reasoning that Patterson "leaves no doubt that the Court considered the employee’s [at-will] relationship with her employer to be a contractual one for purposes of § 1981." (citing Fadeyi v. Planned Parenthood Ass’n. of Lubbock, Inc., 160 F.3d 1048, 1050 (5th Cir.1998))
How later courts described this case
- reasoning that Patterson "leaves no doubt that the Court considered the employee’s [at-will] relationship with her employer to be a contractual one for purposes of § 1981." (citing Fadeyi v. Planned Parenthood Ass’n. of Lubbock, Inc., 160 F.3d 1048, 1050 (5th Cir.1998))
- taking “a broad view of the concept of clearly established law” that “look[s] to all available decisional law, in‐ cluding decisions from other courts, federal and state, when there is no binding precedent in this circuit” (internal quotation marks omitted)
- taking "a broad view of the concept of clearly established law” that "look[s] to all available decisional law, including decisions from other courts, federal and state, when there is no binding precedent in this circuit” (internal t quotation marks omitted)
- concluding that it is “clearly established” that Section 1981 permits at-will employees to file a claim for employment discrimination
Written by the judges who cited it.
The opinion
BYE, Circuit Judge,
dissenting.
The court deduces “clearly established” law from a Supreme Court decision overruled by Congress, four evenly-divided circuit court decisions, and fifteen district court decisions against four. The court’s approach (and its nose count) conflict with earlier cases in our circuit, and I can only wonder what the government and municipal lawyers practicing in our circuit will take from this case.
The court’s reliance on Patterson v. McLean Credit Union, 491 U.S. 164 , 109 S.Ct. 2363 , 105 L.Ed.2d 132 (1989), is deeply troubling since the decision was overruled by Congress in the Civil Rights Act of 1991, Pub.L. No. 102-166, § 101 , 105 Stat. 1071 , 1071-72. I cannot fathom how a decision that is no longer “good” law can be “clearly established” law. The court’s reliance on federal appellate authority is equally problematic, since a split of circuit authority (as we have in this case) presents nearly irrefutable evidence the law is not clearly established. See McMorrow v. Little, 109 F.3d 432, 435 (8th Cir.1997); Murphy v. Dowd, 975 F.2d 435, 437 (8th Cir.1992) (per curiam). Finally, the court calculates a 15-4 split of district court authority favoring its position. To my mind, this nose count demonstrates the law was unsettled, particularly when these decisions reflect a split within our own circuit. Compare, e.g., Filbern v. Habitat for Humanity, Inc., 57 F.Supp.2d 833, 835-36 (W.D.Mo.1999) (employees-at-will may bring § 1981 claims), with Jones v. Becker *760 Group, 38 F.Supp.2d 793, 796-97 (E.D.Mo.1999) (employees-at-will may not bring § 1981 claims).
The court’s approach has the added vice of conflicting with prior decisions, such as Offet v. Solem, 936 F.2d 363 (8th Cir.1991), where we debated whether South Dakota’s application of a good-time credits law to prisoners constituted a clearly established violation of the Ex Post Facto Clause. Canvassing relevant authority, we found three circuit court decisions and two district court opinions favoring the prisoner’s approach. But we also identified a single opinion from the California Supreme Court disagreeing with the array of federal authority. This underwhelming split of authority led our court to conclude the law was not clearly established. Id. at 366-67 . The court does not even attempt to reconcile its approach with Offet , and I am similarly unable to square them.
I cannot agree with the court that the array of divergent authority it has uncovered yields “clearly established” law. I respectfully dissent.