Opinion
No. 89-6079.
August 20, 1990.
David T. Lopez, Houston, Tex., for plaintiff-appellant.
Bracewell Patterson, Houston, Tex., Kerry E. Notestine, Diana Francis, Brian Allen Schaffer, Washington, D.C., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Texas.
Before GARZA, HIGGINBOTHAM, and DUHE, Circuit Judges.
Doreen Reeves, a black woman, appeals the district court's dismissal on the pleadings of her 42 U.S.C. § 1981 suit filed against her employer, MCI Telecommunications Corporation. She also appeals the district court's denial of her motion to amend her complaint. The district court entered final judgment for MCI while Reeves' motion to amend was pending, implicitly denying her motion to amend. See Addington v. Farmer's Elevator Mutual Ins. Co., 650 F.2d 663, 666 (5th Cir.), cert. denied, 454 U.S. 1098, 102 S.Ct. 672, 70 L.Ed.2d 640 (1981). We AFFIRM.
In Lavender v. V B Transmission Auto Repair, a panel of this court held that after Patterson v. McClean Credit Union, ___ U.S. ___, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), "[t]o state a claim under section 1981, the plaintiffs' claim must involve improper `conduct at the initial formation of the contract' or `conduct which impairs the right to enforce contract obligations through legal process.'" 897 F.2d 805, 807 (5th Cir. 1990) (quoting Patterson, 109 S.Ct. at 2374). The Court noted that under certain circumstances a claim for failure to promote may be cognizable under § 1981 if "the nature of the change in position was such that it involved the opportunity to enter into a new contract with the employer." Id. The Court concluded that discriminatory termination claims, by their nature, were not actionable after Patterson since termination occurs only after the initial formation of the contract. Id. During oral argument, counsel for Appellant cites Hicks v. Brown Group, Inc., which held that claims for discriminatory discharge are still actionable under § 1981 after Patterson. 902 F.2d 630 (8th Cir. 1990), reh'g denied, 1990 WL 43055, 1990 U.S.App. LEXIS 9543 (en banc).
But see McKnight v. General Motors Corp., 908 F.2d 104 (7th Cir. 1990); Courtney v. Canyon Television Appliance Rental, Inc., 899 F.2d 845 (9th Cir. 1990).
Reeves argues that she can state a claim under § 1981 after Patterson. We disagree. Despite her protestations to the contrary, she did not allege any impairment by MCI of her right to enforce her contract through legal process. She does not allege that MCI in any way impeded her access to the courts or any other legal process. Nor did she allege improper conduct by MCI at the formation of her contract. She did not allege a discriminatory failure to promote for she did not allege that she applied for or was denied any promotion. See Lavender, 897 F.2d at 808. Reeves strongly contends that her constructive discharge claim involves conduct at the formation of her contract. This argument, however, must fail after Lavender.
Reeves attempts to distinguish Lavender by pointing out that she was an employee at will under Texas law. She contends that as an employee at will her contract is continually being made. Thus, when she was constructively discharged she was denied a new contract within the meaning of Patterson. Although the Lavender court did not explicitly address this issue, the court implicitly decided against Reeves for under Mississippi law the plaintiffs in Lavender, like Reeves, were employees at will who could be fired for any reason or no reason at all. Id. 897 F.2d at 806 (citing Kelly v. Mississippi Valley Gas Co., 397 So.2d 874, 874-75 (Miss. 1981)).
By her motion to amend Reeves attempted to bring her complaint within Patterson and to add a Title VII claim and state law claims. Reeves' attempt to bring herself within Patterson, however, was a futile act given that she still asserted only postformation discrimination. Her attempt to assert a Title VII claim fails since there is no evidence in the record that she possessed a right to sue letter, a prerequisite to maintaining a Title VII suit. Likewise, in the absence of supporting federal claims her attempt to assert pendant state law claims fails. Consequently, the district court did not abuse its discretion in denying Reeves' motion to amend. See Carter v. Procunier, 755 F.2d 1126, 1129 (5th Cir. 1985).
For the foregoing reasons, the judgment of the district court is AFFIRMED.