Brief for Petitioner (Draft)

    UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

No. 89-3613

HAROLD EASLEY,
Plaintif f-Appellant
v

GENERAL MOTORS,
Defendant-Appellee.

PLAINTIFF-APPELLANT'S 
MOTION FOR LEAVE TO FILE 

SUPPLEMENTAL BRIEF

Plaintiff-appellant moves the court for leave to file the 
accompanying Supplemental Brief prior to oral argument. The 
brief explains why this Court's decision in McKnight v. General 
Motors. 908 F.2d 104 (7th Cir. 1990), does not support affirmance 
of the decision of the district court. The Court rendered its 
decision in McKnight after the original briefs and reply brief 
were filed in this appeal. Oral argument is set for 9:30 a.m. 
Thursday, November 1, 1990.

WHEREFORE, plaintiff-appellant respectfully reguests that 
leave to file the accompanying supplemental brief be granted.

Counsel for Plaintiff-Appellant



UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

89-3613

HAROLD EASLEY, 
Plaintiff-Appellant, 

vs.
GENERAL MOTORS CORPORATION, 

Defendant-Appellee.

On Appeal from the United States District Court 
for the Southern District of Indiana, Indianapolis Division

SUPPLEMENTAL BRIEF OF PLAINTIFF-APPELLANT

JULIUS LeVONNE CHAMBERS 
CHARLES S. RALSTON 
ERIC SCHNAPPER 
CORNELIA T.L. PILLARD 
NAACP Legal Defense and 

Educational Fund, Inc. 
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900
Attorneys for Plaintiff- 

Appellant



I. THIS COURT'S DECISION IN MCKNIGHT V. GENERAL MOTORS 
CORP. DOES NOT AFFECT PLAINTIFF'S CLAIM THAT HE WAS 
DISCRIMINATED AGAINST IN CONTRACT FORMATION IN 
VIOLATION OF SECTION 1981
A. This Case is Factually Distinguishable From 

McKnight Because Plaintiff, Unlike Mr.
McKnight, Had No Continuing Employment 
Relationship with GMC

Mr. Easley contends that he was discriminated against in the 
process of seeking a new job from General Motors Corporation 
(GMC). This Court in McKnight v. General Motors Corp., 908 F.2d 
104, 110 (7th Cir. 1990), commented in dictum that "to be
recalled after being laid off is not automatically to be given a 
new job."1 Although Mr. Easley alleged in his Amended Claim that 
"[p]laintiff, before hired by Fisher Guide, was laid off from 
Hydramatic General Motors in Muncie 9/15/85," the fact that he 
was formerly employed at one General Motors plant does not affect 
his claim of hiring discrimination at another. He was 
discriminated again-st in seeking to be hired at a new General 
Motors plant, rather than merely in a recall during a continuing 
course of employment at a prior plant.

McKnight's holding as to the scope of 1981 was limited 
to barring constructive discharge claims. The Court explicitly 
stated that it did not decide the difficult issues of whether Mr. 
McKnight was discriminated against in hiring or promotion because 
Mr. McKnight did not argue those points. He only claimed 
retaliation and termination. Therefore, the McKnight panel's 
discussion on hiring and promotion claims, although addressed in 
this Supplemental Brief, is dictum and is not binding.

Mr. Easley, in contrast to Mr. McKnight, contends not only 
that he was discriminatorily discharged, but that he was 
discriminated against in the formation of his employment contract 
with GM.

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Gary McKnight worked as a manager in the accounting division 
of GMC's Oak Creek, Wisconsin plant. He alleged that he was laid 
off, then recalled to the same plant, and ultimately 
constructively discharged from his job on the basis of his race. 
This Court held that he had no discharge claim under 42 U.S.C 
§ 1981 because discriminatory discharge no longer violates that 
statute after Patterson v. McLean Credit Union. 109 S.Ct. 2363, 
105 L.Ed.2d 132 (1989). See. McKnight. 908 F.2d at 108-09.

The Court, in reversing the jury's § 1981 verdict in 
McKnight1s favor, considered whether the fact that McKnight had 
been laid off and recalled prior to his ultimate discharge should 
change its conclusion that GMC had not discriminated against him 
in the making of a contract. The Court commented that this "is 
not susceptible of a blanket answer." _id. at 109. The existence 
of a layoff period might make a difference if, in the particular 
case, there was "a new employment relation," id.. rather than 
merely a continuation of the former employment throughout the 
layoff and recall. ■

The Court concluded that in McKnight there was a continuing 
employment relationship —  rather than a new contract between the 
parties -- because "[b]oth General Motors and McKnight still 
regarded him as an employee of GMC after he was laid off." Id. 
at 110. That factual finding, made after McKnight's claim had 
been tried on the merits, was the keystone of the decision in his 
case. Here, in contrast, all parties took the position that Mr. 
Easley was not an employee of GMC when he sought the machine

2



repairman job at Fisher Guide on February 9, 1987. Indeed, both
the district judge and the Union also agreed that what plaintiff 
was seeking was a hire and not a transfer or recall.

Whether the parties considered Mr. Easley a continuing 
employee or a new hire is a factual question. The allegations 
show that Mr. Easley did not consider himself a GMC employee at 
the time he sought work at Fisher Guide, and that GMC no longer 
treated Mr. Easley as an employee —  or even, for that matter, as 
entitled to post-employment benefits. He alleged that he was on 
"permanent lay-off without contract for employment," id. at  ̂ 22, 
and that "[a] laid off employee to the street receiving on [sic: 
no] extended benefits offered by defendant, does not constitute 
continuous employment as alleged by defendant," Amended Claim,
 ̂ 21. He alleged specifically that he had "no employment 
contract with defendant to be construed as continuous 
employment." Id. at f 25. He had "exhausted all contractual 
extended benefits." Id. f 23. Because this case is on appeal 
from dismissal of Mr. Easley's pro se complaint for failure to 
state a claim, these allegations must be taken as true, and all 
inferences from them liberally drawn in his favor. His 
allegations easily support his contentions that he was 
discriminated against in the formation of a new employment 
contract.

The fact that he was not in a continuing employment 
raltionship is supported by allegations showing that he was a new 
hire, not a recalled employee. In going to work at Fisher Guide,

3



Mr. Easley exercised rights known as "area hire" rights. Id. at 
f 24 (emphasis added). These are distinct from the recall rights 
referred to in McKniqht. 908 F.2d at 109-110. Under the UAW
collective bargaining agreement, when an employee goes back to 
work at his base plant or home plant, it is a recall, but when he 
goes to work for another plant covered by the "area hire" 
provision, its referred to as a "hire." See. Amended Claim, f 
24 .

The distinction that the collective bargaining agreement 
makes between area hire and recall is not merely semantic. An 
employee who is recalled goes back to work as if he never left.
In contrast, an employee who goes to a new plant as an area hire 
has to go through the same hiring steps as would a stranger to 
the firm: He has to fill out an application; He must
successfully complete a probationary employment period; He does 
not accumulate seniority or enjoy the protections of the 
collective bargaining agreement, such as for-cause discharge 
guarantees, until the probationary period is complete.

General Motors in its brief agrees with plaintiff's 
characterization of plaintiff as a new hire at Fisher Guide. 
Defendant asserts that "the relevant facts are neither complex 
nor disputed." Brief of General Motors Corporation Defendant- 
Appellee [hereinafter "Deft. Br."], at 1. Defendant states that 
"[p]laintiff was hired by General Motors Corporation on February 
9, 1987 ...." Id. (emphasis added); see also. id. at ii, 4, 5,
6. GMC does not purport to rely on any preexisting relationship

4



with plaintiff under the collective bargaining agreement, 
because, in GM's view, "plaintiff was hired into the collective 
bargaining unit on February 9, 1897 Id. at 9 (emphasis
added).2

Similarly, the district judge in her opinion nowhere refers 
to plaintiff's prior period of employment at another General 
Motors plant. Instead, she holds that "the facts underlying this 
action establish that plaintiff was initially hired by GM as an 
hourly rate skilled trades' machine repair man," and that he "was 
classified as a 'temporary' or probationary employee, a status 
which is customary for all hourly employees until they have 
worked long enough to acquire seniority." Slip Op. at 3 (A40)
(emphasis added).

In sum, plaintiff's claim that he was discriminated against 
in the formation of his contract to work for GMC at the Fisher 
Guide plant is unaffected by dictum in McKnight regarding 
continuously employed persons subject to recall.

B. Even if This Court Were to View Mr. Easley As 
A Continuous Employee of GMC, Mr. Easley Has 
Alleged Discrimination in the Formation of a 
"New And Distinct Relation" With The Company

If this Court were to treat the hire of a former employee 
the same as a recall under McKnight. the appropriate question 
would then be whether the recall amounts to the kind of promotion

Because General Motors failed to raise any defenses based 
on a contention that plaintiff had a preexisting and continuing 
employment relationship with GM before he came to Fisher Guide, it 
has waived any such defenses.

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actionable under Patterson. The Supreme Court held that where a 
promotion presents an opportunity for "a new and distinct 
relation between the employer and employee," then discrimination 
in that promotion violates section 1981. Patterson. 109 S.Ct. at
2377 .

A position working as a machine repairman at Fisher Guide 
undeniably represented an opportunity for a new and distinct 
relationship with GMC when compared with the non-working, layoff 
situation Mr. Easley had been in for almost two years. Under any 
test, the difference in pay between nothing and a substantial 
income, and the difference in responsibility between not working 
at all and working full time for GMC at a GMC industrial plant, 
qualify this as an actionable promotion. See, e . g . . Malhotra v.~ 
Cotter Co.. 885 F.2d 1305, 1311 (7th Cir. 1989); id. at 1317
(Ripple, J. concurring); Mallory v. Booth Refrigeration Supply 
Co., Inc.. 882 F.2d 908, 910 (4th Cir. 1989).

McKnight should not be read to suggest that the relevant 
comparison under Patterson is between the Mr. Easley's original 
position at his home plant and the one he sought at Fisher Guide, 
as opposed to between layoff and working. See McKnight. 908 F.2d 
at 110 (commenting that "the existence of a period of layoff 
between the two executive positions ... does not require a 
different analysis"). If the employment is in fact to be viewed 
as continuous, and the position at Fisher Guide not viewed as a 
new hire, then the period of layoff that connects the original 
position with the position at Fisher Guide -- and makes the whole

6



thing one job and not two under McKnight -- must also be taken 
into account as a "relation" between employer and employee with 
which a potentially "new and distinct" relation may be 
contrasted. If the Court were only to examine Mr. Easley's 
position working at his home plant and his later position working 
at Fisher Guide, then it must view them as two separate periods 
of employment, not one continuous one.

Nor should McKnight be read to suggests that any promotion 
within an employee's normal career ladder is not an actionable 
promotion under Patterson. See. McKnight, 908 F.2d at 110. The 
test of whether section 1981 applies to a promotion is whether it 
creates an opportunity for a new and distinct relation, not 
whether it represents an unusually rapid leap of upward mobility. 
The fact that a significantly better position might be part of a 
normal career progression does not immunize from section 1981 
liability the employer who discriminatorily denies that position. 
Indeed, the move from associate to partner that the Supreme Court 
Patterson specifically referred to as the kind of promotion that 
is still covered by § 1981 is a step in the ordinary career 
ladder of many thousands of employees. See. Patterson. 109 S.
Ct. at 2377, citing' Hishon v. King and Spaulding. 467 U.S. 69 
(1984). The inquiry suggested by Judge Posner in Malhotra. where 
he compared an in-grade promotion with the type of position for 
which a stranger to a firm may apply, is a more appropriate 
elaboration of when a plaintiff has an "opportunity for a new and 
distinct relation" under Patterson than is the reference in

7



McKniqht to rungs on a career ladder.
Plaintiff's claim is that GMC discriminated against him in 

the formation of a contract for employment as a machine repairman 
at GMC's Fisher Guide plant. The allegations of the Complaint 
must be taken as true, and they make clear the parties' mutual 
understanding that what Mr. Easley sought was to be hired, not 
merely recalled, transferred, or promoted. Whether the claim is 
viewed as relating to an initial hire or some other form of 
employment opportunity, however, it remains a viable claim after 
McKniqht.

8



CONCLUSION
For the foregoing reasons, and the reasons stated in 

Plaintiff-Appellant's initial brief and reply brief, the decision 
below should be reversed and the case should be remanded to the 
district court.

Respectfully submitted,

JULIUS LeVONNE CHAMBERS 
CHARLES S. RALSTON 
ERIC SCHNAPPER 
CORNELIA T.L. PILLARD 
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900
Attorneys for Plaintiff-Appellant

Dated: New York, New York
October 29, 1990

9



CERTIFICATE OF SERVICE

This will certify that I have this date served counsel
for defendant in this action with true and correct copies of the
foregoing Motion of Plaintiff-Appellant for Leave to File
Supplemental Brief and Supplemental Brief of Plaintiff-Appellant
by Federal Express, fully prepaid addressed as follows:
Wendell R. Tucker, Esq.
Gregory L. Padgett, Esq.
Baker & Daniels
300 North Meridian Street, #2700 
Indianapolis, Indiana 46204

Executed this - 2 ?. day of October, 1990 at New York, New
York.

Cornelia T.L. Pillard 
for Plaintiffs-Appellees