Unpublished Disposition, 904 F.2d 710 (9th Cir. 1983)

MEMORANDUM^* 

FACTS

Claude Rodriguez, an Hispanic American, alleges he was given discriminatory evaluations, held to a higher standard than other employees for promotion, and forced to take part in a "performance improvement program" because of his race in violation of 42 U.S.C. § 1981. The district court granted General Motors' (GM) Motion for Summary Judgment without opinion. We affirm.

Rodriguez worked in GM's Mexico City plant for several years as both a department head and an assistant superintendent. On his evaluations in the Mexico City plant Rodriguez received an "A" promotability rating. In 1983, Rodriguez transferred to the Van Nuys plant. On November 4, 1983 on his first evaluation upon transferring, Rodriguez received a "B" promotability rating, meaning he needed more training before promotion. Rodriguez argues the ratings he received at the Van Nuys plant must have been based on discriminatory reasons in light of his high ratings at the Mexico City plant.

Rodriguez discussed his rating with the Human Resource Management Committee and was informed he must prove himself at the Van Nuys plant before he would be considered for promotion. Rodriguez claims this requirement was also discriminatory because white employees did not have to prove themselves before a promotion. Rodriguez testified he knew of two incidents in which whites were promoted without prior experience at the Van Nuys plant. He also argues that after writing a letter to the company headquarters, his supervisors retaliated against him by putting him in the performance improvement plan and by unfairly evaluating him.

ANALYSIS

Federal Law declares that "All persons ... shall have the same right ... to make and enforce contracts." 42 U.S.C. § 1981. The United States Supreme Court in construing section 1981 has stated that the right to make contracts applied only when a relationship fundamentally changes and "does not extend, as a matter of either logic or semantics, to conduct by the employer after the contract relation has been established, including breach of the terms of the contract or imposition of discriminatory working conditions." Patterson v. McLean Credit Union, --- U.S. ---, 109 S.Ct 2363, 2373 (1989) (post-formation conduct is more naturally governed by state contract law and Title VII). The Court went on to state that the second right guaranteed by the statute, the right to enforce contracts, "embraces protection of a legal process, and of a right of access to legal process, that will address and resolve contract-law claims without regard to race." Id.

Rodriguez does not assert facts indicating that GM precluded him either from making a contract or from enforcing a contract. He argues that because of his race his employment reviews were biased, he was forced to prove himself before being considered for a promotion when white employees did not have such a burden, and he was put into a performance improvement plan because he brought the discriminatory acts to the attention of the corporate headquarters. He makes no assertions that he even attempted to change fundamentally his relationship with GM or that GM obstructed his right to any dispute-resolution process. These facts may indicate Rodriguez was subjected to racial harassment. The Supreme Court, however, has unambiguously determined that such a claim is not actionable under Section 1981. Patterson, 109 S. Ct. at 2363; see also Overby v. Chevron USA, Inc., 884 F.2d 470, 472-73 (9th Cir. 1989) (Patterson applied retroactively).

AFFIRMED.