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Hayes v. Community General Osteopathic Hospital and Bert McBrayer

argued: May 7, 1991.

TALMADGE W. HAYES, APPELLANT
v.
COMMUNITY GENERAL OSTEOPATHIC HOSPITAL AND BERT MCBRAYER, APPELLEES



On Appeal from the United States District Court for the Middle District of Pennsylvania; D.C. Civil Action No. 89-1600.

Mansmann and Nygaard, Circuit Judges, and Roney, Senior Circuit Judge.*fn*

Author: Nygaard

Opinion OF THE COURT

NYGAARD, Circuit Judge

The primary issue in this appeal is whether 42 U.S.C. § 1981 provides a cause of action for a racially motivated discharge. The district court held that racially motivated employment termination claims are not actionable under 42 U.S.C. § 1981, 730 F. Supp. 1333, and that Hayes was fired for non-discriminatory reasons. We will affirm.

I.

FACTS AND PROCEDURE

Appellant Talmadge W. Hayes was employed by the Community General Osteopathic Hospital in Harrisburg, Pennsylvania for more than nineteen years before being discharged on May 16, 1988. Hayes worked as a Purchasing Manager and was the Hospital's only black management level employee.

In November of 1986, Hayes' supervisor, Bert McBrayer, reprimanded Hayes for smelling of alcohol. A few weeks later McBrayer gave Hayes written notice that again "the odor of alcohol was present about [his] person." The notice warned Hayes that he could be suspended or terminated if he smelled of alcohol again. In January of 1988, McBrayer issued another warning marked "final notice" to Hayes regarding his "problem with alcohol."

On the morning of April 25, 1988, Hayes called his secretary to say he was experiencing car trouble near Philadelphia, would not be able to make it to work, and, therefore, would take the day off as a personal day. Hayes' secretary had Hayes speak to McBrayer. Hayes told McBrayer that his car had been towed and he was awaiting repairs, and agreed to try to make it to work later in the day. Nevertheless, Hayes remained absent.

When Hayes arrived at work the next day, McBrayer immediately questioned him about the car trouble. Hayes reiterated what he said the day before on the phone: his car had been towed and repaired near Philadelphia. McBrayer demanded towing and repair receipts. Hayes then modified his original story, explaining instead that a relative had repaired his car. When Hayes refused to verify this new story, McBrayer gave Hayes one hour to submit his resignation, or else be fired. Hayes resigned.

Later, the Hospital's President allowed Hayes to rescind his resignation in order to grieve his termination through the Hospital's internal grievance procedure. Hayes did not succeed in his grievance hearing, and the Hospital's President converted Hayes' resignation into a formal discharge. At trial, the Hospital President testified that he formally discharged Hayes because he had lied to McBrayer about why he took the day off. A Hospital Vice President testified that Hayes admitted that he had lied to his supervisor about why he took the day off. The Hospital admits that Hayes' job performance was "reasonable" and "acceptable" until his termination.

Hayes filed a complaint in the district court against McBrayer and the Hospital, alleging his termination was racially motivated in violation of both Title VII, 42 U.S.C. § 2000e et seq. (Count I), and 42 U.S.C. § 1981 (Count II). In Count II, Hayes also alleged that he was denied access to the same full and fair internal grievance procedure the Hospital affords white employees who challenge discharge.

Before discovery, the district court granted the Hospital's Fed. R. Civ. P. 12(c), motion to dismiss that portion of Count II of Hayes' complaint which alleged his right to enter into a contract had been violated by his racially motivated discharge. The district court held that Patterson v. McLean Credit Union, 491 U.S. 164, ...


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