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THOMPSON v. JOHNSON & JOHNSON MGMT. INFORMATION CT

November 20, 1989

RICHARD THOMPSON, Plaintiff,
v.
JOHNSON & JOHNSON MANAGEMENT INFORMATION CENTER, Defendant



The opinion of the court was delivered by: FISHER

 The plaintiff, Richard Thompson, alleges that he was wrongfully discharged in violation of various civil rights statutes, including 42 U.S.C. § 1981. The defendant, Johnson & Johnson Management Information Center, is presently before the court seeking judgment on the pleadings with respect to plaintiff's claims under Section 1981. For the reasons set forth below, defendant's motion is granted.

 In essence, the sole issue before the court is whether the Supreme Court's recent decision in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S. Ct. 2363, 105 L. Ed. 2d 132 (1989) should be applied in this case. The plaintiff concedes that the defendant is entitled to judgment if Patterson governs; however, he argues that the court should not apply Patterson retroactively.

 Against this background the Court held that the right to make an employment contract

 
extends only to the formation of [the] contract, but not to problems that may arise later from conditions of continuing employment. . . . The right to make contracts does not extend, as a matter of logic or semantics, to conduct by the employer after his contract relation has been established, including breaches of terms of the contract or imposition of discriminatory working conditions.

 Id. 109 S. Ct. at 2372-73. Therefore, allegations of discriminatory termination of an employment contract are not protected under § 1981. Such post-formation conduct concerns the performance of contractual obligations and does not involve the making of the contract. Id. at 2373.

 The plaintiff agrees that defendant's conduct, although reprehensible if true, is not actionable under § 1981 insofar as it does not involve discrimination in the making or enforcement of plaintiff's employment contract. The plaintiff argues, however, that the Patterson decision should not be applied retroactively.

 Generally, cases are decided "in accordance with the law existing at the time of decision." Goodman v. Lukens Steel, 482 U.S. 656, 662, 96 L. Ed. 2d 572, 107 S. Ct. 2617 (1987). Therefore, decisions of the Supreme Court are usually applied retroactively; however, the Court, in Chevron Oil v. Huson, 404 U.S. 97, 30 L. Ed. 2d 296, 92 S. Ct. 349 (1971), set out three qualifications for limiting a decision to prospective application:

 
(1) The holding must establish a new principle of law, either by overruling clear past precedent on which litigants have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed;
 
(2) The merits and demerits in each case must be weighed by looking to the history of the rule in dispute, its purpose and effect, and whether retrospective operation will further or retard the rule's operation;
 
(3) Retrospective application must create the risk of producing substantially inequitable results.

 Hill v. Equitable Trust Co., 851 F.2d 691, 696 (3d Cir. 1988), cert. denied sub nom Data Controls North, Inc. v. Equitable Bank Nat'l Assoc., 488 U.S. 1008, 109 S. Ct. 791, 102 L. Ed. 2d 782 (1989); Chevron, 404 U.S. at 106-07.

 The first factor to consider is whether Patterson establishes a new principle of law. In this regard it is necessary to examine whether the case overrules clear past precedent. While on its face Patterson does not purport to overrule precedent, courts heretofore had recognized a cause ...


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