that “Section 1981 would become meaningless if an
employer could fire an employee for attempting to enforce
his rights under that statute”). This is not an insignificant
issue, as section 1981 damages often have more teeth
than those available under Title VII.
No. 05-4047 25
There is no traction in observing that Title VII provides
a back-up or competing statutory regime to the plaintiff.
See generally Randolph v. IMBS, Inc., 368 F.3d 726, 732
(7th Cir. 2004) (noting the significant overlap and differ-
ences in the two statutory schemes). Although the sub-
stantive overlap and procedural inconsistencies between
section 1981 and Title VII animated the Court’s concerns
in Patterson, Congress is not bothered by this parallel
statutory scheme. See Johnson, 421 U.S. at 459 (“ ‘[T]he
legislative history of Title VII manifests a congressional
intent to allow an individual to pursue independently
his rights under both Title VII and other applicable state
and federal statutes.’ In particular, Congress noted ‘that
the remedies available to the individual under Title VII
are co-extensive with the indiv[i]dual’s right to sue under
the provisions of the Civil Rights Act of 1866, 42 U.S.C.
§ 1981, and that the two procedures augment each other
and are not mutually exclusive.’ ” (quoting Alexander v.
Gardner-Denver Co., 415 U.S. at 48 and H.R. Rep. No. 92-
238, at 19 (1971)); see also Patterson, 491 U.S. at 201-12
(Brennan, J., concurring and dissenting in part) (citing
and discussing legislative history indicating that Congress
intended to maintain section 1981 and Title VII as “sepa-
rate, distinct, and independent”); Randolph, 368 F.3d at
732. Nor is it our role to attempt to harmonize these
statutes or seek to channel particular causes of action
toward one or the other statute. Congress has unmistak-
ably provided for two separate regimes to redress, in
many instances, identical discriminatory practices in the
employment context. The resolution of any inefficiencies
resulting from the existence of two parallel (but quite
different) statutory regimes that cover similar harms, but
contain differing procedural requirements, limitations
periods, and remedies, resides with Congress, not us.
26 No. 05-4047
4. We Overturn Hart to the Extent that it Conflicts
with Sullivan and Jackson
We must now briefly return to Hart, where we held that
a white employee who alleged that he suffered retalia-
tion for supporting his co-worker’s charge of discrimina-
tion could not maintain such a claim because section 1981
“encompasses only racial discrimination on account of the
plaintiff ’s race and does not include a prohibition against
retaliation for opposing racial discrimination.” Hart, 426
F.3d at 866. In so holding, we relied solely on the Eleventh
Circuit’s decision in Little v. United Technologies, Carrier
Transicold Division, 103 F.3d 956 (11th Cir. 1997), which
held that a white employee who opposed a co-worker’s
racially derogatory remark could not bring a section 1981
retaliation claim because he did not contend that the
employer “discriminated against him because he was
white” (i.e., did not claim direct discrimination). Id. at 961.
The Little decision, however, cited no authority for this
proposition, nor did it provide reasoning for this declara-
tion.10 Id. We likely placed too much reliance on Little,
given that its holding runs squarely against the Supreme
Court’s Sullivan decision, as well as the Court’s subse-
quent decision in Jackson, which further solidified
Sullivan’s holding. See Sullivan, 396 U.S. at 237; Jackson,
544 U.S. at 173-74; see also Warth v. Seldin, 422 U.S. 490,
514 n.22 (1975) (citing Sullivan for the proposition that
sections 1981 and 1982 are examples of “exceptions” that
allow parties “to raise putative rights of third parties,”
10
In addition, the Eleventh Circuit subsequently hinted that
Little may conflict with its decision in Jackson v. Motel 6
Multipurpose, Inc., 130 F.3d 999 (11th Cir. 1997), which held that
a class of employees could proceed on a section 1981 retaliation
claim based on allegations that they were fired for refusing to
participate in an employer’s discrimination against non-white
customers. See Andrews, 140 F.3d at 1412 n.14.
No. 05-4047 27
including such situations where a party is “punished” for
entering into a contractual relationship with an individual
protected under the statute). Jackson, which was issued
after Little, but while the Hart appeal was pending, made
clear that Sullivan prohibits “retaliation against those
who advocate the rights of groups protected” by section 1
of the Civil Rights Act of 1866. Jackson, 544 U.S. at 176.
Thus, Sullivan stands for the proposition that a “white
owner could maintain his own private cause of action
under § 1982 if he could show that he was ‘punished for
trying to vindicate the rights of minorities.’ ” Id. at 176 n.1.
Aside from conflicting with Sullivan and Jackson, the
Little decision is plainly the minority view among the
circuits: the great weight of authority is that individuals
who suffer retaliation for opposing the racial discrimina-
tion suffered by others have standing to assert retaliation
claims under section 1981.11
11
See, e.g., Des Vergnes v. Seekonk Water Dist., 601 F.2d 9, 14
(1st Cir. 1979) (holding that corporation had standing to bring
section 1981 claim and that “to invoke § 1981 or § 1982 one
need not be a member of the racial class protected by the statute
and one need not even be able to identify any specific member
of the class who suffered or may suffer discrimination”);
DeMatteis v. Eastman Kodak Co., 511 F.2d 306, 312 (2d Cir.
1975) (white plaintiff could bring section 1981 claim based upon
allegation that his employer “ ‘forced’ him into retirement
solely because he had sold his house to a black person”); Liotta v.
Nat’l Forge Co., 629 F.2d 903, 906-07 (3d Cir. 1980) (summary
judgment inappropriate where material issues of fact remained
regarding section 1981 claim brought by plaintiff who claimed he
was discharged for supporting rights of African-American co-
workers); Fiedler v. Marumsco Christian Sch., 631 F.2d 1144,
1149 (4th Cir. 1980) (white student protected under section 1981
from retaliation by school because of her association with a black
schoolmate); Pinkard v. Pullman-Standard, a Div. of Pullman,
(continued...)
28 No. 05-4047
As a result, it is clear that our decision in Hart cannot
survive scrutiny under Sullivan, as expanded by the
Court in Jackson. Moreover, our decision is out-of-step
with the outcomes reached in the vast majority of cases
outside of our circuit. Accordingly, we overrule our hold-
ing in Hart on this limited issue.12 We now hold that a
plaintiff may maintain a cause of action under section
11
(...continued)
Inc., 678 F.2d 1211, 1229 (5th Cir. Unit B 1982) (retaliatory
discharge claim allowed under section 1981 where evidence
showed plaintiff was discharged for lawful advocacy of minority
and union rights); Johnson v. Univ. of Cincinnati, 215 F.3d 561,
575 (6th Cir. 2000) (holding that it was clear under “well-settled”
law that a plaintiff “need not have alleged discrimination
based upon his race as an African American in order to satisfy
the protected status requirement of his claims[,]” but rather
plaintiff ’s advocacy on behalf of minorities was sufficient to
allege retaliation under section 1981); Winston v. Lear-Siegler,
Inc., 558 F.2d 1266, 1270 (6th Cir. 1977) (white plaintiff had
standing under section 1981 for claim that employer fired him
because he objected to discriminatory discharge of an African-
American co-worker); Skinner v. Total Petroleum, Inc., 859 F.2d
1439, 1446-47 (10th Cir. 1988) (white employee fired for helping
African-American co-worker file an EEOC claim could state a
claim under section 1981); see also Malhotra, 885 F.2d at 1316
(Cudahy, J., concurring) (noting that “a white person who is
discharged for espousing the rights of minorities could establish
that the employer acted with discriminatory intent (as required
to state a claim under section 1981); that the racial discrimina-
tion was directed at another, rather than directly at the plaintiff,
is irrelevant, since it is the plaintiff who is suffering due to the
employer’s racial discrimination” and citing Sullivan and cases
from other circuits in support).
12
Because this opinion overrules a prior case, it has been
circulated in advance of publication to all judges of this court in
regular active service pursuant to Seventh Circuit Rule 40(e). A
majority did not favor a rehearing en banc on the question of
overruling Hart, 426 F.3d 863.
No. 05-4047 29
1981, where the plaintiff has suffered retaliation for
advocating the rights of those protected under section
1981. See Jackson, 544 U.S. at 179-80.
C. Humphries Presented a Claim of Retaliation Sufficient
to Survive Summary Judgment
Turning to the merits of Humphries’s retaliation claim
under section 1981, we generally have applied the same
prima facie requirements to discrimination claims brought
under Title VII and section 1981. See, e.g., Alexander v.
Wis. Dep’t of Health & Family Servs., 263 F.3d 673, 682
(7th Cir. 2001) (applying same standard to Title VII and
section 1981 discrimination claims); Johnson v. City of
Fort Wayne, Ind., 91 F.3d 922, 940 (7th Cir. 1996) (“Al-
though section 1981 and Title VII differ in the types of
discrimination they proscribe, the methods of proof and
elements of the case are essentially identical.”); Randle v.
LaSalle Telecomms., Inc., 876 F.2d 563, 568 (7th Cir. 1989)
(“It is well settled that the methods and order of proof
applicable to a claim of disparate treatment under Title
VII are equally availing under § 1981.”); see also Patterson,
491 U.S. at 186 (applying McDonnell Douglas framework
to section 1981 claims). We see no reason to apply dif-
ferent requirements between the statutes with regard to
retaliation claims. See Foley, 355 F.3d at 340 n.8 (approv-
ing of the same standard applied to retaliation claims
under Title VII and section 1981); see also Hasan v. U.S.
Dep’t of Labor, 400 F.3d 1001, 1003-04 (7th Cir. 2005)
(applying Title VII prima facie requirements to retaliation
cases brought under the Energy Reorganization Act);
Larimer v. I.B.M. Corp., 370 F.3d 698, 702 (7th Cir. 2004)
(applying Title VII prima facie requirements to retalia-
tion claim under ERISA).
To overcome Cracker Barrel’s motion for summary
judgment, Humphries may proceed under either the
30 No. 05-4047
direct or indirect methods. See Sitar v. Ind. Dep’t of
Transp., 344 F.3d 720, 728 (7th Cir. 2003) (citing Stone v.
City of Indianapolis Pub. Util. Div., 281 F.3d 640 (7th Cir.
2002)). Under the direct method, Humphries must pre-
sent direct evidence of (1) a statutorily protected activ-
ity; (2) a materially adverse action taken by the employer;
and (3) a causal connection between the two. Id.; Burling-
ton Northern & Santa Fe Ry. Co. v. White, 126 S. Ct. 2405,
2415 (2006). Under the indirect method, he must show
that after opposing the employer’s discriminatory prac-
tice only he, and not any similarly situated employee who
did not complain of discrimination, was subjected to a
materially adverse action even though he was performing
his job in a satisfactory manner. See Sylvester v. SOS
Children’s Villages Ill., Inc., 453 F.3d 900, 902 (7th Cir.
2006); White, 126 S. Ct. at 2415. Thus, the indirect
“method of establishing a prima facie case requires proof
both of similarly situated employees and of the plaintiff ’s
performing his job satisfactorily.” Sylvester, 453 F.3d at
902.
Under the district court’s view (which, naturally,
Cracker Barrel echoes on appeal), Humphries’s prima facie
case failed because, among other reasons, he did not
present sufficient evidence to meet the similarly situated
requirement under the indirect method.13 According to
Cracker Barrel, similarly situated comparators must
have the same supervisors, the same job duties, the same
work performance histories, and must have engaged in the
same bad conduct as the plaintiff. In other words, they
must be essentially identical to the plaintiff, and, under
Cracker Barrel’s view, Humphries’s two comparators,
Stinnett and Dowd, fail that test.
13
We need not decide whether Humphries has enough evidence
under the direct method because he meets the requirements
of the indirect method.
No. 05-4047 31
Cracker Barrel’s view of our similarly situated require-
ment is too rigid and inflexible. This requirement “should
not be applied mechanically or inflexibly.” Hull v.
Stoughton Trailers, LLC, 445 F.3d 949, 952 (7th Cir. 2006).
True, we have sometimes stated the similarly situated
requirement in the “must” terms that Cracker Barrel
argues, but a more sensitive reading of our cases indicates
that we have often stated that the similarly situated
requirement “normally entails a showing that the two
employees dealt with the same supervisor, were subject
to the same standards, and had engaged in similar con-
duct without such differentiating or mitigating circum-
stances as would distinguish their conduct or the em-
ployer’s treatment of them.” Radue v. Kimberly-Clark
Corp. 219 F.3d 612, 617-18 (7th Cir. 2000) (emphasis
added); see also Keri v. Bd. of Trs. of Purdue Univ., 458
F.3d 620, 644 (7th Cir. 2006); Ezell v. Potter, 400 F.3d
1041, 1049-50 (7th Cir. 2005); McDonald v. Vill. of
Winnetka, 371 F.3d 992, 1002 (7th Cir. 2004); Lucas v. Chi.
Transit Auth., 367 F.3d 714, 733 (7th Cir. 2004);
Appelbaum v. Milwaukee Metro. Sewerage Dist., 340 F.3d
573, 580 (7th Cir. 2003); Peters v. Renaissance Hotel
Operating Co., 307 F.3d 535, 546 (7th Cir. 2002); Snipes v.
Ill. Dep’t of Corr., 291 F.3d 460, 463 (7th Cir. 2002); Peele
v. Country Mut. Ins. Co., 288 F.3d 319, 330 (7th Cir. 2002).
In other words, we have emphasized that the similarly
situated inquiry is a flexible one that considers “all
relevant factors, the number of which depends on the
context of the case.” Radue, 219 F.3d at 617. “As to the
relevant factors, an employee need not show complete
identity in comparing himself to the better treated em-
ployee, but he must show substantial similarity.” Id. at
618; see also Goodwin v. Bd. of Trs. of Univ. of Ill., 442
F.3d 611, 619 (7th Cir. 2006); Ezell, 400 F.3d at 1050.
In addition, our case law does not provide any “magic
formula for determining whether someone is similarly
32 No. 05-4047
situated.” Chavez v. Ill. State Police, 251 F.3d 612, 636 (7th
Cir. 2001) (discussing the similarly situated requirement
in the equal protection context). Instead, courts should
apply a “common-sense” factual inquiry—essentially, are
there enough common features between the individuals to
allow a meaningful comparison? Id. (citing Freeman v.
Madison Metro. Sch. Dist., 231 F.3d 374, 382-83 (7th Cir.
2000) and Radue, 219 F.3d at 619). Put a different way,
the purpose of the similarly situated requirement is to
eliminate confounding variables, such as differing roles,
performance histories, or decision-making personnel,
which helps isolate the critical independent variable:
complaints about discrimination. See Hull, 445 F.3d at
951-52.
It is important not to lose sight of the common-sense
aspect of this inquiry. It is not an unyielding, inflexible
requirement that requires near one-to-one mapping
between employees—distinctions can always be found
in particular job duties or performance histories or the
nature of the alleged transgressions. See, e.g., Ezell, 400
F.3d at 1050. Now, it may be that the degree of similarity
necessary may vary in accordance with the size of the
potential comparator pool, as well as to the extent to which
the plaintiff cherry-picks would-be comparators, see
Crawford v. Ind. Harbor Belt R.R. Co., 461 F.3d 844, 845-
46 (7th Cir. 2006), but the fundamental issue remains
whether such distinctions are so significant that they
render the comparison effectively useless. In other words,
the inquiry simply asks whether there are sufficient
commonalities on the key variables between the plaintiff
and the would-be comparator to allow the type of compari-
son that, taken together with the other prima facie
evidence, would allow a jury to reach an inference of
discrimination or retaliation—recall that the plaintiff
need not prove anything at this stage.
No. 05-4047 33
Establishing a prima facie case should not be such an
onerous requirement: “the plaintiff ’s evidence on the
prima facie case need not be overwhelming or even des-
tined to prevail; rather, the plaintiff need present only
‘some evidence from which one can infer that the employer
took adverse action against the plaintiff on the basis of a
statutorily proscribed criterion.’ ” Bellaver v. Quanex Corp.,
200 F.3d 485, 493 (7th Cir. 2000) (quoting Leffel v. Valley
Fin. Servs., 113 F.3d 787, 793 (7th Cir. 1997) (also noting
that the prima facie burdens “should not be applied rig-
idly”)); see also Tex. Dep’t of Cmty. Affairs v. Burdine, 450
U.S. 248, 253 (1981) (“The burden of establishing a prima
facie case of disparate treatment is not onerous.”). “The
prima facie case, and specifically its fourth prong, are
meant to identify situations where the ‘actions taken by
the employer, . . . if unexplained, are more likely than not
based on consideration of impermissible factors.’ ” Collier
v. Budd Co., 66 F.3d 886, 890 (7th Cir. 1995) (quoting
Allen v. Diebold, Inc., 33 F.3d 674, 678 (6th Cir. 1994)).
But the method of inquiry established by McDonnell
Douglas was “never intended to be rigid, mechanized, or
ritualistic.” Furnco Constr. Corp. v. Waters, 438 U.S. 567,
577 (1978). After all, our intention in establishing the
similarly situated requirement was to provide plaintiffs
the “boost” that the McDonnell Douglas framework
intended. See Stone, 281 F.3d at 643.
With this legal and policy backdrop in mind, we now
turn to the would-be comparators in this case. It is clear
that Stinnett was a sufficient comparator. He held the
same associate manager position as Humphries, with the
same duties, including responsibility for ensuring the safe
was locked at all times. He shared the same supervisor
(Dowd) and same ultimate decisionmaker (Christensen).
Like Humphries, Stinnett had received past negative
performance evaluations, including low ratings on “asset
protection” categories. In addition, Humphries presented
34 No. 05-4047
competent testimony (both his own and that of a co-
worker) that Stinnett—like Humphries—had used a so-
called Gold Card to pay for a meal that a customer had
complained about, apparently in contravention of Cracker
Barrel policy. In addition, Humphries presented evidence
that Stinnett’s termination of Green (the immediate
precursor event connected to Humphries’s termination)
was impermissible (under Cracker Barrel policy, only
general managers, not associate managers, can fire
employees). If anything, the record tends to suggest that
Humphries generally performed slightly better than
Stinnett. In addition, Humphries presented evidence that
Stinnett also left the safe unlocked. Specifically,
Humphries testified that Stinnett (and Dowd) routinely
left the safe unlocked—the very basis for which Humphries
was fired, and one which Humphries hotly disputes.
Cracker Barrel seeks to distinguish Stinnett on the
grounds that he left the safe unlocked during the daytime
(i.e., business hours) whereas Humphries left it unlocked
during the nighttime (i.e., overnight). This is a distinction
without much difference. Although arguments can be
made as to relative greater potential harm of leaving the
safe unlocked at night, the issue remains that it was
contrary to Cracker Barrel policy to leave the safe un-
locked and unattended at any point during the 24-hour
day. More importantly, Cracker Barrel’s argument here
reflects precisely the type of formalistic argument that
should not carry the day at summary judgment.
Humphries was not required to show an identity of
wrongful conduct: “the law is not this narrow.” Ezell, 400
F.3d at 1050. It was enough to show “similar—not identi-
cal—conduct” and this surely qualifies under that stan-
dard. Id. To find otherwise is to lose sight of the big-
picture, common-sense perspective. Thus, in terms of job
titles, work duties, supervisor, and work performance
histories, Stinnett and Humphries have more than suffi-
No. 05-4047 35
cient similarity. A single comparator will do; numerosity
is not required.14 See, e.g., Goodwin, 442 F.3d at 619; Ezell,
400 F.3d at 1050.
Cracker Barrel also contends that it established that
it had a legitimate reason for firing Humphries, and
that Humphries failed to show that the reason that
Cracker Barrel provided for his discharge was pretext (i.e.,
a lie). See Forrester v. Rauland-Borg Corp., 453 F.3d 416,
417-19 (7th Cir. 2006) (discussing general requirements to
establish pretext). On these issues, we agree with the
district court’s determination that the record is replete
with contested material facts pertaining to Humphries’s
work performance and the nature of Christensen’s beliefs
when he terminated Humphries. As an initial matter,
Humphries contends that he did not leave the safe unat-
tended, and the evidence implicating him is comprised
solely of the testimony from Stinnett—the very individual
Humphries targeted in his final complaint of discrimina-
tion. And there is testimony in the record that a co-worker
observed Stinnett and Dowd acting differently (less
deferentially) toward Humphries just prior to his firing,
and that this co-worker specifically warned Humphries
about Stinnett and Dowd because she believed that their
behavior indicated that they were “up to something to
harm Humphries.” In addition, prior to firing Humphries,
it appears that Christensen conducted no investigation
into the veracity of Stinnett’s claim. He did not interview
Humphries; he simply credited Stinnett’s story. Finally,
the timing of Humphries’s firing is suspicious: he was
fired one week after he complained to Christensen about
discriminatory practices and one day prior to a scheduled
meeting with Dowd, which, presumably would have
14
Because we conclude the Stinnett was an adequate comparator,
we need not address whether Dowd fits the requisite criteria.
36 No. 05-4047
created a more elaborate (and less favorable to Cracker
Barrel) documentary record of Humphries’s complaints.
Finally, there was evidence in the record tending to show
that similar transgressions were not sufficient to fire
other similarly situated employees who did not complain
of discrimination. See generally Curry v. Menard, Inc., 270
F.3d 473, 479 (7th Cir. 2001) (holding that a showing that
similarly situated employees were treated differently
may be enough to establish pretext).
This is not to say that merely pointing to an employer’s
shoddy investigatory efforts is sufficient to establish
pretext. Erroneous (but believed) reasons for terminating
an employee are not tantamount to pretextual reasons. See
Forrester, 453 F.3d at 419; Little v. Ill. Dep’t of Revenue,
369 F.3d 1007, 1012-13 (7th Cir. 2004). But, under the
circumstances here, there was sufficient other circum-
stantial evidence in the record to support a reasonable
inference that Humphries was “set-up” by Stinnett (in
tandem with Dowd and Christensen), see Sylvester, 453
F.3d at 905, and that his purported bad act of leaving the
safe unlocked was a fabrication to justify his firing. In this
sense, the quality of Christensen’s investigation may
have some bearing on the truthfulness of Cracker
Barrel’s proferred reasons for terminating Humphries. In
short, these are the sort of disputed factual issues that a
jury should sort out.
As a final note, on remand, Humphries will have only his
claim of retaliation. We agree with the district court’s
determination that he waived (forfeited would be the
better term) his discrimination claim by devoting only a
skeletal argument in response to Cracker Barrel’s motion
for summary judgment. Although Humphries did attempt
to incorporate his well-developed arguments pertaining
to the retaliation claim, and there is substantial over-
lap with regard to the prima facie requirements be-
tween the two claims, he did nothing more. On appeal,
No. 05-4047 37
however, Humphries addresses for the first time the
issue of his replacement, and Cracker Barrel outlines a
series of arguments as to why Humphries’s reprimands
and warnings do not constitute materially adverse em-
ployment actions. None of these arguments were reached
by the district court nor flushed out in the briefing—this
is precisely why we insist on parties raising all pertinent
arguments below. Given that Humphries’s core claim is
one for retaliation, there is little inequity in applying our
typical forfeiture rule to this particular claim.
III. CONCLUSION
For the foregoing reasons, we REVERSE the district
court’s grant of summary judgment in favor of the defen-
dant on Humphries’s retaliation claim, we AFFIRM the
grant of summary judgment in favor of the defendant on
Humphries’s discrimination claim, and we REMAND for
further proceedings in accordance with this opinion.
EASTERBROOK, Chief Judge, dissenting in part. The
Supreme Court held in Jackson v. Birmingham Board of
Education, 544 U.S. 167 (2005), that Title IX of the
Education Amendments of 1972—which forbids educa-
tional programs that receive federal funds from discrimi-
nating on account of sex, 29 U.S.C. §1681(a)—allows the
judiciary to define the word “discriminate.” The Court used
that authority to curtail steps that make reports of
discrimination costly to students and employees. Today
38 No. 05-4047
this court attributes to Jackson the conclusion that all
federal statutes dealing with the employment relation
prohibit retaliation.
The Justices gave three principal reasons for their
decision in Jackson. (1) The word “discrimination” has
sufficient ambiguity to permit a reading that includes
an anti-retaliation norm. 544 U.S. at 173-74. (2) Title IX
was enacted in 1972, after anti-retaliation norms became
common, making it sensible to resolve the ambiguity in
favor of this reading. 544 U.S. at 176. (3) Lack of an anti-
retaliation norm would make it too easy for educational
programs to undermine the principal substantive rules
in Title IX by getting rid of anyone who tried to enforce
them. 544 U.S. at 180-81.
None of these reasons applies to 42 U.S.C. §1981, the
subject of today’s decision. (1) The word “discriminate”
does not appear in §1981. What that statute provides is
that all citizens have the same right to make and enforce
contracts. How can a decision that resolves ambiguity
in the word “discriminate” apply to other statutes with
different language? (2) Section 1981 was enacted in 1866,
long before anti-retaliation norms were created. The first
mention of “retaliatory discharge” in any federal appel-
late opinion came in NLRB v. Arthur Winer, Inc., 194 F.2d
370 (7th Cir. 1952), and the first use by the Supreme Court
was NLRB v. Scrivener, 405 U.S. 117 (1972). (3) Lack of an
anti-retaliation norm in §1981 would not hinder enforce-
ment of civil rights laws, because there is a real anti-
retaliation rule in Title VII of the Civil Rights Act of 1964.
See 42 U.S.C. §2000e-3(a). That’s one reason why Jackson
distinguished Title IX of the 1972 Act from Title VII of the
1964 Act. 544 U.S. at 175. Cf. Garcetti v. Ceballos, 126 S.
Ct. 1951 (2006) (holding that there is no general anti-
retaliation doctrine under 42 U.S.C. §1983).
The question at issue today is not whether an employer
may fire a worker who protested discrimination, but
No. 05-4047 39
whether an employee may present a claim of retaliation
even though he failed to file a timely charge under Title
VII and engage in conciliation before turning to court. By
adding an anti-retaliation rule to §1981, the majority
does not craft an ancillary doctrine necessary to make
the principal norm work (as the Court did in Jackson);
instead it demolishes components of Title VII that Con-
gress thought necessary to expedite the resolution of
disputes and resolve many of them out of court.
This is not the first time that a disgruntled employee
has turned to §1981 after missing the deadline for litiga-
tion under Title VII. The Court held in Patterson v.
McLean Credit Union, 491 U.S. 164 (1989), that §1981
should be construed when possible to avoid conflict with
Title VII. Today, however, the majority does exactly what
Patterson forbids. It reads §1981 to have the same sub-
stantive content as Title VII, but without features such
as short periods of limitations that employees find incon-
venient. That’s not a sound way to treat this statute,
already extended far beyond its original meaning. See
Runyon v. McCrary, 427 U.S. 160 (1976); Charles Fairman,
VI History of the Supreme Court of the United States:
Reconstruction and Reunion 1864-88 (Part One) 1207-60
(1971); Gerhard Casper, Jones v. Mayer: Clio, Bemused
and Confused Muse, 1968 Sup. Ct. Rev. 89. Patterson holds
that the process of judicial extension must stop.
Congress can add to a law’s reach, and in 1991 it did
so—but the 1991 revision does not mention “retaliation” or
change the text of §1981(a), on which Humphries’s claim
rests. When §1981 and Title VII have different but overlap-
ping provisions (as they do, for example, with respect
to damages), then the judiciary must enforce both. See,
e.g., Branch v. Smith, 538 U.S. 254, 273 (2003); J.E.M. Ag
Supply, Inc. v. Pioneer Hi-Bred International, Inc., 534
U.S. 124, 141-44 (2001); Randolph v. IMBS, Inc., 368 F.3d
40 No. 05-4047
726 (7th Cir. 2004). But the fact that overlapping systems
may coexist does not justify creating incompatibility, as the
majority does today. Section 1981 does not contain an anti-
retaliation rule. When deciding whether to add such a rule
to §1981, we must consider the effect that this step would
have on Title VII. That’s the holding of Patterson.
To the extent that my colleagues treat the 1991 legisla-
tion as discarding all of Patterson, they follow an approach
that was rejected in Rivers v. Roadway Express, Inc., 511
U.S. 298 (1994), and Landgraf v. USI Film Products, 511
U.S. 244 (1994). Legislation does not “overrule” decisions
of the Supreme Court; new statutes adopt new rules but
leave in place existing norms that the legislation does
not touch. Nothing in the Civil Rights Act of 1991 justifies
reading §1981 more broadly than its (amended) text or
undermining parts of Title VII that remain in force. The
Court demonstrated this in Domino’s Pizza, Inc. v. McDon-
ald, 126 S. Ct. 1246 (2006), which unanimously reversed a
decision that had invoked the judges’ views of wise public
policy to extend §1981. Domino’s Pizza shows that
Patterson cannot be treated as defunct. The Supreme
Court has cited Patterson favorably in 24 decisions since
Landgraf and Rivers. Of these, Domino’s Pizza is the
most salient because it uses Patterson’s interpretive
methodology to construe §1981 as amended by the Civil
Rights Act of 1991.
My colleagues end up declaring that the text of §1981, its
context, its history (the absence of anything like an anti-
retaliation norm in 1866), its function, and the effect of an
inventive reading on the operation of Title VII all are
irrelevant. The rule they impute to Jackson has no moor-
ings in any statute’s text or provenance. Yet that’s not at
all what Jackson says; it dealt with the actual language
and operation of Title IX and does not justify a language-
and-history-free interpretation of all federal statutes. I do
No. 05-4047 41
not think it likely that the Supreme Court, which insists
that statutory language be followed even if inconvenient
or jarring—see, e.g., Arlington Central School District v.
Murphy, 126 S. Ct. 2455, 2463 (2006); Exxon Mobil Corp.
v. Allapattah Services, Inc., 125 S. Ct. 2611, 2625-27
(2005); Dodd v. United States, 545 U.S. 353 (2005); Tyler
v. Cain, 533 U.S. 656, 663 n.5 (2001)—would accept
such an atextual approach. I appreciate the temptation to
make every law “the best it can be,” but that is not the
Supreme Court’s current mode of statutory interpretation,
as Domino’s Pizza shows for §1981 in particular.
Perhaps it was the approach that prevailed in 1969,
when the Court decided Sullivan v. Little Hunting Park,
Inc., 396 U.S. 229 (1969). The majority in Sullivan held
that a plaintiff in litigation under 42 U.S.C. §1982 has
standing to complain about retaliation, and Jackson
concluded that it must have had a substantive component
too. So read, Sullivan is of a piece with other decisions
holding that judges may supplement statutes to make
them “more effective.” See, e.g., J.I. Case Co. v. Borak, 377
U.S. 426 (1964). But Cort v. Ash, 422 U.S. 66 (1975),
abandoned that approach, and since the 1970s the Court
has lashed interpretation more closely to statutory text.
“[N]o legislation pursues its purposes at all costs. Deciding
what competing values will or will not be sacrificed to the
achievement of a particular objective is the very essence
of legislative choice—and it frustrates rather than ef-
fectuates legislative intent simplistically to assume that
whatever furthers the statute’s primary objective must
be the law.” Rodriguez v. United States, 480 U.S. 522, 525-
26 (1987) (emphasis in original).
It is anachronistic to say that, because Sullivan engaged
in a freewheeling “interpretation” of §1982, we may today
take liberties with §1981. One might as well cite Borak
for the proposition that “every right implies a remedy” so
42 No. 05-4047
that courts should today create a private right of action
for every statute other than those that the Supreme Court
addressed in Cort and its successors.
Yet that is the majority’s tack. The argument goes that,
because Sullivan ignored the language of §1982 and
drafted an “improved” version of the statute, we are free
to do the same today for §1981, its neighbor. The Supreme
Court requires us to proceed otherwise. Borak dealt
with §14(a) of the Securities Exchange Act of 1934, 15
U.S.C. §78n(a). It was as freewheeling in “interpreting”
that law as Sullivan was with §1982. Yet the Court has
held that the change of interpretive method announced
in Cort applies to all other sections of the Securities
Exchange Act. See Piper v. Chris-Craft Industries, Inc., 430
U.S. 1 (1977) (§14(e)); Touche Ross & Co. v. Redington, 442
U.S. 560 (1979) (§17(a)). Borak and similar decisions from
the 1960s have not been overruled, but we have been told
in no uncertain terms that they must not be extended.
Indeed, in Virginia Bankshares, Inc. v. Sandberg, 501 U.S.
1083 (1991), the Court declined to apply Borak to a portion
of §14(a) that had not been involved in Borak. So that case
has been limited to a single sentence of one subsection.
Why, then, may the method of Sullivan be applied to other
sections of the Civil Rights Act of 1866 despite intervening
precedent?
There has been a sea change in interpretive method
between Sullivan and today—and Patterson not only
exemplifies the change but also applies it to §1981. In 1989
the Justices were invited to rely on Sullivan as a model
for the interpretation of §1981. They declined. Less than
a year ago, in Domino’s Pizza, the Court reiterated
Patterson’s interpretive stance. Sullivan, by contrast, did
not receive a mention. Yet my colleagues do not mention
Domino’s Pizza. Why bypass the Supreme Court’s 2005
understanding of §1981 in favor of a 1969 understand-
No. 05-4047 43
ing of §1982? We must respect our superiors’ decision to
call a halt to judicial extrapolation; Domino’s Pizza rather
than Sullivan exemplifies the appropriate judicial role. By
relying on Sullivan, my colleagues indulge an assump-
tion—that if some remedies are good, then more must
be better—that has no support on today’s Supreme Court.
Now if §1981 had been enacted while the freewheeling
approach of Sullivan was in force, it might well be ap-
propriate to adopt a goal-driven reading. To use the
interpretive tools of the last 30 years to unravel a statute
passed in earlier days would be to cross up the legislature.
That was a point the Court made in Jackson: Title IX
was enacted in 1972, and Congress may well have antici-
pated that Sullivan-like construction would follow. 544
U.S. at 176. The legislators who voted for §1981 in 1866
would not have anticipated any such judicial liberties,
however; and when §1981 was amended in 1991, decisions
such as Cort and Rodriguez and Patterson had announced
a textual approach. So when a question arises in 2006
about the meaning of this 1866/1991 legislation, our job
is to apply the interpretive norms that prevailed in 1866,
1991, and today, not to take an ambiguous decision from
1969 and see how far we can run with it.
Section 1981 does offer one opening for a claim in the
nature of retaliatory discharge. Suppose Cracker Barrel
regularly fired black employees who protest discrimina-
tion in the workplace, but not protesting white employees.
Then it might be appropriate to conclude that black
persons do not enjoy the same right as white persons to
contract with Cracker Barrel. But Humphries does not
make such an argument. For all this record shows, Cracker
Barrel fires every complainer, without regard to the
subject of the complaint. An employer that treats everyone
the same in this respect complies with §1981, so the
judgment should be affirmed.
44 No. 05-4047
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-10-07