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

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enjoyment of all benefits, privileges, terms, and conditions of the contractual

relationship." 42 U.S.C. § 1981(b). The statute encompasses claims based on retaliation

as well as discrimination. CBOCS W, Inc. v. Humphries, 553 U.S. 442, 128 S. Ct. 1951,

170 L. Ed. 2d 864 (2008). It requires proof of intentional discrimination; unlike actions

under Title VII, proof of disparate impact is not enough. Gen. Bldg. Contractors Ass 'n v.

Pennsylvania, 458 U.S. 375, 389,102 S. Ct. 3141, 73 L. Ed. 2d 835 (1982).

"Any claim brought under § 1981 ... must initially identify an impaired

'contractual relationship,' § 1981(b), under which the plaintiff has rights." Domino's

Pizza, Inc. v. McDonald, 546 U.S. 470, 476, 126 S. Ct. 1246, 163 L. Ed. 2d 1069 (2006).

Kadlec's second motion for summary judgment contended that Dr. Sambasivan had

failed to present evidence of any actionable impairment of a contract.

Kadlec devotes the first part of its briefing to arguing that medical staff bylaws do

not create a contract with members of the medical staff. It relies on cases from other

jurisdictions, since no reported Washington case has addressed the issue. It suggests that

we may affirm the trial court on the basis of the issue, because Dr. Sambasivan makes no

effort to argue otherwise.

No. 31858-3-111
Sambas ivan v. Kadlec Med. Ctr.

But we would not expect Dr. Sambasivan to address the contractual or

noncontractual character of the medical staff bylaws, since the bylaws are not the contract

or opportunity that he claims was impaired. He argues instead that he was injured in his

contractual rights and relations in two ways: he lost the capacity to contract to perform