Wash. Court of Appeals published opinion — 318583.pub.pdf

evidence of Kadlec's bylaws and practice is sufficient to create a jury question as to

whether he would have continued to be offered call coverage contracts had the board's

action not rendered him ineligible for interventional cardiology privileges.

The remaining rationale of Jimenez, simply stated, appears to be this: if a

defendant's intentionally discriminatory action against a plaintiff is not itself a breach of

contract, then any other contract rights or opportunities that it impairs are not actionable

under § 1981. This is wrong under both the plain language of § 1981 and clear

precedent. Jimenez takes four facts, some bearing on contractual duty and others bearing

on tortious discrimination, and treats the wrong ones as dispositive. Four facts that

Jimenez, this case, and a number of other § 1981 cases have in common are that:

The defendant took an action that adversely affected the plaintiff,

The action was motivated by racial animus,

The plaintiff has no contractual basis for challenging the defendant's action, and

The defendant's action impaired the plaintiffs right and ability to enter into other

contracts.

Jimenez treats the first and third facts-the defendant took an action adversely affecting

the plaintiff that the plaintiff has no contractual basis for challenging-as dispositive of

the § 1981 claim. But the third fact is irrelevant to a § 1981 claim. Section 1981

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No. 3 1858-3-III
Sam bas ivan v. Kadlec Med. Ctr.

provides a remedy for intentional discrimination that produces contractual impairment

whether or not the defendant breaches a contract in the process.

Historical examples are illustrative. Sullivan v. Little Hunting Park, Inc., 396 U.S.