United States 7th Circuit Court of Appeals Reports

HUMPHRIES v. CBOCS WEST, 05-4047 (7th Cir. 1-10-2007)
HEDRICK G. HUMPHRIES, Plaintiff-Appellant v. CBOCS WEST,
INC., Defendant-Appellee. No. 05-4047. United States
Court of Appeals, Seventh Circuit. Argued March 28, 2006.
Decided January 10, 2007.

Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division. No.
03-C-3765 — Charles P. Kocoras, Judge.

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 individual in a non-protected class
was treated more favorably. We reverse the district court’s
grant of summary judgment 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 during
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
received 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
replacement) 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, 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 thereafter,
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 discriminatory 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 demanded 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 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 actually left
the safe open.

Humphries subsequently brought claims of discrimination 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 appeal 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 cognizable 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 court because Hart,
which he contended created a change in the law in this
circuit, had not yet been issued. Although (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.[fn1]

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
present 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 appears to have created some confusion
in the district courts and has already been misapplied in
several decisions, 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 below 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 defer 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
significant civil rights legislation enacted by Congress,
and is considered the “initial blueprint of the Fourteenth
Amendment.” 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 legislative 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
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 Amendment’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 essentially 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
convey property, equally to citizens.[fn2] 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 property
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
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 “post-formation
conduct” (i.e., adverse acts, such as harassment or
retaliation, that occur after an initial contractual
relationship 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
non-profit 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 homeowner
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 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 minorities 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 “post-formation” 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); 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 “post-formation” discriminatory conduct of an
employer, 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,
several circuits — including this one —
interpreted Patterson as precluding retaliation claims
under section 1981 because such employer behaviors
purportedly involved now-unprotected post-formation
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 jurisprudence”); 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 aftermath 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 discriminated 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
particular note here, we did not decide whether Patterson
definitively 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.[fn3]
Specifically, Judge Cudahy observed that there was “little
parallel between harassment and retaliation. Hence, the
refusal of Patterson to countenance harassment claims under
section 1981 has only the most superficial application to
claims for retaliation.”[fn4] 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 retaliation 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
employee may be fired for complaining of discrimination,
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 foreclosing
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 discriminated 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 discharge 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
discriminatory termination would not be a violation of
§ 1981.” Id. at 117. Instead, he reasoned that the
analysis 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 discriminatory 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 Patterson 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 dissatisfied 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 (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 post-formation 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
pertaining to this subsection confirms that Congress
intended retaliation to be included under this provision.
See Andrews 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 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.” (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
“encompassed an employee’s claims for an employer’s
race-based 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 Retaliation

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.[fn5] 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 proposition that
“the Seventh Circuit has made clear that a retaliation
claim is not viable under Section 1981”); 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 discrimination
could assert claims of retaliation for complaining about
the discrimination of others.[fn6] 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.)

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