Butts v The City of New York Department of Housing Preservation and Development Reply Brief for Plaintiff-Appellant

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IN THE

UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

GENEVA BUTTS,
Plaintiff-Appellant.

v.
THE CITY OF NEW YORK, DEPARTMENT OF HOUSING 
PRESERVATION AND DEVELOPMENT,

Defendant-Appellee.

On Appeal From the United States District Court 
for the Southern District of New York

REPLY BRIEF FOR PLAINTIFF-APPELLANT

C. VERNON MASON 
Suite 1108 
401 Broadway
New York, New York 10013 
(212) 219-0147

JULIUS L. CHAMBERS 
ERIC SCHNAPPER

NAACP Legal Defense and 
Educational Fund, Inc. 

16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900
i

Counsel for Plaintiff-Appellant



No. 92-7850

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SECOND CIRCUIT

GENEVA BUTTS,
Plaintiff-Appellant. 

v.
THE CITY OF NEW YORK, DEPARTMENT OF HOUSING 
PRESERVATION AND DEVELOPMENT,

Defendant-Appellee.

On Appeal From the United States District Court 
for the Southern District of New York

REPLY BRIEF FOR PLAINTIFF-APPELLANT

I. THE DISTRICT COURT ERRED IN DISMISSING PLAINTIFF'S TITLE VII 
CLAIMS
Defendant appears to have abandoned the argument regarding 

Title VII on which it prevailed below. The complaint in this 
action alleged that on three occasions after the Title VII cut-off 
date, January, 1989, plaintiff had been denied promotions because 
of her race. (Brief for Appellant, p. 6). In the court below the 
defendant argued, and the district court ruled, that these 
promotion denials were not actionable because they were not 
"related to" the allegations in plaintiff's 1989 EEOC charge. 
(J.App. 27a, 46a, 127a). In this court, however, defendant does 
not assert that the promotion denials that occurred within the 
limitations period were not related to the repeated allegations in



the Title VII charge of discriminatory denials of promotions. 
(Appellee's Brief, pp. 12-17).1

Defendant also argued below that each time a new act of 
discrimination occurs subsequent to the filing of a Title VII 
charge, the victim must file a new Title VII charge.2 In this 
court, however, the defendant expressly disavows that position.3

On appeal, defendant now advances a new contention, that the 
allegations of discrimination in the Title VII charge, even if 
reasonably related to alleged discriminatory conduct within the * VII

This change in defendant's position is apparent on the 
face of defendant's brief. Defendant correctly describes the 
district decision as having dismissed plaintiff's 1989, 1990 and 
1991 claims on the grounds that they were not "'related to the 
allegations' in the EEOC charge (127a)." (Appellee's Brief, p. 10, 
quoting district court opinion). But defendant describes the issue 
presented on appeal as follows:

Did the District Court properly find plaintiff's Title
VII claims time-barred for failure to make a timely 
complaint to the . . . EEOC where plaintiff's EEOC charge 
did not mention any specific act of discrimination within 
the 300-day limitations period?

(Id. p. 1) . The district court opinion, as defendant's own 
description makes clear, was not based on and makes no mention of 
any "specific act" requirement.

"The amended complaint has added two new allegations 
which unquestionably fall outside of this Court's subject matter 
jurisdiction.... Both allegations describe discrete, completed 
acts which occurred months or years after plaintiff's EEOC filing. 
As a prerequisite to raising the allegations in the District Court 
plaintiff was required to have raised them before the EEOC within 
300 days of their occurrence". (J.App. 47a) (Emphasis added).

"[I]t would be improper to require a Title VII plaintiff 
to make repeated trips to the EEOC to bring suit on subsequent acts 
of discrimination...." (Appellee's Brief, p. 17). The EEOC 
internal procedures expressly require consideration of post-charge 
violations. C CH EE O C  Compliance Manual §22.5, 5805, p. 719.

2



The Titlelimitations period, were not sufficiently "specific."
VII charge alleged that plaintiff was subjected to a variety of
particular practices to prevent her from obtaining promotions,
including being "discouraged from applying," being "denied ...
consideration," unwarranted criticism of her "work performance ...
to justify my being passed over," and denials or rejections of
"several requests for advancement." (J.App. 10a-13a).

Defendant contends that these allegations of discriminatory
treatment within the limitations period were insufficient to
support any Title VII claim.

[T]he charge ... filed with the EEOC did not allege any 
specific act of discrimination within the .. . limitations 
period. .. . The only specific acts of discrimination 
mentioned in plaintiff's EEOC charge occurred long before 
the limitations period....

(Appellee's Brief, p. 12). Defendant's contention appears to be 
that a Title VII charge is insufficient as a matter of law, even 
though it alleges a pattern of discriminatory promotion denials and 
specifies the particular types of practices utilized to deny 
promotions, unless the charge also lists the particular promotions 
which were unlawfully denied.

The harsh specificity requirement advocated by defendant is 
clearly inconsistent with the well established meaning of Title 
VII.

Nothing in the Act commands or even condones the 
application of archaic pleading concepts. On the 
contrary, the Act was designed to protect the many who 
are unlettered and unschooled in the nuances of literary 
draftsmanship. It would falsify the Acts hopes and 
ambitions to require verbal precision and finesse from

3



those to be protected, for we know that these endowments 
are often not theirs to employ.

Sanchez v. Standard Brands, 431 F.2d 455, 465 (5th Cir. 1970).

A Title VII charge is deemed to encompass any discriminatory 
acts that would be "within the scope of the EEOC investigation 
reasonably expected to grow out of" the charge. Miller v. International

Telephone and Telegraph Corp., 755 F.2d 20, 23-24 (2d Cir.), cert, denied, 474 

U.S. 851 (1985). Under Miller the question here is whether the

denials of promotions in 1989, 1990 and 1991 could reasonably be 
expected to be within the scope of an investigation of a charge 
that alleged:4

I have been denied promotional opportunities and 
consideration based on my race....

*  *  *

I was discourage from applying for a higher position of 
authority.

*  *  *

I was denied . . . promotional advancement and upward 
career mobility, I have made several requests for 
advancement that were thwarted....
I feel allegations criticizing my work performance were 
made to justify my being passed over for promotions.

(J.App. 10a-13a) . Upon receipt of such charges, EEOC could
reasonably be expected to investigate an instance in which the
charging party had been denied a promotion from the beginning of
the limitations period until the point when the investigation was

The 1989 charge was pending before the EEOC until May 
1991. (J.App. 105a-106a).

4



completed. Such an investigation which would encompass the 1989, 
1990 and 1991 promotions at issue in this case. Defendant's 
proposed specificity rule would made sense only if it were EEOC's 
practice to conduct no investigation whatever of charges such as

those quoted above, since any investigation of these charges could 
be expected to include promotion denials in 1989-91. Defendant 
does not, however, seriously contend that EEOC would, or legally 
could, refuse completely to investigate such charges.

Defendant acknowledges that the EEOC charge in this case also 
alleged discrimination in the terms and conditions of plaintiff's 
employment, but asserts these allegations were "based on events in 
1987, well before the limitations period." (Appellee's Brief, p. 
15 n.6). That simply is not correct. Six paragraphs of the Title 
VII charge deal with discriminatory terms and conditions of 
employment.5 Of these only one, paragraph 7, contains any 
reference to 1987.
II. THE DISTRICT COURT ERRED IN HOLDING PLAINTIFF'S PROMOTION 

CLAIMS ARE BARRED BY PATTERSON v. McLEAN CREDIT UNION, 491 
U.S. 163 (1989)
Defendant clearly abandons the argument on which it prevailed 

below. In the district court defendant advanced two arguments 
regarding plaintiff's section 1981 claims. First, in response to 
plaintiff's pro se complaint, defendant contended that the complaint

Paragraphs 4 ("denied equal terms and conditions"), 7 
("limited contact" with supervisor), 8 ("not included in 
meetings"), 9 (exclusion from meetings, loss of staff), 11 
(exclusion from discussions), 12 (tactics "designed to force my 
resignation"). (J.App. 10a-13a) .

5



referred to only one disputed promotion, and did "not mention the 
outcome" of plaintiff's application. (J.App. 30a-31a). The 
Amended Complaint resolved any such defect, and defendant no longer 
advances this argument. Second, in response to the section 1981 
claims in Amended Complaint, defendant made only one argument, that 
"allegations of discrimination occurring prior to August 5, 1988, 
are barred by the statute of limitations." (J.App. 50a). 
Defendant advanced no argument regarding post-1988 section 1981 
claims. The district court's opinion proceeds on the assumption 
that Patterson bars all section 1981 promotion claims. (J.App. 131a) .

On appeal defendant acknowledges that certain section 1981 types of 
promotion claims do survive Patterson, and that some of the disputed

promotions were made within the limitation period.
In this court defendant advances an altogether new argument —  

that the Amended Complaint does not contain sufficiently specific 
allegations regarding the responsibilities and circumstances of the 
various promotions at issue. In the district court defendant 
advanced no objection to the specificity of the Amended Complaint. 
On appeal, however, defendant for the first time argues that the 
Amended Complaint was defective because it failed to "plead facts 
that would allow a comparison between the plaintiff's present job 
and the responsibilities of the promotional position," (Appellee's 
Brief, p. 19), and that therefore "it was proper to dismiss this 
cause of action in light of her failure to do so." {Id . , pp. 19-20) 

This argument is for several reasons unavailing.

6



First, of course, the district court did not dismiss the

complaint "in light of" any lack of specificity in the complaint. 
The district court decision was based on the assumption that any 
allegation of discrimination in promotion, however specific, would 
not state a cause of action under Patterson.

Second, an objection to the specificity of a complaint must be 
made in the district court, and cannot be raised only after a case 
is on appeal. In the instant case, however, the defendant offered 
no objection in the district court to the specificity of the 
section 1981 claims, and cannot do so for the first time on appeal. 
An objection to the specificity of a complaint is ordinarily made 
in the form of a Motion for More Definite Statement under Rule 
12(e), F.R.C.P. A party filing such a motion is required to "point 
out the defects complained of and the details desired," thus 
affording the opposing party an opportunity to file an amended 
pleading with whatever additional specificity the court may 
require. In some instances, the absence of an assertedly essential 
allegation or denial in a complaint or answer may be raised by a 
Motion for Judgment On the Pleadings, under Rule 12(c). But here, 
too, the motion must in the first instance be made in the district 
court, so that the opposing party is afforded a reasonable 
opportunity to remedy any defect in the pleading. The requirement 
of Rule 15(a), that leave to make needed amendments to pleadings 
"be freely given when justice so requires," could easily be 
defeated if a party were permitted to wait until a case was on 
appeal before objecting to the sufficiency of a pleading.

7



Third, there is nothing in the Federal Rules of Civil 
Procedure requiring a plaintiff in a case such as this to "plead 
facts that would allow comparison between the plaintiff's present 
job and the responsibilities of the promotional position." 
(Appellee's Brief, p. 19) . A motion for judgment on the pleadings, 
whether by a plaintiff or by a defendant, will rarely if ever be 
useful in applying the Patterson "new and distinct relation standard." 

That standard, as our opening brief makes clear, depends on the 
particular circumstances of each case. There may be some cases in 
which the undisputed facts will be sufficient to dispose of this 
issue, but the procedural device for identifying such cases is a 
motion for summary judgment under Rule 56. Rule 56, particularly 
as implemented by the local rules in the Southern District of New 
York, provides a straightforward and practicable method of 
delineating undisputed facts that may make trial of an issue 
unnecessary. Attempts to achieve that result by attacks on the 
specificity of pleadings would be inconsistent with the modern 
practice of notice pleading, and would result in a revival of bills 
of particulars, which were rejected by the federal courts as 
unworkable almost half a century ago. (See 1946 comment on Rule 
12(e)).
III. THE 1991 CIVIL RIGHTS ACT SHOULD BE APPLIED TO THIS CASE

For the reasons set out above, plaintiff's Title VII claims 
and section 1981 claims must be remanded for trial. The complaint 
in this case states a cause of action regardless of whether the 
1991 Civil Rights Act applies to the claims asserted. The

8



applicability of the 1991 Act to this case should nonetheless be 
addressed on appeal because it's applicability will on remand 
affect the standard of proof, the type of trial, and the available 
remedy:

(a) If either section 101 or 102 of the Act applies, 
plaintiff will not be required to establish that the
promotions at issue involved a "new and distinct
relation" in order to obtain damages for the denial of 
those promotions;6

(b) If either section 101 or 102 applies, plaintiff will be
entitled to seek damages if she establishes
discrimination in the terms and conditions of her
employment.

(c) Whether sections 101 and 102 apply will affect which 
issues will be tried to the jury.7

Under the particular circumstances of this case, application of 
section 101 would have the same effect as application of section

Damages occasioned by discrimination in promotion are 
already available under section 1981. If section 101 were held 
inapplicable here, the applicability of section 102 would then be 
of importance, since Title VII does not require proof of a new and 
distinct relation.

The Amended Complaint requested a jury trial. (J.App. 
102a). Even absent application of the 1991 Act, plaintiff's 
section 1981 promotion claim will have to be tried to the jury. A 
jury determination that plaintiff was (or was not) denied a 
promotion on account of race would be binding on the judge in 
deciding the Title VII claim. However, whether there is to be a 
jury trial on plaintiff's terms and conditions claims will turn on 
the applicability of section 101 and 102.

9



102; thus a determination that either section applies would be 
sufficient to dispose of this aspect of the appeal.

In our opening briefs we advanced several arguments in support 
of our contention that the 1991 Act should be applied to this case. 
Although each of these contentions, if accepted by the court, would 
result in a decision in favor of appellant, the impact of our 
arguments on other types of cases varies considerably. We 
recognize that the court may prefer to resolve the instant appeal 
on a narrower ground, choosing to avoid for the time being 
addressing issues affecting other cases. Accordingly, in replying 
to Appellee's Brief we set forth first the more narrow of our 
contentions, noting in each instance the types of cases that would 
be affected by decision on each contention.

(1) Non-Retro activity o f Patterson v. McLean Credit Union, 491 U.S. 104

(1989) . We urged in our opening brief that the decision in Patterson

itself should not be applied retroactively in light of the passage 
of the 1991 Act. (Brief for Plaintiff-Appellant, pp. 44-47). This 
is the narrowest of the arguments we advance. It would affect only 
section 1981 claims that arose prior to June 15, 1989, the date of 
the decision in Patterson, and would not require any decision as to

the retroactivity of the 1991 Act itself. Defendant's brief on 
appeal does not address this issue.

(2) The Restorative Provisions of the 1991 A ct - As the defendant appears

to acknowledge, the decision of this court in Leake v. Long Island Jewish 

Medical Center, 869 F.2d 130, 131 (2d Cir. 1982), holds that

10



legislation which Congress regarded as restorative should be 
applied to all pending cases. (Appellee's Brief, p. 25; Brief for 
Plaintiff-Appellant, pp. 42-44). Application of Leake to hold

section 101 applicable to the instant case would not be dispositive 
of the retroactivity of the rest of the 1991 Act. Section 102, for 
example, which for the first time authorizes compensatory and 
punitive damages in Title VII actions, clearly is not 
restorative. The issue critical to the applicability of Leake is

whether Congress understood that the provision at issue was merely 
restoring the law to where it had stood prior to an intervening 
decision being overturned by Congress.

Defendant argues that Congress did not regard section 101 as 
restoring the pr e-Patterson interpretation of section 1981. In
support of this view, defendant relies primarily on the fact that 
early versions of the legislation contained a statement, absent 
from the version finally enacted, that the purposes of the law 
included "restoring the civil rights protections that were 
dramatically limited by" the Supreme Court's "recent decisions." 
(137 Cong. Rec. at 3923 (daily ed. June 5, 1991)); Appellee's 
Brief, p. 24). The legislative history of the 1991 Act, however, 
makes clear that this change in language did not reflect a 
determination by Congress that section 101 was not restorative.

The new statement of legislative purpose by defendant was 
purposed by Senator Danforth and a group of moderate Republicans on 
June 4, 1991. (137 Cong. Rec. S 7021 (daily ed. June 4, 1991)). 
When the final legislation was agreed upon in October 1991,

11



incorporating Danforth's statement of purpose and draft of section 
101, Danforth and the other framers of this proposal reiterated 
that it was restorative. Senator Danforth placed in the

Congressional Record a Sponsor's Interpretative Memorandum, on 
behalf of himself and the original cosponsors, explaining that 
section 101:

fills the gap in the broad statutory protection against 
intentional racial and ethnic discrimination covered by 
section 1981 ... that was created by the Supreme Court 
decision in P a tte r s o n ... . Section [101] reinstates the 
prohibition of discrimination during the performance of 
the contract and restores protection from racial and ethnic 
discrimination to the millions of individuals employed by 
firms with fewer than 15 employees.

(137 Cong. Rec. S 15483 (daily ed. Oct. 30, 1991)) (emphasis
added). Senator Jeffords, one of the original cosponsors of the
Danforth language, also explained that the legislation "will restore

the rights taken away in Patterson." (137 Cong. Rec. S 15383 (daily

ed. Oct. 29, 1991)) (Emphasis added). Other members of Congress 
joined Danforth and the original cosponsors in the final version of 
the 1991 Act describing section 101 as restoring the law to where 
it had been prior to Patterson.fi

See, e.g. 137 Cong. Rec. S 15235 (daily ed. Oct. 25, 
1991) (Sen. Kennedy) (section 101 "will reverse ... Patterson . . .  and 
restore the right of Black Americans to be free from racial 
discrimination in the performance —  as well as the making —  of 
job contracts"); 137 Cong. Rec. S 15489 (daily ed. Oct. 25, 1991) 
(Sen. Leahy) ("The Patterson decision drastically limited section 
1981's application.... The Civil Rights Act of 1991 returns the 
originally intended broad scope of this statute"); 137 Cong. Rec. 
H 9526 (daily ed. Nov. 7, 1991). (Rep. Edwards) (section 101 
"reinstates" and "restores" law prior to Patterson) .

12



Although other provisions of the proposed civil rights 
legislation were highly controversial, there was never any dispute 
about the language or desirability of section 101. Equally 
significantly, there was never any disagreement that legislation 
overturning Patterson would in fact restore what until 1989 had been

well established law. For example, Representative Goodling, one of
the leading opponents of the original 1991 House bill, H.R.l,
described the Administration's own alternative bill as restorative,
even though the Administration bill, like the 1991 Act, contained
no specific statutory language regarding restoration:

[I]t reverses ... the Patterson case.... [T]he
substitute restores the expansive reading of section 1981 
that racial discrimination is prohibited in all aspects 
of the making and enforcement of contracts.

(137 Cong. Rec. H 3900 (daily ed. June 4, 1991) (emphasis added)).
In the instant case defendant, in interpreting section 101,
attaches decisive significance to the absence of the general
introductory language that was used in H.R. 1. But when
Representative Goodling compared H.R. 1 with the Administration
bill, which also lacked such language, Goodling described H.R. 1 as
"restores expansive reading of Section 1981," and described the
Administration proposal as "same provision," insisting that in this
regard there were "no issues" in dispute between the two proposals.
(137 Cong. Rec. H 3935 (daily ed. June 5, 1991)).

When Senator Kassebaum offered the Administration substitute 
in the Senate, she too insisted it was restorative. The relevant 
section, Kassebaum insisted, "codifies the broad construction given

13



to 42 U.S.C. 1981 by most lower courts." (136 Cong. Rec. S 9845 
(daily ed. July 17, 1990)). In response to assertions that the 
Administration bill fell short of fully restoring the pre-Patterson 

law, Kassenbaum insisted to the contrary her proposal would indeed 
codify "the law as it was prior to Patterson." (Id. at S 9851).

After the final language of the 1991 Act had been agreed upon, 
Senator Seymour, a stalwart supporter of the Administration's 
position, insisted that the Act "restores section 1981" (137 Cong. 
Rec. S 15285 (daily ed. Oct. 28, 1991). No member of the House or 
Senate ever disagreed with the repeated assertions that section 
101, and its identically worded predecessors would restore the law 
to where it stood prior to Patterson. Defendant does not suggest

otherwise. The mere fact that the statutory language of the Act 
does not contain a reference to restoration is irrelevant; in both 
Leake 695 F. Supp. at 1417, and Mrs. W. v. Tirozzi, 832 F.2d 748, 754-55

(2d Cir. 1987) , the court relied on legislative history to conclude 
that Congress regarded the statute at issue as restorative.

There is also no dispute that section 101 in fact returned the 
meaning of section 19 81 to that which prevailed prior to Patterson, 

and no denying that Congress was well aware that the substance of 
section 101 was the same as pr e-Patterson caselaw. As the Ninth

Circuit noted in Davis v. City and County o f San Francisco, 1992 WL 251513 
(9th Cir. 1992) ,

[E]vidence of Congress' aims is provided by the 
introductory passages of the Act, in which Congress made 
no secret of its intent to reverse a number of Supreme

14



Court decisions that it thought construed too narrowly 
various employment discrimination statutes.... Given 
Congress' sense that the Supreme Court had construed the 
Nation's civil rights laws so as to afford insufficient 
redress to those who have suffered job discrimination, it 
appears likely that Congress intended the courts to apply 
its new legislation, rather than the Court decisions....

1991 WL 215513 at *14-*15.
This undisputed understanding that section 101 would restore 

prior law was entirely consistent with the prefatory language in 
the final bill stating that the bill would provide "additional 
remedies" and "additional protections." Given the state of the law 
in November, 1991, with Patterson then on the books, section 101 did

provide a protection and remedy in addition to the Supreme Court's 
narrow interpretation of section 1981. But the assertion that 
section 101 provided remedies and protections "additional" to those 
available after Patterson was entirely consistent with Congress' 

repeatedly expressed view that what was being added was coverage 
necessary to return the law to where it had stood prior to Patterson.

(3) The Remedial Provisions of the 1991 Act - We urged in our opening

brief that under well established precedent, both pre-dating and 
following Bradley v. Richmond School Board, 416 U.S. 696 (1974), changes

in the law regarding remedies are presumed applicable to pending 
cases, while changes regarding substantive law are presumed not to 
be applicable. (Brief for Plaintiff-Appellant, pp. 35-44). 
Application of that principle to section 101 and 102 would not 
compel the conclusion that the entire 1991 Act is applicable to

15



pending cases, since some provisions of the Act render unlawful 
previously lawful conduct, and are therefore substantive.

Defendant urges that a new law should be regarded as 
"substantive", and thus presumptively inapplicable to pending 
cases, if the law augments the remedy available to plaintiffs, and 
thus increases the defendant's "obligations." (Appellee's Brief, 
pp. 33-34). This use of the word "obligation" masks a proposal to 
effectively overturn the century old distinction between 
substantive and remedial laws. In the past a change in the law was 
regarded as substantive only if it rendered unlawful previously 
lawful conduct; such laws were at times described as creating a 
"new obligation," the "obligation" referred to being a standard of 
extra-judicial conduct. The adoption in 1964 of Title VII created 
such a new obligation in that, for example, Title VII for the first 
time established and obligation not to discriminate in employment 
on the basis of sex. Defendant does not, of course, contend that 
sections 101 and 102 created a new obligation regarding substantive 
conduct. Rather, defendant argues that a statute should be 
regarded as "substantive" if it will result in a remedial order, 
e.g. regarding damages, that would contain an element, i.e. a "new 
obligation," that would not have been contained in the order but 
for the new statute at issue. Redefined in this way, "substantive" 
laws would encompass virtually all the laws that were previously 
regarded as remedial.

Until now the courts of appeals have repeatedly applied to 
pre-existing claims new legislation providing an additional

16



monetary remedy to enforce already established prohibitions.9 In 
O ’Hare v. General Marine Transport Corp., 740 F.2d 160, 170-71 (2d Cir.

1984) , this court applied to a pre-Act claim a new statute 
authorizing the additional remedy of double interest and liquidated 
damages. In applying Bradley v. Richmond School Board, 416 U.S. 696

(1974), this court has recognized that "simply asserting that 
financial payments are unforeseen does not mean that they will 
produce 'manifest injustice.'" Van Allmen v. State o f Connecticut Teachers Ret.

B d ., 613 F.2d 356, 360 (2d Cir. 1979). The only reason a plaintiff

seeks to invoke a new remedial statute, and the only reason a 
defendant opposes such application, is because both believe the 
statute will affect the outcome of the case. If a statute were 
deemed "substantive" whenever it would affect the ultimate remedy 
in a case, the century old distinction between substantive and 
remedial statutes would obviously be eviscerated.

The distinction between the treatment of substantive and 
remedial laws has persisted unchanged, and virtually unquestioned, 
since the mid-nineteenth century. Faced with the application of 
that longstanding distinction to the 1991 Civil Rights Act, the 
defendant urges that a century of established precedent should now 
be overturned. We believe such a change, for the sole purpose of

See e.g., Hastings v. Earth Satellite Corp., 628 F.2d 85, 92-94
(D.D.Cir. 1980) (applying to pre-Act claim law eliminating cap on 
damages); Thompson v. Sawyer, 678 F.2d 257, 278-96 (D.C.Cir. 1981)
(applying to pre-Act claim law authorizing recovery of liquidated 
damages); United States v. M onsanto, 858 F.2d 160, 175-76 (4th Cir. 1988) 
(additional remedy of pre-judgment interest).

17



preventing application of the 1991 Act to cases such as this, would 
be unjust and unwise. For a full century, in an enormous variety 
of civil cases, and some criminal cases as well, the courts have 
applied to pending cases new legislation regarding —  i.e. changing 
—  available procedures and remedies. It would be indefensible to 
repudiate this long line of decisions merely because the plaintiffs 
who now seek to apply it are the black victims of racial 
discrimination. Equally importantly, if this century of precedent 
is now overturned to avoid application of the Civil Rights Act, 
there will be no way to resuscitate those precedents when the 
retroactivity issue arises, as it surely will, in future cases 
entirely unrelated to civil rights. The controversy regarding 
application of the Civil Rights Act will be over in a year or two; 
the de facto abolition of the substance-remedy distinction, 
advocated by defendant, would affect cases well into the next 
century.

Under the circumstances of this case, defendant's objection 
that the 1991 Act would "greatly expand an employer's liability" 
(Appellee's Brief, p.34) is particularly unpersuasive. Defendant 
argues that the Act "subjects employers to liability for damages at 
common law, rather than only the lesser Title VII remedies." Id. at

33) . Some defendants, prior to the 1991 Act, may have faced 
exposure only for Title VII back pay, but the defendant in this 
case has always been liable to an award of damages for racial 
discrimination in employment. Even under Patterson, plaintiff in this

case will be entitled to damages if she prevails on her promotion

18



claim. A city employee subject to racial discrimination in the 
terms and conditions of her employment may also seek and obtain 
damages in an action under 42 U.S.C. §1983.

The Supreme Court in Bradley specifically held that a statute 
cannot be said to impose a new obligation where, as here, the law 
merely provides an additional basis on which a particular remedy 
might be awarded. Prior to the adoption of the counsel fee statute 
at issue in Bradley, a fee award was already possible where a 

plaintiff proved a defendant was guilty of "obstinate non 
compliance with the law." 416 U.S. at 696. The statute in Bradley

liberalized the standard for awarding counsel fees requiring fee
awards in virtually any school desegregation case in which a
plaintiff prevailed on the merits. 416 U.S. at 710. In applying
the new counsel fee statute, the Supreme Court explained:

[T]here was no change in the substantive obligation of 
the parties. From the outset the Board . . . under
different theories . . . could have been required to pay 
attorneys' fees. . . . The availability of [the new law] 
to sustain the award of fees against the Board therefore 
merely serves to create an additional basis or source for 
the Board's potential obligation to pay attorney's fees.
It does not impose an additional or unforeseen obligation 
upon it.

410 U.S. at 721.
(4) The Legislative History of the 1991 Act

Defendant quotes three words from the President's 1990 veto 
message referring to "unfair retroactivity rules" in the version of 
the legislation approved by Congress in that year. (Appellee's 
Brief, p.22). However, a more complete reading of the veto

19



controversy makes clear that the President objected only to the 
provisions of the 1990 legislation that would have mandated the 
reopening of cases in which final judgments had already been 
entered.

The veto message was accompanied by a memorandum from the 
Attorney General, in which the President advised Congress 
"explain[ed] in detail the defects that make [the bill] 
unacceptable." (136 Cong. Rec. S 16502 (daily ed. , Oct. 24, 
1990)). That memorandum explained more specifically that what the 
President objected to was applying the new law "to cases already 
decided."10 * An earlier letter from the Attorney General had made 
the same narrow point in the spring of 1990, expressing objection 
to "upsetting final judgments."11 Even conservatives understood 
the Attorney General's objections to be limited to final 
judgments.12 Senator Hatch, who was the leading senate supporter 
of the Administration, stated expressly during the veto debates 
that "we" favor legislation that would overturn Patterson and be

applicable to Brenda Patterson's own pending litigation.13

10 Memorandum for the President, Oct. 22, 1990, p.10.
Letter of Attorney General Thornburgh to Senator Edward 

Kennedy, April 3, 1990, p.10.
12 See H.R.Rep. 101-644, pt.2, p.7l (1990)(Additional views 

of Rep. Sensenbrenner, et al).
13 136 Cong.Rec S 16565 (daily ed., Oct. 2, 1990):

"This [vetoed] bill . . .  is an employer- 
employee relations bill, except for the 
overrule of Patterson versus McLean case which would 
take care of Brenda Patterson. We are

20



(5) The Language o f the 1991 Act

In a well-seasoned recent decision, the Ninth Circuit 
concluded that the plain language of the 1991 Civil Rights Act 
compels the conclusion that the law is applicable to pre-Act cases. 
Davis v. City and County o f San Francisco, 1992 WL 251513 (9th Cir. 1992).

The Ninth Circuit emphasized that sections 109(c) and 402(b) of the
Act expressly provided that certain provisions of the Act would not
apply to claims arising before the enactment of the statute.

These directives from Congress that in two specific 
instances the Act not be applied to cases having to do 
with pre-Act conduct provide strong evidence of Congress' 
intent that the courts treat other provisions of the Act 
as relevant to such cases.... [I]f we construed the 
entire Act as applying only to post-passage conduct, we 
would run afoul of what the Supreme Court has repeatedly 
declared to be the "elementary canon of construction that 
a statute should be interpreted so as not to render one 
part inoperative." South Carolina v. Catawba Indian Tribe, Inc.,
476 U.S. 498, 510 n.22 (1986).... We would rob Section 
109(c) and 402 (b) of all purpose were we to hold that the 
rest of the Act does not apply to pre-Act conduct. There 
would have been no need for Congress to provide that the 
Act does not pertain to the pre-passage activities of the 
Wards Cove Company, see Section 402(b), or of American 
businesses operating overseas, see Section 109(c), if it 
had not viewed the Act as otherwise applying to such 
conduct.

1992 W 152513 at *14.

prepared to do that right now".
21



CONCLUSION
For the above reasons, the decision of the district court 

should be reversed.

C. VERNON MASON 
Suite 1108 
401 Broadway
New York, New York 10013 
(212) 219-0147

JULIUS L. CHAMBERS 
ERIC SCHNAPPER

NAACP Legal Defense and 
Educational Fund, Inc. 

16th Floor 
99 Hudson Street 
New York, New York 10013 
(212) 219-1900

Counsel for Plaintiff-Appellant

22





TABLE OF CONTENTS
Page

TABLE OF AUTHORITIES ii
PRELIMINARY STATEMENT 1
ISSUES PRESENTED 1
STATEMENT OF THE CASE 2

DISTRICT COURT DECISION 9
POINT I

PLAINTIFF'S TITLE VII CLAIMS 
WERE PROPERLY DISMISSED SINCE 
THE CHARGE SHE FILED WITH THE 
EEOC DID NOT ALLEGE ANY 
SPECIFIC ACT OF DISCRIMINATION 
WITHIN THE 300-DAY LIMITATIONS 
PERIOD. THIS FAILURE TO MAKE A 
TIMELY CHARGE ALSO REQUIRED 
DISMISSAL OF PLAINTIFF'S CLAIMS 
OF DISCRIMINATION ARISING 
SUBSEQUENT TO THE FILING OF THE
EEOC CHARGE. ....................................... 12

PLAINTIFF'S CLAIMS OF PROMOTION 
DENIALS DO NOT STATE A CAUSE OF 
ACTION UNDER 42 U.S.C. § 1981,
AS INTERPRETED BY THE SUPREME 
COURT IN PATTERSON BECAUSE THE 
JOBS AT ISSUE WOULD NOT HAVE 
CREATED A NEW AND DISTINCT 
RELATION BETWEEN PLAINTIFF AND
DEFENDANT............................................ 18

THE LEGISLATIVE HISTORY OF THE 
CIVIL RIGHTS ACT OF 1991 AND 
THE PRINCIPLE OF STATUTORY 
CONSTRUCTION THAT CHANGES IN 
SUBSTANTIVE RIGHTS SHOULD NOT 
BE GIVEN RETROACTIVE EFFECT 
EACH LEAD TO THE CONCLUSION 
THAT THE AMENDMENTS TO 42 
U.S.C. § 1981 SHOULD NOT BE
APPLIED TO THE INSTANT ACTION.......................2 0

POINT II

POINT III

CONCLUSION 36
-i-



Cases:

TABLE OF AUTHORITIES

Alpo Petfoods, Inc, v. Ralston 
Purina Co., 913 F .2d 958
(D.C. Cir. 1990) (Thomas, J.) . . . . . . . . . . . . . .  32

Association Against Discrimination in 
Employment, Inc, v. City of 
BridReport, 647 F.2d 256 
(2d Cir. 1981), cert, denied,
455 U.S. 988 ( 1 9 8 2 ) .............................. .. 14

Baynes v. AT&T TechnoloRies, Inc.,
No. 91-8488, 1992 WL 296716
(11th Cir. Oct. 20, 1 9 9 2 ) ............... .. 21, 22,29, 33

Bennett v. New Jersey,
470 U.S. 632 ( 1 9 8 5 ) ........................... .. 23, 39,51

Bowen v. GeorRetown University
Hospital, 488 U.S. 204 (1988) . ......................  39, 31

Bradley v. School Board,
416 U.S. 696 (1974) ..................................  30, 31,33

Brown v. General Services
Administration, 507 F.2d 1300 
(2d Cir. 1974), aff’d , 425 U.S
820 (1976).............................................  34, 35

Counsel v. Dow, 849 F .2d
731 (2d Cir.), cert, denied,
488 U.S. 955 ( 1988 ) .......................................  31

Davis v. City and County of_San Francisco,
No. 91-15113,1992 WL 251513
(9th Cir. Oct. 6, 1992) ..............................  21, 22,27

Fray v. Omaha World Hearld Co.,
960 F . 2d 170 (8th Cir.' 1992) ...................  21, 22,24, 26, 

27, 33
Gersman v. Group Health Ass ’n, Inc.,

59 Fair Empl. Prac. Cas. (BNA)
1277 D.C. Cir. Sept. 15, 1 9 9 2 ) ........................ 21, 22,

22, 27, 
29, 32

• - i i -



Page

Holt v. Michigan Department of 
Corrections. Michigan State 
Industries, 59 Fair Empl. 
Prac. Cas. (BNA) 1261 
(6th Cir. Sept. 11, 1992)

Johnson v. Uncle Ben's, Inc.,
965 F .2d at 1370
(5th Cir. 1992) ...............

Johnson v. Uncle Ben's, Inc.,
965 F .2d 1363
(5th Cir. 1992) .................

Kaiser Aluminum & Chemical 
Corp. v. Bonjorno,
494 U.S. 827 (1990) .............

Leake v. Long Island Jewish Medical 
Center, 869 F .2d 130 
(2d Cir. 1989), aff'g substantially 
for reasons stated at 695 F. Supp. 
1414 (E.D.N.Y. 1988) .............

Luddington v. Indiana Bell 
Telephone Co., 966 F .2d 
225 (7th Cir. 1992) .............

Mi H e r  v. International Telephone and 
Telegraph Corp., 755 F .2d 20 
(2d Cir.), cert, denied,
474 U.S. 851"(1985) .............

Morgan Guaranty Trust Co. v ■
Republic of Palau,
971 F . 2d 9171" (2d Cir. 1992) . . .

Mo zee v . Ainerican Coinine r c i al
Marine Service_Co^, 963 F.2d 
929 (7th Cir. 1992), 
cert. denied, 61 U .S .L .W .
3261 (Oct. 5, 1992) .............

Patterson v . McLean Credit Union, 
491 U.S. 164 (1989) .‘. . . .

. 21, 22, 
29, 32, 

33

19, 27

. 21, 22, 
29, 32, 

33

31

25, 32

2 1 , 2 2 ,
32, 33

13, 14, 
15, 17

. . 30, 31,
33

. . 2 1 , 2 2 , 
24, 27, 

28
. . . 2, 8, 

18, 19, 
20, 23

-in.-



Page

Smith v. American President 
Lines, Ltd., 571 F .2d 102 
(2d Cir. 1978 ) ............... . . . . . . 14, 16,

17
Taub, Hummel & Schnall v.

Atlantic Container Line, Ltd.,
894 F .2d 526 (2d Cir. 1990) ............. ............... 31

United Air Lines. Inc. v. Evans,
431 U.S. 553 (1977) ..................... ............... 13

United States v. Colon,
961 F .2d 41 (2d Cir. 1992) ............... ............... 31

United States v. Security 
Industrial Bank, 459 U.S.
70 ( 1 9 8 2 ) ....................... .. ............... 30

Voeel v. City of Cincinnati,
959 F .2d 594 (6th Cir. 1992),
cert, denied, 61 U.S.L.W. 3257
(Oct. 5, 1992) ............................ 24, 26, 

27, 33
Wards Cove Packing Co. v. Atonio,

490 U.S. 642 (1989) ..................... ............... 27

Zipes v. Trans World Airlines, Inc.,
455 U.S. 385 (1982) ..................... ............... 13

- IV-



Statutes:

42 U.S.C. § 1 9 8 1 ..........................- ...............passim
42 U.S.C. §2000-e ( 5 ) ( a ) ( l ) ......................... .. 13
Civil Rights Act of 1991, Pub. L.

No. 102-166, 105 Stat. 1071 (1991) ...................  passim

Other Authorities:
137 Cong. Rec. S15485

(daily ed. Oct. 30, 1991)
(statement of Ser. K e n n e d y ) ..................... .. 25

137 Cong. Rec. §15963
(daily ed. Nov. 5, 1991)
(statement of Sen. Kennedy) ..........................25, 28

137 Cong. Rec. S15966
(daily ed. Nov. 5, 1991)
(statements of Sers.
Gorton and Durenberger) ..................................  28

H.R. 1, 102d Cong., 1st Sess . ,
137 Cong. Rec. H3922
(daily ed. June 5, 1 9 9 1 ) ..............................  22, 23,24

H.R. Rep. No. 40(11),
102d Cong., 1st Sess.,
1991 U.S.C.C.A.N. 732 ....................................  23

S.2104, 101st Cong., 2d Sess.,
§§12, 151(a)(b), printed at 
136 Cons. Rec. 59966 (daily ed.
Jul. 18, 1 9 9 3 ) .............................................  22

Statement of President George Push 
Upon Signing S.1745, 1991
U.S.C.C.A.N. 768 (Nov. 21, 1991) .........................  26

Veto Message for S. 2104,
136 Cong. Rec. 516562
(daily ed. Oct. 24, 1990) ................................  22

Page

- v-



UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

GENEVA BUTTS,
Plaintiff-Appellant,

-against-
THE CITY OF NEW YORK DEPARTMENT OF 
HOUSING PRESERVATION AND DEVELOPMENT,

Defendant-Appellee.

On Appeal from the United States 
District Court for the Southern 

District of New York

APPELLEE'S BRIEF * 1

PRELIMINARY STATEMENT
In this action alleging employment discrimination in 

violation of Title VII of the Civil Rights Act of 1964 and 42 
U.S.C. § 1981, Geneva Butts, plaintiff-appellant, appeals from a 
judgment of the United States District Court for the Southern 
District of New York (Freeh, D.J.), entered July 10, 1992, 
granting defendant's motion to dismiss the complaint.

ISSUES PRESENTED
1. Did the District Court properly find plaintiff's 

Title VII claims time-barred for failure to make a timely 
complaint to the Equal Employment Opportunity Commission (EEOC) 
where plaintiff's EEOC charge did not mention any specific act of 
discrimination within the 300-day limitations period?

2. Did the District Court correctly determine that 
plaintiff's allegations of discriminatory denials of promotion



failed to state a claim under 42 U.S.C. § 1981, as it was
interpreted by the Supreme Court in Patterson v. McLean Credit 
Union, 491 U.S. 164 (1989), where plaintiff's amended complaint 
contains no allegations concerning the duties of the positions 
involved and, hence, there was no showing that the promotions at 
issue would have amounted to a "new and distinct" contractual 
relationship with defendant?

3. Was the District Court correct in refusing to apply 
the 1991 amendments to 42 U.S.C. § 1981 where the conduct at 
issue took place before the amendments were enacted and the 
legislative history of the amendments demonstrates that they were 
not intended to apply retroactively?

STATEMENT OF THE CASE
a. Plaintiff's EEOC Charge

Plaintiff, an African-American female, has been 
employed by defendant since 1972 (10a).1 In December 1989, 
plaintiff, aided by counsel, filed a charge of discrimination 
with the EEOC (105a). The charge begins with conclusory 
assertions that plaintiff has been "denied equal terms and 
conditions of employment" and promotions and that "[s]ince 
October of 1987 to present, I have consistently been a target of 
discriminatory practices and treatment" (10a). It then describes 
the following instances of alleged discrimination: *

:Number in parentheses followed by an "a" refer to pages in 
the Joint Appendix.

-2-



* In June 1987, "obvious discrimination started" when 
plaintiff was named to replace Andrew Cooper, a black male, as 
Acting Deputy Director of the agency’s computer center; plaintiff 
alleges that Cooper had done a good job and was replaced "for no 
apparent reason" (10a).

* Though plaintiff was appointed Acting Deputy 
Director, she claimed that she was ignored by management and 
served as "a figurehead because of my sex and race" (11a, 10a).
In May 1987, plaintiff wrote a memo to this effect to her 
immediate supervisor, Fred DeJohn, suggesting that she should be 
returned to her previous position as Computer Systems Manager 
(lOa-lla). Five days after plaintiff's memo to DeJohn, 
defendant's Commissioner sent out a memorandum stating that 
plaintiff was "working closely" with DeJohn; according to 
plaintiff, however, even though she was "responsible for the 
entire Computer Center," from June-September 1987, her contact 
with DeJohn was limited to less than ten telephone calls (11a).

* In May 1987,2 the position above plaintiff, that of 
Director, was raised to the Assistant Commissioner level at a 
higher salary than that of "the dismissed African-American's 
manager's" (11a).3 Plaintiff complained to the EEOC that,

2The date is not specified in the EEOC charge, but appears 
in plaintiff's amended complaint (100a).

3This is presumably a reference to the previously mentioned 
Mr. Cooper; however, in the charge, Cooper is described as having 
been Deputy Director, not Director (10a).

-3-



despite her long tenure with the agency, she "was asked to submit 
a resume" if she wanted to apply for the job (11a).

* Unspecified requests for more staff were not 
answered and when plaintiff proposed someone for Manager of 
Operations, "as [plaintiff's] title allowed", she was told that 
Acting Commissioner Sosa, a white male, would decide whom to hire 
(11a). Plaintiff did not state when this occurred.

* "After October 1987," plaintiff's work was subject 
to "constant scrutiny and unfair criticism" (11a). No specific 
instance is mentioned. Sosa allegedly held meetings on 
reorganization without telling plaintiff about the meetings or 
what transpired (11a).4

* At some unspecified time, people who previously 
reported to plaintiff about personnel and administrative matters 
were told not to do so, and "employees were made to feel 
management would not approve of their associating" with plaintiff 
(12a). Again, no specifics were given.

* As of November 1989, the agency was planning to move 
its computer operations in January 1990, from Harlem to lower 
Manhattan, a move plaintiff alleged would reduce the level of 
minority employment and "effectively [eliminate] the African- 
American management base developed since the agency's existence"
(12a) .

4The allegation that she was not involved in discussions 
about reorganizing the office is undated in the EEOC charge, but 
the amended complaint places the events around October 1987 (11a, 
98a) .

-4-



The EEOC charge finished with another series of 
conclusory allegations of discrimination, referring to 
unspecified occasions when plaintiff was denied bonuses and 
"several requests for advancement" (12a).
b. The EEOC Determination

In May 1991, after investigation, the EEOC dismissed
plaintiff's charge (106a). The Commission found that plaintiff
could not complain about discrimination based on the proposed
relocation of the computer operations because the relocation had
not occurred (105a). Regarding plaintiff's other complaints, the
EEOC said (105a):

[T]he allegations alleged in the 
affidavit of the Charging Party via 
her attorney regarding terms and 
conditions of employment and 
promotional opportunities, occurred 
during the year 1987. The Charging 
Party through her attorney did not 
file her charge until December 5,
1989, well beyond the 180 to 300 
days filing requirement as set 
forth by the statute. Therefore, 
these issues are untimely, and time 
barred by law.

c. The Instant Proceeding and Plaintiff's Amended Complaint
Plaintiff filed this action pro se in August 1991, and 

defendant moved to dismiss "on the ground that it is time barred 
and fails to state a claim" (15a). Plaintiff subsequently 
obtained counsel and moved to amend her complaint (91a).
Defendant did not object to the amendment, and its motion to 
dismiss was applied to the amended complaint (123a).

-5-



The amended complaint (i) contained allegations of 
discrimination never mentioned in the EEOC charge even though 
they allegedly occurred prior to the filing of the charge, (ii) 
made no mention of some claims included in the EEOC charge, and 
(iii) added allegations of discrimination occurring after the 
EEOC charge was filed.

The allegations of discriminatory conduct are contained 
in paragraphs 15 and 16 of the amended complaint (97a-100a). 
Paragraph 15 alleged continuous discrimination against plaintiff 
from May 1987 to the present in denying "equal terms and 
conditions of employment" and promotions (97a). Plaintiff 
asserted, without specifics, that she had been denied access to 
her supervisors from "May 1987 to the present" (97a).

Plaintiff complained that in October 1987, when the 
computer operations were reorganized and placed under an 
Assistant Commissioner, she was effectively demoted because 
people who had been her subordinates were now placed at her level 
(98a). Though occurring over two years before the EEOC charge 
was filed, this was not mentioned in the EEOC charge.

Similarly, plaintiff complained that the training 
liaison function was taken from her in the Spring of 1988, 
without explanation (98a). Though this was over a year before 
the EEOC charge was filed, it, too, is not mentioned in the 
charge, nor is plaintiff's allegation that, sometime in 1988, 
plaintiff was improperly excluded from working with a new private

-6-



sector committee studying ways to improve City efficiency (98a- 
99a) .

Plaintiff again complained about the proposed 
relocation of defendant's computer operations, but, while her 
EEOC charge criticized the relocation because it would allegedly 
hurt minority employment, the amended complaint said that the 
discriminatory conduct was excluding plaintiff from discussions 
of the subject (99a).

Regarding denial of promotion opportunities, plaintiff 
reiterated her allegation from the EEOC charge that, in May 1987, 
she was told to submit a resume if she wanted to apply to be 
Assistant Commissioner for the newly reorganized computer 
operations (99a-100a). She also alleged discriminatory denial of 
two other promotions, neither of which are mentioned in the EEOC 
charge, even though the denials occurred before the charge was 
filed (99a-200a). Plaintiff also claims discriminatory promotion 
denials in May 1990 and June 1991, after the EEOC charge was 
filed (99a-100a). Nothing is said about the duties of these 
positions or about how they differ from her current position as a 
Director.

Plaintiff's amended complaint does not reiterate the 
allegations in her EEOC charge regarding supposed unfair 
criticism of plaintiff's work and Sosa's alleged refusal to 
accept plaintiff's recommendation for filling the operations 
manager position.

-7-



d. Defendant's Motion to Dismiss
Arguing for dismissal of the complaint, defendant noted 

that plaintiff was required to allege that some discriminatory 
act occurred within 300 days before plaintiff filed her EEOC 
charge (42a). Here, plaintiff's specific allegations of 
discrimination occurred either well before the 300-day period or 
after it (42a). Moreover, said defendant, plaintiff's complaints 
regarding discrimination after the EEOC charge was filed 
constitute new allegations of discrimination that are not 
reasonably related to the incidents described in the EEOC charge 
and, therefore, are not properly before the Court since they were 
never the subject of a timely filing with the EEOC (46a-48a).

Regarding plaintiff's claims under 42 U.S.C. § 1981, 
defendant explained that certain claims were barred by the three- 
year statute of limitations (29a). In any event, defendant 
continued, the alleged discriminatory acts were not actionable 
under that statute as interpreted by the Supreme Court in 
Patterson v. McLean Credit Union, 491 U.S. 164 (1989) and could 
not be the basis of an action under section 1981, as amended by 
the Civil Rights Act of 1991, since the amendment was not 
applicable to cases already pending when it was enacted (30a- 
35a) .

Plaintiff’s state-law claims were deemed legally 
insufficient because of plaintiff's failure to allege compliance 
with New York's notice of claim requirements (51a-52a).

-8-



Plaintiff defended the timeliness of her EEOC charge by 
arguing that the conduct complained of amounts to "an on-going 
pattern of discrimination" constituting a continuous violation of 
Title VII (74a). Plaintiff characterized her EEOC charge as 
alleging "the maintenance, by the defendant, of a system which 
was calculated to deprive persons such as the plaintiff from 
opportunities of advancement and to maintain a dual system of 
blacks uptown in Harlem and whites downtown on Gold Street" (75a- 
76a) .

Defendant countered that plaintiff did not establish a 
continuing violation of Title VII because, even under the 
continuing discrimination doctrine, plaintiff had to make non- 
conclusory allegations to the EEOC showing specific acts of 
discrimination within the 300-day limitations period (24a-26a).

Plaintiff said that her claims under § 1981 were 
legally sufficient for two reasons: (i) the claims of promotion
denials were actionable under § 1981, as interpreted by the 
Supreme Court in Patterson, because the promotions would have 
placed plaintiff in a new relation to defendant, thus 
constituting discrimination in the formation of a contract (79a- 
80a) and (ii) the 1991 amendments to § 1981 should be 
retroactively applied to this case (82a-84a).

DISTRICT COURT DECISION
After detailing the factual allegations of 

discrimination in plaintiff's amended complaint, the District 
Court turned to the timeliness of plaintiff's EEOC charge and

-9-



said that "in order to determine whether that charge was filed 
within the 300-day statutory time limit, we must ascertain when 
HPD committed the last allegedly discriminatory act" (126a). The 
Court said it would not consider claims of discrimination in the 
amended complaint unless they were asserted at the EEOC or were 
"reasonably related" to claims before the EEOC (126a).

The Court found that it did not have jurisdiction over 
plaintiff's complaints about being removed as training liaison in 
1988 and being denied promotions in 1989, 1990, and 1991 because 
they were neither brought before the EEOC nor "related to the 
allegations" in the EEOC charge (127a).

The Court also found that no claim of discrimination 
was stated by plaintiff's complaints about the relocation of the 
computer operations since the site was never moved, nor with 
regard to the promotion opportunity for which plaintiff refused 
to "comply with [defendant's] reasonable reguest that she submit 
a resume first" (128a, 127a-128a).

After this analysis, the Court said that "[o]mitting 
[the above-mentioned] allegations, the last act of discrimination 
contained in the complaint occurred in late 1987" (128a). 
Discussing plaintiff's claim that a continuing violation was 
shown, the Court observed that the doctrine "is disfavored in 
this Circuit" and is applicable only when there are related acts, 
one of which is within the limitations period or when there is a 
discriminatory system in place before and during the limitations 
period (128a).

-10-



While noting that the amended complaint makes 
"generalized references to conduct continuing 'through the 
present'", the Court found that the complaint does not show 
continuous discrimination up to the time it was filed, but rather 
"a number of allegedly discriminatory acts which occurred in the 
past. Such discrete acts do not satisfy the continuity 
requirement for a 'continuing violation'" (129a). Even if 
plaintiff pleaded "a continuing series of Title VII violations", 
her complaint did not show that they were related or that 
defendant had any kind of "discriminatory system" in place (129a- 
130a).

Regarding the claims under 42 U.S.C. § 1981, the 
District Court held that the three-year statute of limitations 
bars any "allegations regarding conduct prior to August 1988" 
(130a). The Court also held that while plaintiff did not make 
out a claim under section 1981 as interpreted in Patterson, she 
did have a "valid claim for relief" under that statute as it was 
amended in 1991 (131a); however, after noting that this Court had 
not yet addressed the issue of whether the 1991 amendment was 
retroactive, the Court said that it had already reviewed the 
issue and found that the amendment "should not be applied to 
pending cases" (131a). As a result, the Court said the claims 
under section 1981 had to be dismissed (132a).

The Court also agreed with defendant that the state-law 
claims could not be maintained since plaintiff never filed the 
notice of claim required by state law (132a).

-11-



POINT I
PLAINTIFF'S TITLE VII CLAIMS WERE 
PROPERLY DISMISSED SINCE THE CHARGE 
SHE FILED WITH THE EEOC DID NOT 
ALLEGE ANY SPECIFIC ACT OF 
DISCRIMINATION WITHIN THE 300-DAY 
LIMITATIONS PERIOD. THIS FAILURE 
TO MAKE A TIMELY CHARGE ALSO 
REQUIRED DISMISSAL OF PLAINTIFF'S 
CLAIMS OF DISCRIMINATION ARISING 
SUBSEQUENT TO THE FILING OF THE 
EEOC CHARGE.

The District Court correctly dismissed plaintiff's 
Title VII claims as untimely because they were not the subject of 
an EEOC charge filed within 300 days after the occurrence of the 
alleged discriminatory conduct. The only specific acts of 
discrimination mentioned in plaintiff's EEOC charge occurred long 
before the limitations period, and these stale allegations could 
not be revived by conclusory assertions of continuing or present 
discrimination without reference to any acts evidencing this 
supposed discrimination. Moreover, the additional discriminatory 
acts alleged in the complaint could not be used to avoid the 
requirement of a timely filing with the EEOC, even if these acts 
were related to past conduct mentioned in the EEOC charge.
Indeed, many of the acts alleged for the first time in the 
amended complaint also occurred well before the EEOC charge was 
filed and could have been included therein. Plaintiff cannot 
evade the requirements of Title VII by contending that these 
acts, and acts allegedly occurring after the EEOC charge was 
filed, can be the basis of a lawsuit even though there was never 
a timely EEOC charge of any kind.

-12-



Absent the timely filing of charges with the EEOC, a 
Title VII action is time-barred. See Miller v. International 
Telephone and Telegraph Corp., 755 F.2d 20, 23 (2d Cir.), cert. 
denied, 474 U.S. 851 (1985) (construing virtually identical 
provisions in Age Discrimination in Employment Act); see also, 
Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 394 (1982). 
Moreover, the suit must be based on claims either raised before 
the EEOC or "within the scope of the EEOC investigation 
reasonably expected to grow out of" the EEOC charge. Miller, 755 
F.2d at 23-24 (citations omitted). As this Court explained in 
Miller, "[t]he purpose of the notice provision, which is to 
encourage settlement of discrimination disputes through 
conciliation and voluntary compliance, would be defeated if a 
complainant could litigate a claim not previously presented to 
and investigated by the EEOC." 755 F.2d at 26.

EEOC charges are untimely unless they are filed within 
300 days "after the alleged unlawful employment practice 
occurred". 42 U.S.C. § 2000-e(5(e )(1). Discriminatory conduct 
not brought before the EEOC in a timely fashion "is merely an 
unfortunate event in history which has no present legal 
consequences." United Air Lines, Inc, v. Evans, 431 U.S. 553,
558 (1977).

Where, as here, a plaintiff argues that otherwise stale 
complaints of discrimination constitute a continuing violation of 
Title VII and are therefore timely, the Supreme Court has said 
that "the emphasis should not be placed on mere continuity; the

-13-



critical question is whether any present [Title VII] violation
exists." Evans, 431 U.S. at 558 (emphasis in original). 
Accordingly, this Court has explained that a plaintiff alleging a 
continuous violation of Title VII must show that the EEOC charge 
was "filed no later than 300 days after the last act by the 
defendant pursuant to its policy" of discrimination. Association 
Against Discrimination in Employment, Inc, v. City of Bridgeport, 
647 F .2d 256, 274 (2d Cir. 1981), cert, denied, 455 U.S. 988 
(1982) (emphasis in original). Moreover, the allegations that a 
defendant is engaged in a continuous pattern of discrimination 
must "be clearly asserted both in the EEOC filing and in the 
complaint." Miller, 755 F.2d at 25.

These requirements are not met by conclusory assertions 
that past discriminatory conduct is continuing into the 
limitations period. To determine if a plaintiff has made a 
timely EEOC filing alleging a Title VII violation within the 
limitations period, a court must "identify precisely" the 
discriminatory conduct complained of. Delaware State College v. 
Ricks, 449 U.S. 250, 257 (1980). The plaintiff must be able to 
point to "events" showing that there was "a continuing pattern of 
identifiable discriminatory conduct." Smith v. American 
President Lines, Ltd., 571 F.2d 102, 106 (2d Cir. 1978); compare 
Smith, 571 F.2d at 106 (EEOC charge untimely where "no reference 
at all to any event" during period of alleged continuing 
violation), with, Association Against Discrimination, 647 F.2d at 
275 (continuing violation found where "district court made

-14-



express findings as to several discriminatory acts by the City 
[of Bridgeport] that occurred within" the 300-day limitations 
period).

The District Court correctly found that the 
discrimination alleged in the complaint was not the subject of a 
timely EEOC charge. Since the EEOC complaint was filed in 
November 1989, any alleged discriminatory conduct occurring 
before January 1989 is outside the 300-day limitations period.5 
With one exception, all of the allegations in paragraph 15 of the 
complaint relate to events that occurred in 1987 and 1988. The 
only exception is in paragraph 15(e), where plaintiff says that, 
from 1987 through 1990, she was kept out of discussions 
concerning the computer operation's relocation from Harlem to 
lower Manhattan. However, this claim was not presented to the 
EEOC at all; there, plaintiff's complaint about the relocation 
was that, if the computer operations were moved, it would 
adversely impact on minority employment.6 The failure to raise 
this claim with the EEOC bars raising it in court. See Miller, 
755 F.2d at 25 (cannot consider claim of failure to rehire where

5The EEOC determination said that the charge was not filed 
until December 5, 1989 (105a) and the charge itself is stamped 
March 9, 1990 (13a). However, the District Court used the 
November 22, 1989 date, when plaintiff's charge was notarized by 
her attorney, and this is the date most beneficial for plaintiff 
(126a) .

6Plaintiff did complain to the EEOC about not being 
consulted on various matters, but that complaint was based on 
events in 1987, well before the limitations period (supra at 3).

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the plaintiff's complaint to EEOC alleged only discriminatory 
discharge from employment).

Paragraph 16 of the amended complaint refers to denials 
of promotions in 1987, 1989, 1990, and 1991. However, the EEOC 
charge only mentions one promotion denial, in 1987, and 
plaintiff's grievance over that "denial" was that the agency 
required submission of a resume to apply for the job, an 
Assistant Commissioner's position.7 The District Court 
correctly found that these allegations failed to state a claim of 
discrimination as a matter of law. Defendant was entitled to ask 
for a resume from people seeking the Assistant Commissioner's 
position, and plaintiff made no allegation that the request was 
made only of her or on any invidious basis.

Plaintiff tries to revive the stale allegations in her 
charge by relying on events subsequent to the filing of the EEOC 
charge and pre-charge events never mentioned in the EEOC charge, 
arguing that these allegations can be considered because they are 
reasonably related to the claims made in the EEOC charge (Applt. 
Br. at 4-9). This cannot be done.

While a Title VII action can include "subsequent 
identifiable acts of discrimination related to a time barred 
incident", this principle only applies if the plaintiff has

7The EEOC charge does allege that plaintiff was denied 
"several requests for advancement", but it gives neither dates 
nor other specifics (12a). This type of conclusory assertion is 
legally insufficient because it is not an allegation of an 
"event" of "identifiable discriminatory conduct." Smith, 571 
F .2d at 106.

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either "filed an amended or second charge with the EEOC which was 
timely as to subsequent discriminatory conduct by the defendant, 
or had filed an initial charge within the time frame of § 2000- 
e(5)(e) as to certain enumerated acts within an alleged 
discriminatory pattern." Smith, 571 F.2d at 105 (footnote 
omitted).

The reason for this rule is obvious. While it would be 
improper to require a Title VII plaintiff to make repeated trips 
to the EEOC to bring suit on subsequent acts of discrimination 
that are related to past discrimination that was presented to the 
EEOC in a timely fashion, it would defeat the statutory purpose 
if a plaintiff could skip the EEOC process entirely by taking new 
discrimination claims into court without ever having made a 
timely complaint of any kind to the EEOC. Miller, 755 F.2d at 
26 .

Here, plaintiff did not file an amended EEOC charge 
enumerating the subsequent events, nor, as explained above, did 
she file a timely charge regarding the earlier events that are 
supposedly related to the subsequent conduct. Indeed, the 1988 
promotion denial alleged in the amended complaint happened well 
before the EEOC charge was even filed and should have been 
included therein. Plaintiff cannot correct this defect by 
arguing that it is related to other events that were included in 
the charge.

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POINT II
PLAINTIFF'S CLAIMS OF PROMOTION 
DENIALS DO NOT STATE A CAUSE OF 
ACTION UNDER 42 U.S.C. § 1981, AS 
INTERPRETED BY THE SUPREME COURT IN 
PATTERSON BECAUSE THE JOBS AT ISSUE 
WOULD NOT HAVE CREATED A NEW AND 
DISTINCT RELATION BETWEEN PLAINTIFF 
AND DEFENDANT.

Plaintiff incorrectly argues that her § 1981 claims 
concerning promotion denials occurring within three years of the 
filing of this action should not have been dismissed because 
there was no factual determination as to whether the promotions 
would have created a "new and distinct relation" between 
plaintiff and defendant, thus making them actionable under § 1981 
as interpreted by the Supreme Court in Patterson v. McLean Credit 
Union, 491 U.S. 164, 185 (1989) (citation omitted) (Applt. Br. at 
9-12).8 Since plaintiff made no effort to plead facts 
indicating that the Patterson criteria were satisfied, the claims 
were properly dismissed.

Prior to its amendment in 1991, the Supreme Court ruled 
that 42 U.S.C. § 1981 applied only to employment discrimination 
arising "at the initial formation of the contract and conduct 
which impairs the right to enforce contract obligations through 
legal process"; complaints of discrimination in the terms and 
conditions of employment were not actionable. 491 U.S. at 179-

BPlaintiff acknowledges here, as she did in the District 
Court, that the statute of limitations bars her from raising any 
§ 1981 claims regarding promotion denials that occurred over 
three years before this action was commenced (Applt. Br. at 9; 
130a).

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180, 178-180. Applying this principle to claims of 
discrimination in making promotions, the Court said that (491 
U.S. at 185):

the question whether a promotion 
claim is actionable under § 1981 
depends upon whether the nature of 
the change in position was such 
that it involved the opportunity to 
enter into a new contract with the 
employer. If so, then the 
employer's refusal to enter the new 
contract is actionable under 
§ 1981. . . . Only where the 
promotion rises to the level of an 
opportunity for a new and distinct 
relation between the employee and 
the employer is such a claim 
actionable under § 1981 (citation 
omitted).

As plaintiff concedes, not every promotion meets this 
criterion (Applt. Br. at 10-11). Only those involving 
significant changes in job responsiblities will qualify. See 
Johnson v. Uncle Ben's, Inc., 965 F.2d at 1370-1 (5th Cir. 1992). 
Accordingly, to state a claim, a complaint should plead facts 
that would allow a comparison between the plaintiff's present job 
and the responsibilities of the promotional position. That was 
not done here. Plaintiff acknowledges that, "[t]he nature of the 
promotions is not disclosed by the record" (Applt. Br. at 11).
The amended complaint refers only to job titles, and while these 
titles sound as if the jobs involve considerable responsiblity, 
plaintiff already had a responsible position. It was incumbent 
on plaintiff to plead the facts supporting her claim, and it was

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proper to dismiss this cause of action in light of her failure to
do so.

POINT III
THE LEGISLATIVE HISTORY OF THE 
CIVIL RIGHTS ACT OF 1991 AND THE 
PRINCIPLE OF STATUTORY CONSTRUCTION 
THAT CHANGES IN SUBSTANTIVE RIGHTS 
SHOULD NOT BE GIVEN RETROACTIVE 
EFFECT EACH LEAD TO THE CONCLUSION 
THAT THE AMENDMENTS TO 42 U.S.C. §
1981 SHOULD NOT BE APPLIED TO THE 
INSTANT ACTION.

On November 21, 1991, the Civil Rights Act of 1991 
became law. Pub. L. No. 102-166, 105 Stat. 1071 (1991) 
(hereinafter referred to as "the Act"). Among its sweeping 
changes was a substantial revision of 42 U.S.C. § 1981 that 
altered the prior statute, as interpreted by the Supreme Court in 
Patterson. Unlike the pre-Act version, the amended § 1981 
prohibits race discrimination regarding "the enjoyment of all 
benefits, privileges, terms, and conditions of the contractual 
relationship," not just in the formation and enforcement of 
contracts. Act, § 101(b), 105 Stat. at 1072 (codified at 42 
U.S.C. § 1981[b ]).

Plaintiff argues that the Act should apply here (Applt. 
Br., Pt. III). However, the legislative history of this highly 
controversial enactment demonstrates that, while many in Congress 
wanted retroactive application of the statute, retroactivity was 
surrendered in order to pass a bill that would be signed by the 
President. If this Court disagrees with this assessment, it 
should nonetheless reject plaintiff's argument that an intent to

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apply the Act retroactively is shown. As a result, even under 
general principles of statutory construction, the § 1981 
amendments should be held applicable only prospectively.

The Act states that it "shall take effect upon 
enactment." Act, §402(a), 105 Stat. at 1099. Several Circuit 
Courts of Appeals have already rejected applying the Act to past 
conduct. Baynes v. AT&T Technologies, Inc., No. 91-8488, 1992 WL 
296716, at *2 (11th Cir. Oct. 20, 1992) (addressing only 
situation where District Court rendered judgment before Act 
passed [at *1 & n. 1]); Gersman v. Group Health Ass'n, Inc., 59 
Fair Empl. Prac. Cas. (BNA) 1277, 1289 (D.C. Cir. Sept. 15,
1992); Holt v. Michigan Department of Corrections, Michigan State 
Industries, 59 Fair Empl. Prac. Cas. (BNA) 1261, 1262 (6th Cir. 
Sept. 11, 1992); Johnson v. Uncle Ben's, Inc., 965 F.2d 1363,
1372 (5th Cir. 1992); Luddinqton v. Indiana Bell Telephone Co., 
966 F.2d 225, 229 (7th Cir. 1992); Mozee v. American Commercial 
Marine Service Co., 963 F.2d 929, 936 (7th Cir. 1992), cert. 
denied, 61 U.S.L.W. 3261 (Oct. 5, 1992); Fray v. Omaha World 
Herald Co., 960 F.2d 1370, 1371 (8th Cir. 1992); Vogel v. City of 
Cincinnati, 959 F.2d 594, 598 (6th Cir. 1992), cert, denied, 61 
U.S.L.W. 3257 (Oct. 5, 1992) (Timbers, J.); contra, Davis v. City 
and County of San Francisco, No. 91-15113, 1992 WL 251513, at *13 
(9th Cir. Oct. 6, 1992).

These courts have taken different paths to this 
conclusion. While some found the Act's legislative history 
dispositive, most said it was inconclusive and relied on general

-21-



principles of statutory construction.9 The changes to the 
legislation as it worked its way through Congress and the need 
for compromise to insure presidential acceptance demonstrate that 
the better view is that Congress intended that the Act not apply 
to pre-Act conduct. 
a. The Legislative History

In 1990, the President vetoed the predecessor to this 
Act, citing, among other things, its "unfair retroactivity 
rules." Veto Message for S.2104, 136 Cong. Rec. S16562, S16562 
(daily ed. Oct. 24, 1990). The vetoed legislation contained 
provisions that would have expressly applied the amended version 
of § 1981 to pending cases. See S.2104, 101st Cong., 2d Sess.
§ 12 (§ 1981 amendments); § 15(a)(6) (retroactivity provisions), 
printed at 136 Cong. Rec. S9966, S9968 (daily ed. Jul. 18, 1990). 
In 1991, the House continued to push for retroactivity, again 
passing a bill expressly providing for broad retroactive 
application of the amendments to § 1981. See H.R.l, § 110 
(amending § 1981), § 113(6) (applying § 1981 amendment to "all 
proceedings pending on or commenced after June 15, 1989", the 
date Patterson was decided), printed at 137 Cong. Rec. H3922,

9Fray said that "the legislative intent was surely that the 
new law be prospective only." 960 F.2d at 1378; Davis held that 
the Act evinces a "clear intention" that it be applied 
retroactively. 1992 WL 251513, at *13. The other courts all 
found legislative history inconclusive. Baynes, 1992 WL 296716, 
at *1-2; Gersman, 59 Fair Emp. Prac. Cas. (BNA) at 1282; Holt, 59
Fair Emp. Prac. Cas. (BNA) at 1263; Johnson, 965 F.2d at 1372; 
Luddington, 966 F.2d at 227; Mozee, 963 F.2d at 932; Vogel, 959 
F .2d at 597.

-22-



H3924-5; id._at H3958-9 (passage of H.R.l)- (daily ed. June 5, 
1991).

Both the text of H.R.l and its accompanying committee 
reports show that the House favored retroactive application of 
the § 1981 amendments because it viewed the amendments as mere 
corrective legislation that did not grant any new substantive 
rights. The bill expressly said it was intended to "[restore]" 
rights taken away by Patterson and other Supreme Court decisions. 
H.R.l, § 2(b)(1); 137 Cong. Rec. at H3923 (daily ed. June 5, 
1991); § 110 (title of section amending § 1981).

In its discussion of retroactivity, the House Judiciary 
Committee noted that, while the Supreme Court ruled, in Bennett 
v. New Jersey, 470 U.S. 632, 639 (1985), that statutes affecting 
substantive rights are generally applied prospectively, 
retroactivity was appropriate here because the § 1981 amendments 
were merely "procedural." H.R. Rep. No. 40(11), 102d Cong., 1st 
Sess. at 39 , 1991 U.S.C.C.A.N. at 732-733.10

The Act itself omits the House's retroactivity 
provisions, stating instead that the law "shall take effect upon 
enactment." Act, § 402(a), 105 Stat. at 1099. Several Circuit 
Courts of Appeals have noted that legislators disagreed about 
whether this meant that it would apply to pending cases. E .q . ,

10The § 1981 amendments were in section 12 of the bill 
reported out by the Judiciary Committee and were among those 
listed in the Report as non-substantive and hence appropriate for 
retroactivity. H. Rep. No. 40(11) at 38, 1991 U.S.C.C.A.N. at 
732 .

-23-



Fray, 960 F.2d at 1376-1377 & n. 10 ("a greater number of
legislators expressed the prospective-only view); Mozee, 963 F.2d 
at 934. While this language might be unclear in a vacuum, it is 
significant here because the Act not only omitted the House's 
express retroactivity provisions, it also altered the House's 
language characterizing the § 1981 amendments as merely 
restorative of pre-existing rights, the very theory on which the 
House pinned its view that retroactivity was appropriate.

Unlike section 2(b)(1) of H.R.l, the statement of 
purposes in the Act speaks, not of "restoring" rights, but of 
"expanding the scope of relevant civil rights statutes." Act,
§ 3(4), 105 Stat. at 1071; see also Act, §2(1), (3) (referring, 
respectively, to the creation of "additional remedies" and 
"additional protections"). The section title for the portion of 
the Act amending § 1981 was adopted verbatim from the version 
passed by the House, with one notable exception: the word
"restoring" was removed. Compare Act, § 101, 105 Stat. at 1071 
with H.R.l, § 110, 137 Cong. Rec. at H3924 (daily ed. June 5, 
1991)

nAs enacted, Section 101 is entitled "Prohibition against 
All Racial Discrimination in the Making and Enforcement of 
Contracts." The House had "Restoring" as the first word in the 
title. An identical deletion was made from the title of the 
highly controversial section of the Act delineating the burden of 
proof in Title VII cases challenging employment practices based 
on disparate impact on protected individuals. Compare Act,
§ 105, 105 Stat. at 1074 with H.R.l, § 102, 137 Cong. Rec. at 
H3923 (daily ed. June 5, 1991).

-24-



These changes were hardly accidental since the 
legislators were aware that the use of the term "restore" in 
civil rights legislation had been construed to evince an intent 
for retroactive application. For example, as plaintiff 
acknowledges (Applt. Br. at 43-44 & n. 59), this Court relied on 
that principle when it held that the Civil Rights Restoration Act 
of 1988 should be applied retroactively to cases pending when it 
was passed. See Leake v. Long Island Jewish Medical Center, 869 
F.2d 130, 131 (2d Cir. 1989), aff'g substantially for reasons 
stated at 695 F. Supp. 1414 (E.D.N.Y. 1988). The District Court 
decision accepted by this Court said that Congress's use of words 
like "restore" connotes an intent for retroactive application.
695 F. Supp. at 1417.

Senator Kennedy, a key proponent of retroactivity, was 
well aware of the importance of the concept of "restoration" in 
interpreting the Act; he cited Leake in a floor discussion of 
retroactivity. 137 Cong. Rec. at S15485 (daily ed. Oct. 30, 
1991). Additionally, on the day of final Senate consideration of 
the Act, he argued for retroactivity by describing the Act's 
changes as mere "restorations" of pre-existing rights. 137 Cong. 
Rec. at S15963 (daily ed. Nov. 5, 1991). Notwithstanding these 
sentiments, in the statute itself, Congress removed the language 
of restoration, and instead, asserted that it was expanding civil 
rights.

Since the deletion of the "restore" language and the 
substitution of the "expansion" language was done with full

-25-



awareness of the case law regarding retroactivity, they 
demonstrate that Congress intended the § 1981 amendments to apply 
only to conduct occurring after passage of the Act. This 
conclusion is reinforced when the changes are viewed in the 
context of a previous presidential veto that was predicated in 
part on complaints about retroactive application of the new law.

Plaintiff overlooks these realities when she seeks to 
make much of the fact that Congress refused to adopt express 
language that the law would not apply to conduct occurring before 
its passage (Applt. Br. at 17-22). Congress obviously wanted a 
law that would be retroactive. Indeed, it passed such a law in 
1990. The problem, as Fray noted, was that the President would 
not sign it and Congress could not override his veto.12 960 
F.2d at 1377 (citing remarks by Senator Kennedy and House Speaker 
Foley, two key proponents of retroactivity, as "[emphasizing] the 
need to pass a bill that the President would sign" [citations 
omitted]). Accordingly, on this issue, Congress acceded to the 
President's view. Fray, 960 F.2d at 1378 ("any other conclusion 
simply ignores the realities of the legislative process"
[citation omitted]).

12An interpretive memorandum offered by Senate Minority 
Leader Dole on behalf of the Administration and several senators 
says that the Act would not be considered retroactive. 137 Cong. 
Rec. at S15472, S15478 (daily ed. Oct. 30, 1991); see also 137 
Cong. Rec. S15953 (daily ed. Nov. 5, 1991). In his statement on 
signing the Act, the President expressly adopted these memoranda. 
Statement of President George Bush Upon Signing S.1745, 1991 
U.S.C.C.A.N. 768, 769 (Nov. 21, 1991).

-26-



Plaintiff also argues for implied retroactivity of the 
§ 1981 amendments because there are two provisions of the Act 
specifically precluding retroactive application in specific 
instances. Section 109(c) provides that amendments covering 
extraterritorial employment will apply only to conduct occurring 
after the Act became law. 105 Stat. at 1078. Section 402(b) 
states that the Act will not apply to "any disparate impact case 
for which a complaint was filed before March 1, 1975, and for 
which an initial decision was rendered after October 30, 1983." 
105 Stat. at 1099.

Plaintiff contends that the inclusion of these 
amendments implies that Congress intended retroactivity for all 
other sections of the Act (Applt. Br. at 13-16, 25-30). Given 
the highly charged and controversial battle over this 
legislation, including the certainty that the issue of 
retroactivity would be vigorously litigated, plaintiff's view has 
correctly been rejected by several Circuit Courts of Appeals.
See Gersman, 59 Fair Emp. Prac. Cas. (BNA) at 1280 (calling the 
provisions "insurance policies"); Johnson, 965 F.2d at 1373 
(holding that arguing retroactivity by implication from these 
provisions reads too much into the statute, "given the swirling 
confusion surrounding the Act's passage"); Mozee, 963 F.2d at 933 
(describing the provisions as "extra assurance" of prospective 
application for the sections specifically affected); Fray, 960 
F.2d at 1377; but see, Davis, 1992 WL 251513 at *13-14.

-27-



The sole purpose of section 402 (b') of the Act was to
insure that the employer in Wards Cove Packing Co. v. Atonio, 490 
U.S. 642 (1989) would not have to relitigate the disparate impact 
claims against it under the new standards in the Act (Applt. Br. 
at 13 n. 5). It was intended to provide "a clear assurance that 
courts would not apply the 1991 Act to the Wards Cove litigation 
regardless of how the courts might eventually construe the 1991 
Act's applicability to pending cases." Mozee, 963 F.2d at 933.

While plaintiff says that the debate about section 
402(b) would be "unintelligible" unless the Act were otherwise 
retroactive, Senator Kennedy acknowledged that, even in his view, 
the outcome of the anticipated retroactivity litigation was 
uncertain (Applt. Br. at 29; 137 Cong. Rec. at S15963 [daily ed. 
Nov. 5, 1991]). The purpose of section 402(b), he explained, was 
to insure that the Wards Cove litigation would continue to be 
governed "by the rules set down by the Supreme Court in that 
case." Id. Proponents of the view that the Act does not 
generally apply retroactively also made this clear. See id. at 
S15966 (statements of Senators Gorton and Durenberger).13

In short, the Civil Rights Act of 1991 was a compromise 
between a Congress that wanted retroactive application of its 
amendments and a President who had successfully sustained an

13For example, Senator Gorton said that section 402(b) "does 
no more than reaffirm for one specific case the more general 
mandate of the bill that the civil rights amendments will be 
applied prospectively." 137 Cong. Rec. at S15966 (daily ed. Nov. 
5, 1991).

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earlier veto of legislation including provisions for 
retroactivity. The original congressional language called the 
§ 1981 amendments, and others, restorative, intending to bring 
them within the ambit of Supreme Court precedent holding that 
non-substantive changes should receive retroactive application. 
However, when finally enacted, the Act omitted the "restoration" 
language and called its amendments "expansions" of civil rights 
legislation, a change that Congress knew would undermine the 
retroactivity claim. This Court should hold that Congress did 
not intend for the § 1981 amendments to apply to conduct 
occurring before November 21, 1991, when the Civil Rights Act of 
1991 became law.
b. General Principles of Statutory Construction Support a 
Prospective Application of the § 1981 Amendments.

If this Court finds the legislative history 
inconclusive on retroactivity, it should rely on general 
principles of statutory construction and hold that the 
substantive changes made by the § 1981 amendments do not apply 
retroactively to conduct occurring before the new standards 
became law. Every Circuit Court of Appeals that has analyzed the 
Act under general principles of statutory construction has 
concluded that it should not be applied retroactively. See 
Baynes, 1992 WL 296716, at *7-15; Gersman, 59 Fair Emp. Prac.
Cas. (BNA) at 1282-9; Holt, 59 Fair Emp. Prac. Cas. (BNA) at 
1263; Johnson, 965 F.2d at 1373-4; Luddinqton, 966 F.2d at 227-9; 
Mozee, 963 F.2d at 934-6; Vogel, 959 F.2d at 597-8.

-29-



In making these analyses, each of the above-cited
cases has noted, as this Court has in a different context, that 
"[t]he Supreme Court's current position on retroactive 
application of civil statutes is, as the Court itself has 
acknowledged, somewhat unclear." Morgan Guaranty Trust Co. v. 
Republic of Palau, 971 F.2d 917, 921 (2d Cir. 1992) (citations 
omitted). On the one hand, almost twenty years ago, the Supreme 
Court said that retroactive application of new statutes is the 
norm unless it "would result in manifest injustice or there is 
statutory direction or legislative history to the contrary." 
Bradley v. School Board, 416 U.S. 696, 711 (1974). However, in 
Bennett v. New Jersey, 470 U.S. 632 (1985), the Court refused to 
apply the retroactivity presumption in Bradley to alter a party's 
pre-existing rights under a federal grant statute. The Court 
defended this determination by noting that it "comports with 
another venerable rule of statutory interpretation, i.e., that 
statutes affecting substantive rights and liabilities are 
presumed to have only prospective effect." 470 U.S. at 639 
(citations omitted). The Court supported this statement with a 
reference to its opinion in United States v. Security Industrial 
Bank, 459 U.S. 70, 79 (1982), where it said that "[t]he principle 
that statutes operate only prospectively while judicial decisions 
operate retrospectively is familiar to every law student" 
(citations omitted). Bennett, 470 U.S. at 639-640.

Then, in Bowen v. Georgetown University Hospital, 488 
U.S. 204 (1988), a unanimous Court held that statutes are

-30-



presumed to apply prospectively, not retroactively. The Court 
said (488 U.S. at 208): "Retroactivity is not favored in the
law. Thus, congressional enactments and administrative rules 
will not be construed to have retroactive effect unless their 
language requires this result" (citations omitted). In a more 
recent case, the Court called its holding in Bowen a 
"reaffirmation of [a] generally accepted axiom" and conceded that 
it is "[i]n apparent tension with the rule articulated in 
Bradley." Kaiser Aluminum & Chemical Corp. v. Bonjorno, 494 U.S. 
827, 837 (1990) (citation omitted).14

While plaintiff says that this Circuit continues to 
adhere to the Bradley presumption of retroactive application of 
statutes (Applt. Br. at 40), the 1992 decision in Morgan 
Guaranty, 971 F.2d at 921 acknowledged that the Supreme Court's 
view was changing and, in Counsel v. Dow, 849 F.2d 731, 736 n. 4 
(2d Cir.), cert, denied, 488 U.S. 955 (1988), this Court accepted 
the Supreme Court's holding in Bennett that statutes making

14In an exhaustive analysis of the Court's entire 
retroactivity jurisprudence, one Justice said that Bradley and 
Bowen "are in irreconcilable contradiction" and suggested 
overruling Bradley and "[reaffirming] the clear rule that has 
been applied, except for these last two decades, since the 
beginning of the Republic and indeed since the early days of the 
common law: absent specific indication to the contrary, the
operation of nonpenal legislation is prospective only." 494 U.S. 
at 841 (Scalia, J., concurring).

-31-



substantive changes are presumed prospective, absent an 
expression of legislative intent to the contrary.15

Several of the Circuits that have addressed the 
retroactivity of the Civil Rights Act of 1991 relied on Bennett's 
holding eschewing retroactive alteration of substantive rights 
and found that the § 1981 amendments should not be applied 
retroactively. See Gersman, 59 Fair Emp. Prac. Cas. (BNA) at 
1287-8;16 Johnson, 965 F.2d at 1374; Mozee, 963 F.2d at 936;
Vogel, 959 F.2d at 598 (relying on EEOC policy statement that Act 
is prospective since statement is reasonable in light of Act's 
affect on substantive rights). Other Circuits reviewed the 
Supreme Court's retroactivity cases and held that the proper 
presumption is to apply statutes prospectively. See Holt, 59

15The cases cited by plaintiff as applying Bradley do not 
address the Bradley/Bowen issue. In both Taub, Hummel & Schnall 
v. Atlantic Container Line, Ltd., 894 F.2d 526 (2d Cir. 1990) and 
United States v. Colon, 961 F.2d 41 (2d Cir. 1992), this Court 
did not apply any presumption concerning retroactive or 
prospective application because it found that the statutes 
involved set their own rule of application. 894 F.2d at 529; 961 
F.2d at 45. Bowen did not appear to have been argued by any of 
the parties and the Court had no need to delve into the issue on 
its own since the statutes themselves were dispositive. In 
Leake, the District Court discussed both Bradley and the rule of 
prospective application of substantive amendments articulated in 
Bennett, but decided to apply the Bradley rule since the statute 
at issue was deemed restorative of prior rights. If anything, 
Leake demonstrates that this Court will apply the prospective 
presumption to substantive amendments like those at issue here.

16In Gersman, the D.C. Circuit also noted that, in dicta by 
then-Circuit Judge Clarence Thomas, that Court stated that Bowen 
reflects the correct rule that statutes are presumed prospective 
unless indicated otherwise. 59 Fair Emp. Prac. Cas. (BNA) at 
1886 (citing Alpo Petfoods, Inc, v. Ralston Purina Co., 913 F.2d 
958, 964 n. 6 [D.C. Cir. 1990] [Thomas, J.]).

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Fair Emp. Prac. Cas. (BNA) at 1263; Luddinqton, 966 F.2d at 227- 
228. Even under the Bradley presumption of retroactivity, the 
Eleventh Circuit found that the Act should not be applied 
retroactively because it came within the Bradley criteria for 
prospective application in cases of "manifest injustice."
Baynes, 1992 WL 296716, at *2; see Bradley, 416 U.S. at 711; 
contra Fray, 960 F.2d at 1378.

Although plaintiff views the § 1981 amendments as non­
substantive since the conduct proscribed by them was already 
unlawful under Title VII (Applt. Br. at 34-35, 39-40), every 
Circuit Court of Appeals that has addressed the issue has ruled 
otherwise. In Baynes, the Eleventh Circuit called the § 1981 
amendments "plainly substantive" (1992 WL 296716, at *3), 
explaining that (id. at n. 5):

even though race discrimination in 
employment was and remains illegal, 
the Act does increase significantly 
employers' obligations and 
employees' rights compared to prior 
law. That is, the Act subjects 
employers to liability for damages 
at common law, rather than only the 
lesser Title VII remedies, in cases 
of post-hiring discrimination 
(citation omitted).

Accord Holt, 59 Fair Emp. Prac. Cas. (BNA) at 1263; Johnson, 965 
F.2d at 1374 (§ 1981 amendments "[affect] substantive antecedent 
rights"); Luddinqton, 966 F.2d at 229; Mozee, 963 F.2d at 939; 
Vogel, 959 F.2d at 598.

Plaintiff mistakenly contends that applying the § 1981 
amendments to conduct before their enactment would not even

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constitute a retroactive application of the law since the 
proscribed behavior was already unlawful and there would be no 
effect on vested rights (Applt. Br. at 35, 40-41). This 
definition of retroactivity is too narrow. In Morgan Guaranty 
Trust, this Court said that "a statute creating a new obligation 
on the basis of considerations rooted in the past generally is 
said to operate retroactively." 971 F.2d at 921 (citations 
omitted). As the above-cited cases hold, the § 1981 amendments 
greatly expand an employer's liability for certain discriminatory 
conduct and plainly meet this test. As a result, retroactive 
application of these amendments is precluded.

Plaintiff also argues incorrectly that retroactive 
application of the § 1981 amendments is mandated by the 
"controlling" 1976 case of Brown v. General Services 
Administration, 507 F.2d 1300 (2d Cir. 1974), aff'd, 425 U.S. 820 
(1976) (Applt. Br. at 35). In Brown, the question was whether an 
amendment authorizing federal employees to bring discrimination 
actions in court should be given retroactive effect and be 
applied to cases already pending in the pre-existing 
administrative forum created for such complaints.

Plaintiff says that this Court ruled that retroactivity 
was appropriate because the statute merely created a new right of 
action for conduct that was already improper (Applt. Br. at 36). 
However, this analysis is based on a misreading of the opinion. 
Plaintiff relies on language that merely describes how the issues

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were framed in other Circuits as if it was the holding of this 
Court.

Actually, this Court said only that "[t]he conflict as 
to retroactivity has turned on whether Section 717(c) is to be 
viewed as providing a new substantive right for federal employees 
or whether it merely provides a new remedy for enforcing an 
existing right. 507 F.2d at 1305. In holding the statute 
retroactive, this Court did not apply this substantive-procedural 
distinction, relying, instead, on the presumption of 
retroactivity in Bradley. 507 F.2d at 1305-6. Nor did the
Supreme Court "[approve] this interpretation", as plaintiff says 
(Applt. Br. at 38). That Court simply noted that the parties 
were not disputing retroactivity and said that, therefore, "we 
have no occasion to disturb" this Court's ruling on 
retroactivity. 425 U.S. at 824 n. 4. Moreover, this opinion was 
written in 1976, before the Supreme Court retreated from Bradley.

Under currently applicable principles, the § 1981 
amendments should not be applied to conduct that occurred before 
their enactment.

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CONCLUSION
THE JUDGMENT OF THE DISTRICT COURT 
SHOULD BE AFFIRMED.

November 4, 1992

Respectfully submitted,
0. PETER SHERWOOD,
New York City Corporation 

Counsel,
Attorney for Appellee.

Fay Leoussis, 
Alan G. Krams , 

of Counsel.

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