Lytle v. Schwitzer U.S. Inc. Brief Amicus Curiae in Support of Respondent

    No. 88-334

In The

©Hurt of %  Hmti'ii States
October Term, 1989

John S. Lytle,
Petitioner,

v.

Schwitzer U.S., Inc., a subsidiary of Schwitzer, Inc.,
Respondent.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Fourth Circuit

BRIEF AMICUS CURIAE OF THE  
EQUAL EMPLOYMENT ADVISORY COUNCIL 

IN SUPPORT OF THE RESPONDENT

R obert E . W il l ia m s  
D ouglas S. M cD o w ell  
Ga r e n  E . D odge *

M cGu in e s s  & W il l ia m s  
Suite 1200
1015 Fifteenth Street, N.W. 
Washington, D.C. 20005 
(202) 789-8600

Attorneys for Amicus Curiae, 
Equal Employment 
Advisory Council

* Counsel of Record

W ilson  -  Epes Printing Co . ,  Inc . -  7 8 9 -0 0 9 6  - W a s h in g t o n , D .C . 2 0 0 0 1



TABLE OF CONTENTS
Page

TABLE OF CONTENTS..................................................  i

TABLE OF AUTHORITIES..................   iii

INTEREST OF THE AMICUS CURIAE....... ............  1

STATEMENT OF THE CASE........................................  3

SUMMARY OF ARGUMENT.................... ....................  5

ARGUMENT....................................     7

I. WHERE A COURT HAS CORRECTLY 
FOUND THAT A PLAINTIFF FAILED TO 
ESTABLISH A PRIMA FACIE CASE UN­
DER TITLE VII, THE PLAINTIFF IS NOT 
ENTITLED TO A JURY TRIAL UNDER 
SECTION 1981 INVOLVING THE SAME 
FACTS AND LEGAL THEORIES....................  7

A. Because The Elements Of A Section 1981 
Claim Are Identical To A Title VII Claim 
Alleging Intentional Race Discrimination,
A Court May Properly Rule That “One Trial 
Of Common Facts Is Enough,” And Thereby 
Deny Relitigation Of The Dismissed Title
VII Claim By A Jury Under Section 1981.. 7

B. A Court’s Refusal To Permit A Needless
Relitigation Of Common Facts Under Sec­
tion 1981 Does Not Violate The Seventh 
Amendment’s Guarantee Of A Jury Trial In 
Suits At Common Law ................ ..................  9

C. Strong Policy Reasons Support A Court’s
Denial Of A Second Trial Of Common Facts, 
Particularly Where The Court Determines 
That The Plaintiff Has Failed To Establish 
Even A Prima Facie Case....................... .....  12



11

II. PATTERSON v. McLEAN CREDIT MAKES 
CLEAR THAT SECTION 1981 DOES NOT 
COYER CLAIMS OF DISCHARGE OR RE­
TALIATION, SINCE SUCH ACTIONS DO 
NOT INVOLVE THE “MAKING” OR “EN­
FORCING” OF A CONTRACT .........................  15
A. Patterson And Its Reasoned Progeny Deny

Section 1981 Coverage To Discharge And 
Retaliation Cases .......... ............... .... ....... ........  15

B. Strong Policy Reasons Support The Exclu­
sion Of Discharge And Retaliation Claims 
From The Scope Of Section 1981.................  21

C. Courts Already Interpret And Enforce Title
VII In A Manner That Protects The Rights 
Of Charging Parties And Is Consistent With 
Federal Antidiscrimination Policy...............  23

CONCLUSION..................................  28

TABLE OF CONTENTS— Continued
Page



iii

TABLE OF AUTHORITIES
Cases Page

Albemarle Paper Company v. Moody, 422 U.S. 405
(1975)......................................................................  27

Alexander v. New York Medical College, No, 89 
Civ. 1092, 1989 U.S. LEXIS 11433 (S.D.N.Y.
Sept. 29, 1989)............ ..... ............. ......... ........... 18, 21

Beacon Theatres, Inc. v. Westover, 359 U.S. 500
(1959)............................................ ...... ......... ..... . 10, 11

Beesley v. Hartford Fire Insurance Co., CA No. 
89-AR-1062-S (N.D. Alabama) (decision pend­
ing) .......             3

Blonder-Tongue Laboratories, Inc. v. University
of Illinois Foundation, 402 U.S. 313 (1971)____ 13

Boston v. AT&T Information Systems, No. 88-
141-B (S.D. Iowa 1989).... ......... ......... ........... . 19

Brady v. Southern Railroad, 320 U.S. 476 (1943).. 14
Carroll v. General Motors Corp., CA No. 88-2532- 

0, 1989 U.S. Dist, LEXIS 10481 (D. Kansas
1989) .........................    18

Carter v. Aselton, 50 FEP 251 (M.D. Fla. 1989).. 18
Chance v. Board of Examiners, 534 F.2d 993 (2d

Cir. 1976), cert, denied, 431 U.S. 965 (1977).....  24
Copperidge v. Terminal Freight Handling, 50 FEP

Cases 812 (W.D. Tenn. 1989) ........................... . 18
Crawford v. Broadview Savings and Loan Co.,

No. 88-3694, 1989 U.S. App. LEXIS 9921 (6th
Cir. 1989) .............................................................   17

Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962).. 10
Dangerfield v. Mission Press, 50 FEP Cases 1171

(N.D. 111. 1989)...............................................   21
Dwyer v. Smith, 867 F.2d 184 (4th Cir. 1989).... 13
EEOC v. Associated Dry Goods Corp., 449 U.S.

590 (1981)............................. ............ .......... .... . 25
EEOC v. Commercial Office Products Co., 108

S. Ct. 1666 (1988)......................... ........... ......... . 25
EEOC v. Shell Oil Co., 466 U.S. 54 (1984)............  25
English v. General Dev. Corp., 717 F. Supp. 628

(N.D. 111. 1989)........    21
Fidelity & Deposit Co. of Md. v. United States, 187

U.S. 315 (1902) ............................... ................... . 10



iv

TABLE OF AUTHORITIES— Continued
Page

Furnco Construction Co. v. Waters, 438 U.S. 567
(1978)..-.... - .................. ........................................ - 3

Gairola v. Commonwealth of Virginia Department 
of General Services, 753 F.2d 1281 (4th Cir.
1985)........ ............ — .................................... -........  7

Galloway v. United States, 319 U.S. 372 (1943).... 9,10 
Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980),

cert, denied, 449 U.S. 1113 (1981)................... . 7, 8
General Building Contractors Ass’n. Inc. v. Penn­

sylvania, 458 U.S. 375 (1982) .......... ...................  2, 24
General Telephone Co. of the Southwest v. Falcon,

457 U.S. 147 (1982).................. ................... —... . 27
General Telephone Company of the Northwest,

Inc. v. EEOC, 446 U.S. 318 (1980)......... ..........  27
Goodman v. Lukens Steel Co., 482 U.S. 656

(1987) ...... ............................. ................... .............  2, 25
Granftnanciera S.A. v. Nordberg, 109 S.Ct. 2782

(1989) ................... .... ..................................... .......  11
Greggs v. Hillman Distributing Co., 50 FEP Cases

429 (S.D. Tex. 1989) .................... .......................  18
Hall v. County of Cook, State of Illinois, No. 87 C 

6918, 1989 U.S. Dist. LEXIS 9661 (N.D. 111.
1989) ......... ................... ....... ........-.........................  19

Hussein v. Oshkosh Motor Truck Co., 816 F.2d
348 (7th Cir. 1987)................................. ............ 11

International Brotherhood of Teamsters v. United
States, 431 U.S. 324 (1977)..................................  3

Irby v. Sullivan, 737 F.2d 1418 (5th Cir. 1984).... 8, 9
Jackson v. RKO Bottlers, 743 F.2d 370 (6th Cir.

1984) .......................................................................  7
Jett v. Dallas v. Independent School District, 109

S. Ct. 2702 (1989) .............................     20
Jones v. Alltech Associates, Inc., No. 85 C 10345,

1989 U.S. Dist. LEXIS 10422 (N.D. 111. 1989).. 18
Jordan v. U.S. West Direct Co., 50 FEP Cases 633

(D. Colo. 1989)......................................................  21
Katchen v. Tandy, 382 U.S. 323 (1966)........ 5,10,11,12
Keller v. Prince George’s County, 827 F,2d 952 

(4th Cir. 1987) 13



V

Kerotest Mfg Co. v. C-O-Two Co., 342 U.S. 180
(1952).........    13

Kolb v. Ohio, No. 87 Civ. 1314 (N.D. Ohio 1989).. 18
Leong v. Hilton Hotels Corp., 50 FEP Cases 738

(D. Hawaii 1989).......................................... .......  16,17
Lorillard v. Pons, 413 U.S. 575 (1978) .................  3
Malhotra v. Cotter & Co., No. 88-2880 (7th Cir.

Sept. 12, 1989) ................... .................... ..............  20
Malone v. U.S. Steel Corp., Civ. No. H 83-727

(N.D. Ind. July 19, 1989)....................................  20
Mathis v. Boeing Military Airplane Co., No. 86- 

6002-K, 1989 U.S. Dist. LEXIS 8849 (D. Kan­
sas 1989)..................... — .... .................................  19

McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973) ......................................................................  7

Moore v. City of Charlotte, 754 F.2d 1100 (4th
Cir.), cert, denied, 472 U.S. 1021 (1985) .........  7

New York Gaslight Club, Inc. v. Carey, 447 U.S.
54 (1980)......        25

Occidental Life Insurance Co. of California v.
EEOC, 432 U.S. 355 (1977)................................... 23

Overby v. Chevron USA, 884 F.2d 470, 50 FEP
Cases 1211 (9th Cir. 1989)........................ ..... 16, 17, 22

Padilla v. United Air Lines, No. 88-A-400, 1989
U.S. Dist. LEXIS 8934 (D. Colo. 1989)............. 19

Parklane Hosiery Co. v. Shore, 439 U.S. 322
(1979)____ ____ _________ - ................................... passim

Patterson v. McLean Credit Union, 109 S. Ct.
2363 (1989).....        passim

Rick Nolan’s Auto Body Shop, Inc. v. Allstate In­
surance Co., No, 88 C 7147, 1989 U.S. Dist.
LEXIS 10357 (N.D. 111. 1989)____________ __  23

Riley v. Illinois Dept, of Mental Health and Devel­
opmental Disabilities, No. 87 C 10436, 1989 U.S.
Dist. LEXIS 7686 (N.D. 111. 1989) .......... ....... ...  19

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

TABLE OF AUTHORITIES— Continued
Page



vi

TABLE OF AUTHORITIES— Continued
Page

Rivera v. AT&T Information Systems, Inc., No. 
89-B-109, U.S. Hist. LEXIS 10812 (D. Colo.
Sept. 13, 1989) ......................... ........... ...............  18

Robinson v. Pepsi-Cola Co., Civ. No. H 87-375
(N.D. Ind. July 7, 1989) ............. ........... ............ 20

Runyon v. McCrary, 427 U.S. 160 (1976)_______ 2
Soffrin v. American Airlines, 717 F. Supp. 587,

50 FEP Cases 1245 (N.D. 111. 1989)..................  19
St. Francis College v. Al-Khazraji, 481 U.S. 604

(1987)..............................-..... ......... ....- ................. 2
Tadros v. Coleman, No. 88 Civ. 4431, 1989 U.S.

Dist. LEXIS 6895 (S.D.N.Y. 1989)................ 19
Texas Dept, of Community Affairs v. Burdine,

450 U.S. 248 (1981)............................................... 3
Tull v. United States, 481 U.S. 412 (1987)............. 11
United States Postal Service Board of Governors

v. Aikens, 460 U.S. 711 (1983)....„ „ „ ....... ........... 3
United States v. East Texas Motor Freight Sys­

tem Inc., 564 F.2d 179 (5th Cir. 1977) ... ...........  24
United States v. Trucking Management, Inc., 662

F.2d 36 (D.C. Cir. 1981)....... ...... .......................  24
Wards Cove Packing Co. v. Atonio, 109 S.Ct. 2115

(1989)..... ............. ......... ...................... ....... ...... . 3
Washington v. Davis, 426 U.S. 229 (1976)............  24
Waters v. Wisconsin Steel Works of International 

Harvester Co., 502 F.2d 1309 (7th Cir. 1974),
cert, denied, 425 U.S. 997 (1976)........................  24

Watson v. Fort Worth Bank & Trust, 108 S. Ct.
2777 (1988).................... ......... .......... ........ ..... . 3

Williams v. National Railroad Passenger Corp.,
716 F. Supp. 49, 50 FEP 721 (D.D.C. 1989)......  18, 21

Wilmer v. Tennessee Eastman Co., CA No. H-85-
6742 (S.D. Tex. 1989)__ _____ ____ _____ _____ _ 18

Zipes v. Trans World Airlines, Inc., 455 U.S. 385
(1982)...................................................................... 25

Constitutional Amendment
U.S. Const, amend. Y 1 I ........ .......... ........ ..................  4



vu

TABLE OF AUTHORITIES— Continued
Statutes Page

Civil Rights Act of 1866, 42 U.S.C. § 1981............. passim
Civil Rights Act of 1964, as amended, Title VII, 42 

U.S.C. §§ 2000e et seq............................................passim

Rules and Regtilations
29 C.F.R. § 1601.16(b) (1) and (2 ) .......... ....... .......  26
29 C.F.R. § 1601.19......................... ....................... . 26
Fed. R. Civ. P. 23 .........................................................  26, 27
Fed. R. Civ. P. 50 ( a ) ...... ......................... ............. ,.... 14
Fed. R. Civ. P. 61 ........................................................  13

Miscellaneous

EEOC: Investigative Compliance Policy, 8 Fair
Empl. Prac. (BNA) 401-2625-40:2626.........   26

EEOC: Policy Statement on Remedies and Relief 
for Individual Victims of Discrimination, 8 Fair
Empl. Prac. (BNA), 401:2615-401:2618............  26

Developments in the Law—Employment Discrimi­
nation and Title VII of the Civil Rights Act of
196U, 84 Harv. L. Rev. 1109 (1971) ...... ........ . 24

Sape & Hart, Title VII Reconsidered: The Equal 
Employment Opportunity Act of 1972, 40 Geo.
Wash. L. Rev. 824 (1972)...... ............... ......... .... 24



In T he

(tort v t lufti^ States
October Term, 1989

No. 88-334

John S. Lytle,
v Petitioner,

Schwitzer U.S., Inc., a subsidiary of Schwitzer, Inc.,
_________ Respondent.

On Writ of Certiorari to the 
United States Court of Appeals 

for the Fourth Circuit

BRIEF AMICUS CURIAE OF THE 
EQUAL EMPLOYMENT ADVISORY COUNCIL 

IN SUPPORT OF THE RESPONDENT

The Equal Employment Advisory Council, with the 
written consent of the parties, respectfully submits this 
brief as amicus curiae in support of the Respondent. The 
letters of consent have been filed with the Clerk of this 
Court.

INTEREST OF THE AMICUS CURIAE

The Equal Employment Advisory Council (EEAC or 
Council) is a voluntary nonprofit association organized to 
promote sound government policies pertaining to employ­
ment discrimination. Its membership comprises a broad 
segment of the employer community in the United States, 
including both individual employers and trade associa­
tions. Its governing body is a board of directors com­
posed of experts in equal employment opportunity. Their 
combined experience gives the Council a unique depth



2

of understanding of the practical, as well as legal as­
pects of equal employment policies and requirements. The 
members of the Council are committed to the principles 
of nondiscrimination and equal employment opportunity.

As employers, the Council’s members are subject to the 
provisions of Title VII of the Civil Rights Act of 1964, 
as amended, 42 U.S.C. §§ 2000e et seq. (Title V II), as 
well as the Civil Rights Act of 1866, 42 U.S.C. § 1981 
(Section 1981). As such, they have a direct interest in 
the issue presented for this Court’s consideration: that 
is, whether a plaintiff is entitled to a jury trial under 
Section 1981 when a district court has properly found 
that the plaintiff failed to establish the prima facie ele­
ments of a cause of action under Title VII after a full 
presentation of evidence at a bench trial, but when a 
Court of Appeals later determines that the district court 
had improperly dismissed a Section 1981 claim involving 
the same facts and legal theories. In addition, EEAC’s 
members have an interest in a related basis on which this 
Court could properly dispose of this case; without even 
reaching the jury trial issue— that is, that Section 1981 
does not cover race discrimination involving discharge or 
retaliation, Lytle’s complaints herein, particularly after 
this Court’s decision last term in Patterson v. McLean 
Credit Union, 109 S. Ct. 2363 (1989).

Because of its interest in issues involving Section 1981, 
EEAC filed briefs with this Court in the Patterson case, 
both as initially argued and again upon reconsideration 
of Runyon v. McCrary, 427 U.S. 160 (1976). The Coun­
cil also addressed Section 1981 issues in Goodman v. Lu- 
kens Steel Co., 482 U.S. 656 (1987) (personal injury, 
not contract, statute of limitations applies in a Section 
1981 case), St. Francis College v. Al-Khazraji, 481 U.S. 
604 (1987) (Section 1981 covers claims of ancestry and 
ethnicity discrimination, as well as that of race), and 
General Building Contractors Ass’n. Inc. v. Pennsylvania, 
458 U.S. 375 (1982) (standard of proof under Section 
1981 is one of intentional discrimination).



3
Indeed, because of EEAC’s concern related to the 

proof of employment discrimination cases generally, the 
Council has filed briefs amicus curiae in this Court in 
Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115 
(1989) ; Watson v. Fort Worth Bank & Trust, 108 S. Ct. 
2777 (1988) ; United States Postal Service Board of Gov­
ernors v. AiJcens, 460 U.S. 711 (1983) ; Texas Dept, of 
Community Affairs v. Burdine, 450 U.S. 248 (1981) ; 
Fumco Construction Co. v. Waters, 438 U.S. 567 (1978) ; 
and International Brotherhood of Teamsters v. United 
States, 431 U.S. 324 (1977), among others. EEAC also 
addressed the issue of jury trials under Title VII, Bees- 
ley v. Hartford, Fire Insurance Co., CA No. 89-AR-1062-S 
(N.D. Alabama) (decision pending), and the Age Dis­
crimination in Employment Act, Lorillard v. Pons, 413 
U.S. 575 (1978). Accordingly, because of its past ex­
perience with these issues, the Council is well qualified 
to brief the Court in this case.

STATEMENT OF THE CASE
Schwitzer dismissed John Lytle from his position as 

machinist on August 15, 1983, for excessive, unexcused 
absences. Lytle had asked his supervisor for permis­
sion to take a Friday off to visit his doctor, which his 
supervisor granted on condition that Lytle work on the 
following Saturday. Lytle not only took Friday off, but 
left work without authorization nearly two hours early 
on Thursday, and then failed to report for eight hours 
of work on Saturday. Because company policy does not 
permit more than eight hours of unexcused absences per 
year, Lytle was discharged.

After his discharge, Lytle began applying for jobs 
with other companies. In accord with established policy, 
Schwitzer provided Lytle’s dates of employment and 
his job title to two prospective employers who asked for 
a reference. The company provided no negative infor­
mation about Lytle, and both companies hired him.

Lytle, who is black, filed suit in federal district court 
under both Title VII and Section 1981, alleging that he



4

had been discharged because of his race, and that the 
company had retaliated against him for filing his dis­
crimination charge when it failed to provide more favor­
able letters of reference. He relied on evidence that the 
company had once provided a favorable reference letter 
for a white worker. Lytle based his Title VII and Sec­
tion 1981 allegations upon identical facts.

The U.S. District Court for the Western District of 
North Carolina, in an unreported decision, dismissed the 
Section 1981 claims prior to trial, holding that, in the 
absence of an independent factual basis for the Section 
1981 suit, Title VII was Lytle’s exclusive federal rem­
edy. At the close of Lytle’s presentation of evidence at 
a Title VII bench trial, the court dismissed the allega­
tions of discriminatory discharge. The court held that 
the evidence was not sufficient to establish a prima facie 
case since Lytle failed to show that any white employees 
received less severe discipline for unexcused absences. 
The district court then entered a verdict for Schwitzer 
on the retaliation claim, finding that the granting of one 
“ favorable” letter of reference to a white employee was 
done through “ inadvertence.” Joint Appendix (J.A.) at 
63.

The Fourth Circuit held 2-1 that although Title VII 
provided an avenue of relief, the district court had er­
roneously dismissed the claims under Section 1981, which 
provided an independent source of relief on the same 
claim. But the appellate court also declined to order a 
“ second” trial— this one by jury under Section 1981— 
reasoning that the district court’s Title VII findings were 
entitled to collateral estoppel effect as to legal theories 
arising out of the same facts, as the same standards 
apply under both statutes. The Fourth Circuit then af­
firmed the district court’s findings that Lytle had failed 
to establish a prima facie case of discriminatory dis­
charge and retaliation. Judge Widener dissented, reason­
ing that Lytle had been denied his right to a jury trial 
under the Seventh Amendment to the U.S. Constitution.



SUMMARY OF ARGUMENT
The elements of a Section 1931 employment discrimi­

nation claim are identical to the elements of a Title VII 
disparate treatment claim. Therefore, where a trial court 
correctly concludes, after a bench trial on the merits, that 
a plaintiff has failed to establish a prima facie case under 
Title VII, it is entirely appropriate to deny a plaintiff 
the so-called “ right”  to relitigate those same facts and 
legal theories before a jury under Section 1981. This 
Court, in Parklane Hosiery Co. v. Shore, 439 U.S. 322 
(1979), indicated that a litigant is not always entitled 
to have a jury determine issues that have been adjudi­
cated by a trial judge, and the Fourth Circuit below 
properly applied that doctrine to the instant case. Indeed, 
as the Fourth Circuit noted in Ritter v. Mount Saint 
Mary’s College, 814 F.2d 896, 992, cert, denied, 484 U.S. 
913 (1987), where the plaintiff has had a full and fair 
opportunity to litigate his claims, “ one trial of common 
facts is enough.”

Despite Petitioner’s arguments to the contrary, a court’s 
refusal to sanction a needless relitigation of the same 
facts under Section 1981 does not run afoul of the Sev­
enth Amendment’s right to a jury trial. As indicated 
by this Court in Katchen v. Landy, 382 U.S. 323 (1966), 
there are situations in which courts may dispose of equi­
table claims in a bench trial even though “ the results 
might be dispositive of the issues involved in the legal 
claim.”  Thus, the Seventh Amendment is not to be ap­
plied “ in a rigid manner” ; where the judge has already 
assessed the relevant facts, there simply “ is no further 
factfinding function for the jury to perform.” Parklane 
Hosiery, 439 U.S. at 336.

Indeed, strong policy reasons support the denial of a 
“ second” trial of common facts by a jury. For example, 
a plaintiff will always be able to present his evidence at 
the bench trial. And although the issues are not pre­
sented before a jury, all parties have had a full oppor­
tunity to litigate before an independent trier of fact.

5



6

No other persons, except those parties, are affected by 
the trial court’s dismissal. Giving preclusive effect to the 
bench trial decision against those parties also promotes 
judicial economy by preventing needless litigation and at 
most results in “ error”  that is “harmless” to the litigant 
who lost—particularly where, as here, there is insufficient 
evidence of a prima facie case—because the judge would 
have taken the case from the jury and granted a directed 
verdict in any event. Given the foregoing, the decision 
below promotes much needed “ finality” in the judicial 
process. This Court should adopt the rule that, at mini­
mum, a district court may deny relitigation by a jury 
whenever evidence produced at the bench trial indicates 
that the plaintiff has failed to establish an element of his 
prima facie case, such that he would not be able to sur­
vive a motion for directed verdict.

EEAC would also stress that this Court need not even 
reach the jury issue since, under its decision last term in 
Patterson v. McLean Credit Union, 109 S.Ct. 2363 
(1989), it is now apparent that claims of discharge and 
retaliation are not actionable under Section 1981. Rather, 
that law only covers the “making”  and “enforcing” of a 
contract. Patterson strongly implies, and its reasoned 
progeny clearly hold, that discharges and instances of 
retaliation are neither.

Sound public policy supports this construction, in that 
Title VIPs well-crafted conciliation and resolution proce­
dures would be undermined by an overbroad reading of 
Section 1981. Moreover, it makes no sense to twist the 
meaning of Section 1981 to reach discharge and retalia­
tion claims, since Title VII already covers such claims 
and is currently being interpreted and enforced in a 
manner that protects the rights of charging parties—■ 
a manner that is consistent with our national antidis­
crimination laws and policies. As a result, this Court 
would be warranted in dismissing the petition for a writ 
of certiorari as improvidently granted, since the issues 
are now moot.



ARGUMENT
I. WHERE A COURT HAS CORRECTLY FOUND 

THAT A PLAINTIFF FAILED TO ESTABLISH A 
PRIMA FACIE CASE UNDER TITLE VII, THE 
PLAINTIFF IS NOT ENTITLED TO A JURY 
TRIAL UNDER SECTION 1981 INVOLVING THE 
SAME FACTS AND LEGAL THEORIES
A. Because The Elements Of A Section 1981 Claim 

Are Identical To A Title VII Claim Alleging Inten­
tional Race Discrimination, A Court May Properly 
Rule That “ One Trial Of Common Facts Is Enough,” 
And Thereby Deny Relitigation Of The Dismissed 
Title VII Claim By A Jury Under Section 1981

As the Fourth Circuit below properly noted, “ it is be­
yond peradventure that the elements of a prima facie 
case of employment discrimination alleging disparate 
treatment under Title VII and § 1981 are identical.” Slip 
Op. at 7, citing Gairola v. Commonwealth of Virginia De­
partment of General Services, 758 F.2d 1281, 1285 (4th 
Cir. 1985), and the cases cited therein. See Patterson v. 
McLean Credit Union, 109 S. Ct. at 2378 (J. Kennedy) 
and 109 S.Ct. at 2390 (J. Brennan, concurring in part).1

The court below found that Lytle failed to establish a 
prima facie case of discrimination under Title VII, both 
for his discharge and his retaliation claims,2 Specifically 
—as discussed more fully in Respondent’s brief, and as

7

1 Other circuits agree. See Garcia v. Gloor, 618 F.2d 264, 271 
(5th Cir. 1980), cert, denied, 449 U.S. 1113 (1981) ; Jackson v. 
RKO Bottlers, 743 F.2d 370, 378 (6th Cir. 1984).

2 This Court, in McDonnell Douglas Corp. v. Green, 411 U.S. 
792 (1973), set out the elements necessary to make out a prima 
facie case of disparate treatment under both statutes. As modified 
by the Fourth Circuit in Moore v. City of Charlotte, 754 F.2d 1100 
(4th Cir.), cert, denied, 472 U.S. 1021 (1985), to address discrim­
inatory discipline cases involving race, a plaintiff must establish 
these elements: (1) that he is black; (2) that he was discharged 
for violation of a company rule; (3) that he engaged in prohibited 
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.



8

properly noted by the district and appellate courts below 
— Lytle left work early on Thursday, and did not report 
or call in on either Friday or Saturday. This behavior 
amounted to the unexcused use of over eight hours of 
leave which, under Schwitzer’s policies, is a dischargeable 
offense. Fatal to his case, Lytle could not identify a 
single, non-black employee guilty of a similar violation 
who was treated any differently. He thus failed to estab­
lish an essential element of his discharge case. J.A. at 
60.3

Because the elements of a Section 1981 and a Title VII 
disparate treatment claim are identical, the Fourth Cir­
cuit below correctly determined that “ [Wjhere the ele­
ments of two causes of action are the same, the findings by 
the court in one preclude the trial of the other, and we so 
hold.”  Slip op. at 8. See Garcia v. Gloor, 618 F.2d 264, 
271 (5th Cir. 1980), cert, denied, 449 U.S. 1113 (1981)
(“ The facts here that preclude relief under Title VII also 
precludes a Section 1981 claim” ).

To deny relitigation of the same facts and legal issues 
by a jury is fully supported by the decisions of this and 
other courts. In Parklane Hosiery Co. v. Shore, 439 U.S. 
322 (1979), this Court ruled that a litigant is not always 
entitled to have a jury determine issues that had been 
adjudicated previously by a trial judge. It adopted the 
view that relitigation of identical issues runs afoul of the 
interests of judicial economy, and does not violate the 
Seventh Amendment’s guarantee of a right to a jury. 
This Court concluded that where a judge has determined 
facts to be adverse, “ there is no further fact-finding func- 3

3 Similarly, with regard to his retaliation claim, Lytle failed 
to establish that Schwitzer took adverse action against him, or 
that a causal connection existed between his filing of an EEOC 
charge and any adverse action— necessary elements in a retaliation 
claim. See Irby v. Sullivan, 737 F.2d 1418 (5th Cir. 1984). As 
noted by the district court below, while Schwitzer provided one 
favorable reference to a white worker, it was done through in­
advertence, and the Fourth Circuit declined to find that the district 
court’s decision was clearly erroneous. J.A. at 63.



9

tion for the jury to perform, since the common factual 
issues” have been decided. Id. at 336. See also Galloway 
v. United States, 319 U.S. 372 (1943).

Similarly, in Ritter v. Mount St. Mary’s College, 814 
F.2d 986, the Fourth Circuit ruled that a trial court’s 
Title VII findings prevent the relitigation of those find­
ings before a jury under a legal theory involving the 
same facts. In Ritter, a professor sued her college under 
Title VII, the Equal Pay Act (EPA), 29 U.S.C. § 206(d), 
and the Age Discrimination in Employment Act (ADEA), 
29 U.S.C. § 621 et seq. After a bench trial, the district 
court correctly ruled that, under Title VII, she was not 
qualified for tenure, but erred in dismissing her claims 
under the EPA and ADEA. The Fourth Circuit applied 
Parklane Hosiery to deny relitigation of the EPA and 
ADEA claims before a jury, ruling that “ [o]ne trial of 
common facts is enough.” Ritter, 814 F.2d at 991. Like­
wise, the Fourth Circuit below correctly determined that 
Lytle was not entitled to relitigate his Section 1981 claim.

As we now show, a court may deny needless relitiga­
tion under such circumstances and not violate the Sev­
enth Amendment.

B. A Court’s Refusal To Permit A Needless Relitiga­
tion Of Common Facts Under Section 1981 Does Not 
Violate The Seventh Amendment’s Guarantee Of A 
Jury Trial In Suits At Common Law

Petitioners argue that the Fourth Circuit’s ruling er­
roneously deprived Lytle of his “right to a jury trial,” 
in violation of the Seventh Amendment to the U.S. Con­
stitution. Pet. Br. at 25. Petitioners call this right an 
“entitlement,”  the denial of which is subject to “reversal 
per se.”  Id. at 41. It is clear, however, that the Seventh 
Amendment is not so broad. It simply provides that “ In 
suits at common lav/ . . . the right to trial by jury shall 
be preserved. . . .” As explained fully by this Court in 
Parklane Hosiery Co., 439 U.S. at 336, “ [t] he Seventh 
Amendment has never been interpreted in [a] rigid man­
ner,” and “many procedural devices developed since 1791



10

. . . have diminished the civil jury’s historic domain.”  
For example, this Court has held that neither the doc­
trines of directed verdict nor summary judgment violate 
the Seventh Amendment. See Galloway, 319 U.S. at 388- 
93, and Fidelity & Deposit Co. of Md. v. United States, 
187 U.S. 315, 319-21 (1902).

Of more direct relevance to the case herein, in Katchen 
v. Landy, 382 U.S. 323 (1966), this Court held that a 
bankruptcy court, sitting as a statutory court of equity, 
is empowered to decide equitable claims before deciding 
legal claims— even though the factual issues could just 
as well have been decided by a jury under the Seventh 
Amendment if the legal claims had been adjudicated first. 
See Parklane Hosiery, 439 U.S. at 334-35. Indeed, this 
Court in Katchen stated that “ there might be situations 
in which the Court could proceed to resolve the equitable 
claim first even though the results might be dispositive 
of the issues involved in the legal claim.” 382 U.S. at 
339-40. Such a situation was presented to the trial judge 
below. He resolved the Title VII claims at the bench trial 
after dismissing the Section 1981 claims. That he may 
have erred in dismissing the Section 1981 claims does not 
convert his Title VII findings into a violation of the Sev­
enth Amendment. As this Court stated in Parklane 
Hosiery, there simply is “no further factfinding function 
for the jury to perform,” 439 U.S. at 336.

Contrary to Petitioner’s assertions, such a ruling will 
not diminish the effect of this Court’s decision in Beacon 
Theatres, Inc. v. Westover 359 U.S. 500 (1959), or Dairy 
Queen, Inc. v. Wood, 369 U.S. 469 (1962). Both cases 
stand for the proposition that, whenever possible, the right 
to a jury trial should be ensured in a claim containing 
both legal and equitable claims in the same set of facts, 
thus “precluding the prior determination of the factual 
issues by a court sitting in equity.” Ritter, 814 F.2d at 
990. But, as this Court made eminently clear in Katchen, 
382 U.S. at 339, “ [i]n neither Beacon Theatres nor Dairy 
Queen was there involved a specific statutory scheme con­



templating the prompt trial of a disputed claim without 
the intervention of a jury.”

Here, in stark contrast, a specific statutory scheme—  
Title VII— contemplates a prompt trial of the same facts 
and legal theories without the intervention of a jury.4 
Indeed, this Court in Parklane Hosiery, 439 U.S. at 334- 
35, explained that the premise of Beacon Theatres is “no 
more than a general prudential rule” that has since been 
interpreted by Katchen to permit a court sitting in equity 
to adjudicate equitable claims prior to legal claims “even 
though the factual issues decided in the equity action 
would have been triable by a jury under the Seventh 
Amendment if the legal claims had been adjudicated 
first.”  5

Petitioner contends that Parklane Hosiery is inapposite 
because it presented only the issue of whether an adverse 
equitable adjudication in one lawsuit collaterally estops 
the relitigation of the same issues before a jury in a 
subsequent legal action. Pet. Br. at 46. See, e.g. Hussein 
v. Oshkosh Motor Truck Co., 816 F.2d 348 (7th Cir. 
1987). But it is clear that this Court did not intend its 
rulings to have such limited effect. As the Fourth Cir­
cuit in Ritter stated, it is irrelevant that Parklane Hos­
iery involved a “ separate suit.”  The error is the same: 
a court resolves issues that could have been resolved by 
a jury. Ritter explained:

It ivould be absurd to say that the requirement of a 
“prior suit” means that the facts found in a single 
case cannot bind the parties in that same case. In­

4 Petitioners call this doctrine the “narrow Katchen exception,” 
applicable to the “specialized bankruptcy scheme.” Pet. Br. at 50, 
n.29. Clearly this Court in Katchen and Parklane Hosiery in­
tended the doctrine to have wider applicability than is suggested 
by Petitioners.

5 This Court’s recent decisions in Granfinanciera S.A. v. Nord- 
berg, 109 S.Ct. 2782 (1989), and Tull v. United States, 481 U.S. 
412 (1987) are not to the contrary. Those cases merely reiterated 
this Court’s application of the “legal-equitable” distinction in de- 
terming whether a right to jury trial exists.

11



12

deed, if the parties were not bound by the facts 
found in the very same case which they were liti­
gating, then the judgments of courts issued during 
trial would become irrelevancies.

814 F.2d at 992 (emphasis supplied). Ritter properly 
denied relitigation, and so should this Court.

Indeed, as we now show, the policy rationales support­
ing the rule in Parklane Hosiery, Katchen, and Ritter 
apply with full force to the case presented herein.

C. Strong Policy Reasons Support A Court’s Denial 
Of A Second Trial Of Common Facts, Particularly 
Where The Court Determines That The Plaintiff 
Has Failed To Establish Even A Prima Facie Case

The Fourth Circuit below recognized a number of 
policy concerns that support a court’s denial of a “second” 
trial under Section 1981 where the court determines that 
the facts common to both Section 1981 and Title VII fail 
to support a case of discrimination. These policy con­
cerns apply regardless of whether an appeals court later 
determines that the trial court erred in dismissing the 
Section 1981 claim.

The first such policy consideration is that the party 
seeking a second trial always will have had a full oppor­
tunity to present his evidence at the bench trial, as Lytle 
did here. No one is suggesting that plaintiffs be denied 
the ability fully and fairly to present evidence of dis­
crimination. Indeed, Lytle attempted but failed in his 
showing: he could not even prove a prima facie case that 
a white person was treated any differently than Lytle 
for excessive, unexcused absences, or that the company 
gave a favorable letter of recommendation through any­
thing other than inadvertence. In this connection, the 
Fourth Circuit has properly recognized that the bench 
trial results would be given preclusive affect only as 
against parties to the lawsuit. No one who was “not a 
party to the former suit, or did not have their interests 
substantially protected therein” will be touched. Ritter, 
814 F.2d at 992.



13

Moreover, as properly recognized by this and other 
courts, a court’s refusal to sanction a second trial can 
have the “ dual purpose of protecting litigants from re- 
litigating an identical issue. . . and of promoting judicial 
economy by preventing needless litigation.”  Parklane 
Hosiery, 439 U.S. at 326. Indeed, in Blonder-Tongue 
Laboratories, Inc. v. University of Illinois Foundation, 
402 U.S. 313, 328-329 (1971), this Court noted that 
where a defendant is forced to present a complete de­
fense on the merits in a claim that the plaintiff has liti­
gated and lost, there is an arguable “misalloeation of re­
sources,” reflecting either the “aura of the gaming table 
or a flack of discipline and of disinterestedness on the 
part of the lower courts.’ ” Id. at 329, citing Kerotest 
Mfg. Co. v. C-O-Two Co., 342 U.S. 180 (1952).8

Moreover, a litigant such as Lytle would experience 
no “ harm” under the decision below, other than the inabil­
ity to present the same facts to a jury. But, as this Court 
has determined in Parklane and other cases, the harm 
in denying a jury trial is insufficient to override the other 
policy concerns, such as a speedy resolution of disputes. 
See Ritter, 814 F.2d at 991. Even where the trial judge 
commits error in dismissing the Section 1981 claim, such 
error is harmless,” particularly where, as here, the 
plaintiff’s evidence was insufficient and the employer 
could have obtained a directed verdict anyway. See 
Keller v. Price George’s County, 827 F.2d 952, 954-55 
(4th Cir. 1987) ; Dwyer v. Smith, 867 F.2d 184 (4th Cir. 
1989). Certainly, Fed. R. Civ. P. 61, the rule per­
mitting “harmless error,” would not require a new trial. 6

6 In Ritter, the Fourth Circuit noted that “Parklane decided that 
the judicial interest in the economical resolution of cases . . . does 
override the interest of the plaintiff in retrying before a jury the 
facts of a case determined by a court sitting in equity.” 814 F.2d 
at 991.



14

Concomitant with the idea of judicial economy is the 
need for finality in discrimination claims in general. If 
this Court does not affirm the decision of the court below, 
and adopt the rule denying relitigation,

. . . then each time a legal claim is dismissed, [the 
court of appeals'] would hear an interlocutory appeal 
that would in essence involve the merits of the claim, 
even though a record had not been developed before a 
fact finder. In the alternative, the litigants would 
conduct a trial to the bench, with the full knowledge 
that all could go for naught if any of the legal claims 
were reversed and a jury were entitled to determine 
the facts on a clean slate. In this latter instance, the 
incentives of the litigants to litigate effectively would 
be diminished; moreover, needless time and expense 
would be undertaken. Thus the better rule, as enun­
ciated in Parklane, is for the judge-determined issues 
to stand as the facts of the case. One trial of com­
mon facts is enough.

814 F.2d at 991 (emphasis supplied).

Thus, at minimum, this Court should adopt a rule that 
a district court may deny relitigation by jury whenever 
the evidence produced at trial does not make out a prima 
facie case, and the plaintiff could not avoid a directed 
verdict. Under Fed. R. Civ. P. 50(a), a party may 
move for a directed verdict at the close of the opponent’s 
presentation of evidence. A court must grant the motion 
whenever there is complete absence of proof on an issue 
material to the cause of action. Brady v. Southern Rail­
road, 320 U.S. 476 (1943). As noted below, and as fully 
established in Respondent’s brief, Lytle failed to present 
proof on essential elements of his claim. In these cir­
cumstances, to hold that the case must be retried before 
a jury would be particularly ludicrous, because the court 
would be obliged to direct a verdict in defendant’s favor 
in any event.



15

II. PATTERSON v. McLEAN CREDIT MAKES CLEAR 
THAT SECTION 1981 DOES NOT COYER CLAIMS 
OF DISCHARGE OR RETALIATION, SINCE SUCH 
ACTIONS DO NOT INVOLVE; THE “MAKING” OR 
“ENFORCING” OF A CONTRACT

A. Patterson And Its Reasoned Progeny Deny Section 
1981 Coverage To Discharge And Retaliation Cases

Section 1981 protects the right of all persons, regard­
less of race, “ to make and enforce contracts.”  42 U.S.C. 
§ 1981.7 This Court in Patterson v. McLean Credit Union 
recently clarified the scope of section 1981. The Court 
confirmed that section 1981 is not “a general proscrip­
tion of racial discrimination in all aspects of contract re­
lations.” 109 S.Ct. at 2372. Instead, the law protects 
only two rights: (1) the right to make contracts, and
(2) the right to enforce contracts. Id. The Court went 
on to clarify what the right to “make” a contract means. 
According to this Court, the right to make contracts “ex­
tends only to the formation of a contract, but not to prob­
lems that may arise later from the conditions of contin­
uing employment.” Id. (emphasis supplied). As noted 
in Patterson:

The statute prohibits, when based on race, the re­
fusal to enter into a contract with someone, as well 
as the offer to make a contract only on discrimina­
tory terms. But the right to make contracts does not 
extend, as a matter of either logic or semantics, to 
conduct by the employer after the contract relation 
has been established, including breach of the terms 
of the contract or imposition of discriminatory work­

7 Section 1981 of 42 U.S.C. provides in full:
All persons within the jurisdiction of the United States shall 
have the same right in every State and Territory to make and 
enforce contracts, to sue, be parties, give evidence, and to the 
full and equal benefits of all laws and proceedings for the 
security of persons and property as is enjoyed by white citi­
zens, and shall be subject to like punishment, pains, penalties, 
taxes, licenses, and exactions of every kind, and to no other. 
(Emphasis supplied).



16

ing conditions. Such postformation conduct does not 
involve the right to make a contract, but rather im­
plicates the performance of established contract ob­
ligations and the conditions of continuing employ­
ment, matters more naturally governed by state con­
tract law and Title VII.

Id. at 2372-73 (emphasis supplied).8
In this case, Lytle alleges that Schwitzer U.S., Inc. vio­

lated Section 1981 when the company terminated him for 
excessive, unexcused absences, and retaliated against 
him by not providing detailed letters of reference to po­
tential employers. True, Patterson did not specifically 
address terminations and retaliations, but this Court’s 
rationale applies with full force nonetheless.9 Such ac­
tions are simply “postformation conduct,” and thus re­
main unprotected by Section 1981. Indeed, a discharge 
is the antithesis of “making” a contract-—it is the ter­
mination of a contract.

This interpretation is consistent with other decisions 
construing Patterson in discharge claims. Although few 
Courts of Appeals have issued decisions so far, the Ninth 
Circuit in Overby v. Chevron USAi 884 F.2d 470, 50 
FEP Cases 1211 (9th Cir. 1989), recently held that a

8 The Court further explained in Patterson that the right to 
enforce contracts “embraces protection of a legal process, and of 
a right of access to legal process, that will address and resolve 
contract-law claims without regard to race.” Id. at 2373. Section 
1981 protects against “efforts to impede access to the courts or 
obstruct nonjudicial methods of adjudicating disputes about the 
force of binding obligations.” Id. Petitioners do not, however, 
argue that the Respondent impeded Lytle’s enforcement of a con­
tract. Even if Petitioners had made this argument, it is clear that 
Schwitzer U.S., Inc., in no way impeded Lytle’s access to legal 
process.

9 In Leong v. Hilton Hotels Corp. 50 FEP Cases 738, 740 (D. 
Hawaii 1989), the court rejected the plaintiff’s argument that the 
resolution of discharge cases remain unaffected by Patterson be­
cause the Supreme Court did not specifically consider the validity 
of discharge claims under Section 1981.



17

retaliatory discharge was not actionable under Section 
1981. The Court in Overby stated:

Overby does not claim that Chevron prevented him 
from entering into a contract. To the contrary, 
Overby and Chevron formed a contract on February 
21, 1978. Rather, he complains of postformation 
conduct: retaliatory discharge. Overby’s right un­
der section 1981 “to make” a contract is therefore 
not implicated. . . .

Id, citing Patterson, 109 S. Ct. at 2372-73. Overby went 
on to note that retaliatory discharge, the allegation levied 
against Chevron, is specifically proscribed by Title VII, 
and that it would “ twist the interpretation” of Section 
1981 to cover discharges. 50 FEP Cases at 1213.

Like the Ninth Circuit, the Sixth Circuit has come to 
a similar conclusion regarding discharge cases. In a case 
involving dismissal and demotion, the Sixth Circuit noted 
that “ section 1981 does not encompass conduct that fol­
lows contract formation or that does not interfere with 
one’s right to enforce established contractual duties.” 
Crawford v. Broadview Savings and Loan Co., No. 88- 
3694 at n .ll, 1989 U.S. App. LEXIS 9921 (6th Cir. 
1989).

While the district court cases involving discharges are 
split, most appear to agree with the Overby and Craw­
ford rationales. For example, the court in Leong v. Hilton 
Hotels Cory., 50 FEP Cases at 741, ruled that a racially 
motivated constructive discharge is not actionable under 
Section 1981. Significantly, the court noted that Kashiba, 
the plaintiff in Leong, experienced a “more subtle”  type 
of harassment than did Brenda Patterson, and that 
Kashiba received “ favorable reviews and periodic raises,” 
while Brenda Patterson’s income was affected by McLean 
Credit’s actions. Id. at 740. Even so, the court in Leong, 
50 FEP Cases at 741 ruled:

Clearly Brenda Patterson could have staied a con­
structive discharge action, more easily than Kishaba 
did, had she had not been fired outright. But re-



18

garclless of the label which a putative plaintiff places 
on the end result of discriminatory working condi­
tions, the central, and express, holding of Patterson 
is that postformation conduct is not actionable under 
§ 1981. If postformation conduct is not actionable, 
then the result of such conduct, constructive dis­
charge or simply an extraordinarily stressed or de­
pressed employee, is irrelevant to the Supreme 
Court’s rationale. (Emphasis supplied).

In addition, the court in Copperidge v. Terminal 
Freight Handling, 50 FEP Cases 812 (W.D. Tenn. 1989), 
ruled that alleged discrimination in discharge was not 
covered by Section 1981 in that the “ defendant’s alleged 
discrimination did not occur at the formation of the 
contract, nor has it occurred when the plaintiff attempted 
to enforce her contract.” Id. at 813. Similarly, in Alex­
ander v. New York Medical College, No. 89 Civ. 1092, 
1989 U.S. LEXIS 11433 (S.D.N.Y. Sept, 29, 1989), the 
court dismissed a plaintiff’s discharge allegations, noting 
that “ courts uniformly have rejected attempts to redress 
discriminatory discharges” after Patterson. Like other 
courts, Alexander reasoned that the “ language of § 1981 
does not invite [the] construction” that a discharge 
is a failure to make a contract.10

Significantly, courts have begun to grant motions to 
dismiss discharge cases involving Section 1981 at the 
summary judgment stage. For example, the court in 
Rivera v. AT&T Information Systems, Inc., No. 89-B- 
109, 1989 U.S. Dist. LEXIS 10812 (D. Col. Sept. 13, 
1989), held that the company was entitled to judgment

10 See also Carroll v. General Motors Corp., CA No. 88-2532-0, 
1989 U.S. Dist. LEXIS 10481 (D. Kansas 1989) ; Carter v. Aselton, 
50 FEP 251 (M.D. Fla. 1989) (same) ; Greggs v. Hillman Distrib­
uting Co., 50 FEP 429 (S.D. Tex. 1989) ; Jones v. AUtech Asso­
ciates, Inc., No. 85 C 10345, 1989 U.S. Dist. LEXIS 10422 (N.D. 
111. 1989); Kolb v. Ohio, No. 87 Civ. 1314 (N.D. Ohio 1989) ; Wil­
liams v. National Railroad Passenger Corp., 50 FEP 721 (D.D.C. 
1989) ; and Wilmer v. Tennessee Eastman Co., CA No. H-85-6742 
(S.D. Tex. 1989).



19

as a matter of law because, “under the plain language of 
Section 1981, discriminatory discharge, like racial har­
assment amounting to breach of contract, is post con­
tract formation conduct.” See also Riley v. Illinois Dept, 
of Mental Health and Development Disabilities, No. 87 
C 10436, 1989 U.S. Dist. LEXIS 7686 (N.D. 111. 1989) ; 
Mathis v. Boeing Military Airplane Co., No. 86-6002-K, 
1989 U.S. Dist. LEXIS 8849 (D. Kansas 1989) ; Boston 
v. AT&T Information Systems, No. 88-141-B (S.D. Iowa 
1989) ; and Tadros v. Coleman, No. 88 Civ. 4431, 1989 
U.S. Dist. LEXIS 6895 (S.D.N.Y. 1989). Some courts 
have even begun to order dismissals of discharge cases 
sua sponte. See Soffrin v. American Airlines, 50 FEP 
1245 (N.D. 111. 1989).

Admittedly, some courts have ruled to the contrary— 
that Section 1981 discharge suits should not be dismissed 
in the same manner as harassment suits.11 In so holding,

11 See, e.g., Padilla v. United Air Lines, No. 88-A-400, 1989 U.S. 
Dist. LEXIS 8934 (D. Colo. 1989). At least one court has strongly 
criticized Padilla, and the cases that follow its line of logic:

After careful consideration of the Supreme Court’s opinion 
in Patterson, this Court has determined that it must respect­
fully disagree with the Colorado court [in Padilla]. If there 
were any indication that the right to make a contract under 
§ 1981 should be construed broadly as the right to enjoy the 
benefits of that contract, the Colorado court would no doubt 
be correct in its reasoning. But the Court in Patterson did 
not interpret the right to make a contract under § 1981 in 
this manner. Justice Kennedy’s repeated emphasis on the dis­
tinction between conduct which occurs before a contract is 
formed and conduct which occurs after it is formed reflects 
an extremely narrow interpretation of the right to make a con­
tract guaranteed by § 1981, one which encompasses only the 
right to enter into a contract. Thus, under Patterson, once 
an individual has secured employment, the statute’s protection 
of the right to make a contract is at an end. With respect to 
conduct which occurs after that point— including discharge—  
the individual must look to the more expansive provisions of 
Title VII. (Emphasis supplied).

Hall v. County of Cook, State of Illinois, No. 87 C 6918, 1989 U.S. 
Dist. LEXIS 9661 (N.D. 111. 1989) (emphasis supplied). See also



20

several of these courts*—most notably two decisions of 
the Northern District of Indiana— cite this Court’s dicta 
in Jett v. Dallas v. Independent School District, 109 S. Ct. 
2702 (1989).* 12 In Jett, a black school principal recom­
mended that Jett, a white football coach, be removed 
from his job and reassigned to a teaching position that 
had no coaching responsibilities.

The Court in Jett noted that, unlike the employer in 
Patterson, “ at no stage in the proceedings has the school 
district raised the contention, that the substantive scope 
of the ‘right . . .  to make . . . contracts’ protected by 
§ 1981 does not reach the injury suffered by [the plain­
tiff] here.” 109 S. Ct. at 2709. Because the school dis­
trict “ never contested the judgment below on the ground 
that § 1981 does not reach [plaintiff’s] injury, we as­
sume for purposes of these cases, without deciding, that 
petitioner’s rights under § 1981 have been violated by 
his removal and reassignment.” Id. at 2710. Clearly, 
this Court did not back away from its holding in Patter­
son that postformation conduct (other than the creation 
of a “ new” contract) was not actionable under Section 
1981. Second, it noted that the scope of § 1981 had not 
even been raised in Jett. This Court only assumed in 
Jett that Section 1981 covered the defendant’s conduct so 
that the Court could reach the remaining issues in the 
case.

While there is some debate among the district, courts 
with regard to discharge, there has been no debate with 
regard to retaliation cases, particularly those that do

Concurring opinion of Judge Cudahy in Malhotra v. Cotter & Co., 
No. 88-2880 (7th Cir. Sept. 12, 1989) (retaliatory discharge 
claims may be adjudicated under Section 1981). It is clear, how­
ever, that this case does not involve allegations of retaliatory 
discharge.

12 See, e.g., Malone v. U.S. Steel Corp., Civ. No. H 83-727 (N.D. 
Ind. July 19, 1989) ; Robinson v. Pepsi-Cola Co., Civ. No. H 87-375 
(N.D. Ind. July 7, 1989).



21

not involve retaliatory firings.13 Section 1981 is simply 
not applicable to retaliation claims since they involve 
postformation conduct. For example, in Alexander v. 
New York Medical College, supra, the court cited a num­
ber of other jurisdictions that have dismissed Section 
1981 claims alleging a variety of postformation wrongs, 
and thus dismissed a plaintiff’s allegation that her em­
ployer retaliated against her for filing a discrimination 
claim.14

B. Strong Policy Reasons Support The Exclusion Of 
Discharge And Retaliation Claims From The Scope 
Of Section 1981

Not only is the exclusion of discharge and retaliation 
claims supported by Patterson and its reasoned progeny, 
but it is supported by strong policy reasons as well. First, 
and foremost, it would debase the procedures established 
under Lytle’s alternative remedial statute, Title VII. As 
this Court in Patterson stated:

Interpreting § 1981 to cover postformation conduct 
. . . would also undermine the detailed and well- 
crafted procedures for conciliation and resolution of 
Title VII claims. In Title VII, Congress set up an 
elaborate administrative procedure, implemented 
through the EEOC, that is designed to assist in the 
investigation of claims of racial discrimination in

18 The courts in Jordan v. U.S. West Direct Co., 50 FEP 633 (D. 
Colo. 1989), and English v. General Dev. Corp., 717 F.Supp. 628 
(N.D. 111. 1989) would protect retaliatory discharges under Section 
1981. The court in Alexander, however, “respectfully disagrees” 
with their holdings, LEXIS Op. at 2, noting that a retaliatory dis­
charge “in no way obstructs access to judicial redress, as is evi­
denced by Ms. Alexander’s, presence before this Court.” Id. at n.5.

14 Similarly, the district court in Dangerfield v. Mission Press, 
50 FEP Cases 1171 (N.D. 111. 1989), ruled that plaintiffs could not 
maintain a claim that their employer retaliated against them for 
filing an EEOC charge since the defendant in no way interfered 
with their access to legal enforcement of their claims. Likewise, in 
Williams v. National Railroad Passenger Corp., 50 FEP Cases 721 
(D.D.C. 1989), the court refused to sanction a claim involving 
retaliatory downgrade for filing a Section 1981 claim.



22

the workplace and to work towards the resolution of 
these claims through conciliation rather than litiga­
tion. . . Only after these procedures have been ex­
hausted, and the plaintiff has obtained a “ right to 
sue” letter from the EEOC, may she bring a Title 
VII action in court. . . Section 1981, by contrast, 
provides no administrative review or opportunity for 
conciliation.

109 S. Ct. at 2374-75 (emphasis supplied and citations 
omitted). As this Court noted, “ Where conduct is cov­
ered by both § 1981 and Title VII, the detailed proce­
dures of Title VII are rendered a dead letter, as the 
plaintiff is free to pursue a claim by bringing suit under 
§ 1981 without resort to those statutory prerequisites.” 
While there must be some overlap between Title VII and 
§ 1981, courts “ should be reluctant, however, to read an 
earlier statute broadly where the result is to circumvent 
the detailed remedial scheme constructed in a later stat­
ute.” Id. at 2375.15 * *

15 In this regard, the Ninth Circuit in Overby recently stated: 
Though an argument could be concocted that such conduct 
impedes, in some broad sense, Overby’s access to the EEOC, 
the Court in Patterson counseled against stretching the mean­
ing of section 1981 to- protect conduct already covered by Title 
VII. . . . The Court reasoned that Title VII contains a com­
prehensive and detailed scheme, including well-crafted con­
ciliatory procedures, for resolving disputes regarding employ­
ment discrimination . . . .  Reading section 1981 too broadly 
would permit plaintiffs to circumvent Title VII’s detailed stat­
utory prerequisites to bringing an action in federal court, 
thereby frustrating Title VIFs conciliatory goals and dis­
rupting the delicate balance struck between employers and 
employees’ rights . . . .  This concern is particularly apt where,
as here, the very conduct complained of centers around one of 
Title VII’s conciliatory procedures: the filing of an EEOC 
complaint. Because section 704(a) of Title VII proscribes 
Chevron’s alleged conduct, we therefore decline “to twist the 
interpretation of another statute (§ 1981) to cover the same 
conduct.” . . . We hold that the district court properly granted 
summary judgment in favor of Chevron on Overby’s Section 
1981 claim.

50 FEP at 1213.



23

In denying Section 1981 coverage to the instant claim, 
other policy rationales are evident. As this Court stated 
in Patterson:

That egregious racial harassment of employees is 
forbidden by a clearly applicable law (Title VII), 
moreover, should lessen the temptation for this 
Court to twist the interpretation of another statute 
(§ 1981) to cover the same conduct. . . the avail­
ability of the latter statute should deter us from a 
tortuous construction of the former statute to cover 
this type of claim.

109 S.Ct. at 2375. This Court should not construe Sec­
tion 1981’s language to include terminations or retalia­
tions that in no way impair a plaintiff’s access to the 
courts.18

Indeed, by reading § 1981 not as a “general proscrip­
tion of racial discrimination” covering discharges and 
retaliation, but as “ limited to the enumerated rights 
within its express protection, specifically the right to 
make and enforce contracts,” this Court will go a long 
way to “preserve the integrity of Title VII’s procedures 
without sacrificing any significant coverage of the civil 
rights laws.” 109 S. Ct. at 2375.

C. Courts Already Interpret And Enforce Title VII 
In A Manner That Protects The Rights Of Charg­
ing Parties And Is Consistent With Federal Anti- 
discriminatory Policy

As this Court has recognized repeatedly, Title YII’s 
legislative history demonstrates that its detailed admin­
istrative and judicial enforcement machinery was care­
fully designed to balance the competing interests involved 
in an employment discrimination complaint. See, e.g., 
Occidental Life Insurance Co. of California v. EEOC,

18 Unfortunately there is already evidence that plaintiffs have 
begun to “artfully plead” their discharge cases to look like “mak­
ing of a contract” cases. See, e.g., Rick Nolan’s Auto Body Shop, 
Inc. v. Allstate Insurance Co., No. 88 C 7147, 1989 U.S. Dist. LEXIS  
10357 (N.D. 111. 1989).



24

432 U.S. 355, 359, 372-73 (1977). Delegation of enforce­
ment authority to the Commission shifts the burden of 
prosecution from the individual complainant, assures em­
ployees that the agency issuing discrimination guidelines 
will also be the agency enforcing compliance, and encour­
ages the settlement of disputes through informal concilia­
tion rather than formal judicial proceedings.17

In addition, potential substantive conflicts between Ti­
tle VII and § 1981 have been resolved in favor of those 
standards adopted by Congress in Title VII— even when 
specific exempting language of Title VII lias not been 
found in § 1981.18 Thus, it cannot be said that § 1981 
provides more protection than Title VII in defining what 
discriminatory conduct is prohibited under federal law. 
Indeed, it is Title VII that provides more protections, 
because, unlike § 1981, the EEOC and Title VII plain­
tiffs may proceed under the adverse impact theory and 
are not limited to the disparate treatment model. General 
Building Contractors Ass’n. Inc. v. Pennsylvania, 458 
U.S. 375 (1982) ; Washington v. Davis, 426 U.S. 229 
(1976).

17 See Note, Developments in the Law— Employment Discrimina­
tion and Title VII of the Civil Rights Act of 196U, 84 Harv. L. Rev. 
1109, 1200, 1270 (1971). Ultimate resort to the federal courts also 
delegates the tasks of investigation and fact-finding to the agency 
that has the specialized knowledge and resources to do so, while 
insuring that the private claimant will receive the most complete 
relief possible. Sape & Hart, Title VII Reconsidered: The Equal 
Employment Opportunity Act of 1972, 40 Geo. Wash. L. Rev. 824, 
881 (1972).

18 See, e.g., Waters v. Wisconsin Steel Works of International 
Harvester Co., 502 F.2d 1309, 1316, 1320 (7th Cir. 1974), cert, 
denied, 425 U.S. 997 (1976) (seniority system that is valid under 
Title VII cannot be attacked under § 1981); United States v. Truck­
ing Management, Inc., 662 F.2d 36 (D.C. Cir. 1981) ; Chance v. 
Board of Examiners, 534 F.2d 993 (2d Cir. 1976), cert, denied, 431 
U.S. 965 (1977) ; and United States v. East Texas Motor Freight 
System Inc., 564 F.2d 179, 185 (5th Cir. 1977) (same re Executive 
Order 11246).



25

Charging parties, moreover, have little cause to com­
plain about the way in which Title VII’s procedural re­
quirements have been interpreted since the Act was 
amended in 1972, at which time the EEOC’s authority 
was expanded. Indeed, many of the concerns that Title 
VII’s technical requirements would adversely affect in­
dividual rights have proven to be unfounded. For ex­
ample, Title VII’s charge-filing requirement is not a juris­
dictional prerequisite and, like § 1981’s period, is subject 
to waiver, estoppel and equitable tolling.10 Also, the limi­
tations period gap between the two statutes has been 
narrowed substantially.19 20 Moreover, charging parties may 
receive an award of attorney’s fees under Title VII for 
work done in connection with administrative proceedings 
following reference to a state agency.21

EEOC investigations, of course, can be an extremely 
effective enforcement method. To illustrate, the EEOC’s 
investigatory and subpoena enforcement authority has 
been applied much more broadly than would be available 
to the individual § 1981 plaintiff.22 And should the EEOC 
decide not to sue, for whatever reason, the information 
developed in its investigation is available to the charging 
party and his attorneys once a private Title VII court 
suit is filed. EEOC v. Associated Dry Goods Cory., 449 
U.S. 590 (1981). This information can thus be used as 
the basis for the plaintiff’s private lawsuit.

19 Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982).

20 EEOC v. Commercial Office Products Co., 108 C. Ct. 1666 
(1988), virtually eliminated the 180-day filing period for Title 
VII. The Court held that the extended 300-day period applies in 
a deferral state even though an individual has not filed a timely 
180-day charge with the state agency as required under state law. 
By contrast, Goodman v. Lukens Steel Co., 107 S. Ct. 2617 (1987), 
requires that § 1981 suits are governed by the state personal in­
jury statute of limitations period, which typically is much shorter 
than the contract suit limitations period sought by ,§ 1981 plaintiffs.

21 New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980).

22 EEOC v. Shell Oil Co., 466 U.S. 54 (1984).



26

This Court also should be aware of several relatively 
recent initiatives adopted by the EEOC to increase sub­
stantially the advantages to charging parties of proceed­
ing under Title VII. First, effective August 1, 1987, the 
EEOC implemented a final rule permitting charging par­
ties to appeal “no-cause” determinations issued by the 
agency’s district directors. See 29 C.F.R. Part 1601.19. 
This procedure was adopted to assure that agency in­
vestigations were impartial, thorough, legally sound, pro­
fessional, and conducted in a manner that would minimize 
the need for charging parties to sue without EEOC as­
sistance.

Also, on February 5, 1985, the EEOC adopted a Policy 
Statement on Remedies and Relief for Individual Victims 
of Discrimination, 8 Fair Empl. Prac. (BNA), 401:2615- 
401:2618. This policy was adopted in response to con­
cerns that eases may be settled with less than full relief 
for discrimination victims. The policy provides for the 
following: full (not partial) back pay; enhanced rein­
statement or placement rights; new notice posting re­
quirements to inform other employees of discrimination 
problems; and potential direct disciplinary action against 
offending supervisory personnel.23

Moreover, when the EEOC decides to sue an employer, 
it may do so unencumbered by the class action limitations 
of Rule 23 of the Federal Rules of Civil Procedure. Gen­

23 In conjunction with its enhanced remedial policy, the EEOC 
also has adopted tougher policies and procedures for dealing with 
recalcitrant employers and in seeking subpoenas. See 29 C.F.R. 
1601.16(b)(1) and (2) [subpoenas]; and EEOC; Investigative 
Compliance Policy, 8 Fair Empl. Prac. (BNA) 40:2625-40:2626. 
Under these policies, when an employer fails to comply with re­
quests for information in a timely or complete manner, EEOC dis­
trict directors are instructed to take one or more actions including: 
immediate issuance of a subpoena; proceeding more directly to 
litigation; and drawing an adverse inference against a respondent 
as to the evidence sought when records are destroyed or not 
maintained.



27

eral Telephone Company of the Northwest, Inc. v. EEOC, 
446 U.S. 318 (1980). As this Court noted in General 
Telephone, by expanding the EEOC’s enforcement powers 
in 1972, “ Congress sought to implement the public inter­
est as well as to bring about more effective enforcement 
of private rights. . . . The EEOC was to bear the pri­
mary burden of litigation, but the private action previ­
ously available under § 706 [of Title VII] was not super­
seded.” Id. at 325-36.

Further, “EEOC enforcement actions are not limited 
to the claims presented by the charging parties. Any 
violations that the EEOC ascertains in the course of a 
reasonable investigation of the charging party’s complaint 
are actionable.”  Id. at 331. EEOC also may proceed 
unencumbered by Rule 23’s requirement that an indi­
vidual’s claim be typical of other class members.24 And 
when the district court finds that discrimination has oc­
curred, it “has not merely the power but the duty to 
render a decree which will so far as possible eliminate 
the discriminatory effects of the past as well as bar like 
discrimination in the future.” Albemarle Pa,per Com­
pany v. Moody, 422 U.S. 405, 418 (1975) (emphasis 
supplied).

Accordingly, EEOC-brought Title VII actions benefit 
the public interest, in addition to purely private concerns, 
in many ways that § 1981 suits do not. Individual plain­
tiffs, quite frankly, often are motivated primarily by an 
attempt to extract the maximum possible monetary 
award or settlement, unencumbered by administrative 
requirements intended to eliminate discrimination on a 
broader scale by the involvement of an expert agency 
designed to give assistance to all victims of discrimina­
tion.

24 Id.; Compare, General Telephone Co. of the Southwest v. 
Falcon, 457 U.S. 147 (1982) (applicant cannot be class representa­
tive for incumbent employees).



28

CONCLUSION

For the foregoing reasons, this Court should dismiss 
the petition for a writ of certiorari as improvidently 
granted in lieu of Section 1981’s inapplicability to dis­
charge and retaliation claims or, in the alternative, this 
Court should affirm the decision of the Court of Appeals 
below.

Respectfully submitted,

R obert E. W il l ia m s  
D ouglas S. M cD o w ell  
Gar e n  E. D odge *

M cGu in e s s  & W il l ia m s  
Suite 1200
1015 Fifteenth Street, N.W. 
Washington, D.C. 20005 
(202) 789-8600

Attorneys for Amicus Curiae, 
Equal Employment 
Advisory Council

October 19,1989 * Counsel of Record