Pullman Standard Incorporated v. Pinkard Respondent's Brief in Opposition

    No. 82-733

I n  t h e

(Emtrt of tl^ Wnxtib States
O ctober T erm , 1982

P u llm an  S tandard, I ncorporated,

Petitioners,

Louis P in k ard ,
Respondent.

ON P E T IT IO N  FOR A W R IT  OF CERTIORARI 
TO T H E  U N IT E D  STATES COURT OF APPEALS 

FOR T H E  E L E V E N T H  C IR C U IT

RESPONDENT’S BRIEF IN OPPOSITION

E laine R . J ones*
B arry L. Goldstein

NAACP Legal Defense and 
Educational Fund, Inc.
Suite 940
806 Fifteenth Street, N.W. 
Washington, D.C. 20005 
(202) 638-3278

J ack  Greenberg 
O. P eter S herwood 
E ric S chnapper

NAACP Legal Defense and 
Educational Fund, Inc.
Suite 2030
10 Columbus Circle
New York, New York 10019

Attorneys for Respondent 

* Counsel of Record



QUESTION PRESENTED

Did the court of appeals correctly 
conclude that the district court had 
clearly erred in rejecting respondent 
Pinkard's claim that his dismissal was the 
result of unlawful discrimination?

x



TABLE OF CONTENTS
Page

Question Presented i

Reasons for Denying the Writ ..... 1

Conclusion ..................... . . 12

TABLE OF AUTHORITIES
Pullman-Standard v. Swint, 102 S.Ct.

1781 (1982) .................. 5,7
United States v. U.S. Gypsum, 333

U.S. 364 (1948) ........ 4

Statutes
42 U.S.C. § 1981 .......... 2, 9, 10,11
Title VII of the 1964 Civil Rights

Act, 42 U.S.C. § 2000e ...... 2,11
Rule 52, Federal Rules of Civil

Procedure ................... 2,3

IX



No. 82-733
IN THE

SUPREME COURT OF THE UNITED STATES 
OCTOBER TERM, 1982

sssssssssssssssssss

PULLMAN STANDARD, INCORPORATED,

V.
Petitioners,

LOUIS PINKARD,
Respondent.

On Petition For A Writ Of Certiorari 
To The United States Court of Appeals 

For The Eleventh Circuit
== = =:=:=; = ===; ====:=:=;3:=:=;s;= = = =:=;=:=:= = s=:=; = = = s = = =

RESPONDENT'S BRIEF IN OPPOSITION

The respondent Louis Pinkard, plain­
tiff in the proceedings below, respectfully 
urges that this Court deny the petition for 
a writ of certiorari.

REASONS FOR DENYING THE WRIT
This case presents a routine and 

proper application of the requirement of



2

Rule 52, Federal Rules of Civil Procedure,
that an appellate court reverse a factual
finding which it finds to be "clearly
erroneous." The trial court rejected on
the merits eight discrimination claims of
the four different plaintiffs.—  ̂ The court
of appeals upheld the rejection of seven of
these claims, affirming them on the ground
that the lower court decision was not

2 /clearly erroneous.—' The Eleventh Cir­
cuit reversed only a single decision of 
the trial court, holding that the record 
compelled the conclusion that Pinkard had 
been dismissed in retaliation for his 
efforts to eliminate racial discrimination

1/ The court rejected the Title VII and 
section 1981 claims of each of the four named plaintiffs. App. 8a-21a.
2:/ App. 73a-74a, 89a-90a.



3

at Pullman Standard's Birmingham plant.—
Petitioner does not, of course, attack 

the court of appeals' decision affirming 
seven of the eight trial court decisions in 
its favor. Neither does petitioner contend 
that, in upholding those lower court 
findings, the Eleventh Circuit applied any 
improper legal standard. It asserts, 
however, that the appellate court erred in 
refusing to uphold as well the rejection of 
Pinkard's retaliation claim.

It is clear that the court of appeals
understood that a trial judge's factual
findings must be upheld unless "clearly
erroneous." The opinion below referred on
six separate occasions to that Rule 52 

4/s t a n d a r d . T h e  court of appeals quoted

3/ App. 76a-87a.
4/ App. 75a, 83a, 84a, 85a, 86a (two
references).



4

and expressly relied on this Court's
decision in United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948), that

[a] finding is "clearly erroneous" 
when although there is evidence to support it, the reviewing court on the 
entire evidence is left with the definite and firm conviction that a 
mistake has been committed. 5/

The appellate court found to be clearly
erroneous both the trial court's ultimate
conclusion that Pinkard had been dismissed

. . 6/for legitimate reasons— and the subsidiary 
findings on which that conclusion was 
based. —*'

Petitioner contends that certiorari 
should be granted on the assumption that 
the court of appeals established

1/ App. 86a.
6/ App. 86a.
V App. 83a-85a

and



5

applied a very different standard, one
permitting appellate courts to engage in

8 /"independing fact finding"Petitioner, 
however, points to no passage in the 
opinion below announcing or utilizing any 
such standard. All members of the court of 
appeals panel were well aware of this 
Court's decision in Pullman-Standard v . 
Swint, 102 S.Ct. 1781 (1982),-/which ex­
pressly rejected the proposition that ap­
pellate courts could engage in "indepen­
dent fact finding" as to "ultimate facts". 
Petitioner's assertion that that erroneous 
standard was applied here is based solely 
on the content of a law review article 
written by 'Judge Godbold—  ̂which, in peti-

8/ Petition, pp. 5, 14.
9/ App. 87a-88a.
10/ Petition, pp. 14-15 note 11.



6

tioner's view, advocates such an error. 
Judge Godbold, however, was not a member of 
the panel which decided this case, and 
there is nothing in the opinion below to 
suggest that any member of that panel had 
ever read the article in question.

The court of appeals' application of 
the clearly erroneous rule to the particu­
lar facts of this case presents no issues
warranting review by this Court. This

11 /proceeding is not a class action;—  only 
a single black employee will be effected. 
The plant at which the dispute arose closed 
in 'January 1981; thus the only remedy at 
issue is back pay or other monetary relief, 
which will have no affect on any other for­
mer employee, white or black. There is no

1 1 / The court of appeals affirmed the 
denial of class certification. App. 
55a-57a.



7

question that Pullman Standard's attitude 
towards Pinkard changed markedly when he 
was chosen one of the few black union 
officials at the company's plant. Prior to 
that time Pinkard had an exemplary disci­
plinary record; thereafter his supervisors 
repeatedly objected to his efforts on 
behalf of his fellow workers.— / Follow­
ing Pinkard's decision to assist the 
plaintiffs at the trial of the Swint case,
company officials allegedly announced their

1 3/intent to fire him.—  As the court of 
appeals' opinion persuasively demonstrates, 
the record compels the conclusion that 
Pinkard's dismissal was in retaliation for 
these activities.

Petitioner asserts that the decision 
of the court of appeals presents an issue

11/ App. 76a-77a.
11/ App. 78a.



8

1 4/of "reverse discrimination",—  arguing
that the majority opinion declares that
"the more militant an employee, the more

1 5 /misconduct it takes to fire him."—  This 
contention is based on a somewhat fanci­
ful reading of a single passage in that 
opinion, which states that "the trial 
court improperly focused on plaintiff's 
antagonism without counterbalancing the 
defendant's own antagonism." Petitioner
itself expresses some uncertainty as to the

16/significance of this statement.—  Read 
in context the quoted language means simply 
that, in asssessing the motives of the 
defendant employer, primary attention must

14/ App. 78a.
15/ Petition 18. 
16/ Id.



9

be paid to evidence of company hostility to 
Pinkard's civil rights and union activi­
ties. The fact that Pinkard believed, 
correctly or otherwise, that Pullman 
Standard had engaged in racial discrimina­
tion neither justified his dismissal by the 
company nor provided a basis for rejecting 
his claim of discrimination.

Petitioner also urges that certiorari 
be granted to decide whether an employer 
can be held liable under 42 U.S.C. § 1981
for discharging a black employee in retali­
ation for his opposition to racial dis­
crimination by that employer. Plaintiffs'
Amended Complaint alleged a cause of action

1 7 /under section 1981 for such retaliation,—  
and both courts below assumed that relation 
of that kind would be actionable under

17/ See App. 6a; Amended Complaint, para­
graph VIII(i ) .



10

section 1981. At no point prior to the 
filing of its Petition for Writ of Cer­
tiorari, however, did the company question 
this construction. Throughout the proceed­
ings below the company's defense to Pin- 
kard's section 1981 claim was largely 
factual. The only legal issue raised by 
petitioner in the court of appeals was an 
unexplained assertion that the existence of
"jurisdiction" over the section 1981 claim

18/was "doubtful".—  In its Answer petitioner 
claimed that no relief could be granted 
under section 1981 because Pinkard had not 
exhausted his union grievance procedures, J—' 

an argument long ago abandoned. Whether

18/ Brief for Appellee, No. 79-2890, p. 6.
19/ Answer to Amended Complaint, Ninth 
Defense.



section 1981 authorizes redress for dis­
criminatory retaliation is not a jurisdic­
tional issue. Thus petitioner's failure to 
raise that question during the first six 
years of this litigation precludes it from 
doing so for the first time in this Court.

Petitioner does not, moreover, dispute 
Pinkard's right to redress under Title VII 
for a discriminatory dismissal. The 
only reason that the court of appeals did 
not grant such relief under Title VII was 
that rJudge Clark believed that Pinkard's 
Title VII action was premature because it 
was filed prior to the issuance of a 
right-to-sue letter by the EEOC. On 
'Judge Clark's view Pinkard is free to file 
a fresh Title VII action once a new right- 
to-sue letter is issued. Thus even if this
Court were to hold that an employer may,



12

consistent with section 1981, fire a black 
employee who objected to racial discrimina­
tion, that would not limit the relief to 
which Pinkard would ultimately be entitled.

CONCLUSION
For the foregoing reasons, the peti­

tion for a writ of certiorari should 
be denied.

Respectfully submitted,

ELAINE R. JONES*
BARRY L. GOLDSTEIN NAACP Legal Defense and 

Educational Fund, Inc. 
Suite 940
806 Fifteenth Street, N.W. Washington, D.C. 20005 

(202) 638-3278
JACK GREENBERG 0. PETER SHERWOOD 
ERIC SCHNAPPER
NAACP Legal Defense and 
Educational Fund, Inc. Suite 2030 
10 Columbus Circle 
New York, New York 10019

Attorneys for Respondent
*Counsel of Record



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