Taggart v. Jefferson County Child Support Enforcement Unit

FAGG, Circuit Judge, joined by John R. GIBSON, BOWMAN, WOLLMAN, MAGILL, BEAM, and LOKEN, Circuit Judges. Doris Taggart appeals the district court’s order dismissing her claim for racially discriminatory termination brought against the Jefferson County Child Support Enforcement Unit under 42 U.S.C. § 1981. We affirm. This appeal is before the court en banc to resolve whether a claim for racially discriminatory termination under section 1981 remains actionable following the Supreme Court’s decision in Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989). Compare Hicks v. Brown Group, Inc., 902 F.2d 630, 656 (8th Cir.1990) (discriminatory discharge claims under section 1981 not barred by Patterson) with Taggart v. Jefferson County Child Support Enforcement Unit, 915 F.2d 396, 397 (8th Cir.1990) (following — 948 — Brown Group but questioning its interpretation of Patterson) (per curiam). After we agreed to consider this case en banc, the Supreme Court vacated and remanded Brown Group for further consideration in light of today’s en banc decision. Brown Group, Inc. v. Hicks, — U.S. -, 111 S.Ct. 1299, 113 L.Ed.2d 234 (1991). On the same day the Supreme Court vacated Brown Group, the Court also denied certiorari in a Seventh Circuit case, McKnight v. General Motors Corp., 908 F.2d 104 (7th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 1306, 113 L.Ed.2d 241 (1991), which holds discriminatory discharge claims are not actionable under section 1981 following Patterson. At the time this court decided Brown Group, only two circuits had considered whether Patterson precludes these claims. Courtney v. Canyon Television & Appliance Rental, Inc., 899 F.2d 845, 849 (9th Cir.1990) (holding discriminatory discharge claims not actionable under section 1981 following Patterson); Lavendar v. V & B Transmissions & Auto Repair, 897 F.2d 805, 807-08 (5th Cir.1990) (same). Since that time, however, seven other circuit courts of appeals considering the issue have concluded Patterson precludes discriminatory discharge claims under section 1981. Gersman v. Group Health Assoc., 931 F.2d 1565, 1571-72 (D.C.Cir.1991); Trujillo v. Grand Junction Regional Center, 928 F.2d 973, 976 (10th Cir.1991); Williams v. First Union Nat’l Bank, 920 F.2d 232, 233-34 (4th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2259, 114 L.Ed.2d 712 (1991); Prather v. Dayton Power & Light Co., 918 F.2d 1255, 1256-58 (6th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 2889, 115 L.Ed.2d 1054 (1991); Thompkins v. DeKalb County Hosp. Auth., 916 F.2d 600, 601 (11th Cir.1990) (per curiam); Gonzalez v. Home Ins. Co., 909 F.2d 716, 722 (2d Cir.1990); McKnight v. General Motors Corp., 908 F.2d 104, 108-09 (7th Cir.1990), cert. denied, — U.S.-, 111 S.Ct. 1306, 113 L.Ed.2d 241 (1991); see also Brown Group, 902 F.2d at 656-57 (Fagg, J., dissenting). We find the reasoning of these authorities persuasive. We thus conclude Patterson bars discriminatory discharge claims under section 1981. A final point. The circuit and district court cases relied on by the dissent have been superseded by the controlling circuit authority cited above. Contrary to Judge McMillian’s reasoned opinion in Brown Group, the circuit courts of appeals have unanimously held Patterson forecloses discriminatory discharge claims under section 1981. If the Patterson precedent is to be revisited, it is the prerogative of the Supreme Court to do so, not the courts of appeals. Accordingly, we affirm the district court.