Lytle v. Schwitzer U.S. Inc. Brief for Respondent

    t -F

QUESTIONS PRESENTED

1. Whether Petitioner is precluded from maintaining a 
cause of action for discriminatory termination and re­
taliation under this Court’s holding in Patterson v. Mc­
Lean Credit Union that 42 U.S.C. S 1981 does not en­
compass conduet after the formation o f an employment 
contract?
2. Was the Court of Appeals correct in applying collat­
eral estoppel to Petitioner’s § 1981 claims after a full 
and fair hearing was held on his Title VII claims, the 
elpmpnts of which are identical to those under § 1981?
S. Does the Seventh Amendment require that Petitioner 
receive a new jury trial on his 5 1981 claims when he 
failed to establish a prima. facie case of discrimination 
during the trial o f his Title VII claims?

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LIST OP PARTIES

q.' Schwitzer Turbochargers is no longer a subsidiary of, 
or affiliated with. Household Manufacturing, Inc. The 
facility in question is now operated as Schwitzer UJ3. 
Inc., a wholly-owned subsidiary of Schwitzer Inc. Schwit­
zer Inc. is a publicly-traded corporation.

m
TABLE OF CONTENTS

QUESTIONS PRESENTED .......__.......... ...................... i

• LIST OF PARTIES_________________________________  ii

TABLE OF AUTHORITIES____ __   iv

STATEMENT OP THE C A SE _____________________  1

A. Summary o f the Facts________________________ 1
B. Petitioner’s Employment Record_____________  2
C. The Events o f August 11-16, 1988_____________   4
D. Post-Discharge Employment References_________  6
E. Summary o f the Proceedings_____________________ 8

SUMMARY OF ARGUMENT______________________  9

ARGUMENT

I. THE FOURTH CIRCUIT'S JUDGMENT 
SHOULD BE AFFIRMED ON THE BASIS 
OF THIS COURT’S DECISION IN PATTER­
SON v. McLEAN CREDIT UNION_____________  It

IT. THE SEVENTH AMENDMENT DOES NOT 
REQUIRE RETRIAL OF ISSUES ALREADY 
DECIDED BY THE DISTRICT COURT_____  19

m . DISMISSAL OF THE §1981 CLAIMS HAD 
NO EFFECT ON THE OUTCOME OF THIS 
C A S E ___________________________________________ 27

CONCLUSION_______________________________________   84

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rt TABLE OF AUTHORITIES
cl Cases

Allen v. McCurry. 449 U.S. 90 (1980)-----------------  20
Arlington Heights v. Metropolitan Housing Corp.,

429 U.S. 252 (1977)_________________ __ _____  33
Armco Steel Corp. r. Realty Investment Co., 273

F.2d 483 ( 8th Cir. 1960)-------------------------- .......  29
Atwood v. Pacific Maritime Association, 657 F.2d

1055 (9th Cir. 1981) --------------------------- -----------  28
Barfield v. A.R.C. Security, Inc.., ------  F. Supp.

-------, 10 FEP Cases 789 (N.D. Ga. 1975)______ 19
Beacon Theatres, Inc. v. We stover, 359 U.S. 500

(1959 )_______ __________________ __________ __ passim
Blonder-Tongue laboratories, Inc. v. r/wirer*i£y

o f Illinois Foundation, 402 U.S. 313 (1971).......  20
Blum v. Bacon, 457 U.S. 132 (1982) .......................  12
Boioles v. United Stales A rmy Corps o f Engineers,

841 F-2d 112 (5th Cir.), cart, denied, 109 S. Ct.
33 (1988)...... ...........................................................- 23

Brady v. Southern Railroad, 320 U.S. 476 (1943).. 29
Brooms v. Regal Tube Co., 881 F.2d 412 (7th Cir.

1989) ..................... ....... ............ .................— .........  13
Canino v. EEOC. 707 F.2d 468 (11th Cir. 1983) 33
Clark v. Community fo r  Creative Nonviolence, 468

U.S. 288 (1984)_______________________________ 21
Copperidge v. Terminal Freight Handling Co.,

------- F. Supp. -------, 50 FEP Cases 812 (W.D.
Term. 1989)  ________________________________  16

Curtis v. Loelher. 415 U.S. 189 (1974).._......... .. 23
Danger field v. Mission P ress,------ F. Supp.-------- ,

50 FEP Cases 1171 (N.D. 111. 1989)__________ 17
Dwyer v. Smith, 867 F.2d 184 (4th Cir. 1989) ...... 25
Eichman v. Indiana State University Board o f

Trustees, 597 F.2d 1104 (7th Cir. 1979)_______  18
Galloway v. United States, 319 U.S. 872, rehearing

denied, 320 U.S. 214 (1943)_______________ __  10,27
Garcia v. d o o r , 618 F.2d 264 (5th Cir. 1980),

cert, denied, 449 U.S. 1113 (1981)____________  29
General Bldg. Contractors AsFn v. Pennsylvania,

458 U.S. 375 (1982)_______________ ____________  30

v

Gillespie v. First Interstate Bank o f  Wiscuiwi*
Southeast, 717 F. Supp. 649 (E.D. Wise. 1989).. 13

Goff v. Continental OH Co., 678 F.2d 593 (5th Cir.
1982) ______________ ___ - -------- ------------------------  19

Gomez v. United States, ------  U.S. ------ » 104 L.
Ed. 2d 923 (1989)------- ----------------------------- ------ 28

Goodman v. Lukens Steel Co., 482 U.S. 656
(1987)------------------------------ -----------------------------  13- 15

Granfinanciera v. Nordberg, ------- U.S. -------, 106
L. Ed. 2d 26 (1989)--------------------- ------------------ 23

Grant v. Bethlehem Steel Corp., ------  F. Supp.
------ , 22 FEP Cases 680 (S.D.N.Y. 1978)------  19

Great American Savings & Loan Association v.
Novotny, 442 U.S. 366 (1979) -------------------- ---- 17,24

Greggs v. Hillman Distributing C o .,-------F. Supp.
-------, 50 FEP Cases 1173 (S.D.N.Y. 1989)------  16

Gross v. Southern Ry. Co-, 446 F.2d 1067 (5th Cir.
1971) ___________________ ___ —.....— --------------  29

Grossos Music v. M it ken. Inc., 753 F-2d 117 (4th
Cir. 1981)_____________________ _______ ______  26

Hall v. County o f Cook, State o f Illinois, ------
F. Supp.------- (N.D. 111. 1989) 11989 Westlaw
99802] ________________________________________ 16

Hildebrand v. Board o f Trustees o f Michigan State
University, 607 F.2d 705 ( 6th Cir. 1979)_____  28

Howard v. Parisian, 807 F.2d 1560 (11th Cir.
1987)_________________________________________  28

Hudson v. IBM, ------- F. Supp. -------, 22 FEP
Cases 947 (S.D.N.Y. 1975)___________________ 18

Hussein v. Oshkosh M otor Truck Co., 816 FJid 348
(7th Cir. 1987)___   28

In re N-SOOL Cases, 691 F.2d 15 (1st Cir. 1982) 27
In re Professional A ir Traffic Controllers Organi­

zation o f America, 724 F.2d 205 (D.C. Cir.
1984) ________________________________________  28

Independent Federation o f Flight Attendants v.
Zipes. ------- U.S. -------, 106 L. Ed. 2d 639
(1989)_____    25

Irby v. Sullivan, 737 F.2d 1418 (5th Cir. 1984) „  32

TABLE OF AUTHORITIES—Continued
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Jean v. Nelson, 472 U.S. 846 ( 1 9 8 5 ) __ ________  12
Katchen v. Landy, 382 U.S. 323 (1966)__________ 20, 21
Keller v. Prince George’s County, 827 F.2d 962

(4th Cir. 1987)............................ ...........................  28
King v. United Rene fit Fire Insurance Co^ 377 

F.2d 728 ( 10th Cir.), cert, denied, 389 U.S. 857
(1967).......... .................................... _.......................  28

King v. University o f Minnesota, 774 F.2d 224 
( 8th Cir. 1985), cert, denied, 475 U.S. 1095
(1986)____ ___ __________ __ __________________ 28

Laskaris v. Thornburg, 733 F.2d 260 (3d Cir.),
cert, denied, 469 U.S. 886 (1984 )______________ 11, 27

Lauro Lines S.RJj. v. Chasser,-------U .S .------- , 104
L. Ed. 2d 548 (1989) __ ____ ____ __________  28

Leong v. Hilton Hotels, Inc., ------- F. Snpp. ------ ,
50 FEP Cases 733 (D. Hawaii 1989)...... ........ ..... 13,16

Liljeberg v. Health Services Acquisition Corp.,
486 U.S. 847 (1988)..... ............... .............. ............  28

McDaniel v. Temple Independent School District,
770 F.2d 1340 (5th Cir. 1985)________________  31

McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973)____ __ _______________ ____ ___ _______  29

M eeker v. Ambassador Oil Corp., 375 U.S. 160
(1 9 63 )...........      24

Moore v. City o f Charlotte, 754 F.2d 1100 ( 4th
Cir.), cert, denied, 472 U.S. 1021 (1985) .... 29, 30, 31 

Morgan v. Kansas City Area Transportation Au­
thority, ------  F. Supp. ------- (W.D. Mo. 1989)
[1989 Westlaw 101802].........   13

Overby v. Chevron U.S.A., Inc., 884 F.2d 470 (9th
Cir. 1989)____ ____ ___ ___ _____________ ___ 13, 17, ig

Padilla v. United A ir Lines. 716 F. Snpp. 485
(D. Colo. 1989)_______________________    16

Parklane H osiery v. Shore, 439 U S. 322 (1979) passim
Patterson v. McT êan Credit Union,-------U .S ._____,

105 L. Ed. 2d 132 (1989)________________ ___ Jpassim
PemeXl v. Southall Realty, 416 U.S. 363 (1974).... 23
PicciriUo v. New York, 400 U.S. 548 (1971)... ....... 11

TABLE OF AUTHORITIES—Continued
Pmre

R itter v. Mount Saint Mary’s College, 814 F.2d 986
(4th Cir.), cert, denied, 484 U.S. 913 (1987) .... 21, 22,

23, 25
Rose v. Clark, 478 U.S. 570 (1986)_______________  28
Saldivar v. Cadena, 622 F. Supp. 949 (W.D. Wise.

1985)--------- --------------- ---------------- ------- -----------  17
Schoenthal v. Irving Trust Co., 287 U S. 92

(1932)________________________________________  23
SchweUcer v. Hogan, 457 U.S. 569 (1982)________  12
Sofferin v. American Airlines, Inc., 717 F. Supp.

587 (N.D. HL 1989)__________________________  16
Spec tor M otor Co. v. McLaughlin, 323 U.S. 101

(1944)_____    12
Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984)____ 12
Takeall v. WERD, Inc., ------- F. Snpp. ------ , 23

FEP Cases 947 (M.D. Fla. 1979)......................... 18
Tights Inc. v. Stanley. 441 F.2d 336 (4th Cir.),

cert, denied, 404 U S . 852 (1971)__________  26
Tull v. United States. 481 U S . 412 (1987)...... ...... 23,24
United States v. Givens, 767 F.2d 574 (9th Cir.),

cert, denied, 474 U.S. 953 (1986)__________  IS
United States v. New York Telephone Co., 434

U.S. 159 (1977) _________ ___________________  12,27
University o f Tennessee v. Elliott, 478 U.S. 788

(1986)________________________________________ 20, 25
VerdeU v. Wilson, 602 F. Supp. 1427 (E.D. N.Y.

1985)__________      31
Warren v. Halstead Industries, ------  F. Snpp.

------ 33 FEP Caaea 1416 (M.D.N.C. 1983)_____  17
Washington v. Yakima Indian Nation, 439 U S.

463 (1979)________________     12
Williams v. Cerberonies, Inc., 871 F.2d 452 (4th

Cir. 1989)_____________________________________  25
Williams v. National Railroad Passenger Corp.,

716 F. Supp. 49 (D.D.C. 1989)________________ 17

Statutes and Constitutional Provisions
29 U.S.C. § 206d____     21

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TABLE OF AUTHORITrES— Continued
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29 U.S.C. § 621 et seq........ ........................... ................ 21
33 U.S.C. 8 1319_________________________________  24
42 U.S.C. § 1981...... .............. .......................................passim
42 U.S.C. 8 2000e et seq.............. ......... ........ .... ....... passim
U.S. Const, amend. VII ............................................ . passim

Other Authorities
Fed. R. Civ. P. 41 <b)............... .............................. .8, 31. 32
Fed. R. Civ. P. 60 ( a ) _________________________ 29, 32, 83
Fed. R. Civ. P. 61 _____ ________________________ 27,33
5A Moore’s Federal Practice Paragraph 50.02......... 29
7 Moore’s Federal Practice Paragraph 61.06............ 33

TABLE OF AUTHORITIES—Continued
Page

In  T h e

S u p r e m e  C o u r t  o f  t t y  H u t t r b  S t a t e s
October T erm , 1989

No. 88-334

John S. Lytle ,
Petitioner,v.

Schw itzer  U.S. Inc.,
A  S u b s id ia r y  o p  S c h w it z e r  I n c .,

Respondent.

On Writ o f  Certiorari to the United States Court of Appeals 
for  the Fourth Circuit

BRIEF FOR RESPONDENT

STATEMENT OF THE CASE
John S. Lytle filed this action in December, 1984, un­

der Title VII of the Civil Rights Act o f  1964 (42 U.S.C. 
8 2000e et seq.) and the Civil Rights Act of 1866 (42 
U.S.C. 9 1981). Joint Appendix (J.A.) 4. Lytle claimed 
he was discharged because o f  his race, and retaliated 
against after his discharge because he filed a charge of 
discrimination with the Equal Employment Opportunity 
Commission (J.A. 4-14).

A. Summary o f the Facts *
Petitioner was a  machinist at Schwitzer*s Arden, 

North Carolina facility for over two and one-half years.

1 Since Petitioner's discharge claim waa dismissed after his evi­
dence, Respondent’s full case on this issue is not available in this 
proceeding. This summary is necessarily limited to claims pre­
sented by the Petitioner at trial, to exhibits and to other items of 
record or points which are not in dispute.



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He had the ability to become a satisfactory machinist, 

r~ hut refused to consistently apply himself and meet the 
^ employer's standards. As production demands grew at 

the newly established plant, his productivity limitations 
and avoidance of overtime assignments became serious 
liabilities. Petitioner received several disciplinary warn­
ings and performance evaluations critical of his produc­
tivity and time wasting.

On August 11, 1983, Petitioner asked to be off work 
August 12 as a vacation day. The request was granted 
on the condition that he work Saturday, August 13. Pe­
titioner left work early and unannounced on August 11, 
and did not report or call in on August 12 or 13. On 
Monday, August 15, he was discharged for violating 
Schwitzer's unexcused absence policy. This case squarely 
presents an employee discharge based upon the insub­
ordinate violation of an essential company policy.

B. Petitioner’s Employment Record
John S. Lytle applied for employment with Schwitzer 

Turbochargers (then, a subsidiary o f Household Manu­
facturing, In c.). on February 29, 1980. At that time, 
Schwitzer's new Arden, North Carolina facility had not 
yet begun production, and was in the initial phases o f 
plant layout and procedures development. Lytle’s employ­
ment application listed his prior experience as forklift 
driving, quality control, press operation, mechanics, form 
grinding, milling, and lathes. While Lytle had previously 
worked with drills and some metal lathes used at Schwit­
zer, most o f  his experience was with equipment Schwitzer 
did not utilize* Transcript (Tr.) 84; Plaintiff’s Exhibit 
(PX ) 5. 1

1 Lytle’s testimony clearly established he was experienced in some 
facets o f baste machining, bnt had not operated the equipment 
Schwitaer used in its processes. See Tr. 84 ( "Q : Are those 
machines [on your employment application the same machines] 
that are used out there at Sehwit.xer? A : No. Not basically. Drills 
are, and some of the lathes.’’) Contrary to Petitioner’s brief, there 
is no evidence that lees qualified applicants (w hit* or black) were

3

Judith Boone, Schwitzer’s Human Resources Coun­
selor, asked Lytle to attend a company-paid training 
class at the local technical college. At the end of this 
class, lasting approximately two weeks, Lytle would be 
evaluated for employment. Tr. 83. Most o f the applicants 
in this training class were hired, including Lytle Tr. 
160.

New Schwitzer employees were promoted as they 
proved their ability to operate more complicated machines. 
Tr. 89. Lytle admittedly received promotions to more 
responsible and higher paying machinist positions “ right 
along with”  others hired from the same training class. 
His last position with Schwitzer was the highest paid 
production job in the plant, Machine Operator IV. Tr. 87, 
89. During most of Lytle’s employment at Schwitzer, his 
supervisor was Larry Miller. Tr. 16.

Despite Lytle's initial testimony that there were no 
complaints about his job performance, Lytle ultimately 
recalled that Larry Miller cautioned him several times 
concerning deficient work habits. Tr. 164. For example, 
on July 27, 1982, Miller issued a written warning to 
Lytle encouraging him to use his time more efficiently 
and spend less time away from the machines. Tr. 164, 
166-67. Lytle’s annual evaluation, issued April 29, 
1982, by supervisor Mike McCrary, stated: “John can 
improve by accepting other assignments as a challenge, 
not punishment. He also needs to stay on the job as- 
signed and not leave it to talk to other employees, or go 
to break early, etc.”  Tr. 168-69; PX 6 (emphasis in 
original). The evaluation also noted on page three that 
Lytle “ loses interest in tasks; enthusiasm fluctuates,”  and 
on page four that he “ wastes a lot of time”  (emphasis in 
original). The January, 1983 performance evaluation, 
prepared by Larry Miller, reiterated Lytle’s resistance

treated preferentially hi the Wring process. At most, Petitioner 
made an unsupported allegation at trial that he knew of hirees who 
he believed were less qualified. Tr. 82.



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to supervision by stating Lytle should accept assignments 
“as a challenge and not as punishment; this would im­
prove his initiative, relations with others, schedule con­
sciousness and dependability.”  Tr. 170; PX 7.

On August 3, 1983, Miller again warned Lytle that 
he was spending too much time away from his machine 
while it was in operation.* * Tr. 167. Despite this un­
equivocal warning, Miller was forced to warn Lytle, the 
very next day, that his production level must increase or 
his job may be jeopardised. Tr. 166. These selected 
warnings establish Miller’s efforts to focus Lytle’s atten­
tion on his job and correct his consistently subpar pro­
duction levels.4

C. The Events of August 11-15,1983

Respondent maintained written policies governing em­
ployee absenteeism. PX 22; Tr. 17. The purpose o f the 
absence policy was to recognize, provide for and schedule 
necessary personal absence, tardies and early departures. 
PX 22, p. 1. Excessive excused absence, tardy, etc., was 
defined as a total ahsence level which exceeded four per­
cent of the total available working hours including over­
time. Tr. 18. Excessive unexcnsed absence, tardy, etc.,

* The oncantroverted evidence, established by Miller’*  affidavit in 
defendant's Motion for Summary Judgment, was that Lytle failed 
to report that his machine was out o f order for four hours. M iller 
urged Lytle to use time more efficiently in order to avoid overtime 
assignment (Docket Entry No. IS ).

* M iller met with Lytle for the specific purpose o f discussing this 
poor production record. For example, Lytle's scheduled production 
rate in August, 19R3, was 513 bearing housings per week. During 
the first week in August, he produced only 408 part*, or 105 parts 
short o f the goal. .On Monday, August 8 , M iller Informed Lytle 
overtime would be required Hurt entire week to reduce the bearing 
housing deficit. An overtime notice was posted repeating this 
schedule. See defendant’s Motion for Summary Judgment (Affidavit 
of Larry M iller) and Attachment A  thereto (Docket Entries 11, 
12, and IS ).

T>

was defined as unexcused absence which exceeds eight 
hours (or one work shift) in the preceding twelve 
months. Tr. 17. Either type of excessive absence could 
lead to termination. Tr. 19. Employees were also in­
structed to phone the plant when an absence must occur. 
Tr. 21-22.

On Thursday, August 11, 1983, Supervisor Miller posted 
a notice in Lytle’s department requiring eight hours o f 
overtime on Saturday, August 13, fur Lytle and four 
other machinists, in addition to the overtime which had 
previously been scheduled for that week. See n. 4, supra.' 
That same day, Lytle asked Miller for a vacation day off 
on Friday, August 12, and Miller agreed. Tr. 130. Later 
in the day (pursuant to the previously posted overtime 
schedule), Miller reminded Lytle o f his obligation to 
work Saturday. Tr. 131, Tr. 140-41. Lytle claimed at 
trial that be explained he was going to the doctor Friday 
(August 12) and was unfit to work Saturday (August 
13). However, according to Lytle’s own workplace diary 
and bis own trial testimony, Miller clearly and consist­
ently told Lytle he would have to select and work one of 
the two days as a condition of receiving any time off*

•Defendant’s Motion for Summary Judgment, Affidavit of IJirry 
M iller, Paragraph 9. Lytle bad worked only 17 o f his 28 scheduled 
overtime hours in the previous throe weeks. Id-. Affidavit of A1 
Duquennc, Paragraph 15 (Docket Entries No. 12 and 1 3 ).

• Plaintiff maintained a  diary a t work in which the August 11, 
1983, entry reads: "A t  10 :30  I asked Larry for a vacation day for 
Friday, August the 12th. He said okay, bnt I would have to work 
Saturday the 13th ." Tr. 174. In addition, Lytle testified at trial, 
regarding the conversation, with M iner on the afternoon of Thurs­
day, August 11 :

A . It was roughly two o’clock, I waa going to get a tool—

A . . . .  and I encountered M r. Miller. H e then asked me what 
was I going to do about Saturday, and I asked him what



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Lytle admittedly left work 1.8 hours before completion 
^ of his scheduled overtime hours on Thursday, August 11; 

without telling Miller. Tr. 133, 172-73. He did not call 
in or report to work Friday, August 12, and did not call 
in or report to work on Saturday, August 13. Tr. 172-73. 
Pursuant to company policy, Lytle was terminated on 
Monday, August 15, 1983, for excessive unexcuaed ab­
senteeism.

D. Post-Discharge Employment References

Eight days after bis discharge, Lytle filed a charge of 
discrimination with the Equal Employment Opportunity 
Commission (EEOC) alleging race discrimination. PX 
1; Tr. 146. He later applied for work with ABF Truck­
ing, Thomas & Howard (Ingles Warehouse), Uniforce 
Temporary Service, and Perfection Gear. Tr. 147-48, 179- 
80. Each prospective employer requested and received a 
reference from Schwitzer. Pursuant to Schwitzer’s estab­
lished reference policy, only Lytle’s dates of employment 
and job title were provided to prospective employers. Tr.

about Saturday. He said, if you’re off Friday, yoa have to 
work Saturday.

1 explained to him then that I wanted Friday off to see 
the doctor, and I wouldn’t be able to work Saturday because 
I wan physically unfit. And at that time he still stated, well, 
yno’re going to have to work one of the days. W ell, you’ll 
have to work Saturday. And I told him 1 couldn’t, that i f  I 
had to Td give him another vacation day, because I did have 
that. But I did make kind o f a joke that if I gave you a day, 
which I couldn’t work, if I gave you one o f my vacation days, 
well, you’ re going to pay me tim e and a half for that vaca­
tion day.

A t that tim e, he walked off, and I went to the tool supply 
room . . . (T r. 131-32).

Miller stated in hia affidavit supporting defendant’s Motion for 
Summary Judgment that Lytle was told to select one o f the two 
days as vacation, or the request would be denied an to both days. 
Lytle did not give a reason for the vacation request even though 
Miller asked for a reason (Paragraph 10-12; Docket Entry No. 13).

7

64, 260-64. Both Uniforce and Perfection Gear hired 
Lytle. Id.

The personnel director at Thomas & Howard testified 
that Schwitzer’s reference included Lytle’s employment 
dates and last job title held. See Tr. 112; Tr. 263. This 
reference was similar to references that Thomas & 
Howard had received in the past from other employers. 
Tr. 115. Schwitzer did not provide any negative infor­
mation concerning Lytle or his discharge. Tr. 115. 
Thomas & Howard’s decision to reject Lytle’s application 
was not based on information provided or withheld by 
Schwitzer. Tr. 114-188. The branch manager of ABF 
Freight Systems (ABF Trucking), Adrienne Finch, testi­
fied that Lytle applied for work in late 1983. Tr. 100. 
Finch forwarded Lytle’s application to the Fort Smith, 
Arkansas headquarters where all hiring decisions are 
made. Tr. 103-06. Finch had no personal knowledge of 
the reference provided by Schwitzer to the Fort Smith 
office. Tr. 105-06. Significantly, Schwitzer’s Human Re­
source Counselor Boone provided ABF Freight with the 
same neutral reference she had given prospective em­
ployers o f other terminated employees. Tr. 66, 261-62.7

Lytle began working at Perfection Gear as a tempo­
rary employee provided by Uniforce Temporary Services 
in October, 1984. Tr. 280. He became a permanent em­
ployee of Perfection Gear in December, 1984. On May 
24, 1985, Lytle exceeded the maximum number o f per­
missible absences under Perfection’s absenteeism policy. 
Tr. 284. On that day, Lytle called Perfection Gear and 
resigned. Tr. 284-85.

7 Boone’s Dncontradicted testimony was that she had a policy and 
practice o f providing the same neutral reference for all discharged 
employees. A s examples, she cited Harold Messenger, Pat Dodge 
and Arnold Henson. Each o f these former employees Is white and 
none had filed charges with the EEOC. Tr. 264-65, 267. Additional 
examples were available, but the trial judge sustained an objection 
to further testimony on this issue. Tr. 267.



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B. Summary of the Proceedings
Petitioner’s action was tried before the court on Febru­

ary 26-27, 1986. The court granted Schwitzer’s pre-trial 
motion to dismiss all claims under 42 U.S.C. 5 1981 
because no independent factual basis was alleged to sup­
port them, leaving Title VTI as the exclusive remedy, 
J.A. 56-57. A t the close of Petitioner’s evidence, the court 
granted a Rule 41(b) motion by Respondent as to the dis­
charge claim. The court found by Lytle’s own evidence 
that he violated the unexcused absence policy by 9.8 hours, 
which was not comparable to a white employee’s six min­
ute violation.8 Thus, the Court concluded, as a matter of 
law, that Petitioner had not presented a prima facie case 
to the court- J.A. 58-60. After Respondent’s evidence re­
garding retaliation, the court granted a Rule 41 (b) mo­
tion and dismissed the action.

The Fourth Circuit Court o f Appeals affirmed the dis­
trict court in an unpublished opinion on October 20, 1987. 
While the court found that the trial court erred in dis­
missing Lytle’s § 1981 claims prior to trial, the court 
concluded that remand was unnecessary because the dis­
trict court’s Title VII findings were entitled to collateral 
estoppel effect and would prevent the relitigation of these 
findings under a “ legal”  theory arising out of the same 
facts. Rehearing was denied April 27, 1987. The petition 
for a writ o f  certiorari was filed August 23, 1988, and 
granted July 3, 1989. *

* Petitioner's brief asserts that the trial court, found that Lytle 
had a total o f 9.8 hours unexcused absence. See Pet. Br. at 11 
n. G and 33 n. 20. In fact, however, the court found that Lytle’s 
own evidence established that he had 9.8 hours o f “excels unexcuaed 
absence”  (J .A . 59 ; emphasis added)— i.e - 9.8 hours in excess of 
the 8 hours allowed under Schwitzeris nnexcused absence policy. 
Kven if  Petitioner’s current version is accepted, Lytle’s nnexcused 
absences were plainly different in kind and degree from any other 
employee on record.

9

SUMMARY OF ARGUMENT

There are at least three separate and independent 
grounds for this Court to affirm the judgment of the 
Fourth Circuit The most appropriate basis for such an 
affirmance is the Court’s recent decision in Patterson v.
Mcl^ean Credit Union,-------U .S .-------- , 105 L. Ed. 2d 132
(1989), decided after the Fourth Circuit’s decision 
herein. Although the statutory viability of Lytle’s 5 1981 
claims was not addressed by the court of appeals, it is 
well established that Schwitzer, as the prevailing party 
below, may defend the lower court’s judgment on any 
basis fairly presented by the record. Moreover, disposi­
tion on the basis of Patterson is especially appropriate 
here, because it will permit the Court to avoid unneces­
sarily deciding the constitutional questions raised by Peti­
tioner.

Turning to the impact of Patterson, it is dear that 
Petitioner’s asserted § 1981 claims for discriminatory dis­
charge and retaliation cannot survive this Court’s con­
struction of that statute in Patterson. The Court held 
quite emphatically in that case that 5 1981 does not pro­
vide a general proscription of race discrimination in all 
aspects of contract relations. Rather, the statute protects 
only the right ‘To make”  contracts and the right “ to 
enforce”  contracts on the same basis as white citizens. 
These terms must be interpreted in accordance with their 
plain meaning, with the result that conduct occurring 
after the formation of a contract is generally not cov­
ered by § 1981 unless it involves race-based efforts to 
impede access to legal process to resolve contract claims.

Neither o f Petitioner’s claims falls into these cate­
gories. His discharge claim obviously involves only post­
formation conduct, and it amounts to an allegation of 
disparate rule enforcement which, according to Patterson, 
falls outside the purview of 5 1981. Similarly, his retalia­
tion claim involves only post-formation conduct, is purely 
a creature of a different statute (Title VII of the Civil



1 0

Rights Act of 1904), and does not even involve race-based 
discrimination (which is the gravamen of § 1981 actions). 
Thus, on the basis of Patterson, this Court should affirm 
the judgment of the Fourth Circuit or, alternatively, dis­
miss the writ o f  certiorari as improvidently granted.

The second basis for affirming the judgment below is 
the analysis of the Fourth Circuit itself. The court of 
appeals correctly concluded that the doctrine of collateral 
estoppel precludes relitigation of the district court’s Title 
VII findings, and hence that Lytle had no viable § 1981 
claims inasmuch as the elements of Title VII and § 1981 
claims are identical.

This decision is consistent with Parklane H osiery v. 
Shore, 489 U.S. 322 (1979), in which the Court held that 
judicial factual determinations could constitutionally pre­
clude relitigation o f the same facts before a jury pursu­
ant to a legal cause o f action. In addition, it is not in­
consistent with Beacon Theatres, Inc. v. W estover, 359 
U.S. 500 (1959), which only establishes a prudential rule 
whereby courts are directed to permit juries to determine 
all issues common to both legal and equitable claims where 
both types of claims are being tried in the same proceed- 
ing. That is not the situation here, however, because the 
trial court’s findings were made when there were no 
oending legal claims which would require jury determina- 

d 'on- Thus, this case is more similar to the situation in 
pa rkla n e H osiery— factual issues on which petitioners 
|iad a right to jury trial were tried and determined ad- 
oersely by the courts under parallel equitable claims 
^rhich the courts had a constitutional right to decide given 
whe posture of the case.H
in Finally, the district court’s dismissal o f  the § 1981 
^laims did not impact the proper resolution of this case. 
coVhen a plaintiff’s evidence is insufficient to defeat a mo­
tion for a directed verdict, the Seventh Amendment is not 
Violated by the failure to submit the case to the jury. 
&n!hu:aif v. United States, 319 U.S. 372, rehearing de­

l l

nied, 320 U.S. 214 (1943). Similarly, when a directed 
verdict is appropriate, the erroneous denial of a jury trial 
constitutes harmless error. Laskaris v. Thornburg, 733 
F.2d 2f>0 (3d Cir.), cert, denied, 469 U.S. 886 (1984). 
Here, the district court dismissed Lytle’s Title VII dis­
charge claim at the conclusion o f Lytle’s evidence, ruling, 
as a matter o f  law, that Lytle had not established the ele­
ments of a prime, facie case. The court made a similar 
ruling regarding the retaliation claim at the conclusion 
of all the evidence. Thus, Petitioner’s evidence would not 
have withstood a motion for a directed verdict and, as a 
consequence, any error regarding denial of a jury trial 
wtrUld have to be deemed harmless error.

ARGUMENT

I. THE FOURTH CIRCUITS JUDGMENT SHOULD BE 
AFFIRMED ON THE BASIS OF THIS COURTS DE­
CISION IN PATTERSON v. McLEAN CREDIT 
UNION

Petitioner contends that the Fourth Circuit’s decision 
improperly deprived him of his Seventh Amendment right 
to a jury trial on his § 1981 claims for discriminatory 
discharge and retaliation. However, the Court’s recent
decision in Patterson v. McLean Credit Union, ------  U.S.
-------, 105 L. Ed. 2d 132 (1989), makes clear that 5 1981
does not provide a cause of action for discriminatory dis­
charge, or for retaliation in response to protected activi­
ties. Accordingly, this Court should affirm the Fourth 
Circuit’s judgment on the basis of Patterson or, alterna­
tively, dismiss the writ o f certiorari as improvidently 
granted. See PiecirUlo v. New York, 400 U.S. 548, 548- 
59 (1971) (writ dismissed as improvidently granted be­
cause intervening court decision meant that constitutional 
question on which Court granted certiorari was no longer 
necessary to resolution of the case).

Initially, it is well settled that Schwitzer, as the pre­
vailing party below, may defend the appellate court’s



12

.'judgment on any ground raised in the courts below,
• hether or not that ground was relied upon, rejected or 

even considered by the lower courts. E .g., W ashington v. 
Yakima Indian Nation, 439 U.S. 463, 476 n. 20 (1979) ; 
United States v. N ew York Telephone Co., 434 U.S. 159, 
166 n. 8 (1977) ( “ prevailing party may defend a judg­
ment on any ground which the law and the record per­
mit. . . Indeed, a respondent or appellee before this 
Court may even defend a judgment on grounds not previ­
ously urged in the lower courts,® and this is especially 
appropriate where, as here, an intervening decision by 
this Court has changed controlling law. See Sure-Tan, 
Inc. v. NLRB, 467 U.S. 883, 896 n. 7 (1984) (permitting 
a petitioner, who is normally limited to issues presented 
in the petition for certiorari, to raise issue for first time 
before this Court because o f intervening change in con­
trolling law). Finally, it is particularly appropriate for 
the Court to consider alternative statutory grounds for 
affirmance where, as here, the Petitioner has posed a con­
stitutional challenge to the decision below. See Jean v. 
Nelson, 472 U.S. 846, 854 (1985), quoting S pecter M otor 
Co. v. M cLaughlin, 323 U.S. 101, 105 (1944) (federal 
courts must consider statutory grounds for judgment be­
fore reaching any constitutional questions because “ [ i l f  
there is one doctrine more deeply rooted than any other 
. . ., it is that we ought not to pass on questions o f  con­
stitutionality . . . unless such adjudication is unavoid­
able” ).
tog In short, both this Court’s precedents and the posture 
° f  this case suggest very strongly that the Court should 
dispose of the instant case on the Patterson  issues rather
m----------
7! Sckweiker v. Hogan, 457 U .S . 569, 585 A n. 24 (1 9 8 2 ), quoting 

v. Bacon. 457 U .S . 132, 137 n. 5 (1982) ("A lthough appellee* 
u, id not advance this argument. in the D istrict Court, they are not 
®irocluded from asserting it as a basis on which to affirm the court’s 
ju dgm ent . . . | because it] ‘is well accepted that . . .  an appellee 
oJoav rely upon any matter appearing in the record in support o f 
l—be judgment.’  ’’ ) .  
o

13

than the Seventh Amendment issues raised by Petitioner. 
Here, Schwitzer has asserted from the outset that Peti­
tioner could not maintain causes o f  action for termina­
tion and retaliation under 5 1981 (J.A. 44, 51-56). P at­
terson  provides significant new guidance on that question, 
and it presents purely legal, non-constitutional issues that 
can be decided on the instant record with no prejudice to 
the parties. Accordingly, we turn now to a discussion 
o f how Patterson  impacts this case and requires affirm­
ance of the Fourth Circuit’s judgment.10

The relevant portion of 5 1981 under scrutiny in Pat­
terson  provides that “ (a] 11 persons within the jurisdic­
tion of the United States shall have the same right in 
every State and Territory to make and enforce contracts 
. . .  as is enjoyed by white citizens. . . . ”  42 U.S.C. 5 1981. 
The P atterson  Court emphasized that, contrary to the 
trend in lower court cases, § 1981 “ cannot be construed 
as a general proscription of racial discrimination in all 
aspects o f contract relations.”  Patterson, 105 L. Ed. 2d at 
150. Rather, the Court held that the right “ to make”  
contracts “ extends only to the formation o f  a contract,”  
that is, “ the refusal to enter into a contract with some­
one, as well as the offer to make a contract only on dis­
criminatory terms.” Id- Thus, the Court refused to ex-

x  The Patterson decision applies retroactively. See, e g., Morgan
o. Kansas City Area Transportation Authority, --------F . Repp. ---------
(W .D . Mo. 1989) (19*3 Westlaw 101802]; Leong v. Hilton Hotels,
Inc., -------- F . Sapp. — — , 50 FEP Cases 733 (D . Hawaii 1989).
Tbe m ajority o f court* faced with this issue have implicitly found 
that the decision should be applied retroactively. See, « .p , Overby 
v. Chevron O.S.A., /tic., 884 F.2d 470 (9th Cir. 1989) ; Brooms v. 
Regal Tube Co., 881 F-2d 412 (7th Cir. 1989). But see Gillespie 
o. First Interstate Bank of Wisconsin Southeast, 717 F. Supp. 649 
<E-D- W ise. 1989). Retroactive application o f judicial decisions is 
the rale, not the exception, United States v. Givens, 767 F.2d 574, 
578 (9th C ir.), cert, denied, 474 U .S. 953 (1 985). In addition, 
“ ft]h e usual rale is that federal cases should be decided in accord­
ance with the law at tbe tim e o f decision.”  Goodman o. Lukens 
Steel Co., 482 U .S. 656, 662 (1 987).



14

mtend this aspect of § 1981's coverage to discriminatory 
^conduct occurring after the formation o f a contract:

[T]he right to make contracts does not extend, as a 
matter o f  either logic or semantics, to conduct by f
the employer after the contract relationship has been *
established, including breach of the terms of the con­
tract or imposition o f discriminatory working condi- i
tions. Such post-formation conduct does not involve 
the right to make a contract, hut rather implicates 
the performance o f  established contract obligations 
and the conditions of continuing employment.. . .

105 L. Ed. 2d at 150-51. See also 105 Lr. Ed. 2d at 152,
155. Consistent with this rationale, the Court held that 
Patterson’s claim o f pervasive workplace racial harass­
ment involved only post-formation conduct which was not 
cognizable under § 1981.“

The Court gave a similarly restrictive reading to the 
second relevant aspect of § 1981. The Court held that 
the right “ to enforce”  contracts established in 5 1981 
“ embraces protection o f a legal process, and o f a right 
to access to legal process, that will address and resolve 
contract-law claims without regard to race.”  105 L. Ed. 2d 
at 151. While this protection may extend to private 
race-based efforts to impede access to contract relief,'2
i-----------

<r 11 The Court recognized that 5 1981 may cover poet-formation 
coronduct in those limited situations where the conduct denies an 
'4-Vmployee the right to “make”  a new employment contract with the 
§  employer. For example, a race-baaed refusal to promote may or may 
^n ot be actionable under § 1981, depending upon whether the nature 
'r~V>f the change in position is such that it would involve entering into 
fOa new contract with the employer. 105 L . Ed. 2d at 156. “ Only 
•• where the promotion rises to the level o f an opportunity for a new 
.-Mnd distinct relationship between the employee and the employer ia
ensurh a claim actionable under $ 1981.”  Id.oo

** The Court cited the example of a  labor union which bears ex­
p l ic it  responsibility for prosecuting employee contract grievances 
^and which carries out that responsibility in a racially discrimina-

8

15

the right “ does not . . . extend beyond conduct by an 
employer which impairs an employee’s ability to enforce 
through legal process his or her established contract 
righto.”  Id.

Aside from the fact that these constructions comport 
with the “ plain and common sense meaning”  of § 1981’s 
statutory language (105 L. Ed. 2d at 156 n. 6 ), the 
Patterson Court also recognized that strong policy con­
siderations support such limited constructions. 105 L. 
Ed. 2d at 152-53. An employee who suffers post-forma­
tion discrimination may seek relief under the adminis­
trative procedures provided in Title VII. In that statute, 
Congress established an elaborate administrative pro­
cedure designed to assist in the investigation o f discrim­
ination claims and to work towards the resolution of 
these claims through conciliation rather than litigation. 
See 42 U.S.C. §2000e-5(b). Only after these procedures 
have been exhausted may a plaintiff bring a Title VII 
action in court. See 42 U.8.C. 5 2000e-5(f) (1 ). Thus, 
permitting an employee to pursue a parallel claim under 
§ 1981 without resort to the statutory prerequisites would 
“ undermine the detailed and well-crafted procedures for 
conciliation and resolution o f  Title VII claims,”  render­
ing such procedures “a dead letter.”  Patterson^ 105 
L. Ed. 2d at 153.

Applying the Patterson standards to the instant case, 
it is clear that the Petitioner has no viable claims under 
§ 1981. Petitioner does not contend that Respondent 
prevented him from entering into or enforcing a con­
tract because o f  his race. Instead, he contends that Re­
spondent discriminatorily discharged him and then re­
taliated against him for filing a charge with the EEOC. 
Petitioner's right under § 1981 to make or enforce a con­
tract on a race-neutral basis is therefore not implicated.

tory manner. 105 L. Ed. 2d at 151, citing Goodman « . Lnkens Steel 
Co., supra.



16

First, a discharge is, by definition, post-formation con­
duct which does not involve an employee’s right to make 
or enforce a  contract. Such conduct, therefore, falls out­
side the purview o f 8 1981. See Leong v. Hilton Hotels 
Corp., supra; Copperidge v. Terminal Freight Handling
Co. , -------F. Supp.-------- 50 FEP Cases 812 (W.D. Tenn.
1989) ; Sofferin v. American Airlines, Inc., 717 F. Supp. 
587 (N.D. IH. 1989) ; Hall v. County of Cook, State of
Illinois,-------F. Supp.--------  (N.D. 111. 1989) [1989 West-
law 99802]; Greggs v. Hillman Distributing Co., -------
F. Supp. --------, 50 FEP Cases 1173 (S.D.N.Y. 1989).
But see Padilla v. United Air Lines, 716 F. Supp*. 485 
(D. Colo. 1989) ”

Second, Petitioner’s discharge claim is, at bottom, noth­
ing more than an assertion that he was pnnished more 
severely for absenteeism than were similarly situated 
white employees. See Pet. Br. at 8-12. This is pre­
cisely the type of conduct the Patterson dissent argued 
should be covered by § 1981. See 105 L. Ed. 2d at 170 
[stating that § 1981 was intended to prohibit “ the prac­
tice of handing out severe and unequal punishment for 
perceived transgressions” ). However, the Patterson ma­
jority clearly rejected the dissent’s position that such 
discriminatory rule application is sufficient to state a 
claim under § 1981. 105 L. Ed. 2d at 155. While rec­
ognizing that such post-formation discrimination might 
be evidence that any divergence in explicit contract 
terms is due to racial animus, the majority nevertheless 
emphasized that the "critical . . . question under 8 1981 
remains whether the employer, at the time of the forma­
tion o f the contract, in fact intentionally refused to

'*  This district court decision upholding discharge claims under 
5 1981 demonstrates that tbe lower courts have not, in fact, had 
‘little  difficulty applying the straightforward principles that (the 
Court announced in Patterson].” Patterson, 105 L. Ed. 2d at 156 
n. 6. This provides an additional reason why the Court should take 
this opportunity to reiterate the reach o f 5 1981 and the Patterson 
decision.

17

enter into a contract with the employee on racially neu­
tral terms.”  Id. (emphasis in original).

Finally, Petitioner does not and cannot contend that 
his discharge was a race-based effort to obstruct his 
access to the courts or other dispute resolution processes.
Indeed, his discharge had nothing to do with any effort 
to enforce contract rightB or claims.

In short, the Petitioner’s discharge claim in the instant 
case involves post-formation conduct unrelated to his right 
to make or enforce a contract, and hence it is not cog­
nizable under § 1981.

Petitioner's retaliation claim is even farther afield 
from § 1981 coverage. First, like Petitioner’s discharge 
claim, the retaliation claim involves only post-formation 
conduct and therefore is not actionable under § 1981.
Overby v. Chevron UJS.A., Inc., supra; Williams v. Na­
tional Railroad Passenger Corp., 716 F. Supp. 49 (D.D.C.
1989); Dangerfield v. Mission P ress,-------F. Supp.-------- ,
50 FEP Cases 1171 (N.D. I ll  1989).

Second, the prohibition o f retaliation against employees 
for  filing discrimination charges is purely a creature of 
statute, having come into existence only by an express 
prohibition in Section 704(a) of Title VII, 42 U.S.C.
8 2000e-3(a). Indeed, the prohibition specifically relates 
only to tbe exercise o f  rights conferred by Title VTI.
Not only did the right to be free from such retaliation 
not exist before the passage of Title VII, see Great Amer­
ican Savings & Loan Association v. Novotny, 442 U.S.
366, 377-78 (1979), but it would be inappropriate to 
inject rights created by one statute into another statute 
passed approximately 100 years earlier. See Warren v.
Halstead Industries, ------- F. Supp. -------, 33 FEP Cases ^
1416 (M.D.N.C. 1983) (questioning whether a cause
of action created by Title VII is actionable under S 1981). m
See also Saldivar v. Cadena, 622 F. Supp. 949 (W.D.

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18

Wise. 1985) (retaliation for advocacy of equal protec­
tion does not support a § 1981 claim).

Moreover, this conclusion is particularly appropriate 
given the Patterson  Court's admonition against stretch­
ing § 1981 to protect conduct already covered by Title 
V in . Patterson, 105 L. Ed. 2d at 153. The Court’s con­
cern with frustrating 'Title VITs conciliation goals, dis­
cussed above, “ is particularly apt where the very con­
duct complained of centers around one of Title VII s cun- 
dilatory procedures: the filing o f an EEOC complaint.”
Overby v. Chevron U S A .  Inc., 884 F.2d at -------, 50
FEP Cases at 1213. Since § 704(a) o f Title VII pro­
scribes Respondent’s alleged retaliatory conduct, the Court 
should “ decline to twist the interpretation o f another 
statute (§ 1981) to cover the same conduct.”  105 L. Ed. 
2d at 153.

Finally, and perhaps most importantly, retaliation for 
filing Title VII charges is not even a race-based issue, 
which is the sine qua non  of 5 1981 coverage. The anti- 
retaliation provisions of Title VII are designed to pro­
tect channels of information, not freedom from race- 
based conduct, and they are equally available to em­
ployees irrespective of their race, sex. national origin, 
etc. See Eiehman v. Indiana State U niversity Board 
o f Trustees, 597 F.2d 1104, 1107 (7th Cir. 1979) (5 704 
o f  Title VII "extends protection to all who ‘assist’ or 
‘participate’ regardless of their race or sex” ). Thus, put 
quite simply, a claim of retaliation for filing Title VII 
charges has nothing to do with an employee’s § 1981 right 
to make and enforce contracts on the same basis as white 
citizens. Indeed, even before this Court’s Patterson  de­
cision, many lower courts had held that discrimination 
based on factors other than race, such as retaliation in 
violation o f 9 704(a) of Title VII, does not violate § 1981.
See, e.g., Hudson v. IBM, ------- F. Supp. ------- , 22 FEP
Cases 947 (S.D.N.Y. 1975) ; Takeall v. W ERD, Inc., 
____ F. Supp-------- , 23 FEP Cases 947 (M.D. Fla. 1979) ;

19

Grant v. BetMehem Steel Corp., ------- F. Supp. » 22
FEP Cases 680 (S.D.N.Y. 1978); Barfield v. A.R.C. Se­
curity, Inc., ------  F. Supp. -------, 10 FEP Cases 789
(N.D. Ga. 1975).14 The correctness o f  that conclusion 
has only been confirmed by Patterson's mandate that 
§ 1981 be interpreted in accordance with the plain and 
common sense meaning of its terms and that courts 
should avoid “ twist [ing] the interpretation of [§ 1981] 
to cover the same conduct”  covered by Title VII. 105 
L. Ed. 2d at 153.

In sum, while both of Petitioner’s claims are cogniza­
ble under Title VII, and indeed have been given full 
consideration under that statute, neither is cognizable 
under § 1981. Accordingly, this Court should either af­
firm the Fourth Circuit’s judgment on the basis of 
Patterson  or dismiss the w nt o f  certiorari as improv- 
idently granted.

II THE SEVENTH AMENDMENT DOES NOT RE­
QUIRE RETRIAL OF ISSUES AIJUBADY DECIDED 
BY THE DISTRICT COURT

The preceding section demonstrates that the funda­
mental predicate of Petitioner’s Seventh Amendment ar­
gument no longer exists. Specifically, the collateral es­
toppel and jury trial issues arose in the Fourth Cir­
cuit only because the court assumed that the district 
court had erroneously dismissed Petitioner’s 51981 
claims. I f  dismissal was proper— and the foregoing sec­
tion shows it was—then no new trial is necessary and, 
a  fortiori, the question of whether collateral estoppel is 
applicable does not arise. As a consequence, the Court 
need not reach the collateral estoppel/Seventh Amend-

M Although there are c u m  to the contrary («.(?., Goff « . Conti­
nental OH Co^ 678 F.2d 593 (5th Cir. 1982) ) ,  they are not In keeping 
with the statutory intent o f 5 1981 to prohibit employment deci­
sion* based on race, rather than poet-discharge actions allegedly 
based on participation in statutory proceedings under Title V IL

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20

ilment issue in order to affirm the judgment of the court 
xof appeals. Nevertheless, we show below that the Fourth 

Circuit’s application of collateral estoppel to Petitioner’s 
§ 1981 claims is consistent with this Court’s decisions.

If the Court addresses the collateral estoppel issue, it 
should uphold the decision o f the court o f  appeals. The 
Fourth Circuit held that the doctrine o f  collateral estop­
pel precluded relitigation of the facts already decided by 
the district court and, as a consequence, that Lytle had 
no viable § 1981 claim since the elements of Title VII 
and § 1981 are identical. This derision is consistent with 
the purpose of collateral estoppel, which is to protect 
litigants from the burden o f relitigating an identical 
issue with the same party or his privy and to promote 
judicial economy by preventing needless litigation. See 
University o /  Tennessee v. Elliott, 478 U.S. 788, 798 
(1986) ; AUen v. McCurry, 449 U.S. 90, 96 (1980); 
Blender-Tongue Laboratories, Inc. v. University of Illi­
nois Foundation, 402 U 5 . 313, 328-29 (1971).

Contrary to Petitioner's contention, the Court’s decision 
in Beacon Theatres, Inc. v. Westover, 359 U.S. 500 
(1959), does not require a different result Beacon 
Theatres holds that when legal and equitable claims are 
joined in one proceeding, the legal claims should be tried 
first before a jury if possible. Although derived from 
the Seventh Amendment, this doctrine is nothing more 
than a “general prudential rule”  for courts to follow. 
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 335 
(1979).** Like most other rules of constitutional origin, 
the Beacon Treatres doctrine cannot be woodenly applied

i* In Koldun » . Candy, 382 U .S . 323 (1 9 6 6 ), the Court stated 
that the Beacon Theatres note is an equitable doctrine which is 
inapplicable when Congress develops a statutory scheme contemplat­
ing the prompt trial o f disputed claims without the intervention of 

_  ajnry- 
D

21

and must yield when outweighed by other important 
principles.1*

Moreover, in Parklane Hosiery, this Court itself ad­
dressed the conflict between the Beacon Theatres rule and 
the principle of judicial economy underlying the doctrine 
o f collateral estoppel, and its decision fully supports the 
Fourth Circuit’s analysis. In that case, the Court re­
jected the argument that the Seventh Amendment pro­
hibits application o f  collateral estoppel to preclude a jury 
trial o f facts previously decided by an equity court and 
found that the Seventh Amendment does not establish 
such a rigid barrier to the efficient operation of our legal 
system. Instead, the Court adopted a more pragmatic 
view of the Seventh Amendment, one which guarantees 
the plaintiff a full and fair opportunity to litigate his 
claims, hut prohibits needless relitigation o f facts already 
decided. Using this realistic approach, the Court con­
cluded that any harm caused by the denial of a jury trial 
was clearly outweighed by the judicial interest in the 
economical resolution of cases. Thus, the Court held that 
application of collateral estoppel does not violate the 
Seventh Amendment where ' ‘there is no further fact­
finding function for the jury to perform, since the com­
mon factual issues have been decided.”  Id. at 336.

This is precisely the rationale the Fourth Circuit ap­
plied in the instant case. In doing so, the court followed 
its earlier decision in Ritter v. Mount Saint Mary’s Col­
lege, 814 F.2d 986 (4th Cir.), cert, denied, 434 U.S. 913 
(1987) j in which the district court had dismissed the 
plaintiff’ s claims under the Age Discrimination and Equal 
Pay Acts," and tried the Title VU claims without a jury.

KaUktm «. Landy, 382 U .S . at 339-40. Cf. Clark v. Community 
for Creative Nonviolence, 468 U .S . 288 (1984) (F irst Amendment 
rights subject to reasonable reetrictiora).

it 29 U .S.C . § 621 et teq., and 29 U .S.C. 5 2 0 6 (4 ). respectively. 
Unlike Title V II, both of tbeee statutes provide for trial by jury.



22

After determining that the legal and equitable claims 
shared common elements, the Ritter court held that the 
factual determinations made by the district judge d,s_ 
missing the Title VII suit collaterally estopped rehhga- 
tion of the same issues on the legal claims. The court 
found this situation squarely within this Court’s holding 
in Parklane Hosiery:

This court need not involve itself in the laborious 
and inconclusive policy analysis suggested by the 
parties on this issue, however, because the Supreme 
Court has already undertaken this policy analysis 
for us. Parklane decided that the judicial interest 
in the economical resolution of cases, which interest 
underlies the doctrine of collateral estoppel, does 
override the interest of the plaintiff in re-trymg tic- 
fore a jury the facts o f a case determined by a 
court sitting in equity.

Ritter, 814 F.2d at 991.
The Fourth Circuit’s decision in this case promotes 

the same policy considerations enunciated in Parklane 
and Ritter. Petitioner received a full and fair oppor­
tunity to try his Title VII claims before the district judge 
and his efforts fell short. Schwitzer was awarded an in­
voluntary dismissal on the termination claim after the 
presentation of Lytle’s evidence and Petitioners retalia­
tion claim was involuntarily dismissed at the end o f a 
the evidence (J.A. 60, 64). In these circumstances, 
Lytle’s request for a new trial before a jury is out­
weighed by the interests furthered by collateral estoppel.

Nor has Petitioner cited any persuasive argument or 
authority requiring a contrary result. First, Petitioner is 
plainly wrong in suggesting that collateral estoppel may 
not be applied to prevent relitigation of issues in the 
same suit. Indeed, the Parklane Hosiery decision specifi­
cally recognized that the major premise underlying the 
Beaetm Theatres rule is that, unless legal claims are de­
termined prior to equitable claims, a judge’s factual find-

23 r-

ings on the equitable claims would collaterally estop the 
jury’s redetermination of those issues. Parklane Hosiery, 
439 U.S. at 334.**

Second, Petitioner begs the question by arguing that 
“ [t]hia Court has never excused the Seventh Amendment 
violation by holding that the judge’s intervening factual 
findings pretermit presentation o f  a litigant’s case to a 
jury.”  Pet. Br. at 35 (emphasis in original). It is true 
that, once a Seventh Amendment violation is found, the 
proper course is to re-try the case before the jury. How­
ever, that does not answer the question o f whether the 
Seventh Amendment is violated by giving collateral 
estoppel effect to a judge’s findings on equitable claims 
that are properly determinable by the court in the ab­
sence o f  then-pending legal claims raising the same 
issues.

Nor do the cases cited by Petitioner answer this latter 
question. See Pet. Br. at 35-40. Most of those cases in­
volved straightforward situations in which the district 
court had simply made an erroneous determination that 
the claims or issues in dispute should he tried to the court 
rather than to a jury. E.g., Granfinarteiera v. Nordberg,
____ U .S .-------- , 106 L. Ed. 2d 26 (1989); Tull v. United
States, 481 U.S. 412 (1987); Pemell v. Southall Realty, 
416 U.S. 363 (1974) ;  Curtis v. Loether, 415 U.S. 189 
(1974); Schoenthal v. Irving Trust Co., 287 U.S. 92 
(1932).** In such situations, the judge’s determination

« I n  addition, aa noted by the court in Ritter, the prior suit 
notion merely reflects the manner in which the application o f col­
lateral estoppel typically arises. Ritter, 814 F.2d at M l-9 2 . If C3 
collateral estoppel can be used to bind persons to judgments in 
which they were not parties, it would be illogical to refuse to apply in 
the principle to  the same parties that litigated the issues before the 
district court. £T

»  For example, in the Granfbmneiera rase, the only claim pre­
sented involved an alleged fraudulent transfer. The court denied ^  
defendant's jury trial request and entered judgment for plaintiff. cv
This Court reversed and directed a  jury trial on the fraudulent |_

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21

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of the claims is the essence of the Seventh Amendment 
error, and is properly subject to being vacated on appeaL

Here, by contrast, the trial court's alleged error did not 
involve a direct violation of the Seventh Amendment, as 
would have occurred if  the district had simply determined 
that 5 1981 claims are triable to the rourt Instea^ the 
court's alleged error was the dismissal o f  the *1981 
claims, since it is undisputed that courts, rather than 
jori® . appropriately determine Title VII dam ia 
Great American Savmgc & Loan » . Novotny, 442 U.S. 
366, 375 (1979).

The instant case, then, is distinguishable from the 
cases cited by Petitioner in a critical respect: here, the 
court’s findings were made at a time when there were 
no pending legal claims which would require jury deter­
mination.** And in this respect, the instant case is iden­
tical to the situation in Parklane Hosiery— factual issues 
on which petitioners had a right to a jury trial were tried 
and determined adversely by the courts under P***? 
equitable claims which the courts had a right to decide 
given the posture o f the case.

tr*M f«r claim. Similarly, in Tull the Court held that the Seventh 
Amendment guarantees a jury trial for determination of llabllj^

*> U S.C. I ,» .9 ( b > , « > : .  The
portion o f that case not requiring jury resolution was the amount 
STthe civil penalty. O f course, the ai*e of the penalty can on y  t e  
determined after jury r e la t io n  o f liability issue* there
was no claim pertaining to liability property tried by the court-

»T h in  fact also serves to distinguish Meeker y . Ambassador Ofl 
re _  q*7r i !  q  icn  <1963) upon which Petitioner places heavy 

s Z r e l B r . U S V  M  described b j r.U U eeer, I f e - j r  
involved nothing more than a straightforward application o f the 
Beacon Theatres role— ie ., the trial court had pending before it  
1 tv, and eauitable claims with common factual issues, and it
viotetedUm Beacon Theatres role by choosing to decide 
bledaim a first, thereby foreclosing jury determination o f the legal

Issues.

25

Equally important, moreover, the interests of judicial 
economy advocated in Parklane Hosiery apply whether 
or not the dismissal o f the legal claims was in error. 
Under the teachings of Parklane, the critical issue is not 
whether the trial court’s denial of the jury trial was 
correct, but whether harm resulted from the denial. Rit­
ter, 814 F.2d at 991. As long as the district judge’s 
factual findings were not erroneous, Lytle was not prej­
udiced and the judicial interests underlying the doctrine 
of collateral estoppel outweigh any nominal injury. Other­
wise, the parties must conduct a full trial to the bench 
with the risk that it may be for naught if any o f the 
legal clnirnu are reversed and remanded to be tried by 
a jury, at a cost of substantial time and resources to the 
court and to the litigants. Id  The parties' motivation 
in litigating such a provisional trial would be question­
able. Fortunately, in Parklane Hosiery this Court bal­
anced the interests involved and found that the scale 
tipped in favor of applying collateral estoppel. Where, 
as here. Petitioner has been provided a full and fair 
opportunity to litigate his claims, “ one trial of common 
facts is enough.”  Ritter, 814 F 2d  at 991.“

Finally, contrary to Petitioner's assertion, the Fourth 
Circuit's decisions in Lytle and Ritter will not eliminate 
the Beacon Theatres rule. The Lytle and Ritter reason­
ing applies only where the court tries a parallel equit­
able claim and there are no legal claims pending. Sec 
Williams v. Cerberonics, Inc., 871 F.2d 452, 464-65 (4th 
Cir. 1989) (Phillips dissenting); Dwyer v. Smith, 867

n  Petitioner’s  contention that the right to jury trial is particu­
larly important in S 1981 case* is contrary to Independent Fcder*-
tim of Flight Attendants v. Zipes, --------U .S . ------- 105 L. ¥A. 2d
639 (1 9 8 9 ), where the Court held that Congress did not intend for 
Title V II to override other procedural and judicial interests. Col­
lateral estoppel is equally applicable to civil righto claims as it is to 
other m atters. University of Tennessee v. KUtot, 478 U - ^ m  
796-97 (1986) (“ Congress, in enacting civil rights statutee^did not 
intend to create an exception to general role* of preclusion ) .



F.2d 184, 192 n. 4 (4th Cir. 1989). Thus, the vast ma­
jority of cases will continue to be decided in accordance 
with the prudential rule o f  Beacon Theatres, in which 
pending legal claims are decided first whenever they are 
joined in the same action with equitable claims”  Indeed, 
the Fourth Circuit has shown that it will conscientiously 
follow this principle. See e.g., Grossos Music v. Milken, 
Inc., 753 F.2d 117 (4th Cir. 1981) (court relies on 
Beacon Theatres and Dairy Queen in reversing denial o f 
jury tria l); Tights Inc. v. Stanley, 441 F^d 336 (4th 
Cir.) , cert, denied, 404 U.S. 852 (1971) (Fourth Circuit 
issues writ of mandamus directing district court to va­
cate order striking jury trial demands). In the rare 
instance where the equitable issues are tried first. Park- 
lane Hosiery teaches that the Seventh Amendment does 
not compel the expensive, time-consuming relitigation o f 
factual issues already decided. The Fourth Circuit’s ap­
plication of this rule in the Lytle-Ritter context comports 
with this philosophy and should be affirmed.”

In sum, the Fourth Circuit in this case correctly fol­
lowed Parklane in holding that the district court’s find­
ings in the Title VII claim precluded relitigation o f these 
issues. The court’s reasoning will prevent needless re­
litigation of judges’ sound findings and furthers the in­
terest of judicial economy. Accordingly, the decision be­
low should be affirmed.

«* Petitioner’s  assertion that federal trial judge* will be induced 
by the Fourth Circuit’s decision to try the equitable claims before 
the jury claims in a joint suit merely fo r  their own convenience is 
unfounded. The allegation that federal judges would willingly dis- 

this Court’s decisions, along with Petitioner's repeated im­
plications that judges’ factual determinations are Inherently sus­
pect, is an unwarranted censure of the federal judiciary.

u  Du* to the infrequent applicability of the Isytle-Ritter princi­
ple, Petitioner’s  claim that it will result in increased litigation is 
without merit.

i
t

III. DISMISSAL OF THE §1981 CLAIMS HAD NO 
EFFECT ON THE OUTCOME OF THIS CASE

Even if  the court of appeals erred in holding that re­
litigation o f Petitioner’s § 1981 claims was precluded by 
collateral estoppel, such error was harmless under Fed. 
R. Civ. P. 61 and does not warrant a new trial.”  This 
Court has long recognized that when a plaintiffs evidence 
is insufficient as a matter o f law to establish a pronto 
facie case, the Seventh Amendment is not violated by the 
issuance o f a directed verdict. See Galloway v. United 
States, 319 U.S. 372, rehearing denied, 320 U.S. 214 
(1943). In Galloway, this Court pointed out that the 
Seventh Amendment guarantees both a plaintiff’s right to 
have legitimate claims heard by a jury and a defendant’s 
right to attack the legal sufficiency o f plaintiff’s evidence 
without protracted litigation. Id. at 892-93. The Court 
rejected the contention that the Seventh Amendment re­
quires a new trial where, as here, plaintiff cannot estab­
lish a critical element of his claim. Id. at 394.

Other courts of appeal addressing this issue agree with 
the First Circuit that “ there is no constitutional right 
to have twelve men sit idle and functionless in a jury 
box." In re N-500L Cases, 691 F.2d 15, 25 (1st Cir. 
1982). For example, in Laskaris v. Thornburg, 733 F.2d 
260 ( 3d C ir.), cert denied, 469 U.S. 886 (1984), the 
Third Circuit affirmed the district court’s dismissal of 
plaintiff’ s 1 1981 claims alleging politically motivated dis­
charges. The court held that the dismissal of these 
claims, and the affiliated right to a jury trial, constituted 
harmless error since the evidence adduced at trial was

27

« This point w u  argued by Respondent before the court of 
appeal*, bat the court did not reach this issue. However, it is well 
established that a Respondent can seek affirmance on any ground 
disclosed by the record. United States v. New York Telephone Co., 
AM U .S. 159, 166 n- 8 (1 9 7 7 ).



insufficient to avoid a directed verdict if a jury had been 
impaneled.1"

Indeed, the cases relied upon by Petitioner are not in­
consistent with these principles. For example, in Hussein 
v. Oshkosh Motor Truck Co., 816 F.2d 348 (7th Cir. 
1987), the court stated that before addressing the col­
lateral estoppel issue, there must be an inquiry into 
whether the denial o f a jury trial constitutes harmless 
error. Hussein, 816 F .2 d a t354 n. 6 “

*  Accord Bowles v. United States Am tg Corps of Engineers, 841 
F 2d 112 (5th C ir .), cert, denied. 109 S - Ct. S3 (1 9 8 8 ); Keller v. 
Prince Georgia County, 827 F id  962 (4th Cir. 1 9 8 7 ); Howard v. 
Parisian. 807 F.2d I860 (11th Cir. 1 9 8 7 ); King v. University of 
Minnesota, 774 F.2d 224 (8th C ir. 1986 ), cert, denied, 476 U  S. 
1096 (1 9 8 6 ); In re Professional Air Traffic Controllers Organisa­
tion of America, 724 F.2d 206 (D .C . C ir. 1 9 8 4 ); Atwood ,Pacific
Maritime Association. 667 F-2d 1065 (9th C ir.
» . Board of Trustees of Michigan State Umvemty, 607 F-2d 708  
(6th Cir. 1 9 7 9 ); King v. United Benefit Fire Insurance Co., 377 
F 2d 728 (10th C ir .), cert, denied, 389 U -S. 887 (1 9 6 7 ).

m Moreover, Lytle mioses the mark in attem pting to avoid the 
henolees error principle by relying on came involving issues such 
«  an improper forum and the failure o f a  judge to recoae him aelf. 
The interests at issue in these cases differ drastically from  the issue 
of whether the denial o f a jury trial was harmless. In the forum  

context, the right infringed in the right not to be tried at 
nil a particular forum. See Laura Lines SJi-l>- v. Chooser.
_____ U  g  ______( 104 L. Rd. 2d 548 (1989) (Scalia, I., concurring).
The correctness or error o f the factual findings in the improper 
forum is irrelevant to this inquiry. Sim ilarly, the failure o f a 
judge to roc tee himaelf infects the entire judicial process. Even 
the appearance o f partiality requires recusal, reganfleaa o f eetual 
harm. Liljeberg n. Health Services Acquisition- Corp^ 486 U .S . 847 
(1 988). B y contrast, the denial of a  jury trial can only be harm ful 
i f  the jury would have been given the opportunity to decide the 
case. Howard v. Parisian, 807 F.2d 1560 (11th Cir. 1987).

Other came cited by Lytle fo r  this proposition are ™ '
persuasive. For example, in Gomes v. United States, 104JL Ed. 2d 
923 (1 9 8 9 ), the Court noted that harmless error “ J
applicable to a felony case. However, in Hose v. Clark, 478 U .S. 
0 9 8 6 ) . another criminal case cited by Lytle, the Court pointed out

29
In short, it is dear that this Court need not address 

the collateral estoppel issue i f  a directed verdict would 
have been proper under Rule 50(a) of the Federal Rules 
of Civil Procedure. Such a directed verdict is appropriate 
when there is a complete absence of proof on an issue 
material to the cause of action or when there are no con­
troverted issues of fact upon which reasonable jurors 
could differ. Brady v. Southern Railroad, 320 U.S. 476 
(1943); 5A Moore’s Federal Practice at Paragraph 50.02.

The evidence presented by Petitioner in this case, even 
when viewed in the most favorable light, is insufficient to 
defeat a directed verdict.17 As the Fourth Circuit cor­
rectly noted, “ it is established beyond per adventure that 
the elements of a prima facie case o f  employment dis­
crimination alleging disparate treatment under Title V1T 
and 5 1981 are identical.”  Pet. App. 13a-14a. Facts that 
preclude relief under Title VII also preclude a § 1981 
claim. Garcia v. Gloor, 618 F.2d 264, 271 (5th Cir., 
1980), cert, denied, 449 U.S. 1113 (1981).

In McDonnell Douglas Corp. v. Green, 411 U.S. 792 
(1973), the Court established the elements necessary to 
make out a prima facie case o f  disparate treatment under 
both statutes. The Fourth Circuit has refined the elements 
applicable to suits, like this one, which allege discrimina­
tory disciplinary action. Moore v. City of Charlotte, 754 
FJId 1100 (4th Cir.), eerL denied, 472 U.S. 1021 (1985). 
Moore held that to establish a prima fade case of racial

the strong presumption o f application o f harmless error analysis, 
even in the criminal context The Court found the error, an im­
proper jury instruction, was harmless.

tt Contrary to Petitioner’s  assertion, the district court s denial 
o f S ch w itar's motion for summary judgm ent does not indicate that 
Petitioner’a claim s would have been submitted to the jury a t trial. 
It is well eatabKshed that the denial o f a  motion for summary 
judgm ent doe* not preclude a directed verdict a t tr ia l Gross v. 
Southern Ry. Co„  446 F.2d 1057. 1060-61 (6th  Cir. 1 9 7 1 ); Armco 
Steel Corp. e. Realty Investment Co., 278 F.2d 483, 486 (Bth Cir. 
1960).



30
discrimination in a case involving a discharge for viola­
tion o f company rules or policies, the plaintiff must show: 
(1) that he is black; (2) that he was discharged for vio­
lation of a company rule; (3) that he engaged in pro­
hibited conduct similar to that of a person of another 
race; and (4) that disciplinary measures enforced against 
him were more severe than those enforced against the 
other person. Moore, 754 F.2d at 1106.

Application of these factors reveals, as the district 
court found, that Lytle failed to establish a prima facie 
case. Schwiteer’s absentee policy distinguishes between 
excused and unexeused absences, with a stricter standard 
for the latter based on the greater disruptive effect of 
unexcused absence on the company’ s operation. Excused 
absences must also be agreed to in advance by the em­
ployee's supervisor (Tr. 17-19). Lytle’s testimony indi­
cated that he asked for a vacation day on Friday, August 
12, 1983. When his supervisor, Larry Miller, told him 
that he would still have to work Saturady, August 13, 
Lytle replied that he would be unable to work because 
he was “ physically unfit.”  According to Lytle, Miller 
denied the request and told him he would have to work 
one of the two days. Lytle responded that he would use 
two vacation days if required, but expected time and one- 

| half pay for the Saturday vacation day (Tr. 131-32).
He admits that Miller walked off without granting his 
request It is undisputed that Lytle left 1.8 hours early 
that day and did not report or call in on August 12 or 13 
(Tr. 133,172-73).

Lytle presented no evidence that Miller granted the 
day off or excused him from reporting to work or calling 
in.** Lytle’s subjective understanding o f Miller's actions 
is insignificant, since proof of discriminatory intent is 
required to establish liability under § 1981, General Bldg. 
Contractors Ass’n v. Pennsylvania, 458 U.S. 375 (1982),

j

»  In addition, there is no evidence that M iller discnm inatorily 
denied the requested time off.

31

and under Title VII’s disparate treatment theory. Mc­
Daniel v. Temple Independent School District, 770 F.2d 
1340 (5th Cir. 1985) (the issue is not whether the em­
ployer made the correct decision, but whether it intended 
to discriminate against the employee); Verdell v. Wilson, 
602 F. Supp. 1427, 1434 n. 4 (E.D.N.Y. 1985) (discrimi­
nation cannot be founded on a difference of opinion).

Moreover, Lytle was unable to sustain his burden under 
Moore by identifying a single non-black employee guilty 
o f a similar violation who was not discharged (J.A. 60). 
This requirement was not met by evidence of white em­
ployees with excessive excused absences and a white em­
ployee with six minutes of excessive unexcused absence. 
Schwitzer’s policies clearly distinguish between excused 
and unexcused absences, and a six-minute violation (con­
sisting of tardiness, not refusal to work) differs markedly 
from Lytle’s 9.8-hour violation. Lytle’s inability to iden­
tify an individual guilty of a similar offense who was 
treated preferentially precludes him from establishing a 
vital element of a prima facie case.

Significantly, after hearing only Lytle’s evidence, the 
district court granted Schwitzer’s motion for involun­
tary dismissal under Fed. R. Civ. P. 41(b) on the dis­
criminatory discharge claim, finding, as a matter of law, 
that Lytle had failed to establish a prima facie case. In 
making this determination, the court recognized the dif­
ference between excused and unexcused absences under 
Schwitzer’s attendance policy (J.A. 59), and also recog­
nized that the excused absence of white employees were 
not as serious as Lytle’s unexcused absences. Not only 
are the standards and purposes different, but the court 
would have had to ignore common sense and basic prin­
ciples of judicial notice to come to any other conclusion. 
As a result, the court concluded as a matter of law that 
Lytle had not established a prima facie case of race



discrimination.** Although the standards vary under 
Rules 41(b) and 50(a),  the court’s decision did not rest 
on credibility determinations. Rather, Petitioner s in­
ability to establish a critical element of a privui facie 
case would have guaranteed a directed verdict as a mat­
ter of law even if  a jury had been impaneled Since 
Schwitzer would have received a directed verdict, the 
denial of a jury was harmless error and remand of the 
case is unnecessary.

Similarly, a directed verdict would have been proper 
on Lytle’s § 1981 retaliation claim.30 In order to establish 
a prima facie case of retaliation, plaintiff must prove the 
following three elements by a preponderance of the evi­
dence: (1) the employee engaged in protected activity; 
(2) the employer took adverse employment action against 
the employee; and (3) a causal connection between the

'»  A t the close o f Petitioner’s case, the district court made the 
following specific determinations:

I will find by plaintiff's oura evidence plaintiff had excess unex­
cused absence of 9-8 hours, and that, with reference U> this 
unexcused absence, he did not follow the company policy of 
calling in ;
I will find that Lhe conduct on the part o f the white employees 
is not substantially similar in seriousness to the conduct for 
which plaintiff was discharged.

Based on these findings, the court concluded:
I will conclude as a matter o f law that the Court has jurisdic­
tion of this matter, and that the plaintiff has established that 
he is a member of a protected category, and that he was dis­
charged for violation o f the company’s policy, but I con­
clude os a matter of law that he has not established a prima 
facie case, since he has not established that Blacks were treated 
differently, and in fact committed violation* of the company’* 
policy of sufficient seriousness;
And I will order that the claim as to the discharge be dismissed. 

(J.A . 59-60) (emphasis added).

“ Just as with the discriminatory discharge claim, the elements 
for retaliation under 1 1981. if allowed, are the same as those under 
Title V II Irby v. Sullivan, 737 F.2d 1418 (5th  C ir. 1984).

33

protected activity and the adverse action. Because Peti­
tioner could only establish the first o f the three manda­
tory elements, his retaliation claim was properly dis­
missed. Canino v. EEOC, 707 F.2d 468 (11th Cir. 1983) 
(dismissal proper when plaintiff satisfied only two ele­
ments o f a prima facie case).

Petitioner alleged that Schwitzer treated him adversely 
1 following the filing o f his EEOC charge by providing a

neutral letter o f reference to prospective employers which 
contained only his dates o f employment and former job 
title. However, Schwitzer has a well-established com­
pany policy o f  providing such limited references. In­
deed, Schwitzer presented evidence o f several other in­
stances when employees who had not filed E E O C  charges 
received the same limited reference as that provided for 
Lytle (Tr. 264-65, 267). Although it appears that in 
one case a more detailed reference was supplied, this 
incident was a single, unintentional aberration to an 
otherwise uniform company policy, and there was no 
contrary evidence (J.A . 62-63). As a consequence, at the 
end o f ail the evidence the district court held that Lytle’s 
retaliation claim was without foundation as a matter of 
law and entered judgment for  Respondent under Rule 
41(b)  (J.A. 64) .  In these circumstances, even if § 1981 
applies to retaliation claims, and even if attempts to 
prove retaliation would not be collaterally estopped, Pe­
titioner’s failure to establish a prima facie case would 
have warranted a directed verdict. Accordingly, the de­
nial o f a jury trial was harmless error under Fed. R. 
Civ. P. 61 and a new trial is unnecessary.31

ji In the event the Court does not affirm the decision of the court 
of appeals on ary of the grounds discussed above, the proper 
remedy would be a remand for consideration of the § 1981 issue and 
a motion under Rule 50(a) for a directed verd.ct See Arlington 
Heights v. Metropolitan Housing Corp.. 429 U.S. 252, 271 (1977) . 
7 Moore’s Federal Practice, Paragraph 61.06.



CONCLUSION

For the foregoing reasons, the Court should affirm 
the judgment of the court of appeals.

Respectfully submitted,

H. Lank  Dknnard, Jr.*
Devin M. E hrlich 
OCLRTREE, DEAKINS, NASH, 

S moak and Stewart 
3800 One Atlantic Center 
1201 W. Peachtree Street, N.W. 
Atlanta, Georgia 30309 
(404) 881-1300
A. B rock Clarke 
C. Matthew  K een
OGI.ETXEE, DEAKINS, NASH,

S moak and Stewart 
Post Office Box 31608 
Suite 100,3724 National Drive 
Raleigh, North Carolina 27622 
(919) 787-9700 
Attorneys for Respondent 
* Counsel o f Record

j

i