Patterson v. McLean Credit Union Brief of Plaintiff-Appellant

    UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

92-1376

BRENDA PATTERSON,

Plaintiff-Appellant,

v.

McLEAN CREDIT UNION,

Defendant-Appellee.

BRIEF OF PLAINTIFF-APPELLANT

HAROLD LILLARD KENNEDY, III 
HARVEY LEROY KENNEDY, SR. 

Kennedy, Kennedy, Kennedy 
&. Kennedy

710 First Union Building 
Winston-Salem, North Carolina 27101 
(919) 724-9207

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON 
ERIC SCHNAPPER 
JUDITH REED 

NAACP Legal Defense and 
Educational Fund, Inc.

16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Counsel for Plaintiff-Appellant



TABLE OF CONTENTS

STATEMENT OF JU RISD ICTIO N ................................................................................................. 1

ISSUES PRESENTED FOR R EV IEW ............................................................................................  1

STANDARD OF R E V IE W .................: ...........................................................................................  2

STATEMENT OF THE C A SE ..........................................................................................................  2

STATEMENT OF THE FA C TS........................................................................................................ 7

SUMMARY OF ARGUMENT .....................................................................................................  11

I. THE CIVIL RIGHTS ACT OF 1991 REQUIRES REVERSAL OF THE
DISTRICT COURTS DECISION DISMISSING PLAINTIFFS’ SECTION 1981 
CLAIMS UNDER PATTERSON V. MCLEAN CREDIT UNION ...............................  12

A. The Plain Language of the Civil Rights Act of 1991 Supports
its Application to a Pending Ca s e ................................................................  13

1. Statutory Language Providing That The Civil Rights Act of 1991 
"Shall Take Effect Upon Enactment" Authorizes Its Application
H e re ............................................................................................................... 14

2. Two Statutory Exceptions to the Rule of Immediate Effect 
Underscore the Statute’s Applicability to Pre-Existing
Claims ..........................................................................................................  14

(a) The Section 402(b) Exception for the Pending Case against
Wards Cove Packing Company ....................................................... 15

(b) The Section 109(c) Exception for 
Pre-Existing Claims By Americans
Abroad ................................................................................................. 16

B. Recent Action of the United States Supreme Court Suggests
Section 101 of the Act Should Apply .........................................................  18

II. THE RELEVANT LEGAL PRESUMPTION REQUIRES APPLICATION OF
THE 1991 CIVIL RIGHTS ACT TO THIS C A S E ........................................................  19

A. Adherence to Bradley v. Richmond School Board in this Circuit . .  19

B. Operation of Bradley in This Case .............................................................. 27

1. Neither the Language Nor the Legislative History 
of the Act Precludes Its Application to Pending



C a s e s .......................................................... 7..............................................  27

2. Application of the Act Here Would Not Create Manifest Injustice . . 30

(a) Nature and Identity of the Parties ...................................................31

(b) Nature of the Rights at S tak e ............................................................ 32

(c) Impact of the Change in L a w ............................................................ 32

III. APPLICATION OF SECTION 101 OF THE 1991 CIVIL RIGHTS ACT IS
PARTICULARLY APPROPRIATE HERE BECAUSE IT RESTORES THE 
LAW THAT WAS IN EFFECT AT THE TIME OF THE CHALLENGED 
CONDUCT .......................................................................................................................... 33

A. Section 101 Does Not Impose Unanticipated Obligations on
McLean ................................................................................................................  33

B. Courts Have Generally Applied Restorative Legislation to
Pending Claim s .....................................................................................................  35

C. Failure to Apply Section 101 Would Create Unnecessary
Inequities and Doctrinal Confusion ...........................................................  36

IV. PATTERSON V. MCLEAN CREDIT UNION SHOULD NOT BE APPUED
RETROACTIVELY AFTER CONGRESS HAS EXPRESSLY REJECTED IT . . . 37

V. THE DISTRICT COURT IMPROPERLY USURPED THE ROLE OF THE
JURY BY MAKING FACTUAL FINDINGS ................................................................ 41

A. This Court’s Recent Interpretations of the "New and D istinct
Relation" Standard Require Careful Assessment of Numerous 
Factors ...............................................................................................   41

B. The District Court Disregarded Proper Summary Judgment
Sta n d a r d s ..............................................................................................................  42

CONCLUSION .................................................................................................................................  46

ii



TABLE OF AUTHORITIES

Cases: Pages:

Adams v. Brinegar, 521 F.2d 129 (7th Cir. 1975 )....................................................................  23, 25

Albemarle Paper Co. v. Moody,
422 U.S. 405 (1975) ............................................................................................................................  31

Allen v. United States,
542 F.2d 176 (3rd Cir. 1976)............................................................................................................... 23

Alphin v. Henson, 552 F.2d 1033 (4th Cir. 1 9 7 4 )............................................................................ 19

Amen v. City of Dearborn,
718 F.2d 789 (6th Cir. 1983 )............................................................................................................... 40

American Tobacco Co. v. Patterson,
456 U.S. 63 (1 9 8 2 )...............................................................................................................................  28

Anderson v. Liberty Lobby,
477 U.S. 202 (1986) ................................................................................................................. 1, 12, 45

Ayers v. Allain, 893 F.2d 732 (5th Cir. 1990), vacated on other grounds,
914 F.2d 676 (5th Cir. 1990) (en banc), cert, granted,
111 S. Ct. 1579 (1991) (sam e)............................................................................................................ 36

Ballog v. Knight Newspapers,
381 Mich. 527, 164 N.W.2d 19 (1969) ....................................................................................... .. 24

Bennett v. New Jersey, 470 U.S. 632 (1985).............................................................................. 21, 26

Bibbs v. Jim Lynch Cadillac, Inc.,
653 F.2d 316 (8th Cir. 1981)..................................................................................  42

Blanchard v. Bergeron, 489 U.S. 87 (1989) .....................................................................................  28

Boddie v. American Broadcasting Co., Inc., 881 F.2d 267
(6th Cir. 1989), cert, denied, 493 U.S. 1028 (1990).........................................................................  26

Bonner v. Arizona Dept, of Corrections,
714 F. Supp. 420 (D. Ariz. 1989)........................................................................................................ 36

Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988)..................... '.................... passim

Bradley v. Richmond School Board, 414 U.S. 696 (1 9 7 4 )...................................................... passim

Brown v. General Services Administration, 425 U.S. 820 (1976)........................................... 22, 23

iii



Bush v. State Industries, Inc.,
599 F.2d 780 (6th Cir. 1979)..............................................................................................................  24

C.E.K. Indus. Mechanical Contractors v. N.L.R.B.,
921 F.2d. 350 (1st Cir. 1990)..............................................................................................................  26

Campbell v. U.S., 809 F.2d. 563 (9th Cir. 1987).............................................................................  26

Charbonnages De France v. Smith, 597 F.2d 406 (4th Cir. 1979) ...............................................  44

Chevron Oil Co. v. Huson, 404 U.S. 97 (1971).........................................................................passim

Colautti v. Franklin, 439 U.S. 379 (1979).........................................................................................  17

Continental Casualty Co. v. DHL Services, 752 F.2d 353 (8th Cir. 1985) .................................  44

Cooper Stevedoring of Louisiana, Inc. v. Washington,
556 F.2d 268 (5th Cir.), reh’g denied, 560 F.2d 1023 (1977).................................................... 20, 24

Davis v. Michigan Dept, of Treasury,
489 U.S. 803 (1989) ............................................................................................................................  15

Davis v. Valley Distributing Co., 522 F.2d 827
(9th Cir. 1975), cert, denied, 429 U.S. 1090 (1975) ......................................................................... 24

Delaware State College v. Ricks, 449 U.S. 250 (1980) ...............................................................  12

DeVargas v. Mason & Hangar-Silas Mason, 911 F.2d 1377
(10th 1990), cert, denied. 111 S. Ct. 799 (1 9 9 1 ).............................................................................  36

Director, Office of Workers’ Compensation Programs,
U.S. Dept, of Labor v. Goudy, 777 F.2d 1122 (6th Cir. 1985)......................................................  17

Eastland v. Tennessee Valley Authority,
553 F.2d 364 (5th Cir. 1977)..............................................................................................................  23

Edwards v. Boeing Vertol Co., 717 F.2d 761 (3rd Cir. 1983),
vacated on other grounds, 468 U.S. 1201 (1984) .............................................................................  42

EEOC v. Arabian American Oil Co. &. Aramco Serv. Co.,
499 U .S .__ , 111 S. Ct. 1227 (1991)................................................................................................... 13

Ettinger v. Johnson, 518 F.2d 648 (3rd Cir. 1975) ......................................................................... 23

Bunch v. United States,
548 F.2d 336 (9th Cir. 1977)..............................................................................................................  23

IV



Ferrero v. Associated Materials Inc.,
923 F.2d 1441 (11th Cir. 1991) .......................................................................................................... 21

Fox v. Parker, 626 F.2d 351 (4th Cir. 1980).....................................................................................  20

Fray v. Omaha World Herald Co.,
58 FEP Cases 786 (8th Cir. 1992 )..................................................................................  18, 19, 29, 30

French v. Grove Mfg. Co., 656 F.2d 295 (8th Cir. 1 9 8 1 )............................................................. 24

Friel v. Cessna Aircraft Co.,
751 F.2d 1037 (9th Cir. 1 9 8 5 ).....................................................................................................  21, 24

Gaines v. Doughtery County Bd. of Education,
775 F.2d 1565 (11th Cir. 1985) ..........................................................................................................  40

Garment Dist., Inc. v. Belk Stores Services, Inc.,
799 F.2d 905 (4th Cir. 1986 )............................................................................................................... 45

Gersman v. Group Health Ass’n., 60 U.S.L.W. 3519,
112 S.Ct. 960 (Jan. 27, 1992).......................................................................................................  18, 19

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987)................................................................ 12, 35

Graham v. Bodine Electric Co., 57 FEP Cases
1428, (M.D. 111. Jan. 23, 1991).....................................................................................................  17, 34

Grove City College v. Bell, 465 U.S. 555 (1984)..............................................................................  35

Hallowell v. Commons, 239 U.S. 506 (1916) ................................................................................... 23

Harper-Grace Hospitals v. Schweicker,
691 F.2d 808 (6th Cir. 1982 )............................................................................................................... 14

Harrison v. Associates Corp. of North America,
917 F.2d 195 (5th Cir. 1990 )............................................................................................................... 41

Hastings v. Earth Satellite Corp., 628 F.2d 85 (D.C. Cir.),
cert, denied, 449 U.S. 905 (1 9 8 0 )................................................................................................. 21, 24

Holland v. First America Banks, 60 U.S.L.W. 3577,
112 S.Ct. 1152 (Feb. 24, 1992) ...................................................................................................  18,19

Huntley v. Department of Health, Education and Welfare,
550 F.2d 290 (5th Cir.), cert, denied, 434 U.S. 985 (1977).............................................................. 23

Federal Deposit Ins. Corp. v. Wright, 942 F.2d 1089 (7th Cir. 1991)...........................................26

v



Hyatt v. Heckler, 757 F.2d 1455 (4th Cir. 1985)..........................  7 ...............................................  20

In the Matter of Reynolds, 726 F.2d 1420 (9th Cir. 1984) ...........................................................  14

James B. Beam Distilling Co. v. Georgia, 111 S. Ct. 2439 (1991) ........................................ passim

Johnson v. Railway Express Agency, 421 U.S. 454 (1975)......................................................  12, 26

Jones v. Alfred Mayer Co., 392 U.S. 409 (1968).............................................................................. 31

Kaiser Aluminum & Chemical Corp. v. Bonjorno,
494 U.S. 827 (1990) ..................................................................................................................... passim

Kim v. Coppin State College,
662 F.2d 1055 (4th Cir. 1 9 8 1 )............................................................................................................42

Koger v. Ball, 497 F.2d 702 (4th Cir. 1 9 7 4 )..............................................................................passim

Kungys v. U.S., 485 U.S. 759 (1988) ................................................................................................  17

Lahti v. Fosterling, 357 Mich. 578,
99 N.W.2d 490 (1959)..........................................................................................................................  24

Lavespere v. Niagara Mach. & Tool Works, Inc., 910 F.2d 167 (5th Cir.),
reh’g denied, 920 F.2d 259 (5th Cir. 1990) .......................................................................................  25

Leake v. Long Island Jewish Medical Center, 695 F. Supp. 1414
(S.D.N.Y. 1988), affd, 869 F.2d 130 (2d Cir. 1989) (per curiam )..................................................36

Leland v. Federal Insurance Administrator,
934 F.2d 524 (4th Cir. 1 9 8 9 ).................................................................................................. ...........  25

Lussier v. Dugger, 904 F.2d 661 (11th Cir. 1990)...........................................................................  36

Lust v. Clark Equipment Co., Inc., 792 F.2d 436 (4th Cir. 1986).................................................. 45

Lvtle v. Comm’rs of Election of Union County,
541 F.2d 421 (4th Cir. 1976 )......................................................................................... ..................... 19

Lytle v. Household Manufacturing Co., U. S. (1 9 9 0 )................................................................ 42

Mackey v. Lanier Collections Agency & Serv., Inc., 486 U.S. 825 (1988)...................................  19

Mahroom v. Hook, 563 F.2d 1369 (9th Cir. 1977),
cert, denied, 436 U.S. 904 (1 9 7 8 ).......................................................................................................  23

Malhotra v. Cotter Co., 885 F.2d 1305 (7th Cir. 1989 )..................................................................  37

vi



Mallory v. Booth Refrigeration Supply Co. Inc.,
882 F.2d 908 (4th Cir. 1 9 8 9 )............................................................................................................... 41

Marshall v. Sink, 614 F.2d 37 (4th Cir. 1980)..................................................................................  20

Matsushita Elec. Co. v. Zenith Radio,
475 U.S. 574 (1986) ............................................................................................................................  43

McDonald v. Santa Fe Trail Transportation Co.,
427 U.S. 273 (1976) ...................................................................................................................... 12

Mobile v. Bolden, 446 U.S. 55 (1980) ..............................................................................................  36

Mojica v. Gannett, 779 F. Supp. 94 (N.D. 111. 1 9 9 1 ).......................................................................27

Mozee v. American Commercial Marine Serv. Co.,
1992 U.S. App. LEXIS 9857 (7th Cir. May 7, 1991)................................................................ 18, 27

Mrs. W. v. Tirozzi, 832 F.2d 748 (2d Cir. 1987)..............................................................................  36

New England Power Co. v. United States,
693 F.2d 239 (1st Cir. 1982) ............................................................................................................... 24

Nilson Van & Storage v. Marsh, 755 F.2d 362 (4th Cir. 1985) ....................................................  20

Occidental Chemical v. Int’l Chem. Wrkrs. Union,
853 F.2d 1310 (6th Cir. 1 9 8 8 )............................................................................................................  35

Dale Baker Oldsmobile, Inc. v. Fiat Motors of N. America,
794 F.2d 213 (6th Cir. 1986 )............................................................................................................... 24

Overseas African Construction Corp. v. McMullen,
500 F.2d 1291 (2d Cir. 1974)............................................................................................................... 25

Patterson v. McLean Credit Union, 491 U.S. 164 (1989) ................................................ passim

Patterson v. McLean Credit Union, 729 F. Supp. 35 (M.D.N.C. 1990) .....................................4

Patterson v. McLean Credit Union, 805 F.2d 1143 (4th Cir. 1986) ............................................3

Patterson v. McLean, 783 F.Supp. 268 (M.D.N.C. 1992) .........................................................passim

Place v. Weinberger, 497 F.2d 412 (6th Cir. 1974),
vacated 426 U.S. 932 (1976) ............................................................................................................... 23

Regan v. Wald, 468 U.S. 222 (1984) ................................................................................................. 28

Revis v. Laird, 627 F.2d 982 (9th Cir. 1980) ................................................................................... 23



Rodriguez v. General Motors, 1990 U.S.App.
LEXIS 8928 (9th Cir, June 6, 1990) ................................................................................................  42

Rooldedge v. Garwood, 340 Mich. 444,
65 N.W.2d 785 (1954).......................................................................................................................... 24

Rountree v. Fairfax County School Board,
933 F.2d 219 (4th Cir. 1991).......................................................................................................  41, 43

Russello v. United States, 464 U.S. 16 (1983) ................................................................................  16

Saltarikos v. Charter Mfg. Co., Inc.,
57 F.E.P. Cases 1225 (E.D. Wise. 1992) .........................................................................................  34

Samuelson v. Susen,
576 F.2d 546 (3d Cir. 1978) ..............................................................................................................  24

Smith v. Robinson, 468 U.S. 992 (1984)...........................................................................................  36

Sperling v. United States, 515 F.2d 465 (3d Cir.),
cert, denied, 426 U.S. 919 (1975).......................................................................................................  23

St. Francis College v. A1 Khazraji, 481 U.S. 604 (1987) ................................................................ 12

Stender v. Lucky Stores, 780 F. Supp.
1302, 1303 (N.D. Cal. 1992) ..................................................................................................  13, 17, 34

Thompson v. Sawyer, 678 F.2d 257 (D.C. Cir. 1982) .............................................................  22, 24

Thorpe v. Housing Authority of Durham,
393 U.S. 268 (1969) ..................................................................................................................... 19, 20

Tyler Business Services, Inc. v. N.L.R.B.,
695 F.2d 73 (4th Cir. 1982)................................................................................................................  20

United States v. Commonwealth of Virginia,
620 F.2d 1018 (4th Cir. 1980) ............................................................................................................ 20

United States v. Holcomb,
651 F.2d 231 (4th Cir. 1981)................................................................................................ ' ............20

United States v. Kairys, 782 F.2d 1374 (7th Cir.),
cert, denied, 476 U.S. 1153 (1984) ..................................................................................................... 21

United States v. Marengo County Comm'n, 731 F.2d 1546 (11th Cir.),
cert, denied, 469 U.S. 976 (1 9 8 4 ).......................................................................................................  36

United States v. Menasche, 348 U.S. 528 (1955) ...........................................................................  17

viii



United States v. Monsanto Co.,
858 F.2d 160 (4th Cir. 1988)............................................................................................................... 20

United States v. Peppertree Apts.,
942 F.2d 1555 (11th Cir. 1991) ..........................................................................................................26

United States v. Schooner Peggy,
1 Cranch 103, 2 L.Ed 49 (1801) ...................................................................................................... 19

United States v. State of North Carolina,
587 F.2d 625 (4th Cir. 1978 )..............................................................................................................  20

Vogel v. Cinncinnati, 58 FEP Cases
402 (6th Cir. 1992)............................................................................................................................... 18

Wade v. Orange County Sheriffs Office,
844 F.2d 951 (2nd Cir. 1988)............................................................................................................... 42

Wards Cove Packing Company v. Atonio,
490 U.S. 642 (1989) ............................................................................................................................  15

Watkins v. Bessemer State Technical College,
1992 U.S.Dist.LEXIS 1296
(N.D. Ala. February 6, 1992) ............................................................................................................  18

Weahkee v. Powell, 532 F.2d 727 (10th Cir. 1 9 7 6 ).........................................................................  23

Wheeler v. Durham City Bd. of Education,
585 F.2d 618 (4th Cir. 1978 )............................................................................................................ . 19

White v. Federal Express, Corp.,
939 F.2d 157 (4th Cir. 1991 ).............................................................................................................. 41

Womack v. Lynn, 504 F.2d 267 (D.C. Cir. 1974)............................................... ..................... 22, 23

Wright v. Director Federal Emergency Management Agency,
913 F.2d 1566 (11th Cir. 1990) ..........................................................................................................  25

Statutes: Pages:

28 U.S.C. § 1291 ...................................................................................................................................... 1

42 U.S.C. § 1981 ............................................................................................................................ passim

42 U.S.C. § 2000e.................................................................................................................................... 12

Civil Rights Act of 1991 ................................................................................................................ passim

ix



Civil Rights Act of 1991, section 1 0 1 ............................................ ' .........................................passim

Civil Rights Act of 1991, section 1 0 9 ......................................................................................... passim

Civil Rights Act of 1991, subsection 402 .................................................................................. passim

Title VII of Civil Rights Act of 1964, as amended 1972 .........................................................passim

Other Authorities: Pages:

136 Cong. Rec. S9331 (daily ed. July 10, 1990) .............................................................................  33

136 Cong. Rec. S15329 (daily ed. Oct. 16, 1990) ...........................................................................  33

136 Cong. Rec. S16465 (daily ed. Oct. 24, 1990) ...........................................................................  34

136 Cong. Rec. S16571 (daily ed. Oct. 24, 1990) ...........................................................................  33

137 Cong. Rec. S2261 (daily ed. Feb. 22, 1 9 9 1 ).............................................................................. 33

137 Cong. Rec. S77026 (daily ed. June 4, 1991)................................................................................ 33

137 Cong. Rec. S15500 (daily ed. Oct. 30, 1991) ...........................................................................  34

137 Cong. Rec. H9530-31 (daily ed. Nov. 7, 1 9 9 1 ).........................................................................28

137 Cong. Rec. H9549 (daily ed. Nov. 7, 1991) ................................................................................ 28

137 Cong. Rec. S15325 (daily ed. Oct. 29, 1991) ...........................................................................  28

137 Cong. Rec. S15472 (daily ed. Oct. 30, 1991) ...........................................................................  29

137 Cong. Rec. S15478 (daily ed. Oct. 30, 1991) ...........................................................................  29

137 Cong. Rec. S15483-85 (daily ed. Oct. 30, 1991) ...................................................................... 28

137 Cong. Rec. S15954 (daily ed. Nov. 5, 1991)................................................................................15

H.R. Rep. 101-644, pt.2 (101st Cong., 2d Sess. 1990)...................................................................  28

Rule 56, Fed. R. Civ. P....................................................................................................................  1, 12

S.Rep. 101-315 (101st Cong. 2d Sess. 1990)....................................................................................  28

x



STATEMENT OF JURISDICTION

On February 18, 1992, the district court for the Middle District of North Carolina, 

Winston-Salem Division, entered final judgment, granting defendant’s motion for summary 

judgment and dismissing all claims in this action, with respect to all parties. This matter was 

before the district court on remand from this Court, with instructions to resolve plaintiffs 

remaining claims under 42 U.S.C. § 1981. Plaintiff filed a timely notice of appeal on March 17, 

1992. This Court has jurisdiction of this appeal pursuant to 28 U.S.C. § 1291.

ISSUES PRESENTED FOR REVIEW

This appeal presents four questions relating to the propriety of the district court’s 

decision to dismiss Brenda Patterson’s claim that McLean Credit Union discriminatorily denied 

her a promotion in violation of 42 U.S.C. § 1981:

1. Whether the district court erred in holding that the Civil Rights Act of 1991 by 

its terms does not apply to this case.

2. Whether the district court erred in holding that it is manifestly unjust under 

Bradley v. Richmond School Board, 414 U.S. 696 (1974), to apply the Civil Rights Act of 1991 to 

this case.

3. Whether the district court erred in applying the Supreme Court’s now repudiated 

decision in Patterson v. McLean Credit Union, 491 U.S. 164 (1989).

4. Whether the district court committed independent, reversible error in making its 

own factual findings, rather than simply ascertaining whether there is sufficient evidence in the 

record that the promotion would have created a "new and distinct relation" between employer 

and employee to send that issue to a jury under Rule 56, Fed. R. Civ. P. Anderson v. Liberty 

Lobby, 477 U.S. 202, 206 (1986). The district court misread and unjustifiably rejected certain 

evidence, weighed evidence, assessed credibility, and made inferences from the evidence. The



district court thus erred as a matter of law in granting summary judgment for defendant.

STANDARD OF REVIEW

The Court must review de novo both the district court’s holding that the Civil Rights Act 

of 1991 could not be applied to this case and the grant of summary judgment on the promotion 

claim.

STATEMENT OF THE CASE

Nature of the Case

Brenda Patterson appeals from the district court decision disposing of her claims in this 

case. That decision is reported at Patterson v. McLean, 784 F.Supp. 268 (M.D.N.C. 1992) and 

set forth in the Joint Appendix to this brief ("JA") at pages 14-32. She seeks reversal of the 

district court’s decision that the 1991 Act, does not apply to cases pending on the date of 

enactment. She also seeks reversal of the district court’s grant of summary judgment.

Course of Proceedings

Mrs. Patterson filed her complaint against McLean Credit Union on January 25, 1984, in 

the United States District Court for the Middle District of North Carolina, alleging that 

McLean denied her a promotion, harassed her and discharged her because she is black, all in 

violation of 42 U.S.C. § 1981.' She also alleged that she suffered intentional infliction of 

mental and emotional distress in violation of North Carolina law.

This case was tried to a jury in November 1985, but the court granted McLean’s motion 1

1 Section 1981 then stated:

All persons within the jurisdiction of the United States shall have the same right 
in every State and Territory to make and enforce contracts, to sue, be parties, 
give evidence, and to the full and equal benefit of all laws and proceedings for 
the security of persons and property as is enjoyed by white citizens, and shall be 
subject to like punishment, pains, penalties, taxes, licenses, and exactions of every 
kind, and to no other.

2



for a directed verdict on the harassment claim on the ground that racial harassment is not 

prohibited by § 1981. 3 Tr. 75 (III JA 46).2 The district court denied McLean’s motion for 

directed verdict on the remaining claims, finding that there was sufficient evidence of racial 

animus to send the promotion-denial and discharge claims to the jury. 4 Tr. 125-126 (SA 22- 

23).3 Guided by a jury charge to which plaintiff objected, the jury found for McLean on both 

the promotion-denial and the discharge claims. 5 Tr. 12-13 (3 JA 143-44).

Mrs. Patterson appealed, contending, first, that the trial court had erred in granting a 

directed verdict on the infliction of emotional distress claim and the racial harassment claim, 

and second, in incorrectly charging the jury on the promotion-denial claim. This Court

affirmed the decision of the district court. Patterson v. McLean Credit Union, 805 F.2d 1143 (4th 

Cir. 1986), holding, inter alia, that racial harassment is not prohibited by § 1981, id. at 1145.

The United States Supreme Court granted certiorari and affirmed this Court’s holding 

that § 1981 does not cover claims of racial harassment. Patterson v. McLean Credit Union, 491 

U.S. at 178 (1989). The Court held that whether a promotion claim is cognizable under § 1981, 

"depends upon whether the nature of the change in position was such that it involved the 

opportunity to enter into a new contract with the employer" rising to the level of a "new and 

distinct relation." Id. at 185. The Supreme Court did not apply the "new and distinct relation" 

standard to plaintiffs promotion claim, however, ”[b]ecause [McLean had] not argued at any 

stage that petitioner’s promotion claim is not cognizable under § 1981." Id. Finally, the 

Supreme Court reversed this Court, in part, holding that district court erroneously instructed

2 Citations in the form " _J A __ " refer to the volume of the Joint Appendix filed in first
appeal and the page at which the cited material appears. Citations to "JA __" refer to the Joint
Appendix filed in this instant appeal.

3 Citations in the form "SA___" refer to the page in the Supplemental Appendix, filed in
App. No. 90-1729, at which the cited material appears.

3



the jury on the promotion-denial claim. This Court remanded the § 1981 promotion claim to 

the district court. It instructed that "the issue of cognizability of the specific promotion-denial 

claim asserted by plaintiff should be considered an open one to be resolved in light of the 

Supreme Court’s opinion, whether on the pleadings, or on motion for summary judgment, or by 

trial, as the course of further proceedings may warrant." Id. at 485 (citations omitted).

The district court, on remand, sua sponte dismissed her promotion-denial claim without 

notifying Mrs. Patterson that the issue of the cognizability of her promotion claim was before 

the court, nor giving her an opportunity to brief the issue. The district court determined as a 

factual matter, in the absence of any jury findings, that the two positions were not sufficiently 

distinct, to satisfy the Supreme Court’s test. See Patterson v. McLean Credit Union, 729 F. Supp. 

35 (M.D.N.C. 1990) (SA 12).

In an unpublished, per curiam opinion, decided May 3, 1991, this Court held that the 

district court’s sua sponte dismissal was error, and that on remand plaintiff should be given the 

opportunity to conduct additional discovery on the promotion issue. App. No. 90-1729, slip op. 

at 7 (JA 10). This Court concluded that plaintiff should have the "opportunity . . .  by the 

normal adversarial processes of litigation" to "establish her ‘new contract’ claim." Slip op. at 8 

(JA 11). The Court held that the '"nature of the change’ between the position held by 

[Patterson] and that to which she was denied ‘promotion’ . . . was a critical threshold element" 

of the promotion claim. Slip op. at 5 (JA 8). The Court, while noting that summary judgment 

might be an "appropriate device" by which to resolve this issue, "decline[d] to engage in 

speculation on how the law . . . might be applied to the evidence." JA 12.

The Opinion Below

Almost immediately following issuance of the mandate, and before any additional 

discovery was conducted, McLean filed a motion for summary judgment on the promotion

4



claim. Dkt. Nr. 48. Defendant argued that there was no genuine issue of material fact on the 

promotion claim, because the promotion would not have involved the opportunity for plaintiff 

to enter into a new contract. After holding a status conference, the district court granted 

plaintiffs motion for additional discovery, to be completed within sixty days. Order dated June 

13, 1991, Dkt. entry Feb. 11, 1992.

After completion of discovery and following the enactment of the Civil Rights Act of 

1991 on November 21, 1991, plaintiff filed her opposition to the motion for summary judgment. 

Plaintiff argued, first, that the 1991 Act applies to her case and therefore plaintiffs promotion 

claim should be analyzed under the restored standard for determining intentional discrimination 

under section 1981. Second, plaintiff argued that the facts demonstrated that the promotion 

would have offered her the opportunity to enter into a new and distinct relation with the 

Company.

The district court held that the 1991 Act did not apply to Brenda Patterson’s case. The 

district court held that the plain language of the statute did not mandate its application and that 

the legislative history was not clear. 784 F.Supp. at 274 and n.4 (JA 20). After reviewing 

Supreme Court and Fourth Circuit precedent on the issue of retroactivity, the court concluded 

that "the current and overarching preference is to preclude such retroactive application." 783 

F.Supp. at 278 (JA 24), relying on Bowen v. Georgetown University Hospital, 488 U.S. 204 (1988), 

and Justice Scalia’s concurring opinion in Kaiser Aluminum Chemical Corp. v. Bonjomo, 494 

U.S. 827, 840-59 (1990). 784 F.Supp. at 279 (JA 25). Finally, the district court held that 

application of the 1991 CRA in this case would result in manifest injustice under Bradley v. 

Richmond School Board, 416 U.S. 696 (1974) . 784 F.Supp. at 279 (JA 25). In so holding, the 

court applied the three-pronged test announced in Bradley.* First, the court held that, although 4

4 See infra, sec. II. B.2.

5



civil rights were involved, the suit was between private parties. 784 F.Supp. at 279 (JA 25). 

Second, the court held that the rights of the parties had "matured in the sense that the law of 

this case ha[d] already been decided by the Supreme Court." Id. Thus, it would be "unfair" to 

"place new legal requirements on the parties." Id. Third, the district court held that application 

of the Act would "place new and unanticipated obligations on defendant," because section 1981 

had been interpreted as not applicable to plaintiffs case and "[defendant could not have 

anticipated that Congress . . . would change" that interpretation. Id.

Having determined that the Act does not apply, the district court went on to hold that 

defendant was entitled to summary judgment because the promotion at issue did not present an 

opportunity for plaintiff to enter into a "new and distinct relation" with her employer. 784 

F.Supp. at 284-285 (JA 30-31).

The district court determined that whether the promotion plaintiff was denied would 

have amounted to "an opportunity for a new and distinct relation" between Mrs. Patterson and 

McLean — and therefore could still be the basis for a promotion-denial claim -- depended on 

myriad factors and that the "Court should look at the changes in the employee’s situation as a 

whole and determine if all the changes, individual as well as within the employer’s organization, 

work to create a new and distinct relation between the parties." 784 F.Supp. at 284 (JA 30).

The district court then determined as a factual matter, in the absence of any jury findings, that 

the two positions were not sufficiently distinct, to satisfy the Supreme Court’s test. 784 F.Supp. 

at 285 (JA 31). The district court misread evidence on the salary differential to find that 

plaintiffs hourly rate would have increased by only $.89, 784 F.Supp. at 271 (JA 17). Despite 

evidence that both persons who held the accountant intermediate job had moved to higher 

positions, the district court discredited as "speculation" the potential for upward mobility from 

the accountant intermediate job but not from Mrs. Patterson’s clerk position. 784 F.Supp. at

6



285 (JA 31). The court rejected as "ludicrous" the notion that access to specific office 

equipment should bear on the nature of the position. 784 F.Supp. at 286 (JA 32). Finally, the 

court considered the prospect of increased overtime in the new position as "speculative," in the 

absence of a showing by plaintiff that this opportunity was specifically incident to the position. 

Id.

STATEMENT OF THE FACTS

Appellant Brenda Patterson, a black woman, was an employee of McLean Credit Union 

for 10 years. Although she had been hired as an accounting clerk, Mrs. Patterson worked as a 

file clerk and full-time teller for approximately two years, 1 Tr. 26 (1 JA 45), after which she 

principally filed and had limited part-time teller responsibilities. 1 Tr. 81 (1 JA 81). In 1976, 

after additional filing responsibilities had been imposed on her, Mrs. Patterson relinquished her 

part-time teller duties. 1 Tr. 81-82 (1 JA 81-2). Mrs. Patterson worked as file coordinator in 

the office from 1976 until the Company laid her off on July 19, 1982. 2 Tr. 7 (1 JA 125). 

McLean terminated her employment six months later. 2 Tr. 10 (1 JA 128).

Although she had expressed an interest in an accountant position, Mrs. Patterson was 

never promoted from her filing job during her ten years with the Company. 1 Tr. 23, 45 (1 JA 

42, 60). A white woman, Susan Williamson, who was hired also as an accounting clerk two 

years after Mrs. Patterson, was promoted to the position of accountant intermediate in 1982. 

Pltf. Ex. 7 (SA 25).

The formal requirements for the position of accounting clerk are listed in the district 

court opinion. 784 F.Supp. at 270 (JA 16). The duties were principally filing and some typing. 

In addition, however, to her formal duties, when Mrs. Patterson performed the position of 

accounting clerk, there were numerous unwritten duties of the job. For example, Patterson was 

required to accept assignments from employees other than her supervisor. 1 Tr. 25, 29-30. In

7



practice, Patterson’s tasks, at various times, included microfilming, photocopying, stuffing 

envelopes, sweeping and dusting. 1 Tr. 31; Patterson Dep. 17. Patterson further testified at trial 

that in her clerk position she was required to do any "odd job" that needed doing, 1 Tr. 31; 

Stevenson testimony 3 Tr. 101. As Patterson described it, even when her filing duties decreased, 

other employees "still dumped jobs on" her. 1 Tr. 82-83; 2 Tr. 18. Whenever she was absent 

from her job, with one exception in 1978, her tasks piled up awaiting her return, whereas other 

employees’ work was kept up to date in their absence by employees remaining on the job. 1 Tr. 

37-38, 87. As an accounting clerk she was required to submit to harassment. Patterson testified 

that Stevenson "periodically stared at her for several minutes at a time; that he gave her too 

many tasks and criticized her in staff meetings while not similarly criticizing white employees." 

805 F.2d at 1145. The record leaves no doubt that Patterson’s job -- as an all-round clerk, "girl 

Friday," and "gofer" -- was the lowest at the credit union, with the possible exception of janitor.

The accountant intermediate, in contrast, had several different and more responsible 

duties, such as accounting, bookkeeping and money management. Deft. Ex. 14 (SA 26). The 

formal requirements of that position are listed in the district court opinion. 784 F.Supp. at 270 

(JA 16). If Mrs. Patterson had been promoted to accountant intermediate, she would have 

moved from her desk located in a vault in the back of McLean and taken on substantial duties 

and responsibilities, received substantially higher compensation, pay grade classification, office 

equipment, opportunity for overtime work, and she would have had the potential for 

advancement to higher level jobs.

Patterson would have received 18 new job duties and responsibilities had she been 

promoted to the accountant intermediate job. Ex. 5, Williamson Dep. Ex. 3, Patterson Dep. 37- 

40. These would have been substantial changes from the duties that plaintiff had as a file clerk. 

Plaintiffs job would have also involved the transfer of monies from the company’s branches to

8



Wachovia Bank in Winston-Salem. Williamson Dep. 37-43. Such money management duties 

were handled by only three employees at the credit union: Williamson, Folsom and Braswell. 

Williamson Dep. 40. Moreover, the accountant intermediate position was exempt from the 

accepting work from anyone but Braswell, and occasionally Stevenson, and they were not 

subjected to overly close supervision on a daily basis. Williamson Dep. 29-30. As an accountant 

intermediate, Patterson’s work would have been re-assigned during her absence from work. 

Williamson Dep. 34. The accountant intermediate was not required to perform the menial tasks 

assigned to the accounting clerk when Patterson held that job, nor was Williamson subjected to 

harassment by her supervisor. Williamson Dep. 32.

Patterson testified at trial that at the time of the promotion in question her salary was 

$8.04 per hour, or $1393.60 per month. 1 Tr. 62; Pltf Exhibit 5. Upon receiving the promotion, 

Susan Williamson received $10.00 per hour, or $1733.33 per month. Sandra Folsom, also an 

Accountant Intermediate, was making $1,840.81 per month in 1982. JA 56. If plaintiff has 

gotten the accountant intermediate job, she could have expected to receive a monthly salary 

increase of $300 to $450.5

Not only would the promotion have afforded the opportunity for these significant 

immediate changes to her employment situation, but Patterson would have had the opportunity 

for job training, Williamson Dep. 43, and to move to higher positions in the future. Susan 

Williamson testified that the accountant intermediate permitted her to "progresfs] as the credit 

union progressed in services," and that she was "exposed to more in-depth bookkeeping." 

Williamson Dep. 24. Sandra Folsom, who held one of the Accountant Intermediate jobs, was

5 Moreover, apart from the base salary, the opportunities for adding to that salary were 
more prevalent in the accountant intermediate position. Plaintiff rarely was allowed to work 
overtime. (Patterson Dep. 35). When she requested to work overtime on occasions, the 
company denied her overtime work. (Id.) Folsom worked overtime and on Saturday when 
necessary. (Folsom Dep. 10). So did Williamson. (Williamson Dep. 34-35).

9



promoted to the position of Accountant Senior. Folsom Dep. 8. "Although Williamson was 

instructed by her counsel not to answer questions regarding whether she had been promoted to 

a higher position, she did testify that she was no longer an accountant intermediate and that she 

had not been demoted from that position. Williamson Dep. 6, 7. The promotion would have 

offered plaintiff other amenities that she lacked as an accounting clerk. For example, Patterson 

did not have a computer terminal, a telephone, or an adding machine in the vault where she 

worked. (Patterson Dep. 36-37). Williamson had an adding machine, a telephone and access 

to a computer terminal. (Williamson Dep. 36).

The two jobs were so different that defendant’s counsel, in arguing that Mrs. Patterson 

was unqualified for promotion to accountant intermediate, even contended that the facts in this 

case were analogous to a situation in which T m  going to make a decision in my law firm where 

I’m going to make an associate a partner, and a paralegal comes to me and says, ‘Mr. Davis, I 

should have been trained for that job.’" 3 Tr. 48 (SA 19).

10



SUMMARY OF ARGUMENT

1. The plain language of the Civil Rights Act of 1991, which states that it "take effect 

upon enactment," requires its application to this case. The Act is thus applicable to pending 

cases. Two exemptions to the general rule of immediate application prohibit application of the 

1991 Act to certain pre-existing claims; these exemptions make clear that Congress intended 

the Act to apply to pre-existing claims which were not explicitly exempted from the statute’s 

application.

2. Because the Civil Rights Act of 1991 is restorative legislation, it must be applied to 

this case. To fulfill the 1991 Act’s purpose of restoring the legal status quo ante, the Court must 

apply the Act here.

3. Even if this Court finds that the language of the statute does not clearly mandate its 

application, a well-established legal presumption requires that courts apply current statutory law 

to pre-existing claims pending before them. Under Bradley v. Richmond School Bd., 416 U.S. 

696, 711 (1974), in the absence of clear language to the contrary a statute must be applied to 

pending cases unless such an application creates manifest injustice. No such injustice is created 

by application of the Act in this case.

4. If this Court determines that the Civil Rights Act of 1991 does not apply to this case, 

remand is nonetheless appropriate since the Supreme Court’s decision in Patterson, should no 

longer be applied to plaintiffs’ claims. Plaintiffs’ claims were filed prior to the Supreme Court’s 

decision in Patterson. Congress has now repudiated that decision.

5. The district court erred as a matter of law in granting summary judgment to 

defendant. The district court misread and unjustifiably rejected certain evidence, weighed 

evidence, assessed credibility, and made inferences from the evidence. The court committed

11



independent, reversible error in making its own factual findings,“rather than simply ascertaining 

whether there is sufficient evidence in the record that the promotion would have created a "new 

and distinct relation" between employer and employee to send that issue to a jury under Federal 

Rule of Civil Procedure 56. Anderson v. Liberty Lobby, 477 U.S. 202, 206 (1986).

ARGUMENT

I. THE CIVIL RIGHTS ACT OF 1991 REQUIRES REVERSAL OF THE DISTRICT 
COURTS DECISION DISMISSING PLAINTIFFS’ SECTION 1981 CLAIMS UNDER 
PATTERSON V. MCLEAN CREDIT UNION

This Court should apply the Civil Rights Act of 1991 to reverse the district court’s 

decision and remand plaintiffs’ § 1981 claims for trial before a jury. When the defendants 

engaged in the conduct that plaintiff challenges in this case, that conduct was clearly actionable 

under § 1981,6 as well as Title VII of the Civil Rights Act of 1964, as amended, 1972, 42 U.S.C.

§ 2000e. The Supreme Court’s narrow interpretation of § 1981 in this case eliminated plaintiffs 

accrued claims. Congress on November 21, 1991, thoroughly rejected the Supreme Court’s 

construction of § 1981 and confirmed that discrimination in contract relations generally, 

including promotion and racial harassment, violates § 1981.7 Under the 1991 Act, there can be 

no doubt that plaintiffs’ § 1981 claims are legally viable and should not have been dismissed.

6 See, e.g., Goodman v. Lukens Steel Co., 482 U.S. 656 (1987); St. Francis College v. A l 
Khazraji, 481 U.S. 604 (1987); Delaware State College v. Ricks, 449 U.S. 250 (1980); McDonald v. 
Santa Fe Trail Transportation Co., 427 U.S. 273, 275 (1976); Johnson v. Railway Express Agency, 
421 U.S. 454, 459-60 (1975).

7 Section 101 amends section 1981 to add a subsection (b) which provides as follows:

(b) For purposes of this section, the term "make and enforce contracts" includes the 
making, performance, modification, and termination of contracts, and the enjoyment of 
all benefits, privileges, terms and conditions of the contractual relationship.

12



A. The Plain Language of the Civil Rights Act of 1991 Supports its 
Application to a Pending Case

The plain language of the 1991 Civil Rights Act requires appication of § 101 to this case. 

As the Supreme Court recently stated, "[t]he starting point for interpretation of a statute is the 

language of the statute itself. Absent a clearly expressed legislative intention to the contrary, 

that language must ordinarily be regarded as conclusive." Kaiser Aluminum & Chemical Corp. v. 

Bonjomo, 494 U.S. 827 (1990).

Three provisions of the Civil Rights Act of 1991 expressly address the applicability of the 

Act to pending cases. Section 402 contains two parts -- the general rule requiring immediate 

application of the 1991 Act (in subsection 402(a)) and one exception to that rule (in subsection 

402(b)):

SECTION 402. EFFECTIVE DATE.
(a) In General. ~ Except as otherwise specifically provided, this Act and the 
amendments made by this Act shall take effect upon enactment.

(b) Certain Disparate Impact Cases. -- Notwithstanding any other provision of this Act, 
nothing in this Act shall apply to any disparate impact case for which a complaint was 
filed before March 1, 1975, and for which an initial decision was rendered after October 
30, 1983.

Additionally, section 109 states, in relevant part:

SECTION 109. PROTECTION OF EXTRATERRITORIAL EMPLOYMENT.8
*  »  *

(c) Application of Amendments. -- The amendments made by this section shall not 
apply with respect to conduct occurring before the date of enactment of this Act.

These provisions on their face show that Congress intended the 1991 Act to apply to at least

some pending cases. As one court recently held in Slender v. Lucky Stores, 780 F. Supp. 1302,

1303 (N.D. Cal. 1992), "[t]he language of the Civil Rights Act indicates that the Act should

8 Section 109 extends the protections of the Civil Rights Act of 1964, as amended, to 
United States citizens working overseas for American companies, and thus overrules the 
Supreme Court’s decision in EEOC v. Arabian American Oil Co. &. Aramco Serv. Co., 499 U.S. 
___, 111 S. Ct. 1227 (1991).

13



apply to cases which were pending at the time of its enactment."

1. Statutory Language Providing That The Civil Rights Act of 1991 "Shall 
Take Effect Upon Enactment" Authorizes Its Application Here

Section 402(a), the general rule for application of the 1991 Act, makes clear that it 

applies to plaintiffs’ § 1981 claims. Section 402(a) states explicitly that the Act must "take effect 

upon enactment." The changes in the law, therefore, should be construed as effective and 

binding on this Court upon the enactment date, which was November 21, 1991.

The district court narrowly construed this phrase to meant that the Act and its 

amendments

would be operative on events coming within their scope, but having no effect on
events occurring before that date as the Act was not operative prior to November
21, 1991.

784 F.Supp. at 275. But legislation stating that it takes effect upon enactment is generally 

construed to apply to pending claims. For example, language which "specifically provided that 

the amendment would be immediately effective" mandated an amendment’s application to a 

pending appeal. Harper-Grace Hospitals v. Schweicker, 691 F.2d 808, 811 (6th Cir. 1982). See, In 

the Matter o f Reynolds, 726 F.2d 1420, 1423 (9th Cir. 1984) (stating that "the fact that Congress 

expressed its intention that the statute take effect upon enactment is some indication that it 

believed that application of its provisions was urgent"). Thus, § 402(a), even taken alone, 

supports application of the 1991 Act to the pending claims.

2. Two Statutory Exceptions to the Rule of Immediate Effect Underscore the 
Statute’s Applicability to Pre-Existing Claims

It is clear that § 402(a) cannot mean that the 1991 Act applies only to post-Act conduct. 

Since Congress included express language making only certain sections of the Act inapplicable 

to pre-existing claims, it necessarily contemplated that the balance of the law could be applied 

to such claims. This Court should construe the statute to give effect to all its provisions,

14



including both the general language requiring immediate effect a”nd the two exceptions to that 

rule. The Supreme Court has recently reemphasized this canon of construction in holding that 

"the words of the statute must be read in their context and with a view to their place in the 

overall statutory scheme." Davis v. Michigan Dept, o f Treasury, 489 U.S. 803, 809 (1989) 

(internal citations and quotations omitted).

Congress created two exceptions to the general mandate that the 1991 Act "take effect 

upon enactment." Under these two exceptions, certain provisions of the Act do not apply to 

certain pending cases or pre-existing claims: Section 402(b) forbids immediate application of 

the Act to a particular pending case, and § 109(c) forbids application of the Act to certain pre­

existing claims also not at issue here. The presence of those two exceptions compels the 

conclusion that § 101, which is not subject to any such exception, must be applied to pending 

cases such as this one.

(a) The Section 402(b) Exception for the Pending Case against Wards 
Cove Packing Company

Section 402(b), which excepts "certain disparate impact cases” from the Act, is a special 

provision proposed by Alaska Senator Murkowski, who selected the filing and decision dates 

referred to in order to ensure that the provision covers only Wards Cove Packing Company v. 

Atonio, 490 U.S. 642 (1989), which is now pending on remand. That section excepts Ward’s 

Cove Packing Company from the obligation to defend itself under the 1991 Act’s standards.9 

The inclusion of this section was necessary only because without it § 402(a) would have applied 

to the Ward’s Cove Packing Company.

9 Senator Murkowski sought this provision for Ward’s Cove Packing Co. alone, and he 
explicitly said so in seeking support for it. Murkowski assured his colleagues that the Wards 
Cove Packing Co. v. Atonio case is the only case that fits the general-sounding description in 
402(b). 137 Cong. Rec. S. 15954 (daily ed. Nov. 5, 1991). No similar provision was created to 
exempt the defendant in this case from the Act’s standards.

15

i



The importance of § 402(b) in demonstrating that § 402(a) contemplates application of 

the Act to pending cases cannot be underestimated. Section 402(a) is an exception to — and 

thus necessarily different from -- § 402(a). This difference is underscored by the extreme 

importance several members of Congress attached to the passage of § 402(b). When the 1991 

Act passed the Senate on October 30, 1991, § 402(b) was inadvertently omitted. Senator Dole 

then took the extraordinary step of insisting that the bill be returned to the Senate floor for 

further action and a separate vote to add this provision. When the bill was presented for a 

second vote, both supporters and opponents of the § 402(b) exemption in the House and Senate 

concurred that its effect was to exempt the Wards Cove Company from the 1991 Act standards 

in the litigation still pending against it (a result which the supporters lauded and the opponents 

decried). This controversy would have been unintelligible if § 402(a) already made the entire 

Act inapplicable to pre-existing claims. Section 402(b) was not a redundant provision devised 

merely to reassure an over-anxious Company, but an operative term excepting Wards Cove from 

the result that otherwise would have occurred: application of the 1991 Act to the case pending 

against it. Since this case does not fall within the § 402(b) exception, but comes under the 

general § 402(a) rule, the 1991 Act should be applied here.

(b) The Section 109(c) Exception for Pre-Existing Claims By 
Americans Abroad

The second exception to § 402(a) further proves the rule of application to pending cases. 

Section 109(c) applies only to § 109, a provision of the 1991 Act not applicable here. The 

inclusion of this provision makes clear that Congress was fully cognizant of the need to state 

explicitly when it did not wish a provision of the statute to apply to cases that were currently 

pending before the courts. Had Congress wished to attach a similar caveat to § 101, which 

rejected Patterson, it would have done so explicitly. As the Supreme Court has held in Russello 

v'. United Stales, 464 U.S. 16 (1983), ”[w]here Congress includes particular language in one

16



section of a statute but omits it in another section of the same Act, it is generally presumed that 

Congress acts intentionally and purposely in the disparate inclusion or exclusion." Id. at 23 

(citations omitted). Section 402(a) must be interpreted to have a meaning distinct from the § 

109(c) and § 402(b) exceptions in order to avoid rendering the exceptions superfluous. Section 

402(a) thus necessarily contemplates application of the Act to conduct occurring before the date 

of enactment; if it forbade such application, § 109(c)’s directive that § 109 "shall not apply with 

respect to conduct occurring before the date of enactment" would be a mere reiteration of a 

rule already generally laid down by § 402(a). Similarly, § 402(b), making the Act inapplicable to 

a particular pending case, makes no sense unless under § 402(a) the Act does apply to pending 

cases.10 As the Supreme Court held in United States v. Menasche, 348 U.S. 528 (1955), "(t)he 

cardinal principle of statutory construction is to save and not to destroy. It is our duty to give 

effect, if possible, to every clause and word of a statute, rather than to emasculate an entire 

section....” Id. at 538-39 (internal quotations marks and citations omitted); Director, Office o f 

Workers’ Compensation Programs, U.S. Dept, o f Labor v. Goudy, 111 F.2d 1122, 1127 (6th Cir. 

1985) (following Menasche).11

At the very least, the statute contemplates that the Act may be applied to some non-

10 See, Graham v. Bod in e Electric Co., 57 FEP Cases 1428, 1429 (M.D. 111. Jan. 23, 1991) 
(holding that 1991 Act applies to pre-existing claims, in order not "to emasculate these 
provisions by making them redundant"); Slender, 780 F. Supp. at 1304 (holding that sections 
402(b) and 109(c) would be "meaningless unless the Civil Rights Act applies to cases which were 
pending at the time of its enactment").

11 Plaintiff does not, as the district court commented, seek to give the Act some "sort of 
‘curious, narrow, hidden sense,”' 784 F.Supp. at 275 (JA 21), but rather to give effect to each of 
its provisions. See, Kungys v. United States, 485 U.S. 759, 778 (1988) (Scalia, J.) (holding that 
"no provision (of a statute] should be construed to be entirely redundant"); Mackey v. Lanier 
Collections Agency & Serv., Inc., 486 U.S. 825, 837 (1988) (stating that "we are hesitant to adopt 
an interpretation of a congressional enactment which renders superfluous another portion of the 
same law"); Colautti v. Franklin, 439 U.S. 379, 392 (1979) (reading a statute to render a section 
"redundant or largely superfluous" violates "the elementary cannon of construction that a statute 
should be interpreted so as not to render one part inoperative").

17



exempted pending cases. The three circuit courts which declined-to apply the Act to pending 

cases have employed an overly stringent standard of clarity, contrary to the Supreme Court’s 

own standard. See, Mozee v. American Commercial Marine Serv. Co., 1992 U.S. App. LEXIS 

9857, at *10-*12 (7th Cir. May 7, 1991) ("1991 Act, on its face, does not make clear whether it 

should be applied retroactively or prospectively . . ."); Fray v. Omaha World Herald Co., 58 FEP 

Cases 786, 791 (8th Cir. 1992) ("effective date section creates . . . ambiguity . . . ."); Vogel v. 

Cinncinnati, 58 FEP Cases 402, 404 (6th Cir. 1992) ("Section 402(a)’s language is hopelessly 

ambiguous as to the issue of whether Congress intended the 1991 Civil Rights Act to apply 

retroactively to pending cases. . . ."). The meaning of the applicability of the 1991 Act is 

substantially clearer than the applicability provisions in the statute at issue in Kaiser Aluminum, 

which the Court held were clear on their face. Moreover, the circuit court decisions confound 

the proper method of statutory construction, elevating legislative history over the statute’s own 

text as an indicator of statutory meaning. See, e.g., Fray, 58 FEP Cases at 791.

B. Recent Action of the United States Supreme 
Court Suggests Section 101 of the Act Should 
Apply

Although the Supreme Court has yet to decide the applicability of the 1991 Civil Rights 

Act, its recent actions in vacating and remanding two circuit court decisions for consideration in 

light of the 1991 Act indicate that the Court believes that the provisions of the statute may 

apply to pending cases. See Gersman v. Group Health Ass'n., 60 U.S.L.W. 3519, 112 S.Ct. 960 

(Jan. 27, 1992); Holland v. First America Banks, 60 U.S.L.W. 3577, 112 S.Ct. 1152 (Feb, 24,

1992), now pending in this Court. The Courts of Appeals in both Gersman and Holland -  like 

the district court in this case — had applied the Supreme Court’s decision in this case to 

plaintiffs’ § 1981 claims. As one court recently remarked, in Watkins v. Bessemer State Technical 

College, 1992 U.S.Dist.LEXIS 1296 (N.D. Ala. February 6, 1992),

18



This court can conceive of no reason for the Supreme Court to vacate and 
remand Gersman unless the Supreme Court believes, as does this court, that the 
Act effectively eliminates the effect of Patterson, even in cases which preceded 
the Act.

Holland supports the same conclusion. If the Act did not apply, the Circuit courts’ failure to 

address the effect of § 101 of the Civil Rights Act to a pending case would not require that 

those decisions be vacated and remanded.

II. THE RELEVANT LEGAL PRESUMPTION REQUIRES APPLICATION OF THE 
1991 CIVIL RIGHTS ACT TO THIS CASE

Even if this Court were to find that the statute on its face does not expressly authorize 

its application to pending cases, governing Supreme Court precedent establishes a presumption 

that new legislation so applies. The Supreme Court, in its unanimous opinion in Bradley v. 

Richmond School Board, held that

a court is to apply the law in effect at the time it renders its decision, unless 
doing so would result in manifest injustice or there is statutory direction or 
legislative history to the contrary.

416 U.S. 696, 711 (1974).12 As the Bradley Court noted, this presumption has a long history, 

dating back to the 19th century. Id., at 711-15, citing, United States v. Schooner Peggy, 1 Cranch 

103, 2 L.Ed 49 (1801); Thorpe v. Housing Authority o f Durham, 393 U.S. 268 (1969).

A. Adherence to Bradley v. Richmond School Board in this Circuit 

For almost twenty years this Court has consistently applied the Bradley standard to apply 

new legislation to claims arising before the enactment of that legislation.13 The district court in

u Bradley applied the 1972 Emergency School Aid Act, which provided for attorney’s fees 
for school desegregation litigation, to attorney time spent on the case in earlier years.

13 Roger v. Ball, 497 F.2d 702, 704-06 (4th Cir. 1974) (1972 amendment to Title VII);
United States v. Monsanto Co., 858 F.2d 160, 175-76 (4th Cir. 1988) (amendment to 
Comprehensive Environmental Response, Compensation and Liability Act); Lytle v. Comm’rs o f 
Election of Union County, 541 F.2d 421, 424, 427 (4th Cir. 1976) (1975 amendment to Voting 
Rights Act); Alphin v. Henson, 552 F.2d 1033, 1034-35 (4th Cir. 1974) (Hart-Scott-Rodino 
Antitrust Improvements Act of 1976); Wheeler v. Durham City Bd. o f Education, 585 F.2d 618,

19



this case selected the correct standard in its reliance on Bradley. "McLean urged the court to

adopt a presumption against retroactivity. Such a presumption, however, applies only where

where substantive rights and liabilities are changed. That presumption derives from Bowen v.

Georgetown Univ. Hosp., 488 U.S. 204, 208-9 (1988). Dictum in Kaiser Aluminum v. Bonjomo

described that case as in "apparent tension" with Bradley. 110 S.Ct. at 1572 (plurality opinion by

O’Connor, J., concurred in by Scalia, J.). Four justices found the tension "more apparent than

real," Id. at 1591. The Bradley and Bowen lines of cases had been discussed simultaneously by

the Supreme Court in Bennett v. New Jersey, however, and reconciled as follows:

Bradley ... expressly acknowledged limits on [the principle of retrospective 
operation.] T h e  Court has refused to apply an intervening change to a pending 
action where it has concluded that to do so would infringe upon or deprive a 
person of a right that had matured or become unconditional".... This limitation 
comports with another venerable rule of statutory interpretation, i.e. that statutes 
affecting substantive rights and liabilities are presumed to have prospective effect.

470 U.S. 632, 639 (1985) (emphasis added) (internal citations omitted).

This course is particularly appropriate when the legislation is remedial or procedural in

nature rather than affecting substantive rights. The presumption in favor of application is

consistent with the principle that remedial measures are to be liberally construed. Cooper

Stevedoring o f Louisiana, Inc. v. Washington, 556 F.2d 268, 272 (5th Cir.), reh’g denied, 560 F.2d

1023 (1977). A remedial statute is one that "relates to the means and procedures for

621 (4th Cir. 1978) (20 U.S.C. §1617); United States v. Slate o f North Carolina, 587 F.2d 625, 626 
(4th Cir. 1978) (Executive branch reorganization approval by Congress); Marshall v. Sink, 614 
F.2d 37, 38 n. 1 (4th Cir. 1980) (Federal Mine Safety and Health Amendment Act of 1977); 
United Stales v. Commonwealth o f Virginia, 620 F.2d 1018, 1022 (4th Cir. 1980) (Executive 
reorganization approved by Congress); Fox v. Parker, 626 F.2d 351, 353 (4th Cir. 1980) (Civil 
Rights Attorney’s Fees Awards Act of 1976); United States v. Holcomb, 651 F.2d 231, 234 (4th 
Cir. 1981) (Horse Protection Act Amendments of 1976); Tyler Business Services, Inc. v. N.L.R.B., 
695 F.2d 73, 77 (4th Cir. 1982) (Equal Access to Justice Act); Nilson Van & Storage v. Marsh,
755 F.2d 362, 364-66 (4th Cir. 1985) (Comprehensive Crime Control Act of 1984); Hyatt v. 
Heckler, 757 F.2d 1455, 1458-59 (4th Cir. 1985) (Social Security Disability Benefits Reform Act 
of 1984).

20



enforcement of [existing] rights". United Slates v. Kairys, 782 F.2d 1374, 1381 (7th Cir.), cert.

denied, 476 U.S. 1153 (1984). The group of statutes to which this presumption applies are

referred to interchangeably as remedial, procedural, or both. See, e.g., Ferrero v. Associated

Materials Inc., 923 F.2d 1441, 1445 (11th Cir. 1991) (remedial and procedural laws referred to

"as a matter of convenience" as procedural). Recognition of this presumption regarding

procedural and remedial legislation is widespread.14 Application to pending claims of new

enforcement mechanisms rarely involves any risk of serious unfairness.

Retroactive modification of remedies normally harbors much less potential for 
mischief than retroactive changes in the principles of liability.... Modification of 
remedy merely adjusts the extent, or method of enforcement, of liability in 
instances in which the possibility of liability previously was known.

Hastings v. Earth Satellite Corp., 628 F.2d 85, 93 (D.C. Cir. 1980).15

The most noteworthy instance in which the courts applied this distinction between

conduct-regulating and remedial law concerned the 1972 amendments to Title VII. Prior to

1972 Title VII did not apply to federal employees. Section 717 of the 1972 legislation forbad

federal agencies to discriminate on the basis of race, etc., and authorized victims of such

discrimination to bring suit in federal court for back pay, injunctive relief, and counsel fees.

The 1972 amendment was widely interpreted to apply to acts of discrimination occurring prior

to the effective date of the statute. The courts reasoned that although Title VII itself did not

forbid federal employment discrimination prior to March 24, 1972, such discrimination had in

fact been illegal before 1972 under the Constitution, an earlier statute and several executive

orders. Thus Title VII did not declare illegal previously lawful conduct; rather, it provided new

14 This presumption was recognized in at least eight circuits. See Appendix to this brief.

15 See also Friel v. Cessna Aircraft Co., 751 F.2d 1037, 1039 (9th Cir. 1985) ("danger" of 
rendering unlawful conduct lawful when engaged in "is not present where statutes merely affect 
remedies or procedures").

21



remedies and enforcement machinery to redress conduct that had been unlawful under other 

provisions long prior to 1972. Thus, even though, prior to 1972 "it was doubtful that backpay" 

could be awarded by the courts to victims of federal employment discrimination, Brown v. 

General Services Administration, 425 U.S. 820, 826 (1976), the Title VII amendments expressly 

authorizing that remedy were applied to pre-Act claims.

As this Court explained:

[T]he 1972 Act did not create a new substantive right for federal employees. The 
constitution, statutes and executive orders previously granted them the right to 
work without racial discrimination. Section 717(c) simply created a new remedy 
for the enforcement of this existing right.... The Act provided Koger with a 
supplemental remedy .... [A] federal employee’s right to be free from racial 
discrimination existed before the passage of the 1972 Act. If it includes — as it 
should -- a new remedy to enforce an existing right, then under the general rule 
favoring retrospective application of procedural statutes, §717(c) should be 
applied to pending cases ....

Koger v. Ball, 497 F.2d 702, 705-07 (4th Cir. 1974). The District of Columbia Circuit endorsed 

the reasoning in Koger.

Section 717(c) is merely a procedural statute that affects the remedies available to 
federal employees suffering from employment discrimination. Their right to be 
free of such discrimination has been assured for years.

Womack v. Lynn, 504 F.2d 267, 269 (D.C. Cir. 1974) (Emphasis in original).16 The Third

Circuit concurred:

Congress did not need to create new substantive rights for federal employees 
when it enacted §717. Rather, ... this provision was designed only to make 
judicial enforcement of longstanding federal substantive policies against 
employment discrimination more certain and more effective than in the past.

16 See Thompson v. Sawyer, 678 F.2d 257, 287-88 (D.C. Cir. 1982):

Federal employees thus obtained a new means to enforce their preexisting right 
to be free from discrimination .... The 1972 Amendments to Title VII only 
added a forum and procedures for federal employees -- it was not the date of 
birth of the right to a federal job free of racial or sexual bias .... Congress 
provided federal employees with a new arsenal of remedies — not rights, but 
remedies.

22



Section 717 ... is a classic example of a procedural or remedial statute applicable 
to cases pending at the time of enactment.

Sperling v. United States, 515 F.2d 465, 473-74 (3d Cir.), cert, denied, 426 U.S. 919 (1975). The

Seventh Circuit applied the same reasoning:

Freedom from racial discrimination by the federal government has long been 
guaranteed by the Fifth Amendment.... Executive Orders ... provided adminis­
trative remedies .... This procedure, however, proved ineffective in dealing with 
problems of job discrim- ination.... The right of federal employees to seek relief 
from racial discrimination by the federal government was thus available some 
years before ... 1972. Section 717(c) simply provided one more step in the existing 
review process.

Adams v. Brinegar, 521 F.2d 129, 131-32 (7th Cir. 1975).17 Several of these decisions observed 

that insofar as it added to the available method of enforcement, a right to file suit in federal 

court, section 717 was merely providing a new tribunal for redressing existing rights.18 The 

Supreme Court approved this interpretation of the 1972 Title VII amendment in Brown v. 

General Services Administration, 425 U.S. 820, 824 n.4 (1976).

The same presumption in favor of applying new remedies to pre-existing claims was 

applied in a variety of other contexts. See. e.g., Bunch v. United States, 548 F.2d 336, 339 (9th 

Cir. 1977) (citations omitted) (applying ADEA amendment to federal employees who were 

previously protected from age discrimination by executive orders and Civil Service Commission

17 See Revis v. Laird, 627 F.2d 982, 983 (9th Cir. 1980); Mahroom v. Hook, 563 F.2d 1369, 
1373 (9th Cir. 1977)(quoting Koger and Womack), cert, denied, 436 U.S. 904 (1978); Eastland v. 
Tennessee Valley Authority, 553 F.2d 364, 367 n.5 (5th Cir. 1977); Huntley v. Department o f 
Health, Education and Welfare, 550 F.2d 290, 295 (5th Cir.), cert, denied, 434 U.S. 985 (1977); 
Allen V. United States, 542 F.2d 176, 177 n.2 (3rd Cir. 1976); Weahkee v. Powell, 532 F.2d 727, 
729 (10th Cir. 1976); Ettinger v. Johnson, 518 F.2d 648, 651 n.71 (3rd Cir. 1975) (quoting 
Sperling)-, Brown v. General Services Administration, 507 F.2d 1300, 1305-06 (2d Cir. 1974), affd  
425 U.S. 820 (1976) (endorsing reasoning of Womack and Koger)-, but see Place v. Weinberger, 
497 F.2d 412 (6th Cir. 1974), vacated 426 U.S. 932 (1976).

18 Koger v. Ball, 497 F.2d at 706 (citing Justice Holmes’ opinion in Hallowell v. Commons, 
239 U.S. 506, 508 (1916)); Adams v. Brinegar, 521 F.2d 129, 132 (7th Cir. 1975) (citing 
Hallowell).

23



requirements); Thompson v. Sawyer, 678 F.2d 257, 279 n.21. (D7C. Cir. 1982) (applying 

amendments to the Fair Labor Standards Act to federal employees who were previously 

protected under executive orders); Bush v. State Industries, Inc., 599 F.2d 780, 786 (6th Cir. 

1979) (applying FLSA amendments creating private right of action for retaliation, where 

retaliation was previously only publicly enforceable). These decisions applied to pre-Act 

conduct amendments to Title VII, the ADEA, and the FLSA that created whole new 

enforcement mechanisms. The same presumption favoring application of new remedies to pre- 

Act claims has been applied where the legislation at issue modified the remedy available in a 

more limited way, such as by removing a pre-existing cap on the amount of monetary relief that 

could be awarded,19 or changing the law regarding the statute of limitations,20 election of 

remedies,21 the components of a prima facie case,22 burden of proof,23 evidence,24 costs25

19 Hastings v. Earth Satellite Corp., 628 F.2d 85 (D.C. Cir.), cert, denied, 449 U.S. 905 
(1980); Dale Baker Oldsmobile, Inc. v. Fiat Motors o f N. America, 794 F.2d 213, 220 n.3 (6th Cir. 
1986) (citing Lahti v. Fosterling, 357 Mich. 578, 99 N.W.2d 490 (1959)).

20 Cooper Stevedoring of Louisiana, Inc. v. Washington, 556 F.2d 268, 272 (5th Cir.)
("statutes of limitation go to matters of remedy”), reh’g denied, 560 F.2d 1023 (5th Cir. 1977); 
Friel v. Cessna Aircraft Co., 751 F.2d 1037, 1039 (9th Cir. 1984) ("[statute of limitations are 
usually considered remedial"); Davis v. Valley Distributing Co., 522 F.2d 827, 830 n.7 (9th Cir. 
1975) (”[t]here is no reason to believe that Congress departed from the general rule that statutes 
of limitations go to matters of remedy only"), cert, denied, 429 U.S. 1090 (1975).

21 Dale Baker Oldsmobile v. Fiat o f N. America, 794 F.2d 213, 216 (6th Cir. 1986) (citing 
Rookledge v. Garwood, 340 Mich. 444, 65 N.W.2d 785 (1954)).

"  New England Power Co. v. United States, 693 F.2d 239, 245 (1st Cir. 1982).

‘3 French v. Grove Mfg. Co., 656 F.2d 295 (8th Cir. 1981); Lavespere v. Niagara Mach. & 
Tool Works, Inc., 910 F.2d 167 (5th Cir.), reh’g denied, 920 F.2d 259 (5th Cir. 1990).

24 Samuelson v. Susen, 576 F.2d 546, 552 (3d Cir. 1978).

25 Dale Baker Oldsmobile v. Fiat Motors o f N. America, 794 F.2d 213, 217 (6th Cir. 
1986)(citing Ballog v. Knight Newspapers, 381 Mich. 527, 164 N.W.2d 19 (1969)).

24



and counsel fees,26 or the forum in which a particular injury is to~be redressed.27 28

This Circuit has continued to apply the reasoning in Bradley, after the Supreme Court’s

decision in Bowen v. Georgetown Univ. Hosp., 488 U.S. 208 (1988). In Leland v. Federal

Insurance Administrator, 934 F.2d 524 (4th Cir. 1989), the Court of Appeals applied both Bowen

and Bradley to arrive at the same result. The question was whether a 1988 amendment to the

National Flood Insurance Act, extending coverage to losses not within the scope of the prior

law, applied to a flood loss that occurred prior to the Amendment. This Court noted that

application of the new law to pre-Act losses would involve a reliance problem, since the

government had based the pre-Act insurance rates on the scope of its liability at that time.2*

This Court held that application of the new law was inappropriate under Bradley:

[U]nder the Bradley approach . . . retroactivity is not warranted in the present 
case inasmuch as application of the amendment would result in manifest injustice 
by distorting the rights of the respective parties already fixed by the policy 
provisions in effect prior to [the amendment.]

934 F.2d at 528 n.7. The Court described Bradley as holding "that a court must apply the law in 

effect at the time it renders its decision," id., and also quoted the passage in Bowen. 934 F.2d at 

928. Nothing in the panel decision suggested the Court believed that Bradley and Bowen were 

in irreconcilable conflict, and in Leland, of course, the two decisions dictated the same result.

26 Overseas African Construction Corp. v. McMullen, 500 F.2d 1291, 1297 (2d Cir. 1974).

27 Adams v. Brinegar, 521 F.2d 129, 132 (7th Cir. 1975).

28 The court noted.

Based on the terms of the policy, the federal government 
established premium rates [and] estimated the cost of the 
programs.... Retroactive application would deny the federal 
agency ... ‘fixed, predictable standards ... ’

934 F.2d at 529 n. 8 (quoting Wright v. Director Federal Emergency Management Agency, 913 F.2d 
1566, 1574 (11th Cir. 1990).

25



Other Circuits, like this Court, recognize the continued viability of Bradley after Bennett 

and Bowen. E.g., United States v. Peppertree Apts., 942 F.2d 1555, 1561 n. 3 (11th Cir. 1991); 

Campbell v. U.S., 809 F.2d. 563 (9th Cir. 1987); Federal Deposit Ins. Corp. v. Wright, 942 F.2d 

1089, 1096 n. 6 (7th Cir. 1991); C.E.K. Indus. Mechanical Contractors v. N.L.R.B., 921 F.2d. 350, 

357 n. 7. (1st Cir. 1990). Where appellate courts have identified a presumption against 

application of new statutes to pending cases, they expressly reconcile such a presumption with 

Bradley. See, e.g., Boddie v. American Broadcasting Co., Inc., 881 F.2d 267, 270 (6th Cir. 1989), 

cert, denied, 493 U.S. 1028 (1990). Under Boddie, a presumption against "retroactivity" applies 

only to new laws affecting "substantive rights and liabilities." 881 F.2d at 270. The distinction 

between statutes affecting substantive rights and those affecting only procedural rights, has been 

the basis upon which the courts have reconciled Bowen and Bradley. The recent appellate court 

decisions on applicability of the Act have acknowledged the continued vitality of Bradley where 

procedural changes in law are at issue. Those courts have erred, however, by defining the term 

"procedural" so narrowly as to effectively eliminate the Bradley presumption. See, e.g., Mozee v. 

American Commercial Marine Service Co., supra.29

Bradley mandates application of § 101 here because that section does not create new 

liability for McLean arising from its discriminatory treatment of Mrs. Patterson during 1972- 

1982. As Justice Scalia explained in his concurring opinion in Kaiser Aluminum & Chem. Corp. 

v. Bonjomo, "[Tjhe principle that the legal effect of conduct should ordinarily be assessed under 

the law that existed when the conduct took place has timeless and universal appeal." 494 U.S. 

827 (1990) (Scalia, J., concurring). Similarly, the district court here perceived the issue to be

29 In Patterson v. McLean Credit Union, 491 U.S. 164 (1989), the Supreme Court repeatedly 
characterized the differences between section 1981 and Title VII, as "procedure" and "remedial." 
491 U.S. at 180-81 (emphasis added). See also, Johnson v. Railway Express Agency, 421 U.S. 454, 
459-62 (1975), held ("remedies available ... under Title VII are co-existensive with the 
individual’s right to sue under ... § 1981 ... the two procedures augment each other ....’ ....)

26



one of essential fairness:

Retroactive application of legislation is unfair, unfair to the citizenry making an 
attempt to guide its activities by the rue of law. To be forced to conduct one’s 
life and one’s business in the fear that a legislative body may later declare that 
conduct illegal is antithetical to the notions of justice and fair play that undergird 
our legal system.

784 F.Supp. at 279 (JA 25) (emphasis added). When McLean committed acts of racial 

harassment, refused to promote Brenda Patterson, and terminated her employment without 

regard to seniority, the Supreme Court had not issued its decision in Patterson, and McLean had 

no settled expectation that Patterson would eventually immunize them from liability under 

§ 1981. The acts committed by McLean were not "later declare[d] illegal" -- those acts were 

illegal at the time they were committed under both § 1981 and Title VII. Therefore, the rule 

against imposing unanticipated obligations is wholly inapplicable here. Section 101 does not 

"alter" McLean’s substantive, because it merely restores the legal standard that prevailed when 

defendants engaged in the challenged conduct.30

B. Operation of Bradley in This Case

Bradley mandates application of the Civil Rights Act of 1991 to this case unless there is

"statutory direction or legislative history to the contrary," or application of the Act would result

in "manifest injustice" to the defendants. None of these conditions obtains here. Cf., Mojica v.

Gannett, 779 F. Supp. 94 (N.D. 111. 1991); Slender, 780 F. Supp. 1302, 1306-7.

1. Neither the Language Nor the Legislative History of the Act 
Precludes Its Application to Pending Cases

There is no language in the Civil Rights Act of 1991 that forbids its application to

pending cases. In fact, as demonstrated above, see Point I, the statute’s plain language supports

30 Notwithstanding the district court’s suggestion to the contrary, 784 F.Supp. at 275 (JA 
21), section 101 of the Civil Rights Act of 1991 is remedial, not "substantive." The provision 
restores additional remedies for types of discrimination which have long been illegal under other 
provisions of federal and state law.

27



such application. In the absence of Congressional direction prohibiting application, the Bradley 

exception to presumptive application based on such direction is not invoked. 416 U.S. at 715.

The legislative history of the Act also does not contravene its application here. The 

history certainly does not show clear congressional opposition to application of the 1991 Act to 

a pending case such as this one. Indeed, the legislative history provides some affirmative 

support for application of the Act to this case.31 Analysis of the legislative history is 

complicated by the fact that the legislation took two years from initial proposal to final passage, 

and there are no Committee Reports on the Act as finally enacted. Rather, there are a series 

of votes on different versions of the legislation, Interpretative Memoranda, statements by 

Senators and Representatives, and several section-by-section analyses in the Congressional 

Record.

The original, bipartisan sponsors and leading proponents of the bill were Senator 

Kennedy in the Senate, and Representatives Edwards and Fish in the House. Kennedy, 

Edwards, and Fish each insisted that the Act applied to pending cases unless in a particular case 

that application would be manifestly unjust.32 The views of these sponsors were the same as 

those reflected in the analysis that had been agreed upon in the 1990 committee reports, which

31 Unless legislative history is unequivocal in opposition to application of new legislation to 
pending cases, it cannot be read to alter the plain meaning of the statute. Regan v. Wald, 468 
U.S. 222, 236-38 (1984); American Tobacco Co. v. Patterson, 456 U.S. 63, 75 (1982). Indeed, 
Justice Scalia’s view that legislative history should have no role in statutory interpretation is well 
known. See, e.g., Blanchard v. Bergeron, 489 U.S. 87, 98-99 (1989) (Scalia, J., concurring in part 
and concurring in the judgment).

32 137 Cong Rec. S 15485 (daily ed. Oct. 30, 1991), id. S 15936 (daily ed. Nov. 5 1991) 
(remarks of Senator Kennedy approving of the general rule that new legislation is applied to 
pending cases); 137 Cong Rec. H 9530-31 (daily ed. Nov. 7, 1991) (remarks of Representative 
Edwards underscoring importance of application of Act to pending cases to avert many years of 
future enforcement of repudiated law, and avoid conferring an undeserved windfall on 
defendants); id. at H 9549 (remarks of Representative Fish, concurring with Rep. Edwards and 
stating "I think it should be clear that the bill applies to pending cases").

28



recognized that the rule in Bradley controlled the application to pending cases.33

Senator Danforth disagreed with Senator Kennedy about which legal presumption, if 

any, was likely to govern application of the Act to pending cases. 137 Cong. Rec. S.15483-85 

(daily ed. Oct. 30, 1991) (interpretative memorandum introduced by Sen. Danforth). Senator 

Danforth stated his view that applicability under the Act should be decided not under Bradley, 

but under Bowen v. Georgetown University Hosp. and the opinion of Justice Scalia in Kaiser 

Aluminum v. Bonjomo. Id. at S 15483. Senator Danforth explicitly acknowledged, however, that 

the views he expressed, which he knew to be shared by only six other senators, "may not be the 

interpretation of anyone else." 137 Cong. Rec. S 15325 (daily ed. Oct. 29, 1991).34 In any 

event, Senator Danforth’s comments do not affect this court’s obligation to follow Fourth 

Circuit law recognizing the continued viability of the Bradley presumption where substantive 

rights and liabilities are not affected. Thus, the legislative history cannot be read as preventing 

application of the 1991 Act to pending cases.

The recent Eighth Circuit decision in Fray v. Omaha World Herald Co., (April 3,

1992),35 concluded that the legislative history mandates purely prospective application of the 

Act. In so doing it misreads in several material respects the legislative history regarding the 

application of the Act to pre-existing claims. First, the Eighth Circuit appears to have been

33 H.R. Rep. 101-644, pt. 2, at 45 (101st Cong., 2d Sess. 1990); S. Rep. 101-315, at 59 
(101st Cong. 2d Sess. 1990).

34 Senator Dole submitted an interpretative memo touching on this point, but never 
discussed this issue aloud on the Senate floor. He simply asked, shortly before the final vote on 
the Bill, that a memorandum "be reprinted in the Record immediately after my remarks." Id. at 
S.15472. The memorandum contained a single sentence stating that "the amendments made by 
the Act will not apply to cases arising before the effective date of this Act." 137 Cong Rec. S. 
15478 (daily ed. Oct. 30, 1991). The memorandum only became available to be read in the 
Congressional Record when it was printed and circulated the day after the vote.

35 Nos. 91-2439, 91-243, 91-2713.

29



entirely unaware that express proposals to exclude such claims were repeatedly rejected by 

Congress. Second, the Eighth Circuit was apparently unaware of the 1990 veto memorandum 

explaining the administration’s objections; thus the court in Fray misunderstood the President to 

be objecting to applying the Act to still pending cases, when in fact his objection was to applying 

the law to reopen cases in which final judgment had been rendered and appeals exhausted."

(Slip opinion, pp. 10, 13, 14) Third, Fray asserts that Congress in 1991 lacked the votes to 

override a veto, and therefore removed from the bill all aspects of the legislation to which the 

President had objected in 1990. (Slip opinion, pp. 13, 14). In fact, changed political 

circumstances in the fall of 1991 deprived the President of the votes needed to sustain a veto, 

and perhaps of the will to do so; the bill to which the President agreed in October, 1991, 

contained numerous provisions, such as jury trials and punitive damages in Title VII cases, to 

which the President had vehemently objected in October, 1990.

2. Application of the Act Here Would Not Create Manifest Injustice

There is no risk of "manifest injustice" from application of the Act to plaintiffs claims. 

The district court misapplied each part of this test to hold that it would be "manifestly unjust" to 

apply the Act to the instant case. In fact, manifest injustice would be created by holding the 

Act inapplicable, because such a holding would relieve McLean of liability for discrimination 

illegal when engaged in and equally illegal today. Manifest injustice under Bradley is 

determined by a three-part analysis of: (a) the nature and identity of the parties; (b) the nature 

of their rights; and (c) the nature and impact of the change in law on those rights. 416 U.S. at 

717. No manifest injustice results from application of the 1991 Act here under Bradley's three- 

part test.

30



(a) Nature and Identity of the Parties

The central distinction made by the Court in Bradley regarding the "nature and identity 

of the parties" is between "mere private cases between individuals," in which application of a 

new law to pre-existing claims may be inappropriate, and litigation involving matters of "great 

national concern," where application of a new statute is presumed. 416 U.S. at 718-19. The 

district court misunderstood this distinction, holding simply that "this is a case between two 

private parties." 784 F.Supp. 279 (JA 25). The court ignored the special role played by civil 

rights plaintiffs, giving only passing acknowledgement to the fact that "civil rights are of great 

importance." 784 F.Supp. 279 (JA 25).

Bradley specifically identified school desegregation and Title II litigation as examples of 

matters of national concern. In Title II litigation, although the parties are not governmental 

actors, a private plaintiff functions as "a private attorney general, vindicating a policy that 

Congress considered of the highest priority." 416 U.S. at 719. The Court has repeatedly 

characterized Title VII as of similarly vital public importance. In Albemarle Paper Co. v. Moody, 

422 U.S. 405 (1975), the Court observed that there was "an equally strong public interest" in 

implementation of Title II and Title VII, id., at 415, and emphasized that enforcement of Title 

VII served the "[ijmportant national goals" of "eradicating discrimination throughout the 

economy and making persons whole for injuries suffered through past discrimination." Id., at 

417-21. The Reconstruction-era civil rights laws, including § 1981, were enacted to eliminate 

"the badges and the incidents of slavery,"36 thereby addressing matters of as great public 

concern as the United States courts have ever been called upon to adjudicate. The application 

of the Civil Rights Act of 1991 to these parties vindicates the important public purpose of 

preventing racial discrimination and does not result in manifest injustice.

36 Jones v. Alfred Mayer Co., 392 U.S. 409, 440 (1968).

31



(b) Nature of the Rights at Stake

The second factor relevant to whether application of the statute would be unjust under 

Bradley is the nature of the rights at stake. This factor is primarily concerned with protecting 

accrued causes of action of plaintiffs:

The Court has refused to apply an intervening change to a pending action where 
it has concluded that to do so would infringe upon or deprive a person of a right 
that had matured or become unconditional.

Bradley, 416 U.S. at 720.

The district court found that the rights of the parties had "matured in the sense that the

law of this case ha[d] already been decided by the Supreme Court." 784 F.Supp. at 279 (JA 25).

The district court’s view was that "the parties have a right to rely on that Court’s interpretation

of the law of their case." The court concluded that

[t]o place new legal requirements on the parties at this stage of a proceeding 
which has lasted more than seven years, involves conduct occurring a decade ago, 
and which has been before various courts of the federal system now seven times 
including a trial by jury would be patently unfair.

Id. The district court overlooked the crucial fact that plaintiff was not seeking to place new

legal obligations on McLean, but merely to assert her right to be free from race discrimination

in employment; as already discussed, the discrimination was itself illegal under law prevailing at

the time the discrimination was committed. Any freedom from liability that defendants may

have anticipated due to Patterson is not a "right,” and in any event is far from "matured" or

"unconditional.” Therefore, the 1991 Act would not impair any settled expectations or mature

rights on defendant’s part.

(c) Impact of the Change in Law

The third consideration relating to whether application of the Act would produce a 

"manifest injustice" is the impact of the change in the law. This factor concerns "the possibility 

that new and unanticipated obligations may be imposed upon a party without notice or an

32



opportunity to be heard." Bradley, 416 U.S. at 720. Bradley does not require retrospective

application of statutes that create new substantive liabilities. The district court held that

application of the Act would "place new and unanticipated obligations on defendant," because

section 1981 had been interpreted as not applicable to plaintiffs case and "[djefendant could not

have anticipated that Congress . . . would change" that interpretation. 784 F.Supp. at 279 (JA

25). The district court’s analysis contains several flaws. First, unlike a defendant, who liability

for conduct that was legal when it was engaged in, McLean was on notice when the challenged

conduct occurred that racial harassment, race-based denial of promotion and discharge of

employees was illegal. The cause of action under § 101 merely restores to plaintiff her § 1981

remedy as it stood prior to the Supreme Court’s decision in this case. Therefore, defendant

cannot assert "manifest injustice" based on the third prong of the Bradley standard. Defendants

here would enjoy windfall immunity from liability for discrimination if the court were to refuse

to apply the remedies and procedures as restored to their pre-1989 status.

III. APPLICATION OF SECTION 101 OF THE 1991 CIVIL RIGHTS ACT IS
PARTICULARLY APPROPRIATE HERE BECAUSE IT RESTORES THE LAW 
THAT WAS IN EFFECT AT THE TIME OF THE CHALLENGED CONDUCT

A. Section 101 Does Not Impose Unanticipated Obligations on McLean

The effect of applying the Civil Rights Act of 1991 to this case is simply to restore the

legal status quo that governed when the underlying conduct was carried out, and when the case

was filed. The 1991 Act restored the civil rights laws to their previous status by repudiating a

set of recent Supreme Court decisions which had interpreted the civil rights laws in new and

restrictive ways. The Civil Rights Act was passed "to respond to [these] recent decisions by the

Supreme Court." Pub. L. 102-166, 105 Stat. 1071, § 3(3). In fact, there was complete unanimity

from the outset of the legislative process in 1989 that Patterson was wrong and had to be

33



overturned.37 38 As Senator Danforth explained, "what was wrong was that in 1989 the Supreme 

Court chose to turn the clock back, and that can never happen in civil rights; it can never be 

allowed to happen." 137 Cong. Rec. S15500 (daily ed. Oct. 30, 1991). "Congress’ clear intention 

was to undo the effect of these cases, which it believed were wrongly decided. The restorative 

intent behind the 1991 Civil Rights Act can only be fully satisfied by applying it to cases which 

were pending at the time of its enactment." Stender, 780 F. Supp. at 1306.“

The restorative intent with regard to § 101, and specifically this case couldn’t be clearer. 

Senator Hatch announced, after Brenda Patterson testified in Congress, that the bill "would take 

care o f Brenda Patterson. We are prepared to do that right now. We are for overruling the 

Patterson versus McLean case." (emphasis added). Cong. Rec. S16465 (daily ed. Oct. 24,

1990) (emphasis added). Legislation that applied prospectively only cannot "take care o f  a 

plaintiff in a pending case, as Senator Hatch promised this legislation would. To now hold that

37 T here is one aspect of this bill everybody agrees with . . . and that is the overrule o f . . . 
the Patterson versus McLean case." 136 Cong. Rec. S15329 (daily ed. Oct. 16, 1990) (Statement 
of Sen. Hatch); "[Wjith respect to the Patterson versus McLean case, which the distinguished 
Senator from Massachusetts said has to be overruled, there is no disagreement. I agree with 
that. I have from the beginning. The White House, as far as I know has from the very 
beginning." 136 Cong. Rec. S9331 (daily ed. July 10, 1990) (Statement of Sen. Hatch). "There 
is a broad consensus that the Patterson case needs to be reversed." 136 Cong. Rec. S16571 
(daily ed. Oct. 24, 1990) (Statement of Sen. Jeffords); "In agreement with the administration, 
Senator Kennedy, and the civil rights groups, my bill would also overturn . . . Patterson versus 
McLean Credit Union.” 137 Cong. Rec. S2261 (daily ed. Feb. 22, 1991) (Statement of Sen. 
Simpson); "All interested parties, including the administration, civil rights groups and business 
groups, agree that [Patterson versus McLean Credit Union] incorrectly narrowed the protections 
available to minorities." 137 Cong. Rec. S7026 (daily ed. June 4, 1991) (Statement of Sen. 
Durenberger).

38 See Graham, 57 F.E.P. Cases at 1430 (applying 1991 Civil Rights Act to pending case on 
grounds that "[i]n cases where Congress is correcting Supreme Court interpretations of a statute 
rather than creating new rights, the statute is frequently interpreted retroactively absent 
evidence of intent to the contrary"); Saltarikos v. Charier Mfg. Co., Inc., 57 F.E.P. Cases 1225 
(E.D. Wise. 1992) (applying 1991 Civil Rights Act to pending case because "Congress has 
spoken with the clear intent to correct what it thought was the Supreme Court’s erroneous view 
of certain aspects of the law on civil rights").

34



Brenda Patterson should not receive the benefit of § 101, the passage of which was directly 

motivated by the strongly and widely held view that her claims under § 1981 had been wrongly 

dismissed, would be a distortion of the new Act and grossly unfair.

The restorative provisions of the 1991 Act do not create new liabilities. This is not a 

case in which, by invoking the Act, the plaintiff seeks to have new rules applied to the game 

after it has been played. Defendant had full reason to know that their conduct was illegal when 

they engaged in it. Applying § 101 here imposes no new or unanticipated burden on 

defendants, but merely restores plaintiffs original § J 981 claims.

B. Courts Have Generally Applied Restorative Legislation to Pending 
Claims

Where Congress overrules judicial decisions through legislation, the new legislation must 

apply to pending cases in order to effectuate the most basic purpose of the law. "The general 

rule is that judicial decisions have retroactive effect." Occidental Chemical v. Int’l Chem. Wrkrs. 

Union, 853 F.2d 1310, 1316 (6th Cir. 1988), citing Goodman v. Lukens Steel, 482 U.S. 656, 662 

(1987).39 Therefore, in order for Congress to correct a judicial misinterpretation of a federal 

statute, the corrective legislation must also apply to pending cases. Otherwise, the erroneous 

interpretation would persist despite Congress’s repudiation of it.

Several courts have accordingly recognized the propriety of applying restorative 

legislation to pending cases. For example, the Civil Rights Restoration Act of 1987, which 

reversed the Supreme Court’s erroneous interpretation in Grove City College v. Bell, 465 U.S.

555 (1984), of Title IX of the Education Amendments of 1972, has repeatedly been applied to 

cases that were pending when the Act passed notwithstanding the absence of any statutory

39 But note that non-retroactivity is appropriate in certain circumstances defined in 
Chevron Oil Co. v. Huson, 404 U.S. 97 (1971). Point IV, infra, argues that Patterson should not 
have been applied retroactively to this case.

35



language specifying whether it should so apply.40 "Retroactive application of a statute is 

appropriate when Congress enacts the statute to clarify the Supreme Court’s interpretation of 

previous legislation thereby returning the law to its previous posture." Ayers, 893 F.2d at 754-55. 

The 1987 Civil Rights Restoration Act, like the 1991 Civil Rights Act, was "directed at 

overruling a Supreme Court interpretation of a statute," and its purpose was "not to amend but 

to ’restore’ and ‘clarify.’" Leake, 695 F. Supp. at 1417.

Courts have followed the rule that restorative laws apply retroactively in other contexts 

as well. A 1986 amendment to the Education of the Handicapped Act that overturned the 

Supreme Court decision in Smith v. Robinson, 468 U.S. 992 (1984), was applied to pending cases 

because the amendment "simply codifiefd] a congressional purpose long in place which Congress 

believed the Supreme Court had misinterpreted." Mrs. W. v. Tirozzi, 832 F.2d 748, 755 (2d Cir. 

1987). Similarly, the United States successfully urged that the 1982 amendment to section 2 of 

the Voting Rights Act that corrected Mobile v. Bolden, 446 U.S. 55 (1980), must be applied to 

pending cases. United States v. Marengo County Comm’n, 731 F.2d 1546, 1553 (11th Cir.), cert, 

denied, 469 U.S. 976 (1984).

C. Failure to Apply Section 101 Would Create Unnecessary Inequities 
and Doctrinal Confusion

Unless the Act is applied to pending cases, such as this one, any case that challenges 

ongoing conduct may be forced to split into two cases, or at least be decided under two separate 

lines of authority as to each issue -  one for pre-Act conduct and one for conduct that occurred

40 Lussier v. Dugger, 904 F.2d 661 (11th Cir. 1990) (applying Civil Rights Restoration Act to 
pending case), Ayers v. Allain, 893 F.2d 732 (5th Cir. 1990), vacated on other grounds, 914 F.2d 
676 (5th Cir. 1990) (en banc), cert, granted, 111 S. Ct. 1579 (1991) (same); Leake v. Long Island 
Jewish Medical Center, 695 F. Supp. 1414 (S.D.N.Y. 1988), affd, 869 F.2d 130 (2d Cir. 1989) (per 
curiam) (same); Bonner v. Arizona Dept, o f Corrections, 714 F. Supp. 420 (D. Ariz. 1989) (same); 
but see DeVargas v. Mason & Hangar-Silas Mason, 911 F.2d 1377 (10th 1990), cert, denied, 111 S. 
Ct. 799 (1991).

36



after the passage of the 1991 Civil Rights Act. Confusion as to which standards apply will only 

compound the complexity of civil rights litigation lamented by Judge Posner in Malhotra v. 

Cotter Co., 885 F.2d 1305, 1313 (7th Cir. 1989) (asking "[h]ow many plaintiffs can successfully 

negotiate the treacherous and shifting shoals of present-day federal employment discrimination 

law?"). This Court should not ratify a result which is so clearly not the intention of Congress. 

Application of the restorative provisions of the Act to pending cases would prevent such 

inequitable and confusing consequences.

IV. PATTERSON V. MCLEAN CREDIT UNION SHOULD NOT BE APPLIED
RETROACTIVELY AFTER CONGRESS HAS EXPRESSLY REJECTED IT

Even if this Court concludes that the Civil Rights Act of 1991 does not govern this case, 

it should overrule the decision of the district court on the independent ground that the Supreme 

Court’s decision itself should not be applied retroactively to plaintiffs’ claims. There are two 

points to the Supreme Court’s decision in this case construing § 1981: first, its decision to 

construe the law and second, its decision to apply the new construction. The Court construed § 

1981 with respect to both harassment and promotion. It then decided to apply its construction 

to the harassment claim, but declined to apply it to the promotion claim, because "respondent 

has not argued at any stage that petitioner's promotion claim is not cognizable under § 1981." 

491 U.S at 186. The Court’s decision not to apply the new construction to the promotion claim 

receives added impetus from the fact that the 1991 Act has since repudiated that construction. 

Indeed, in light of the Act, the Supreme Court's construction should not apply to any claims -- 

including Brenda Patterson’s promotion and harassment claims -- that arose prior to the 

Supreme Court’s announcement of that construction. The propriety of non-retroactive 

application of new rules of decision has long been governed by the standard set forth in Chevron 

Oil Co. v. Huson, 404 U.S. 97 (1971). The Supreme Court last Term in James B. Beam Distilling 

Co. v. Georgia, 111 S. Ct. 2439 (1991), limited Chevron by holding that when a new rule of

37



constitutional law is applied in the case announcing that rule, the rule must then also be applied 

retroactively to all other pending claims. Because there were five separate opinions in James B. 

Beam, and no plurality opinion, the precise scope of the decision is difficult to determine. In 

any event, Chevron was not overruled, and this case presents the kind of circumstances to which 

it still applies.

Because the Supreme Court’s holding in Patterson interpreted the Civil Rights Act of 

1866 and not the Constitution, the holding of James B. Beam is inapplicable, and Chevron 

remains the applicable test for determining retroactivity of the Supreme Court’s construction of 

§ 1981 to Mrs. Patterson’s own claims. Justices Scalia, Blackmun and Marshall concurred in the 

judgement in James B. Beam regarding the retroactivity of a Constitutional decision to the claim 

before them, but did not support the broader reasoning of the Souter opinion nor reject the 

earlier holding of the Chevron case.41 Only Justices Souter, Stevens, and White adhered to a 

general principle of retroactivity not limited to constitutional decisions.42

Even if James B. Beam applied to decisions regarding statutory as well as Constitutional 

law, it is distinguishable from this case because James B. Beam did not involve the retroactive 

application of a rule of decision which has been subsequently repudiated by Congress. The 

common animating principle behind the fractured opinions in James B. Beam is the prompt and 

uniform application of a new rule, precisely because the new rule is the one which has been 

determined to be correct. However, this consideration would not be served by the retroactive 

application of a decisional rule, such as the one in Patterson, that has been repudiated by

41 111S. Ct. at 2449 (opinion by Blackmun, J., joined by Marshall and Scalia, JJ., 
concurring in the judgment) (stating agreement only "that failure to apply a newly declared 
constitutional rule to cases pending on direct review violates basic norms of constitutional 
adjudication.") (emphasis added).

42 111 S. Ct. at 2442 (opinion by Souter, J., joined by Stevens, J.); id. at 2448 (opinion by 
White, J., concurring in the judgment).

38



Congress and will not be applied in the future. Rather, the effect of the retroactive application 

of the Supreme Court’s construction of § 1981 is to perpetuate bad law.43 The test announced 

in Chevron thus applies here.

Application of the three Chevron factors to this case reveals the impropriety of applying 

Patterson retroactively. First, Patterson involved a clear break from past precedent. The early 

congressional consensus that restorative legislation would be necessary to overturn Patterson 

shows that the decision was a departure from the prior interpretation of § 1981. Cf. 404 U.S. at 

106. The second prong of the Chevron test -- promoting the purposes of the new rule -  also 

supports non-retroactive application of Patterson. Id. at 106-107. It does not makes sense to 

perpetuate the operation of an obsolete rule by continuing to retroactively apply it after its 

demise. Finally, applying the Supreme Court’s narrow construction to Mrs. Patterson’s claims 

here creates grave inequities under the third prong of the Chevron test. Cf. Id. at 107. Mrs. 

Patterson filed suit under prior law, which clearly authorized her cause of action. Prior law has 

now been restored. It thus makes no sense to further the Supreme Court’s erroneous 

interpretation of § 1981 in Patterson. Applying the Supreme Court’s construction retroactively 

to plaintiffs’ claims while refusing to apply the 1991 Act would amount to ensnaring plaintiffs 

valid claims on a crag between inconsistent "retroactivity" rules, while according defendant 

windfall immunity from liability for its discriminatory conduct.

There is, of course, no law-of-the-case requirement that the Supreme Court’s 

construction apply retroactively here. As an initial matter, it must be emphasized that the 

Supreme Court itself did not apply its new promotion-denial test retroactively to Mrs.

43 This reasoning does not depend on a determination that the 1991 Civil Rights Act 
applies to pending cases. Rather, it rests on a more general notion that, to the extent that 
James B. Beam disfavors application of defunct rules to pending cases and insists on prompt 
application of new rules, that interest is subverted, not furthered, by anachronistic application of 
Patterson.

39



Patterson’s promotion claim. Moreover, even if it had, as it did with the harassment claim, the 

change in the law now warrants a different outcome. Law of the case does not constrain 

subsequent decisions where there has been an intervening change in the law. Cf Gaines v. 

Doughtery County Bd. o f Education, 775 F.2d 1565 (11th Cir. 1985); Amen v. City o f Dearborn, 

718 F.2d 789 (6th Cir. 1983). The issue now presented is whether the Supreme Court’s 

construction of § 1981 should continue to apply now that Congress has unequivocally repudiated 

i t , an issue which was not presented to or decided by the Supreme Court.

40
i



V. THE DISTRICT COURT IMPROPERLY USURPED THE ROLE OF THE JURY
BY MAKING FACTUAL FINDINGS

A. This Court’s Recent Interpretations of the "New and 
D istinct Relation" Standard Require Careful 
Assessment of Numerous Factors

Under the principles set forth in Mallory v. Booth Refrigeration Supply Co. Inc., 882 F.2d 

908 (4th Cir. 1989), White v. Federal Express, Corp., 939 F.2d 157 (4th Cir. 1991), and Rountree v. 

Fairfax County School Board, 933 F.2d 219 (4th Cir. 1991), significant changes in responsibilities 

and pay translate into an opportunity to enter into a new contract. Harrison v. Associates Corp. 

o f North America, 917 F.2d 195, 198 (5th Cir. 1990) (pay raise accompanied by significant 

change in duties and responsibilities meets Patterson test). A determination of whether a new 

and distinct relationship is to be formed compels an assessment of all the evidence.

An application of the factors in Mallory, White, and Rountree, compels the conclusion 

that a jury could have found that Mrs. Patterson met the requirements of the "new and distinct 

relation" test. The two positions at issue were separate and distinct with very different levels of 

responsibility. As file coordinator, Mrs. Patterson filed insurance papers, titles, paid loans and 

other documents, and did an assortment of odd jobs and menial tasks. The accountant 

intermediate position, on the other hand, was a significantly better paid and more respected 

position, which included money management responsibilities, 3 Tr. 100 (3 JA 71), and numerous 

duties that required use of bookkeeping and accounting knowledge. Deft. Ex. 14 (SA 26), 4 Tr. 

37-38 (3 JA 119-20).

McLean repeatedly made the point at trial that the responsibilities of the two jobs were 

vastly different. The Company’s chief operating officer, Robert Stevenson, testified at trial that 

because McLean Credit Union was small, jobs were specialized and "dealt with their specific 

type functions." 3 Tr. 163 (SA 21). Williamson testified that she "progressed as the credit union 

progressed," and that as more services were offered, she was "exposed to more in-depth

41



bookkeeping." Williamson Dep. 24. When the need for fund transmission outstripped the 

capacity of the two accountant intermediates, Jack Braswell, the supervisor, performed that 

function, indicating the value the company placed on that duty. The district court itself noted 

that "clearly from the evidence" Mrs. Patterson and Mrs. Williamson performed different job 

functions. 3 Tr. at 72 (3 JA 42). To further emphasize the dramatic differences between the 

two jobs, the defendant compared a promotion from file coordinator to accountant intermediate 

to a promotion from paralegal to partner of a law firm. 3 Tr. 48 (SA 19). This is precisely the 

kind of promotion which the Supreme Court held can still be the basis of a § 1981 claim.

B. The District Court Disregarded Proper Summary Judgment 
Standards

The decision of the district court must be reversed because it deprives Mrs. Patterson of 

her right to a jury trial on her §1981 promotion-denial claim. See, Lytle v. Household 

Manufacturing Co., 110 S. Ct. 1331 (1990); Wade v. Orange County Sheriff’s Office, 844 F.2d 951 

(2nd Cir. 1988); Edwards v. Boeing Vertol Co., 717 F.2d 761 (3rd Cir. 1983), vacated on other 

grounds, 468 U.S. 1201 (1984); Kim v. Coppin State College, 662 F.2d 1955 (4th Cir. 1981); Bibbs 

v. Jim Lynch Cadillac, Inc., 653 F.2d 316 (8th Cir. 1981).44 When a plaintiff has "produced 

sufficient evidence to raise a genuine issue under [§] 1981," the trial court should allow a jury to 

make the "ultimate determination." Kim, 662 F.2d at 1061. There is no question that there are 

sufficient facts in the record to warrant sending Mrs. Patterson’s claim to a jury.

The district court did not simply examine the facts in the record to determine whether 

any material facts were undisputed; the court went well beyond that, and in so doing subverted 

the summary judgment process and improperly took over the role of the jury, committing

44 The Ninth Circuit Rodriguez v. General Motors, 1990 U.S.App. LEXIS 8928 (9th Cir, June 
6, 1990), correctly observed that the Supreme Court intended Mrs. Patterson’s case to go to a 
jury, otherwise, "there would have been no need for the Supreme Court to set out what the 
appropriate jury instructions should be.”

42



reversible error. The district court weighed evidence, made credibility determination, drew 

inferences that were for a jury to make and, compounding that error, resolved conflicting 

inferences against the non-movant. In order to grant summary judgment, the district court 

would have had to find that "the record as a whole could not lead a rational trier of fact to find 

for the nonmoving party." Matsushita Elec. Co. v. Zenith Radio, 475 U.S. 574 (1986). The 

evidence in the record in this case showed that a rational and properly instructed jury could 

have issued a verdict in favor of the plaintiff.

The district court sorted through the duties for each position, weighed the evidence, and 

conclude that the "duties were not greatly different." 784 F.Supp. at 285 (JA 31). Twelve 

jurors, with more real-world experience than a single federal judge, could have reached the 

opposite conclusion. It is for a jury to make determinations of the credibility of the witnesses, 

to weigh the evidence by taking into account all duties, both written and unwritten, and the 

obvious difference in status and responsibility overall between the position Mrs. Patterson held 

and the one she sought. A rational jury might well have concluded that it was not "ludicrous" to 

infer that differences in office equipment demonstrated the level of responsibility and the 

difference the in status company accorded the jobs. Finally, it cannot be doubted that a jury 

could have concluded that a $2.00 per hour increase in salary was significant.45

The district court went on to discount the possibility of promotion to higher level jobs46 

and the likelihood of an opportunity for increased overtime as factors indicating that the 

promotion Mrs. Patterson sought was "distinct" from her job. While the court found no

45 Indeed, had the district court correctly determined the salary of the affected jobs, it 
might have reached a different conclusion. Moreover, a jury, more familiar with hourly rates in 
the area, might well have concluded that an 89 cent-differential, multiplied by 37 hours per 
week, was significant.

46 Cf. Rountree, 933 F.2d at 223 (suggestion that evidence of such opportunity sufficient).

43



evidence that Williamson was promoted, her deposition testimony shows the contrary to be true.

Williamson Dep. 6-7. The court again erred when it refused to make an inference in favor of

plaintiff based on evidence of Sandra Folsom’s further promotion. Instead, the district court

required plaintiff to prove with "certainty that such movement was an element of any new

contractual relationship . . . ." 784 F.Supp. at 285 (JA 31). The court made the same error

when it considered the evidence that as an accountant intermediate, Williamson was allowed to

work overtime more often than Patterson was as an accounting clerk. The district court

assumed that this was true, but then improperly required plaintiff to prove that overtime work

was an "incident" of the higher position. While McLean could certainly have offered evidence,

for example, that others in the position had not been promoted, that other clerical personnel

had been promoted to positions higher than accountant intermediate without holding that

position, or that all workers received the same opportunities for overtime, it did not do so. The

evidence is clearly an adequate basis upon which a jury could find that upward job movement

and increased opportunity for overtime were more likely than not. Plaintiff was not required to

present more on summary judgment. Rather, she was

entitled, as on motion for directed verdict to have the credibility of [her] 
evidence as forecast assumed, [her] version of all that is in dispute accepted, all 
internal conflicts in it resolved favorably to [her], the most favorable of possible 
alternative inferences from it drawn in [her] behalf; and finally, to be given the 
benefit of all favorable legal theories invoked by the evidence so considered.

Charbonnages De France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979).47

47 As recently explained by the Court of Appeals for the Eighth Circuit:

In ruling on a motion for directed verdict, the judge must determine if the 
evidence is such that reasonable minds could differ on the resolution of the 
questions presented in the trial, viewing the evidence in the light most favorable 
to the plaintiff. On a motion for directed verdict, the court may not decide the 
facts itself.

Continental Casualty Co. v. DHL Services, 752 F.2d 353, 355-56 (8th Cir. 1985). See also,

44



The district court in this case dismissed Mrs. Patterson’s promotion-denial claim on the 

basis of its own determination that, as a factual matter, a promotion from file coordinator to 

accountant intermediate does not create a "new and distinct relation" between employer and 

employee. The court drew conclusions about McLean’s organizational structure from the 

testimony of witnesses and other evidence in the record in order to evaluate with respect to the 

jobs at issue here the factors it viewed as relevant. The district court, however, is not 

authorized to make such a determination. Anderson v. Liberty Lobby, A ll  U.S. 202, 206 (1986) 

(holding that credibility determinations, the weighing of evidence and the drawing of legitimate 

inferences from the facts are jury functions). Here, the evidence clearly shows significant 

differences between Mrs. Patterson’s job and the position into which she sought to be promoted. 

Only a jury is authorized to determine what differences exist between the two positions and 

whether those differences are significant enough to create a "new and distinct relation."

Because the evidence of differences between the two jobs sufficed to raise a factual issue 

whether the promotion would create a "new and distinct relation," the claim should have been 

submitted to the jury.

Garment Dist., Inc. v. Belk Stores Services, Inc., 799 F.2d 905, 906 (4th Cir. 1986) ( weighing of 
evidence, evaluation of credibility are "functions reserved for the jury . . . evidence must disclose 
that [movant] cannot prevail as a matter of law"); Lust v. Clark Equipment Co., Inc., 792 F.2d 
436, 438 (4th Cir. 1986) ("standard imposes a strict limitation on a court’s function").

45



CONCLUSION

For the foregoing reasons, the decision below should be vacated and the case should be 

remanded to the district court for a jury trial on the merits of plaintiffs’ § 1981 claim.

Respectfully submitted,

HAROLD LILLARD KENNEDY, III 
HARVEY LEROY KENNEDY, SR. 

Kennedy, Kennedy, Kennedy 
& Kennedy

710 First Union Building 
Winston-Salem, North Carolina 27101 
(919) 724-9207

JULIUS L. CHAMBERS 
CHARLES STEPHEN RALSTON 
ERIC SCHNAPPER 
JUDITH REED

NAACP Legal Defense and 
Educational Fund, Inc.
16th Floor 
99 Hudson Street 

New York, New York 10013 
(212) 219-1900

June 1992
Counsel for Plaintiff-Appellant

46



APPENDIX

COURTS OF APPEALS APPLYING REMEDIAL LAWS TO PENDING CASES

Third Circuit: Samuelson v. Susen, 576 F.2d 546., 551 (3rd Cir. 1978) (presumption in 
favor of applying "laws of a remedial or procedural nature").

Fourth Circuit: Trageser v. Libbie Rehabilitation Center, 590 F.2d 87, 88 (4th Cir. 1978).
Fifth Circuit: Lavespere v. Niagara Machine & Tool Works Inc., 910 F.2d 167, 181-82 (5th 

Cir.), reh’g denied, 920 F.2d 259 (5th Cir. 1990).
Reeves v. International Tel and Tel Corp., 616 F.2d 1342, 1350 (5th Cir. 1980) 

(presumption in favor of applying to pre-existing claims new laws which "are procedural and 
affect only remedies"), cert, denied, 449 U.S. 1077 (1981).

United states v. Blue Sea Line, 553 F.2d 445, 448 (5th Cir. 1977).
Sixth Circuit: Dale Baker Oldsmobile, Inc. v. Fiat Motors o f N. America, 794 F.2d 213,

215 (6th Cir. 1986) (presumption in favor of applying "a remedial or procedural act which does 
not destroy a vested right").

Eighth Circuit: In re Resolution Trust Corp., 888 F.2d 57, 58 (8th Cir. 1989).
Ninth Circuit: Delta Computer Corp. v. Samsung Semiconductor, 879 F.2d 662, 663 (9th 

Cir. 1989) ("When a statute is addressed to remedies or procedures and does not otherwise alter 
substantive rights, it will be applied to pending cases") (quoting Friel).

Kruso v. International Telephone and Telegraph Corp., 872 F.2d 1416, 1425 (9th Cir. 1989) 
(presumption in favor of applying to pending claims "a statute ... addressed to remedies or 
procedure").

Nichols v. Stapleton, 877 F.2d 1401, 1403 (9th Cir. 1989) (quoting Friel).
DeCurules v. I.N.S., 833 F.2d 861, 863 (9th Cir. 1987) (presumption in favor of 

application to pre-existing claims of "a grant or expansion of an access to a remedy").
Friel v. Cessna Aircraft Co., 751 F.2d 1037, 1039 (9th Cir. 1985) (presumption in favor of 

applying law "addressed to remedies or procedures").
Eleventh Circuit: Ferrero v. Associated Materials Inc., 923 F.2d 1441, 1445 (11th Cir.

1991) (separate rule of construction favoring application to pending cases of "procedural statutes 
and statutes that affect only a litigant’s remedy");

United States v. Peppertree Apartments, 942 F.2d 1555, 1560-61 (11th Cir. 1991)
("Statutory changes that are remedial in nature apply retroactively.... The change in the statute 
... does not impose a new obligation upon [the defendant]. Instead, it imposes and additional 
remedy on already proscribed conduct.... ’[T]he statute imposed no new obligation; it merely 
reinforced an existing one’”), petition for cert, filed (Dec. 26, 1991).

United Stales v. Femandez-Toledo, 745 F.2d 703, 705 (11th Cir. 1985) (presumption in 
favor of applying laws "that affect only procedure or remedy").

D.C. Circuit: Yakima Valley Cablevision, Inc. v. F.C.C., 794 F.2d 737, 748 (D.C. Cir. 
1986) ("this circuit views statutes that change substantive rights as differing from those -- as in 
Bradley — that merely change substantive remedies”) (emphasis in original).

Shirey v. Devine, 670 F.2d 1188, 1197 (D.C. Cir. 1982) (New statute to be applied to pre­
existing claims "[ijnsofar as [the pre-existing rights").

Eikenberry v. Callahan, 653 F.2d 632, 635-36 n.14 (D.C. Cir. 1981).



CERTIFICATE OF SERVICE

This will certify that I have this date served counsel for defendant-appellee in this 

action with true and correct copies of the foregoing Brief of Plaintiff-Appellant and Joint 

Appendix by placing said copies in the U.S. Mail at New York, New York, First-Class postage 

thereon fully prepaid addressed as follows:

Thomas J. Doughton 
Hutchins, Tyndall, Doughton & Moore 
115 West Third Street 
Winston-Salem, N.C. 27101

/ ^Executed this /  day of June, 1992 at New York, New York.

for Plaintiff-Appellant