Johnsons Jr., v. Ryder Truck Lines, Inc. Brief for Respondent in Opposition

    In ti?£
&unrm? Ghmrt of Ih? Ihuitb States

OCTOBER TERM, 1978

NO. 78 - 179

ROBERT L. JOHNSON, JR., ET AL.,
Petitioners

versus

RYDER TRUCK LINES, INC., ET AL.,
Respondents

On Petition for a Writ of Certiorari to the 
United States Court of Appeals for the 

Fourth Circuit

BRIEF FOR RESPONDENT RYDER TRUCK 
LINES, INC., IN OPPOSITION

E. Osborne Ayscue, Jr., 
HELMS, MULLIS & 

JOHNSTON 
2800 NCNB Plaza 
Charlotte, North Carolina 

28280

Attorneys for Respondent 
Ryder Truck Lines, Inc.

J. P. Jones 
Peter Reed Corbin 
JONES, CORBIN & 

DICKINSON 
Post Office Box 41566 
Jacksonville, Florida 

32203

Attorneys for Respondent 
Ryder Truck Lines, Inc.

A B Letter Service, Inc., 327 Chartres St., New Orleans, La. (504) 581-5555



1

I N D E X

Table of Authorities................................................. ii

Jurisdiction...............................................................  1

Questions Presented................................................  2

Statutory Provisions Involved..................................  2

Statement of the Case...........................    3

Argument.................................................................  4

Conclusion......................................................   8

Certificate of Service................................................  9

PAGE NO.



IX

Afro-American Patrolmen’s League v. Duck,
503 F.2d 294,8 FEP Cases 1124 (6th Cir.

TABLE OF AUTHORITIES

PAGE NO,

1974).................................................................... 7

Alexander v. Gardner-Denver Co.,
415 U.S. 36, 7 FEP Cases 81 ( 1 9 7 3 ) . . . . . . . . . .  5

Bolden v. Pennsylvania State Police,
F.2d__ , 17 FEP Cases 687

(3d Cir. 1978) .....................................................  6

Chance v. Board o f Examiners, 534 F,2d 
993, 11 FEP Cases 1450 (2d Cir.), 
modified on rehearing on other grounds, 
534 F.2d 1007, 13 FEP Cases 150 (2d Cir.
1976) , cert, denied 431 U.S. 965, 14 FEP
Cases 1822 (1977).................................................  5,6

Crokerv. Boeing Co., 437 F.Supp, 1138,
15 FEP Cases 165 (E.D.Pa. 1 9 7 7 ) . . . . . . . . . . . .  8

County o f Los Angeles v. Davis,
___F.2d___, 16 FEP Cases 396, (9th Cir.
1977) , cert, granted, No. 77-1553 (1978)...... . 4,5,7

Johnson v. Hoffman, 424 F.Supp. 490,
16 FEP Cases 371 (E.D. Mo. 1977).....................  8

Johnson v. Railway Express Agency, Inc.,
421 U.S. 454, 10 FEP Cases 817 (1975)............. 4



Ill

TABLE OF AUTHORITIES (Continued)

PAGE NO,

Long v. Ford Motor Co., 496 F.2d 500, 7 FEP
Cases 1053 (6th Cir. 1974) .............................. .. . 6

Patterson v. American Tobacco Co.,
535 F.2d 257, 12 FEP Cases 314, (4th Cir.),
cert, denied,____U.S.____ , 13 FEP Cases
1308 (1976).............................................. . . . . .  5

Teamsters v. United States, 431 U.S. 324,
14 FEP Cases 1514 (1977)........... 3,4,5,7

United States v. East Texas Motor Freight,
564 F.2d 179, 16 FEP Cases 163
(5th Cir. 1977)..........      7

Washington v. Davis, 426 U.S. 229,
12 FEP Cases 1415 (1976).................................. 8

Waters v. Wisconsin Steel Works, 502 F.2d 1309,
8 FEP Cases 577 (7th Cir. 1974), cert.
denied, 425 U.S. 997, 12 FEP Cases 1335
( 1976) . . . . ......................................................   5,6

Watkins v. United States Steel Workers,
Local 2369, 516 F.2d 41, 10 FEP Cases
1297 (5th Cir. 1975).......................   7

Wiliams v. Norfolk and Western Ry., 
530 F.2d 539, 11 FEP Cases 836 
(4th Cir. 1975)........................... 7



IV

STATUTORY PROVISIONS:

42 U.S.C. § 1981, The Civil Rights Act of 1866 , . . passim

42 U.S.C. § 1983..............................................   6

42 U.S.C. § 1985........ ................................. .. 6

42 U.S.C. § 1988.......................................................  2,3,6

42 U.S.C. §2000e et seq., Title VII of the
Civil Rights Act of 1964, as amended............... .. passim

42 U.S.C, § 200Qe-2(h), Section 703(h) 
of Title VII of the Civil Rights Act of 
1964 ......................................     passim

N.C. Stat. § 1-52(1).............................   3

OTHER AUTHORITIES:

Executive Order No. 11246......................................  7

TABLE OF AUTHORITIES (Continued)

PAGE NO.



IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1978 

NO. 78-179

ROBERT L. JOHNSON, JR., et al.,
Petitioners

versus

RYDER TRUCK LINES, INC., et al.,
Respondents

ON PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS FOR THE 

FOURTH CIRCUIT

BRIEF FOR RESPONDENT 
RYDER TRUCK LINES, INC.

IN OPPOSITION

COMES NOW the Respondent, Ryder Truck Lines, Inc., 
by and through its undersigned attorneys, and respectfully 
prays that the Petition For A Writ of Certiorari To The Unit­
ed States Court of Appeals For The Fourth Circuit filed in 
this proceeding on July 31, 1978, be denied.

JURISDICTION

Respondent Ryder does not question the jurisdiction as 
set forth in the Petition.



2

QUESTIONS PRESENTED

Respondent Ryder contends that the questions presented 
in this case are more appropriately stated as follows:

1. Does a facially neutral seniority system which has been 
found to perpetuate the effects of past discrimination vio­
late 42 U.S.C. § 1981 when the seniority system is bona fide 
under Section 703(h) of Title VII of the Civil Rights Act of 
1964, 42 U.S.C. §2000e-2(h)?

2. Does 42 U.S.C. § 1988 mandate that 42 U.S.C. § 1981 
be interpreted consistent with the substantive provisions of 
Title VII of the Civil Rights Act of 1964, as amended, 42 
U.S.C. § 2000e et seq., and particularly Section 703(h) of 
that Act?

3. Did Congress by the enactment of Section 703(h) of 
Title VII of the Civil Rights Act of 1964, as amended, 42 
U.S.C. §2000e-(h), partially and impliedly repeal 42 U.S.C. 
§1981?

STATUTORY PROVISIONS INVOLVED

In addition to the statutory provisions set forth in the 
Petition, 42 U.S.C. § 1988 provides in pertinent part:

“The jurisdiction in civil...matters conferred on 
the district courts by the provisions of this chap­
ter...shall be exercised and enforced in conformity 
with the laws of the United States, so far as such 
laws are suitable to carry the same into effect....”



3

STATEMENT OF THE CASE

Petitioner’s Statement of the Case is substantially correct. 
However, the Petition misstates the precise reasons support­
ing the decision reached by the Fourth Circuit panel on re­
hearing.

The two members of the Court of Appeals who formed the 
majority opinion did not conclude that the seniority system 
in this case would have violated 42 U.S.C. § 1981 prior to 
the decision by this Court in Teamsters v. United States, 431 
U.S. 324 (1977). Nor did the panel conclude that Section 
703(h) of Title VII, as construed by Teamsters, is directly 
applicable to § 1981. What the panel majority did decide is 
that Teamsters invalidated the earlier conclusion that Ryder’s 
facially neutral seniority system violated Title VII since the 
seniority system involved in this case was “virtually identi­
cal’’ to that considered in Teamsters. App. 2a-3a. Complete­
ly independent of this conclusion, however, the panel majori­
ty also concluded that the neutral senority system, which 
applied alike to “both white and black employees”, did not 
violate § 1981.1 The panel majority went on to conclude 
that a contrary holding would “disregard the precepts of 
§ 1988” which directs the federal courts to enforce § 1981 
“in conformity with the laws of the United States.” App. 5a. 
In a special concurring opinion, the third member of the 
court’s panel agreed with the majority's conclusions in all 
respects, with the exception of that concerning § 1988, 
which he felt had “nothing to do with this case.” App. 10a.

1. All three members of the panel agreed that the only cause of action 
under § 1981 of the pre-1965 incumbent black employees was when 
they were initially hired, but that this cause of action was barred by 
North Carolina's three year statute of limitations, N.C. Gen. Stat. 
§ 1-52(1).



4

ARGUMENT

Setting the legal intricacies aside, this case boils down to 
whether this Court is willing to render meaningless and com­
pletely undermine its recent landmark decision in Teamsters 
v. United States, 431 U.S. 324, 14 FEP Cases 1514 (1977) 
by opening to attack under 42 U.S.C. §1981 seniority sys­
tems which are both facially neutral and “bona fide” within 
the meaning of Section 703(h) of Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. §2000e-2(h), even though the 
seniority systems may perpetuate the effects of past dis­
crimination . The Petition presents three basic arguments 
why it should be granted: (1) the Fourth Circuit’s decision 
below is inconsistent with this Court’s decision in Johnson 
v. Railway Express Agency, Inc., 421 U.S. 454, 10 FEP Cases 
817 (1975); (2) there is a split among the circuits over the 
application of 42 U.S.C. §1981 to facially neutral seniority 
systems that perpetuate past discrimination; and (3) this 
Court has already granted certiorari in County o f Los Angeles 
v. Davis, No. 77-1553, which presents an issue similar to that 
in the instant case.

Perhaps the Petitioners’ weakest argument is the conten­
tion that the Fourth Circuit’s Decision below is inconsistent 
with this Court’s Decision in Johnson v. Railway Express 
Agency, Inc., supra, where, in the midst of holding that the 
timely filing of a charge with the EEOC under Title VII does 
not toll the running of the applicable statute of limitations 
in § 1981 claims, this Court also found that the “remedies 
available” under the two statutes “although related, and al­
though directed to most of the same ends, are separate, dis­
tinct and independent.” 421 U.S. at 461, 10 FEP Cases at 
820. Respondent Ryder does not dispute this basic propo­



5

sition. However, as has been recognized by a number of 
courts, the obvious flaw in the Petitioners' theory is that it 
would result in a clearly undesirable conflict in an extremely 
important area of substantive federal law. It is for this very 
reason that the great weight of authority (and the better- 
reasoned approach), both before and after Johnson and 
Teamsters, has recognized that the two avenues of relief, 
although separate and independent, are nonetheless parallel 
and overlapping, and should be interpreted in such a manner 
as to avoid inconsistent results in their substantive provisions. 
See Davis v. County o f Los Angeles, 566 F,2d 1334, 16 FEP 
Cases 396, 400-01 (9th Cir. 1977), cert, granted, No. 77- 
1553 (1978); Patterson v. American Tobacco Co., 535 F.2d 
257, 270, 12 FEP Cases 314, 323 (4th Cir.), cert, denied, 
429 U.S. 920, 13 FEP Cases 1808 (1976); Chance v. Board of 
Examiners, 534 F.2d 993, 11 FEP Cases 1450 (2d Cir.), 
modified on rehearing on other grounds, 534 F.2d 1007, 13 
FEP Cases 150 (2d Cir. 1976), cert, denied, 431 U.S. 965, 
14 FEP Cases 1822 (1977); and Waters v. Wisconsin Steel 
Works, 502 F.2d 1309, 8 FEP Cases 577 (7th Cir. 1974), 
cert, denied, 425 U.S. 997, 12 FEP Cases 1335 (1976). The 
court below quite correctly pointed out that Johnson gives 
“no indication . . .that Congress intended to create conflict­
ing and contradictory standards for determining what con­
stitutes illegal discrimination.” App. 6a-7a. Indeed, this 
Court recognized the “parallel” and “overlapping” relation­
ship between Title VII and §1981 in Alexander v. Gardner- 
Denver Co., 415 U.S. 36, 47, n. 7, 7 FEP Cases 81, 85 
(1973). Any other conclusion than that reached below 
would not only render meaningless Section 703(h) of Title 
VII, but would also completely undermine this Court’s 
Decision in Teamsters.



6

Although Ryder agrees that the position among the cir­
cuits concerning the application of § 1981 is not uniform,the 
Petition considerably overstates the alleged conflict among 
the circuits on this issue. Initially, it should be pointed out 
that no circuit, including the Second Circuit, has squarely 
held that the enactment of Section 703(h) constituted a 
partial “repeal by implication” of § 1981. Indeed, those 
circuits which have squarely ruled upon this question, includ­
ing the Fourth Circuit below, have unanimously held that 
Section 703(h) did not impliedly repeal §1981. App. 3a,
9a, n,2; see Bolden v. Pennsylvania State Police,__ F.2d___.,
17 FEP Cases 687 (3d Cir. 1978); and Long v. Ford Motor 
Co., 496 F.2d 500, 7 FEP Cases 1053 (6th Cir. 1974). A 
rejection of the implied appeal theory is, in essence, all the 
Third Circuit was saying when, in Bolden v. Pennsylvania 
State Police, supra, it commented in general fashion that 
Congress, by enacting Title VII, did not intend to “circum­
scribe the remedial powers of the federal courts under
§§1981, 1983, 1985 and 1988.” —  F.2d a t-------, 17 FEP
Cases at 693. Neither has the Second Circuit expressly 
adopted the implied repeal theory. In Chance v. Board of 
Examiners, supra, the court concluded that a neutral senior­
ity system which “passed scrutiny under the substantive 
requirements of Title VII”, also was not violative of § 1981 
(citing the Sixth Circuit’s decision in Waters v. Wisconsin 
Steel Works, supra). 534 F.2d at 998, 11 FEP Cases at 1454. 
The court stated that its conclusion was the same whether 
Section 703(h) of Title VII was “considered a repeal by im­
plication of any possible contrary construction in § 1981, or 
simply a statement o f guiding legal principles. . . ’’ id. (Em­
phasis added).

No circuit has interpreted § 1981 in the manner advocated



7

by the Petitioners here. Specifically, the Second, Fourth 
Seventh and Ninth Circuits, in the cases cited above, all have 
specifically interpreted § 1981 so as to avoid undesirable con­
flicts in the substantive provisions of Title VII. The Third, 
Fifth, Eighth and Tenth and D.C. Circuits have not ruled on 
the specific issue presented here, and the Sixth Circuit has 
not faced the issue since Teamsters. The Sixth Circuit’s de­
cision in Afro-American Patrolmen’s League v. Duck, 503 
F.2d 294, 8 FEP Cases 1124 (6th Cir. 1974), and the Fourth 
Circuit’s decision in Williams v. Norfolk and Western Ry., 
530 F.2d 539, 11 FEP Cases 836 (4th Cir. 1975) do not sup­
port the Petitioners’ position. Both of these decisions were 
handed down before Teamsters, and both applied § 1981 in a 
manner which was consistent with the way most courts had 
interpreted Title VII up to that time.

Respondent Ryder agrees that the issue in this case bears a 
close relationship to that which this Court will decide in 
County o f Los Angeles v. Davis, No. 77-1553. However, it 
is also entirely possible that the decision in County o f Los 
Angeles would dispose of this case. Whether this Court af- 2

2. In Watkins v. United Steel Workers, Local 2369, 516 F.2d 41, 10 
FEP Cases 1297 (5th Cir. 1975), the Fifth Circuit upheld a facially 
neutral seniority system under both Title VII and § 1981. In reaching 
its decision, the court expressly refrained from ruling on whether Sec­
tion 703(h) impliedly repealed § 1981. As the Petition pointed out, 
p. 9,n. 12, the court was no doubt influenced at least in part by the 
finding that the seniority system in question did not perpetuate the 
effects of past discrimination, it is significant to note, however, that in 
reaching its decision, the court interpreted Title VII and § 1981 in 
parallel and consistent fashion. Moreover, the court gave an indication 
that it, like the Second, Fourth, Seventh and Ninth Circuits, would in­
terpret § 1981 so as to avoid substantive conflicts with Title VII, when 
it decided in United States v. East Texas Motor Freight, 564 F.2d 179, 
16 FEP Cases 163 (5th Cir. 1977) that a seniority system "bona fide" 
under Title VII was not unlawful under Executive Order 11246.



8

firms the Ninth Circuit’s decision (and its holding that there 
is “no operational distinction. . .between liability based upon 
Title VII and § 1981”, 566 F.2d at 1340, 16 FEP Cases at 
401), or reverses its decision and accepts the view that §1981 
requires a showing of discriminatory intent,3 in either case 
there would be no basis for reversing the Fourth Circuit's 
well-reasoned opinion below.

CONCLUSION

WHEREFORE, for the foregoing reasons, it is respectfully 
reuested that the Petition For A Writ Of Certiorari To The 
United States Court of Appeals For the Fourth Circuit be 
denied.

Respectfully submitted,

J.P. Jones
Peter Reed Corbin
JONES, CORBIN & DICKINSON
Post Office Box 41566
Jacksonville, Florida 32203

E. Osborne Ayscue, Jr.,
HELMS, MULLIS & JOHNSTON
2800 NCNB Plaza
Charlotte, North Carolina 28280

Attorneys for Respondent, Ryder 
Truck Lines, Inc.

3. See Washington v. Davis, 426 U.S. 229, 12 FEP Cases 1415 (1976); 
Davis v. County o f Los Angelas, supra, (Dissent of Judge Wallace); 
Johnson v. Hoffman, 424 F.Supp. 490, 16 FEP Cases 371 (E.D. Mo, 
1977); and Croker v. Boeing Co., 437 F.Supp. 1138, 15 FEP Cases 165 
(E.D. Pa. 1977).



9

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that three (3) copies of the fore­
going Brief For Respondent Ryder Truck Lines, Inc., In 
Opposition has been served this 24th day of August, 1978, 
by United States first class mail, upon the following:

Jack Greenberg, Esquire 
Eric Schnapper, Esquire 
Suite 2030 
10 Columbus Circle 
New York, New york 10019

Jonathan Wallas, Esquire 
Louis L. Lesesne, Jr., Esquire 
J. LeVonne Chambers, Esquire 
Chambers, Stein, Ferguson & Becton 
951 South Independence Boulevard 
Charlotte, North Carolina 28202

Barry L. Goldstein, Esquire 
806 15th Street, Northwest 
Suite 940
Washington, D.C. 20006

Roland P. Wilder, Jr., Esquire 
25 Louisiana Avenue, Northwest 
Washington, D.C. 20001



Francis M. Fletcher, Jr., Esquire 
Harkey, Faggart, Coire & Fletcher 
Nineteenth Floor, Wachovia Center 
Charlotte, North Carolina 28285

Attorney