concurring in part and dissenting in part.
I concur with the majority opinion in full, except that which is listed in part III. It is my opinion that Patterson v. McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), does not permit a claim for retaliation pursuant to 42 U.S.C. § 1981 under the facts of this case. It may be that Patterson precludes any retaliatory claims under § 1981, but this court need not go that far.
First, I have much more of a problem than the majority in determining whether the plaintiffs ever alleged retaliatory discharge in either their first or amended complaints. However, for purposes of this analysis, I will assume that they did.
The majority relies upon the decisions in 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); and Von Zuckerstein v. Argonne Nat’l Lab., 760 F.Supp. 1310 (N.D.Ill.1991). However, McKnight did not hold that § 1981 allows a claim for retaliation. Instead, it assumed that it was so actionable “provided that the retaliation had a racial motivation.” McKnight, 908 F.2d at 111. Then, the court went on to find that the plaintiff in that case “might be guilty of violating section 1981.” Id. at 112 (emphasis added). It further stated that the question need not be pursued, “because General Motors did not interfere with contractual entitlements.” Id.
Moreover, the court in Von Zuckerstein held at 1319 that the plaintiffs in that case would have to establish “that they sought to use the internal grievance procedure to vindicate their contractual right to be free from discrimination.” That is unlike the present case, which apparently does not have an antidiscrimination provision in the collective bargaining agreement.
Instead, I would follow the decision in Carter v. South Cent. Bell, 912 F.2d 832, 840 (5th Cir.1990), cert. denied, — U.S. -, 111 S.Ct. 2916, 115 L.Ed.2d 1079 (1991), which held that § 1981 no longer extends to retaliatory termination. Although that case is somewhat different from this one, in that the plaintiff asserted that he was retaliated against because of filing a charge with the EEOC, which was a statutory right, not a contractual right, nevertheless, the court stated:
Were we to hold that section 1981 still encompasses retaliatory discharge, we would be encouraging litigation to determine what the employer’s subjective motive was when he fired the employee: was it to retaliate or “merely” to discriminate? This would be pointless. Both motives are equally invidious, and the employee suffers the same harm. Because section 1981 no longer covers retaliatory termination, all suits for discriminatory dismissal must be brought under Title VII.
Id. at 840-841. Accord Overby v. Chevron USA, Inc., 884 F.2d 470, 472-473 (9th Cir.1989), cited with approval in Hull v. Cuyahoga Valley Joint Vocational School Dist. Bd. of Educ., 926 F.2d 505, 509 (6th Cir.), *498cert. denied, — U.S.-, 111 S.Ct. 2917, 115 L.Ed.2d 1080 (1991), for the proposition that retaliatory discharge claim is conduct not cognizable under § 1981.
Moreover, this court has, by unpublished decisions, followed that rule from Carter. Although they have no precedential value, see Sixth Cir.R. 24(c), they were cited by Roadway Express in its brief. I am not inclined to completely ignore opinions of other judges on this court, even if they are not binding. In Christian v. Beacon Journal Publishing Co., No. 89-3822, 1990 WL 98844, 1990 U.S.App. LEXIS 12080 (6th Cir. July 17, 1990) [908 F.2d 972 (table) ] (unreported), the court held that claims of retaliatory discharge may not be brought pursuant to § 1981 under Patterson, citing Singleton v. Kellogg Co., No. 89-1073, 1989 WL 143565, 1989 U.S.App. LEXIS 17920 (6th Cir. Nov. 29, 1989) [890 F.2d 417 (table) ] (per curiam) (unreported). See also Bohanan v. United Parcel Serv., No. 90-3155, 1990 WL 177208, 1990 U.S.App. LEXIS 20154 (6th Cir. Nov. 14, 1990) [918 F.2d 178 (table) ] (unreported) (Wellford, J., concurring). Therefore, I would affirm the district court in all respects.