Mills v. Polk County, FL School Board Reply Brief for Appellants

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

No. 86-1097

JOHN S. LYTLE,
Plaintiff-Appellant,
v .

HOUSEHOLD MANUFACTURING, INC. 
d/b/a/ SCHWITZER TURBOCHARGERS

Defendant-Appellee.

On Appeal from the United States 
District Court for the Western District 
of North Carolina, Asheville, Division

BRIEF FOR APPELLANT

JULIUS L. CHAMBERS 
RONALD L. ELLIS 
PENDA D. HAIR

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

REGAN A. MILLER
James, McElroy & Diehl 
600 South College Street 
Charlotte, North Carolina 2S202 
(704) 372-9870

October 1, 1986



TABLE OF CONTENTS
Table of Authorities m

QUESTIONS PRESENTED 1
STATEMENT OF THE CASE 1
STATEMENT OF THE FACTS 2

A. Discriminatory Discharge 2
1. Plaintiff's Work History 3
2. Plaintiff's Termination 4
3. Schwitzer's Absence Policy 8
4. Schwitzer's Treatment of White Employees 9

B. Retaliation Claim 11
C. The Decision Below 12

SUMMARY OF ARGUMENT 14
ARGUMENT

I. THE DISTRICT COURT ERRONEOUSLY DISMISSED PLAINTIFF'S 
CLAIM UNDER 42 U.S.C. SECTION 1981 AND 
UNCONSTITUTIONALLY DEPRIVED PLAINTIFF OF HIS RIGHT TO A JURY TRIAL 17
A. TITLE VII DOES NOT PREEMPT CLAIMS UNDER 42

U.S.C. SECTION 1981 17
B. TITLE VII AND SECTION 1981 CLAIMS MAY BE

BROUGHT IN THE SAME LAWSUIT 23
C. PLAINTIFF'S RETALIATION CLAIM IS ACTIONABLE

UNDER 42 U.S.C. SECTION 1981 31
D. PLAINTIFF IS CONSTITUTIONALLY ENTITLED TO A

JURY TRIAL ON HIS SECTION 1981 CLAIMS 32
II. THE TRIAL COURT'S JUDGMENT ON PLAINTIFF'S TITLE VII CLAIMS MUST BE VACATED 37



38
III. PLAINTIFF ESTABLISHED A PRIMA FACIE CASE

OF DISCRIMINATORY DISCHARGE UNDER TITLE VII
A. PLAINTIFF ESTABLISHED A PRIMA FACIE CASE 

UNDER THE SUPREME COURT'S MODEL OF PROOF OF 
INDIVIDUAL DISCRIMINATORY TREATMENT 38

B. PLAINTIFF ESTABLISHED A PRIMA FACIE CASE 
UNDER MOORE V. CITY OF CHARLOTTE 39

C. PLAINTIFF ESTABLISHED A PRIMA FACIE CASE OF 
DISCRIMINATION IN THE CLASSIFICATION OF HIS 
ABSENCES AS UNEXCUSED 44

CONCLUSION
ADDENDUM —  Relevant Statutes

ii



TABLE OF AUTHORITIES

Page

CASES
Acosta v. Univ. of District of Columbia, 528 F.Supp.

1215 (D. D.C. 1981) ................................ 27
Alexander v. Gardner-Denver, 415 U.S. 36 (1974) ...... ...15,21,24
Barfield v. A.R.C. Security, Inc., 10 FEP Cases 789

(N.D. Ga. 1975) ................................... 32
Beacon Theatres v. Westover, 359 U.S. 500 (1959) ..... . .14,16,37
Bell v. New Jersey, 461 U.S. 773 (1983) ............... 22
Bibbs v. Jim Lynch Cadillac, Inc., 653 F.2d 316 (8th

Cir. 1981) ........................................ 26
Bob Jones University v. United States, 461 U.S. 574

(1983) ............................................ 22
Boykin v. Georgia-Pacific Corp., 706 F .2d 1384 

(5th Cir. 1983), cert, denied, 465 U.S.
1006 (1984) .......................................

Brady v. Thurston Motor Lines, 726 F.2d 136 (4th Cir.), 
cert, denied, 84 L .Ed. 2d 53 (1984), subseauent 
decision on remedy, 753 F .2d 1269 (4th Cir. 1985) 26

Brown v. Gaston County Dyeing Machine Co., 457 F.2d 
1377, 1382 (4th Cir. 1972), cert, denied, 409 
U.S. 982 (1972) ................................... 42

Brown v. GSA, 425 U.S. 820 (1976) ..................... ..20,28,29
Burrus v. United Tel. Co., 683 F .2d 339 (10th Cir.),

cert, denied, 459 U.S. 1071 (1982) ............... 42
Burt v. Abel, 585 F.2d 613 (4th Cir. 1978) ...........
Carpenter v. Stephen F. Austin State University, 706

F .2d 608 (5th Cir. 1983) .........................

33

27

ill

27



Choudhury v. Polytechnic Institute of New York, 735
F . 2d 38 (2d Cir. 1984) ............................... 32

Claiborne v. Illinois Central Railroad, 583 F.2d 143 
(5th Cir. 1978), cert, denied, 442 U.S. 934
(1979) ................................................ 26,28

Continental Casualty Co. v. DHL Services, 752 F .2d 353
(1985)   35

Cox v. Consolidated Rail Corp., 557 F .Supp. 1261 (D.
D.C. 1983) ....................... TCt-t ...............  32

Curtis v. Loether, 415 U.S. 189 (1974) ...................  33
Dairy Queen v. Wood, 369 U.S. 469 (1962) ................. 37
Daniels v. Lord & Taylor, 542 F .Supp. 68 (N.D. 111.

1982)   27
DeMatteis v. Eastman Kodak Co., 511 F.2d 306 (2d Cir.),

modified on other grounds, 520 F.2d 409 (1975)   32
E.E.O.C. v. Gaddis, 733 F.2d 1373 (10th Cir. 1984) ......  26
Electrical Workers v. Robbins & Myers, Inc., 429 U.S.

229 (1976)   21
Ellis v. International Plavtex, Inc., 745 F.2d 292

(4th Cir. 1984)   35
Franks v. Bowman Transp. Co., 424 U.S. 747 (1976) .......  25
Furnco Construction Co. v. Waters, 438 U.S. 567 (1978) ... 43
Gairola v. Virginia Dept, of General Services, 753

F . 2d 1281 (4th Cir. 1985)   35
Gates v. I.T.T. Continental Baking, 581 F .Supp. 204

(N.D. Ohio 1984)   26,37
General Building Contractors v. Pennsylvania, 458 U.S.

375 (1982)   18,19,25
Goff v. Continental Oil Co., 678 F.2d 593 (5th Cir.

1982)   31,32
Goss v. Revlon Inc., 548 F.2d 405 (2d Cir. 1976) ........  21

IV



32
Grant v. Bethlehem Steel Corp., 22 FEP Cases 680

S.D.N.Y. 1978) ..................................
Great American S. & L. Ass'n v. Novotny, 442 U.S. 366

(1979)   29
Greenwood v. Ross, 778 F.2d 448 (8th Cir. 1985) .........  32
Gresham v. Waffle House, Inc. 586 F .Supp. 1442 (N.D.

Ga. 1984)   32
Griggs v. Duke Power, 401 U.S. 424 (1971)   19
Hall v. Pennsylvania State Police, 570 F .2d 86 (3d

Cir. 1978)   13
Hamilton v. Rodgers, 791 F . 2d 439 (5th Cir. 19.8 ) .......  28
Harris v. Richards Mfg. Co., 675 F.2d 811 (6th Cir.

1982)   21,26,32,33
Hudson v. 22 FEP Cases 947 (S.D.N.Y. 1975),

aff1d , 620 F.2d 351 (2d Cir.), cert, denied,
449 U.S. 1066 (1980)   32

Johnson v. Railway Express Agency Inc., 421 U.S. 454
1975) ................................... 18,19,20,26,29,30,33

Johnson v. Ryder Truck Lines, Inc., 575 F .2d 471 (4th
Cir. 1978), cert. denied, 440 U.S. 479 (1979) ...15,19,20,30

Jones v. Western Geophysical Co., 761 F.2d 1158 (5th
Cir. 1985)   26,28

Lanphear v. Prokop, 703 F.2d 1311, (D.C. Cir. 1983)   42
London v. Coopers & Lybrand, 644 F.2d 811 (9th Cir.

1981)   32
Lowe v. City of Monrovia, 775 F.2d 998 (9th Cir.

1985)   21,26
Mahone v. Waddle, 564 F.2d 1018 (3d Cir. 1977), cert.

denied, 438 U.S. 904 (1978)   18
Marable v. H. Walker & Associates, 644 F.2d 390 (5th

Cir. 1981)   13
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273

(1976)   25
v



McDonnell Douglas Corn. v. Green, 411 U.S. 792 (1973) ...38,39,40
Moffett v. Gene B. Glick Co., 621 F.Supp. 244 (N.D.

Ind. 1985) ...........................................  32
Moore v. City of Charlotte, 754 F.2d at 1100 (4th

Cir.), cert, denied, 105 S.Ct. 3489 (1985) .....  17,39,40,42
Moore v. Sun Oil Co. of Pennsylvania, 636 F.2d 154

(6th Cir. 1980)   33,37
New York City Transit Authority v. Beazer, 440 U.S. 568

(1979)   25
O'Brien v. Sky Chefs, Inc., 670 F.2d 864 (9th Cir. 1982) 42
Owens v. Rush, 654 F.2d 1370 (1981) ......................  30
Page v. U.S. Industries, Inc. 726 F.2d 1038 (5th Cir.

1984 )    27,28
Parson v. Kaiser Aluminum and Chemical Corporation,

727 F .2d 473 (5th Cir. 1984), cert, denied, 104
S.Ct. 3516 (1984)   26

Patterson v. American Tobacco Co., subsequent decision,
535 F.2d 257, cert. denied, 429 U.S. 920, subsequent 
decision, 634 F .2d 744 (1980), rev 1d on other
grounds, 456 U.S. 63 (1982)   42

Paxton v. United National Bank, 688 F.2d 552, 563 n. 15
(8th Cir. 1982), cert, denied, 460 U.S. 1083 (1983) 42

Pinkard v. Pullman-Standard, 678 F.2d 1211 (5th Cir.
1982) ................................................. 32

Poolaw v. City of Anadarko, 738 F.2d 364 (10th Cir.
1984), cert, denied, 84 L . Ed 2d 779 (1985) .........  26

Powell v. Pennsylvania Housing Finance Agency, 563
F.Supp. 419 (M.D. Penn. 1983)   27

Rivera v. City of Wichita Falls, 665 F.2d 531 (5th
Cir. 1982)   27,28

Rowe v. Cleveland Pneumatic Corp., 690 F.2d 88
(6th Cir. 1982)   42

vi



42
Rowe v. General Motors Corp., 457 F.2d 348, 357-58

(5th Clr. 1972) ......................................
Runyan v. McCrary, 427 U.S. 160 (1976) ...................
Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th

Cir. 1970), cert■denied, 401 U.S. 948 (1971) .......  21,
Segara v. McDade, 706 F.2d 1301 (4th Clr. 1983) .........
Setser v. Novack Investment Co., 638 F.2d 1137 (8th 

Cir.), modified, 657 F.2d 932, cert.denied,
102 S.Ct. 615 (1981) ................................31,32,

Sisco v. J.S. Alberici Const. Co., 655 F.2d 146 (8th
Cir. 1981), cert, denied, 455 U.S. 976 (1982) ......

Smith v. Western Elec. Co., 770 F.2d 520 (5th Cir.
1985)   27,

Stearns v. Beckman Instruments, Inc.,.737 F.2 1565
(Fed. Cir. 1984) .....................................

Tafoya v. Adams, 612 F.Supp. 1097 (D.C.
Colo 1985)   23,24,27,28,29,30,

Takeall v. WERD, Inc., 23 FEP Cases 947 (M.D. Fla.
1979) ...... ..........................................

Texas Department of Community Affairs v. Burdine, 450
U.S. 248 (1981) ......................................

Thomas v. Resort Health Related Facility, 539 F.Supp.
630 (E.D.N.Y. 1982)   27,

Thornburg v. Gingles, 54 U.S.L.W. 4877 (June 30, 1986) ...
Waters v. Wisconsin Steelworks, 427 F .2d 476 (7th

Cir.), cert, denied, 400 U.S. 911 (1970) ............
Webb v. Kroger Co., 620 F.Supp. 1489 (S.D. W.Va. 1985) ...
Whiting v. Jackson State University, 616 F.2d 116 (5th

Cir. 1980) ....................................  26,27,28,32,
Williams v. Owens-Illinois, Inc., 665 F.2d 918 (9th 

Cir. 1982), modified on other ground, 28 FEP 
Cases 1820, cert.denied, 459 U.S. 971 (1982) .......  26,

vii

18

22
33

33

32

28

35

31

32

38

38
22

21

45

39

33



Winston v. Lear-Siegler, 558 F.2d 1266 (6th Cir.
1977)   32

Wilson v. United States, 645 F .2d 728 (9th Cir. 1981) .... 35
Wright v. Olin Corp., 697 F.2d 1172, 1181

(4th Cir. 1982)   42
Young v. International Telephone and Telegraph Co.,

438 F. 2d 757 ( 1971) .................................. 18,22
Zuben v. Allen, 396 U.S. 168 (1969) ......................  22

Constitution and Statutes
U.S. Constitution, Thirteenth Amendment ................... 18
U.S. Constitution, Fourteenth Amendment ................... 18
28 U.S.C. §1291 ... ....................................... 2
42 U.S.C. §1981   Passim
42 U.S.C. §1985(c)   29
42 U.S.C. §2000e et seg....................................  Passim

Legislative Authorities
110 Cong. Rec. (1964)   21,25
118 Cong. Rec. ( 1972)   23,25
H. R. Rep. No. 238, 92d Cong. 1st Sess. (1971)   19,22-25
S. Rep. No. 415, 92d Cong. 1st Sess. (1971) .............. 22

Other Authorities
Fed. Rule Civ. Proc. 8(c)(2)   15,26
Fed. Rule Civ. Proc. 41(b)   14,34
Moore's Federal Practice (1985)   35
B. Schlei & P. Grossman, Employment Discrimination Law ...

viii
33



QUESTIONS PRESENTED
1. Whether independent causes of action under 42 U.S.C. § 

1981 and Title VII of the Civil Rights Act of 1964 that are based 
on the same set of facts may be joined in the same lawsuit?

2. Whether the constitutional right to a jury trial 
applies when legal claims under 42 U.S.C. § 1981 are joined with 
equitable claims under Title VII?

3. Whether plaintiff established a prima facie case of 
discriminatory termination under Title VII?

STATEMENT OF THE CASE
John S. Lytle filed this action on December 6, 1984, seeking 

relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
§2000e et seq., and the Civil Rights Act of 1866, 42 U.S.C.
§1981. JA 5. Lytle alleged that his employer, Schwitzer
Turbochargers (a subsidiary of defendant, Household 
Manufacturing, Inc.), discharged him because of his race and 
retaliated against him for filing a charge of discrimination with 
the Equal Employment Opportunity Commission. JA 5-8.

On December 26, 1984, plaintiff amended his Complaint to 
allege that he had suffered such special damages as
embarrassment, damage to his reputation, emotional distress and 
mental suffering as a result of the discriminatory and 
retaliatory acts of defendant. JA 10. Plaintiff was allowed to 
file a supplemental Complaint on November 27, 1985, which 
contained the requisite allegations to provide the court with



jurisdiction over the retaliation claim under Title VII. JA 24. 
Plaintiff requested a jury trial on his claims under Section 
1981. JA 8.

On April 19, 1985, defendant moved for summary judgment on 
several grounds, including that plaintiff's claim of 
discriminatory discharge was barred by the doctrine of collateral 
estoppel. (Pleading No. 11). On May 17, 1985, the District
Court denied the motion on the ground that "there is a genuine 
issue as to material facts." JA 23.

On February 26, 1986, the Court dismissed plaintiff's claims 
under 42 U.S.C. §1981, and denied plaintiff's request for a jury 
trial. TR 2-10. Plaintiff's Title VII claims were tried to the 
District Court on February 26-27, 1986. At the close of 
plaintiff's case, the Court made findings of fact, and granted a 
motion under Fed. Rule Civ. Proc. 41(b) to dismiss the claim of 
discriminatory discharge. TR 258-59. At the close of all of the 
evidence, the Court, after making findings of fact and 
conclusions of law, ruled for defendant on the retaliation claim. 
The Court entered a judgment in favor of defendant on all claims 
on March 12, 1986. TR 300-01.

Plaintiff filed a timely notice of appeal on April 11, 1986. 
JA 63. This Court has jurisdiction under 28 U.S.C. §1291.

STATEMENT OF THE FACTS
A. DISCRIMINATORY DISCHARGE
This case involves the firing of a black employee for

2



alleged unexcused absences on two days. Plaintiff, supported by 
his doctor, claimed that he was ill and that his absence should 
have been classified as excused in accordance with defendant's 
absence policy. Plaintiff also showed that white employees with 
"excessive absence" in violation of defendant's policy were not 
fired.

1. Plaintiff's Work History
John Lytle, a black person, first applied for a job as a 

machine operator at the Arden, North Carolina, plant of Schwitzer 
Turbochargers on February 29, 1980. TR 80. Schwitzer is engaged 
in the business of manufacturing turbochargers and fan drives. TR 
13.

At the time he applied with Schwitzer, Lytle had about 20 
years experience operating the kinds of machines used by 
Schwitzer. TR 84. Nonetheless, after an initial interview, he 
received no response to his application. TR 81. When he 
contacted Schwitzer's Human Resources Counselor, Judith Boone, 
Lytle was told that his application had been "misplaced on the 
floor." TR 82. Then, rather than consider Lytle for a machinist 
job, Boone told him that "there would be a chance for [him] to be 
hired" if he attended an unpaid training course. TR 83. It was 
not until January 15, 1981, after Lytle had completed this 
training course, in which many of the trainees had never operated 
a machine, that he was hired by Schwitzer into the lower level 
position of machinist trainee. TR 83-84, 87. Less experienced

3



whites were hired directly into machine operator positions, TR 
82-83.

During Lytle's employment at Schwitzer, his immediate 
supervisor was Larry Miller, the Production Superintendent was A1 
Duquenne, the Employee Relations Manager was Lane Simpson and the 
Human Resources Counselor was Judith Boone, all of whom were 
white. (Defendant's Answer to Plaintiff's First Request for 
Admissions, ££> 1-4). In 1983, only seven of Schwitzer's 148
employees were black. TR 14.

Lytle slowly progressed into higher paying jobs and finally 
achieved the highest graded machinist classification. TR 87-89. 
In his 1982 performance evaluation, Lytle was commended for his 
good attendance record. TR 86; PX 6. He was never reprimanded 
or disciplined for attendence problems. TR 86-87.

2. Plaintiff's Termination
In February, 1983, Lytle began taking courses in mechanical 

engineering at Asheville-Biltmore Technical College. TR 91. 
These courses were taken "to better my job performance" and 
"qualify for some of the better jobs at Schwitzer." Id. Lytle 
was encouraged by his supervisors at Schwitzer to undertake this 
educational program and, in fact, Schwitzer provided tuition 
reimbursement. TR 92-93.

Lytle enrolled in a program which required that he attend 
classes at least four evenings a week. TR 95. Since his shift 
at Schwitzer normally ended at 3:30 p.m., these evening classes

4



did not conflict with his work schedule. TR 90-92. On class
days, Lytle left work at 3:30 p.m., arrived home about 4:00 p.m., 
had something to eat, arrived at the college library to study at 
4:30 or 5:00 p.m., and attended class from 6:30 p.m. until 
between 9:00 and 11:00 p.m. TR 92. He also frequently found it 
necessary to study in the late evening and early morning hours. 
TR 120.

By Summer, 1983, Lytle had begun to suffer health problems 
as a result of this arduous schedule. He complained to the plant 
nurse that he was dizzy, run down and possibly suffering from 
high blood pressure. TR 71-72, 121. The nurse recommended that 
he consult a doctor. Id. In June or July, Lytle also informed 
his supervisor, Larry Miller, of these health problems and stated 
that for this reason he preferred not to work overtime. TR 120.

At the beginning of August, 1983, Lytle cut back his school 
program to two evenings per week. TR 95. During the first week 
of August, Schwitzer machinists were called upon to work a 
substantial amount of overtime in order to keep up with 
production requirements. TR 238. Lytle worked a total of five 
hours of overtime during that week. TR 127.

The next week, Lytle's health problems became worse and on 
one occasion he became so dizzy that he fainted. TR 132. He 
scheduled an appointment for Friday, August 12, 1983, with a 
doctor who had been recommended by the Schwitzer nurse. TR 122, 
130-131. On Thursday morning, August 11, Lytle asked his

5



supervisor, Miller, for permission to schedule Friday, August 12, 
as a vacation day. TR 129-132. Although sick leave would have 
been granted for a doctor's appointment, Lytle preferred to have 
the absence treated as a vacation day. TR 194. Such treatment 
meant that the day would not be counted as an absence under 
Schwitzer's policy regarding "excessive absence." TR 208. 
Treating absences because of illness as vacation days was a 
common practice among Schwitzer's employees. TR 208.

Miller at first informed Lytle that there was no problem 
with a vacation day on Friday the 12th. TR 130. However, later 
in the day, Miller stated to Lytle: "if you're off Friday, you 
have to work Saturday." TR 131. Saturday was not a normal work 
day for Lytle, but Miller stated that Lytle was required to work 
overtime on Saturday. TR 132. Lytle "explained that I wanted 
Friday off to see the doctor, and I wouldn't be able to work 
Saturday because I was physically unfit." TR 131-32. Miller 
still insisted that Lytle work on Saturday, at which point Lytle 
stated that if it were required, he would also take Saturday as a 
vacation day. TR 132. Miller walked off, without objecting to 
this suggestion. TR 132. Lytle understood that Friday would be 
treated as a vacation day, and that he had sufficiently informed 
Miller that he was physically unable to work on Saturday. TR 
191.

About an hour later, Miller's assistant came to Lytle's work 
station with a message that Lytle had received an emergency

6



TR 133.telephone call. TR 133. Lytle went to the employee's pay 
telephone and tried to call home. TR 134. When he could not get 
through, Lytle went to the nearest company telephone to call the 
switchboard operator. He intended to inquire whether his wife 
had stated the nature of the emergency. TR 135.1

While Lytle was talking with the switchboard operator, 
supervisor Miller entered the room. TR 135-36. Lytle 
immediately hung up the telephone and went out into the hallway 
where Miller was waiting. TR 136. Miller then "jumped all over" 
Lytle. TR 136. Miller kept repeating that Lytle could not use 
the company telephone or leave his job station without 
permission. TR 13 6. Lytle "tried to explain to him what I was 
doing on the phone, but he wouldn't listen." TR 136. Because he 
found it impossible to reason with Miller, Lytle "walked off and 
went back to work." TR 136.

As Lytle was getting ready to go home, Miller "threw ... in 
[Lytle's] tool box" a schedule of overtime for the following 
week. TR 136-37. Miller again did not indicate that he had 
disapproved Lytle's request to take Friday and Saturday as 
vacation days. TR 137.

On Friday, August 12, Lytle kept his appointment with 
Dr. Caldwell. TR 139. Dr. Caldwell testified at the trial as an 
expert in internal medicine. TR 198. Dr. Caldwell diagnosed 1

1Lytle later found out that his child had suffered a medical 
emergency while at school. TR 138-39.

7



Lytle as suffering from fatigue and depression. He recommended 
that Lytle reduce his activities "in regard to ... work and/or 
school" and that he get more rest. TR 200. He also felt that 
Lytle was under too much stress and "that an impending major 
illness might follow." Id. Dr. Caldwell concluded that Lytle 
was ill on the day that he was examined, and he would have given 
Lytle an excuse for not working the next day. TR 201, 203.

Except for three hours in Dr. Caldwell's office, Lytle 
stayed at home and rested on Friday and Saturday, August 12-13. 
TR 140-41.

On Monday, August 15, Lytle returned to work as usual. TR 
141. During the day he was called into the office of Mr. A1 
Duquenne, the plant manager. TR 142. Duquenne questioned him 
about his absence on Friday and Saturday. Id. Lytle stated that 
he had been granted permission to take a vacation day for the 
Friday doctor's appointment. Id. Lytle also informed Duquenne 
that he had discussed with Miller the fact that he was physically 
unable to work on Saturday. TR 145. Later in the day, Lytle was 
informed that he had been terminated. Id.

3. Schwitzer's Absence Policy
In February, 1982, Schwitzer adopted an Absence Policy which 

outlined "the procedure to be used by our employees to schedule 
or report necessary absences, tardiness or leaving early." px 
22, p. 1. Pursuant to this policy, an employee was to report all 
anticipated absences to his or her supervisor "as soon as

8



possible in advance of the time lost, but not later than the end 
of the shift on the previous workday." Id.

This Policy provided that absences would be excused for 
urgent personal business, urgent family obligation and personal 
illness. PX 22, p. 2. The policy also provided that "excessive" 
absence "will, most likely, result in termination of employment." 
PX 22, p. 3. It defined "Excessive Absence" as either "a total 
absence level which exceed[s] 4% of the total available working 
hours, including overtime" or "any unexcused absence which 
exceeds a total of 8 hours (or one scheduled work shift) within 
the preceding 12-month period." PX 22, pp 2-3.

4. Schwitzer's Treatment of White Employees
Plaintiff introduced evidence from defendant's own records 

of white employees who were not terminated despite "excessive 
absence." Several white employees had excessive excused 
absences. In January, 1983, Donald Rancourt, a white machinist, 
TR 217-18, • received a written warning from Larry Miller 
concerning an absence rate of 7.5%. TR 222, 23 0. In April,
1983, Rancourt's annual performance review noted that his absence 
rate as of the week ending March 20, 1983 was 5.6%. TR 48; PX
15-C, page 4. Rancourt was not terminated. TR 54.

As of March 2, 1984, Jeffrey C. Gregory, a white machinist, 
had an annual absence level of 6.3% of total available working 
hours. TR 57-58; PX 28-B. He was not terminated. TR 58. It is 
not clear whether he was even counselled concerning his excessive

9



absenteeism. TR 58.
On July 13, 1983, approximately one month prior to 

Schwitzer's termination of Lytle, Rick Farnham, a white machine 
operator, was counselled for excessive absenteeism. TR 55-56; PX
12- B. At that time Farnham's annual absence rate was 4.3%. TR 
56; PX 12-B.. Farnham was not terminated.

On August 23, 1982, David Calloway, a white machinist, was 
given his second warning in three months about excessive 
absenteeism. In June, 1982, his absence percentage was 4.5% and 
he was warned that "an immediate improvement must be made." PX
13- B, p. 1. In August, his absence percentage remained at 4.5%. 
He had been absent for a total of 16.2 hours since the June 
warning, and two absences were on consecutive Mondays. TR 44. 
Instead of termination, Calloway was given an additional sixty 
days in which to correct the problem. PX 13-B.

In addition, Greg Wilson, a white machinist, was absent two 
successive days without obtaining prior approval. TR 23-24. Of 
the sixteen hours of absence, eight were categorized as 
unexcused. The second day's absence was "excused" because Wilson 
called to inform his supervisor that he was ill. This two-day 
absence followed three unexcused tardies. Thus, as of March, 
1983, Mr. Wilson had accumulated excessive unexcused absences. 
TR 67. Yet, Wilson was not fired, but merely counselled to 
improve his absence record. The record of employee counselling, 
dated March 3, 1983 states:

10



"On 3-2-83, Greg was absent from 
work for 8 hours without calling 
in, and was unexcused for this 
reason. Greg has had 3 previous 
unexcused absences for tardiness, 
for which he was verbally warned.
... Greg has exceeded the unexcused 
absence limit defined in our 
Absence Policy and will be 
terminated if further unexcused 
absence occurs within the next 12- 
month period."

PX 14B. (Emphasis added).
B . RETALIATION CLAIM

On August 23, 1983, Lytle filed a charge of discrimination 
with the Equal Employment Opportunity Commission. TR 61; PX 1. 
This charge was received by Schwitzer's Human Resources 
Counselor, Judith Boone, shortly thereafter. TR 61-62. Around 
the same time, Lytle began seeking employment with other 
businesses in the Asheville area without success. He was 
informed by some of these prospective employers that they were 
having difficulty getting an adequate reference from his former 
employer, Schwitzer. TR 111.

Mr. Adrienne Finch interviewed Lytle for a position at ABF 
Freight Systems. TR 100. Judith Boone, Schwitzer's Human 
Resources Counselor, received an employment reference tracer for 
Lytle from ABF headquarters. Although the form stated that 
applicants could not be hired unless the questionnaire was 
completed, Boone refused to answer the questions or return the 
form. In a telephone interview, she provided only job title, 
date of hire, and date of termination. TR 65-67.

11



Lytle was also informed by Steve Yates, Personnel Director 
of Thomas and Howard, that he was not able to obtain sufficient 
information from Schwitzer in order to determine whether or not 
to hire Lytle. TR 111. Judith Boone refused to provide any 
information to Thomas and Howard except for dates of employment 
and position title. TR 112.

Schwitzer claimed that it was merely applying its normal 
policy with respect to references for individuals who have been 
involuntarily terminated. TR 261. Yet, Joe Carpenter, a white 
male, obtained a favorable letter of reference signed by Mr. Lane 
Simpson, the Personnel Director of Schwitzer. This letter 
stated: "Joe proved to be both willing and competent in
performing any duty required of him. I can recommend Joe to any 
potential employer. ..." PX 10. Carpenter, who was terminated 
from his position as a Machine Operator II for falsification of 
timesheets, was the only machinist involuntarily terminated prior 
to Lytle in 1983. Defendant claimed that Mr. Carpenter's letter 
of reference was a mistake. TR 270.
C. THE DECISION BELOW

In dismissing plaintiff's claims under the Civil Rights Act
of 1866, 42 U.S.C. section 1981, the Court reasoned:

I will find from the pleadings in 
this cause that there is no 
independent basis alleged in the 
1981 action. I will conclude, 
based upon the reasoning of the 
Tafoya case, that Title VII 
provides the exclusive remedy, and 
this case will be tried by the

12



Court without a jury, and the 1981 
claim is dismissed.

TR 8.
In granting a Rule 41(b) dismissal of plaintiff's claim of 

discriminatory discharge, the Court concluded that plaintiff had 
not established a prima facie case of discrimination. The Court 
first stated that plaintiff had 9.8 hours of unexcused absence. 
TR 258. The Court also found that plaintiff had shown evidence 
of four white employees who exceeded the excused absence limit 
and who were given warnings. Id. The Court ruled "that the 
conduct on the part of the white employees is not substantially 
similar in seriousness to the conduct for which plaintiff was 
discharged." TR 259. The Court therefore concluded "as a matter 
of law that [plaintiff] has not established a prima facie case, 
since he has not established that Blacks were treated 
differently, and in fact committed violations of the company's 
policy of sufficient seriousness." TR 259.

With regard to the retaliation claim, the Court, after 
hearing all of the.evidence, made findings of fact that defendant 
had a policy "that when asked for references from prospective 
employees, the defendant provided only the dates of employment 
and the job title and, if requested, a description." TR 300. 
The Court found as fact "that the granting of that one favorable 
letter of reference was done through inadvertence." TR 300.

13



SUMMARY OF ARGUMENT
Plaintiff, alleging that his employer fired him because of 

his race and then retaliated against him for filing an EEOC 
charge, joined claims under both 42 U.S.C. § 1981 and Title VII 
of the Civil Rights Act of 1964. He requested a jury trial. The 
primary issue raised by this appeal is whether the District Court 
improperly dismissed plaintiff's claim under 42 U.S.C. § 1981 and 
thus deprived plaintiff of a jury trial on the critical questions 
of discriminatory and retaliatory intent. If plaintiff was 
entitled to a jury trial on his claims under § 1981, then the 
District Court's determinations on plaintiff's Title VII claims 
must be vacated to await resolution of joint factual issues by 
the jury. Beacon Theatres v. Westover. 359 U.S. 500 (1959).

Plaintiff also argues that the District Court erred in 
ruling that he did not establish a prima facie case of 
discrimination under Title VII. However, in dismissing 
plaintiff's discharge claim under Rule 41(b), the District Court 
relied upon findings of fact on issues that should have been 
reserved for the jury. Thus, this Court need not reach the Title 
VII issue if it agrees that plaintiff is entitled to a jury trial 
on the issue of liability.

With regard to the first issue, the United States Supreme 
Court, this Court and a vast number of lower federal courts have 
concluded that Title VII does not preempt claims under § 1981. 
Rather, "Section 1981 affords a federal remedy against racial

14



discrimination in employment that is 'separate, distinct, and 
independent' from the remedies available under Title VII." 
Johnson v. Ryder Truck Lines. Inc.. 575 F.2d 471 (4th Cir. 1978), 
cert, denied. 440 U.S. 979 (1979). These decisions rest squarely 
on explicit legislative history that Title VII was not "meant to 
affect existing rights granted under other laws." S. Rep. No. 
415, 92d Cong., 1st Sess. 24 (1971).

It is not necessary that a victim of employment 
discrimination "elect" remedies. Rather, "Title VII manifests a 
congressional intent to allow an individual to pursue 
independently rights under both Title VII and other application 
state and federal statutes." Alexander v. Gardner-Denver. 415 
U.S. 36, 48 (1974)(emphasis added).

Section 1981 and Title VII claims may be joined in a single 
proceeding. Fed. Rule Civ. Proc. 8(e)(2). Indeed, such joinder 
should be encouraged to avoid the expense and inconvenience of 
separate lawsuits. The United States Supreme Court, this Court 
and scores of other federal courts have entertained complaints 
joining § 1981 and Title VII claims.

Moreover, plaintiff in this case presented triable issues of 
fact that should have been submitted to the jury. Plaintiff was 
fired allegedly for excessive unexcused absences over a two and a 
half day period in August, 1983. Plaintiff's so-called unexcused 
absences consisted of leaving at the normal end of his shift on a 
Thursday afternoon, rather than working overtime. Plaintiff

15



explained that he was required to leave on that afternoon because 
of an emergency telephone call. Plaintiff was absent on the 
following Friday and Saturday because of a doctor's appointment 
and illness. Plaintiff submitted evidence that all of these 
absences should have been excused under defendant's normal policy 
of excusing absences caused by doctor's appointments, illness or 
an urgent personal emergency. Clearly plaintiff's evidence 
raised a triable question of fact as to whether discrimination 
motivated the classification of his absences as unexcused.

Plaintiff also submitted evidence that five whites in his 
department had excessive absences under the defendant's Absence 
Policy and were not terminated. This evidence, particularly when 
combined with plaintiff's more general evidence of discriminatory 
intent, was sufficient to raise a question of fact concerning 
defendant's motive in terminating plaintiff.

If the Court rules that plaintiff was unconstitutionally 
denied the right to a jury trial, the trial court's dismissal of 
his Title VII claims must be vacated. Under Beacon Theatres, all 
joint issues of fact concerning legal and equitable claims that 
have been raised in a single lawsuit must first be decided by the 
jury. Only then may the remaining equitable issues be decided by 
the Court. The District Court erred in this case by denying the 
request for a jury trial and then deciding the Title VII claims. 
To correct this error, the Title VII judgment must be vacated and 
remanded for entry of a ruling consistent with the jury's verdict

16



on the § 1981 claims.
If this Court does not order a jury trial on joint issues of 

fact affecting plaintiff's Title VII claims of discrimination and 
retaliation, then the Court must decide whether plaintiff 
established a prima facie case of discriminatory discharge. 
Under the standards announced in Moore v. City of Charlotte. 754 
F . 2d at 1100, 1110 (4th Cir.), cert, denied. 105 S.Ct. 3489 
(1985), plaintiff clearly met this burden. Moore directs that 
the District Court analyze similarity of offenses by utilizing 
the employer's own scale of seriousness of offenses. Here, 
plaintiff showed that other employees had "excessive absences" 
within the meaning of his employer's definition and yet were not 
terminated. Moreover, plaintiff presented a prima facie case of 
discrimination in the classification of absences as unexcused in 
circumstances where the absences of white employees were excused. 
Thus, the District Court's Rule 41(b) dismissal of plaintiff's 
claim of discriminatory discharge must be reversed.

ARGUMENT
I. THE DISTRICT COURT ERRONEOUSLY DISMISSED PLAINTIFF'S 

CLAIM UNDER 42 U.S.C. SECTION 1981 AND 
UNCONSTITUTIONALLY DEPRIVED PLAINTIFF OF HIS RIGHT TO A 
JURY TRIAL
A. TITLE VII DOES NOT PREEMPT CLAIMS UNDER 42 

U.S.C. SECTION 1981
Plaintiff's complaint joined claims under both Title VII of 

the Civil Rights Act of 1964 and the Civil Rights Act of 1866, 
codified as 42 U.S.C. § 1981. Title VII and § 1981, "although

17



related, and although directed to most of the same ends, are
separate, distinct and independent." Johnson v. Railway Express 
Agency Inc.. 421 U.S. 454, 461 (1975). Section 1981 authorizes a 
civil action to secure "a limited category of rights, 
specifically defined in terms of racial equality." General 
Building Contractors Ass'n v. Pennsylvania. 458 U.S. 375, 384 
(1982).2 The rights protected by § 1981 are based on the 
fundamental principles of the Thirteenth and Fourteenth 
Amendments.3 Section 1981 "on its face relates primarily to 
racial discrimination in the making and enforcement of 
contracts," including discrimination in employment.4 Railway

2Section 1981 is derived from §1 of the Civil Rights Act of 
1866. See General Building Contractors. 458 U.S. at 384. It was 
recodified as §16 of the Civil Rights Act of 1870. Id. at 385.

As currently codified, 42 U.S.C. §1981 provides:
All persons within the jurisdiction 
of the United States shall have the 
same right ... to make and enforce 
contracts ... as is enjoyed by 
white citizens.

3General Building Contractors. 458 U.S. at 396, n.17; Mahone 
v. Waddle. 564 F.2d 1018, 1030 (3d Cir. 1977), cert, denied. 438 
U.S. 904 (1978); Young v. International Telephone and Telegraph 
Co. , 438 F.2d 757, 759 (1971); Waters v. Wisconsin Steelworks. 
427 F.2d 476, 482 (7th Cir. 1970), cert, denied. 400 U.S. 911 
(1970) .

4The reach of section 1981 is not limited to employment 
discrimination. See, e.g.. Runvan v. McCrary. 427 U.S. 160, 172- 
73 (1976)(§1981 prohibits private, nonsectarian, commercially- 
operated schools from denying admission on the basis of race); 
Marable v. H. Walker & Associates. 644 F.2d 390, 395 (5th Cir. 
1981)(§1981 applied to invidious discrimination in housing); Hall 
v. Pennsylvania State Police. 570 F.2d 86, 91-2 (3d Cir. 
1978)(§1981 requires commercial enterprises to extend the same

18



Express. 421 U.S. at 459-60.
Title VII, by contrast is limited in its coverage to 

employment discrimination. However, Title VII covers such 
discrimination on the basis of religion, sex and national origin 
as well as race and color. Moreover, Title VII prohibits 
unintentional discrimination under the disparate impact theory of 
liability, while §1981 liability requires a finding of 
discriminatory intent.5

Section 1981 and Title VII also provide different procedures 
and remedies. "[T]he two procedures augment each other and are 
not mutually exclusive." H.R. Rep. No. 238, 92d Cong. 1st Sess. 
19 (1971) . Section 1981 provides the right to a jury trial,
while Title VII does not. In addition, Title VII provides a 
mandatory, comprehensive administrative scheme of enforcement. 
"[T]he filing of a Title VII charge and resort to Title VII's 
administrative machinery are not prerequisites for the 
institution of a § 1981 action." Railway Express. 421 U.S. at 
460. Section 1981 authorizes compensatory and punitive damages, 
as well as the types of equitable relief provided by Title VII. 
Id.

in Johnson v. Ryder Truck Lines. Inc.. 575 F.2d 471 (4th 
Cir. 1978), cert, denied. 440 U.S. 979 (1979), this Court held

treatment to contractual customers).
5Compare Griggs v. Duke Power Co.. 401 U.S. 424 (1971). with 

General Building Contractors. 458 U.S. at 389.

19



that Title VII does not preclude relief under 42 U.S.C. §1981. 
The Court concluded: "The Civil Rights Act of 1964 did not 
repeal by implication any part of §1981 ... Section 1981 affords 
a federal remedy against racial discrimination in private 
employment that is 'separate, distinct, and independent' from the 
remedies available under Title VII of the 1964 Act." Id. at 473- 
74.

This Court's decision in Ryder Truck Lines is consistent 
with binding Supreme Court precedents and with the overwhelming 
weight of authority in the lower federal courts. In Johnson v. 
Railway Express Agency. 421 U.S. at 461, the Supreme Court 
rejected the theory that Title VII is the exclusive remedy for 
private employment discrimination. In that case, the Court held 
that the timely filing of a charge with the EEOC under Title VII 
did not toll the running of the limitations period for a §1981 
claim based upon the same facts. Id. at 466. The Court 
concluded "that Congress clearly has retained § 1981 as a remedy 
against private employment discrimination separate from and 
independent of the more elaborate and time-consuming procedures 
of Title VII." Id. at 466.

The Supreme Court reaffirmed the Railway Express decision in 
Brown v. GSA. 425 U.S. 820, 829 (1976). Brown held that section 
717 of Title VII. provides the exclusive judicial remedy for 
claims of discrimination in federal employment. The Court 
contrasted this exclusive remedy for federal employees with the

20



Railway Express decision governing private employment. Id. The 
Court in Brown further noted that Johnson rested on an explicit 
legislative history of Title VII which "'manifests a 
congressional intent to allow an individual to pursue 
independently his rights under both Title VII and other 
applicable state and federal statutes.'" 425 U.S. at 833 
(emphasis added)(quoting Alexander v. Gardner-Denver. 415 U.S. at 
48) . See also Electrical Workers v. Robbins & Mvers, Inc.. 429 
U.S. 229, 236-37 (1976).

The District Court's conclusion that "Title VII provides the 
exclusive remedy" also conflicts with decisions of numerous lower 
federal courts holding that Title VII did not preempt §1981.6

These court decisions are soundly based on the legislative 
history of Title VII. In 1964, Congress rejected an amendment 
proposed by Senator Tower that would have made Title VII the 
exclusive federal remedy for employment discrimination. 110 
Cong. Rec. 13650-52 (1964). In support of this amendment, 
Senator Ervin read the text of §1981 into the record. 110 Cong. 
Rec. 13075. Thus, Congress' knowledge of the §1981 cause of 
action when it rejected Senator Tower's amendment cannot be 
doubted.

6E.g. , Lowe v, City of Monrovia. 775 F.2d 998, 1010 (9th 
Cir. 1985); Harris v. Richards Mfq. Co. . 675 F.2d 811, 814 (6th 
Cir. 1982); Goss v. Revlon Inc. . 548 F.2d 405, 407 (2d Cir. 
1976); Sanders v. Dobbs Houses. Inc.. 431 F.2d 1097, 1100 (5th 
Cir. 1970), cert. denied. 401 U.S. 948 (1971); Waters v. 
Wisconsin Steelworks. 427 F.2d 476, 434-85 (7th Cir.), cert. denied. 400 U.S. 911 (1970).

21



When Title VII was extended to cover state and local
employees in 1972, both the House and the Senate Reports
reaffirmed the continued viability of § 1981 as a remedy for
employment discrimination. The House Report stated:

[T]he Committee wishes to emphasize 
that the individual's right to file 
a civil action in his own behalf, 
pursuant to the Civil Rights Act of 
1870 . . ., 42 U.S.C. § 1981, . . . 
is in no way affected.
Title VII was envisioned as an 
independent statutory authority 
meant to provide an aggrieved 
individual with an additional 
remedy to redress employment 
discrimination.

H.R. Rep. No. 238, 92d Cong., 1st Sess. 18-19 (1971).7 The
Senate Report similarly provided that Title VII was not "meant to 
affect existing rights granted under other laws." S. Rep. No. 
415, 92d Cong., 1st Sess. 24 (1971).8

In addition, in 1972 Congress twice rejected a proposed 
amendment that would have made Title VII an exclusive remedy.

7The Committee also noted with approval the Court decisions 
in Young v. I.T. & T.. 438 F.2d 757 (3d Cir. 1971) and Sanders v. 
Dobbs House, supra. holding that Title VII and § 1981 remedies 
augment each other and are not mutually exclusive. Id.

8 Subsequent legislative history is most authoritative when 
Congress relies on its understanding of the meaning of a statute 
in revising the statute. E.g.. Bell v. New Jersey. 461 U.S. 773, 
784-85 & n. 12 (1983); Bob Jones University v. United States. 461 
U.S. 574, 599-602 (1983).

The Supreme Court has repeatedly recognized that the 
authoritative source for legislative intent lies in the committee 
reports on the bill. Thornburg v. Gingles. 54 U.S.L.W. 4877, 
4881 n.7 (June 30, 1986). See also. Zuben v. Allen. 396 U.S. 
168, 186 (1969) .

22



118 Cong. Rec. 3373, 3965. Senator Hruska, sponsor of the
proposed amendment, called upon the Senate to cure "the defects 
of the existing law" and to avoid what he perceived to be an 
unnecessary multiplicity of suits under other laws. 118 Cong. 
Rec. 3960. He warned that without the Amendment, "the employee 
could completely bypass both the E.E.O.C. and the N.L.R.B. and 
file a complaint in Federal court under the provisions of the
Civil Rights Act of 18 66----» 118 Cong. Rec. 3173. Senator
Hruska reminded his colleagues that Title VII did not grant
exclusive jurisdiction of employment discrimination cases to the 
EEOC. On the contrary, the design of Title VII provided for use
of "all available means." 118 Cong. Rec. 3960. Senator
Williams, in opposing the amendment, cautioned that the passage 
of the Amendment would "wipe out" §1981, "one of the basic civil 
rights statutes that have guided the country for a century." 118 
Cong. Rec. 3963. Thus, Congress in 1972 was fully aware that 
§1981 rights were not preempted by Title VII when it again 
rejected an amendment to make Title VII the exclusive remedy for 
employment discrimination.

B. TITLE VII AND SECTION 1981 CLAIMS MAY BE
BROUGHT IN THE SAME LAWSUIT

The Court below, and the Tafoya decision upon which it
relied, attempted to fashion two exceptions to the employment
discrimination victim's right to pursue both Title VII and §1981 
remedies. First, the Court below appears to suggest that a 
plaintiff may pursue only one of the two remedies available to

23



him. See TR 8 ("It would appear from a very cursory reading of 
Johnson [v. Railway Express] that the Title VII action was never 
filed as a lawsuit in that case."). Second, the Court in Tafoya 
v . Adams. 612 F. Supp. 1097 (D.C. Colo. 1985), concluded that 
while "Congress did not intend to preclude [state and local 
employees] from bringing §§ 1981 and 1983 claims completely," 612 
F. Supp. at 1101, the claims may not be joined "in the same 
judicial proceeding" unless the § 1981 claims "are independent 
and are not based on violations of rights set forth in Title 
VII." Id. at 1102-1103. Both of these suggested limitations on 
the availability of Title VII and § 1981 remedies are at odds 
with the court authorities and legislative history and must be 
rejected.

The suggestion that a victim of employment discrimination 
must "elect" remedies has been rejected by the Supreme Court. In 
Alexander v. Gardner-Denver Co.. 415 U.S. 36, 46, 49 (1974), the 
Court reversed rulings by a District Court and Court of Appeals 
that "the doctrine of election of remedies" could apply to 
preclude Title VII lawsuits. Instead, the Court held that "Title 
VII manifests a congressional intent to allow an individual to 
pursue independently his rights under both Title VII and other 
applicable state and federal statutes." Id. at 48 (emphasis 
added).

The legislative history mandates this conclusion. As noted 
above, Congress intended that Title VII would provide an

24



additional remedy and that rights under § 1981 would not be
affected. H. R. Rep. No. 238, supra. at 18-19. Obviously, 
forcing a plaintiff to elect remedies "affects'* the availability
of the § 1981 remedy. Moreover, Congress was aware of the
existence of multiple remedies. See 110 Cong. Rec. 13651
(1964)(Senator Tower). In 1972, Senator Hruska argued for
exclusivity because:

Court decisions issued subsequent 
to the passage of Title VII have 
held that Title VII has not 
preempted the field of civil rights 
in employment and thus an 
individual has an independent cause 
of action in cases of employment 
discrimination pursuant to the 
provisions of the Civil Rights Act 
of 1866 (42 U.S.C. 1981) and 1871 
(42 U.S.C. section 1983) and that 
actions may be brought under all 
three laws simultaneously.

118 Cong. Rec. 1791-92. (Emphasis added).
The notion that Title VII and § 1981 claims may not be 

brought in the same proceeding unless the § 1981 claim is 
supported by an "independent basis" is equally erroneous. Since 
enactment of Title VII, the Supreme Court on numerous occasions 
has issued decisions in cases where the plaintiff joined in the 
same lawsuit a Title VII and a § 1981 claim based on the same 
facts.9 Yet, the Court has never hinted that such a procedure is

9E.g., General Building Contractors, supra; New York City 
Transit Authority v. Beazer. 440 U.S. 568, 577 (1979); McDonald
Yj__Santa Fe Trail Transp. Co. . 427 U.S. 273, 285, 296 (1976);
Franks v. Bowman Transp. Co.. 424 U.S. 747, 750, n.l (1976).

25



prohibited or that two separate lawsuits should instead be 
pursued.10 *

Similarly, this Court,11 and other federal courts in scores 
of cases have heard both Title VII and §1981 claims based on the 
same facts in the same lawsuit. See Fed. Rule Civ. Proc. 
8(e)(2). These courts have afforded to plaintiffs the procedural 
and substantive protections available under both statutes.12

10The Court in Johnson v. Railway Express appeared to 
recommend such joinder of claims, when it suggested that a § 1981 
plaintiff could ask the District Court to stay the § 1981 
proceedings until the Title VII administrative process has been 
completed. 421 U.S. at 465.

i:iE.g. . Brady v. Thurston Motor Lines. 726 F.2d 136, 138 
(4th Cir.), cert, denied. 84 L.Ed.2d 53 (1984)(affirming finding 
that defendant's employment practices violated both Title VII and 
§ 1981), subsequent decision on remedy. 753 F.2d 1269 (4th Cir. 1985) .

12Lowe v. City of Monrovia. 775 F.2d 998, 1010 (9th Cir. 
1985); Jones v. Western Geophysical Co.. 761 F.2d 1158, 1159 (5th 
Cir. 1985)(Title VII and § 1981 claims tried simultaneously by 
court sitting without a jury); Poolaw v. city of Anadarko. 738 
F.2d 364, 368 (10th Cir. 1984), cert, denied. 84 L.Ed. 2d 779 
(1985) (bench trial on Title VII and jury trial on § 1981 claims 
conducted simultaneously); E.E.O.C. v. Gaddis. 733 F.2d 1373 
(10th Cir. 1984); Harris v. Richards Mfq. Co.. 675 F.2d 811, 814 
(6th Cir. 1982)("private plaintiff who sues under both Title VII 
and Section 1981 may obtain the equitable relief provided by 
Title VII and such equitable relief as well as legal relief by 
way of compensatory and punitive damages afforded by Section 
1981"); Williams v. Owens-Illinois, Inc.. 665 F.2d 918, 922, 925 
(9th Cir. 1982), modified on other grounds. 28 FEP Cases 1820, 
cert.denied. 459 U.S. 971 (1982)(§ 1981 claims tried to jury and 
Title VII claims tried to court with advice of jury); Bibbs v. 
Jim Lynch Cadillac. Inc.. 653 F.2d 316 (8th Cir. 1981); Whiting
3L:__Jackson State University. 616 F.2d 116 (5th Cir. 1980);
Claiborne v. Illinois Central Railroad. 583 F.2d 143, 146, 154 
(5th Cir. 1978), cert, denied. 442 U.S. 934 (1979)(punitive 
damage award under § 1981 proper "even when the section 1981 
claim is joined with Title VII claims"); Gates v. I.T.T.

26



Other than the decision below, which is void of any legal 
reasoning, Tafoya v. Adams stands alone in its holding that an 
independent factual basis is required for the assertion of a 
§1981 claim concurrently with a Title VII cause of action.13 The

Continental Bakina. 581 F.Supp. 204 (N.D. Ohio 1984)(plaintiff
asserting both Title VII and §1981 claims based on defendant's 
rejection of his employment application entitled to jury trial on 
§1981 claim for punitive damages and back pay); Powell v. 
Pennsylvania Housing Finance Agency. 563 F.Supp. 419 (M.D. Penn. 
1983); Daniels v. Lord & Tavlor. 542 F.Supp. 68 (N.D. 111. 
1982) (plaintiff charging discriminatory failure to promote, 
discipline and discharge under both Title VII and §1981, entitled 
to jury trial on §1981 legal claims); Thomas v. Resort Health 
Related Facility. 539 F.Supp. 630 (E.D.N.Y. 1982)(plaintiff 
bringing joint Title VII and §1981 claims for discriminatory 
discharge entitled to jury trial on §1981 claim for mental 
anguish); Acosta v. Univ. of District of Columbia. 528 F.Supp. 
1215 (D.C. D.C. 1981).

13 Defendant in the court below relied upon a series of 
footnotes in Fifth Circuit cases. See Rivera v. City of Wichita 
Falls, 665 F . 2d 531, 534 n.4 (5th Cir. 1982); Carpenter v. 
Stephen F. Austin State University. 706 F.2d 608, 612 n.l (5th
Cir. 198 3) ; Page v. U.S. Industries, Inc.. 726 F.2d 1038, 1041 
n.2 (5th Cir. 1984); Parson v. Kaiser Aluminum & Chemical Corn.. 
727 F . 2d 473, 475 n.l (5th Cir. 1984), cert, denied. 104 S.Ct.
3516 (1984).' See also Smith v. Western Elec. Co.. 770 F.2d 520, 
521 n.l (5th cir. 1985).

However, it is clear that this line of footnotes addresses 
only the appropriate procedure for appellate review of the 
substantive question of liability in situations where the 
plaintiff joins Title VII and §1981 claims that both rest on 
allegations of intentional discrimination. They arise out of the 
specific situation in Rivera, in which the legal basis for the 
§1981 claim was unclear because the discrimination was on the 
grounds of national origin, not race. This line of footnotes 
stands only for the unexceptional proposition that in this 
circumstance, the substantive elements of liability under §1981 
parallel those under Title VII, and thus on appeal it is not 
necessary for the Court to consider the liability questions 
separately for §1981.

This line of footnotes stems from the Fifth Circuit's 
conclusion in Whiting v, Jackson State University. 616 F.2d 116,

27



reasoning of the Tafova decision is severely flawed. The Court 
in Tafova relied heavily on the Supreme Court decisions in Brown

121 (5th Cir. 1980), that "[w]hen section 1981 is used as a 
parallel remedy with section 706 of Title VII against disparate 
treatment in employment, its elements appear to be identical to 
those of section 706." In Whiting. Title VII and §1981 claims 
were joined in the same lawsuit and the plaintiff obtained a jury 
trial. Thus, it is clear that the statement in Whiting refers 
only to the elements of substantive liability, and does not to 
deny the availability of both remedies, including their different 
procedures or remedies.

The footnote in Rivera. the lead case relied upon by 
defendant, cites Whiting as an explanation for its conclusion 
that "consideration of alternative remedies was not necessary." 
It is inconceivable that the Fifth Circuit would cite with 
approval a case that affirmed the plaintiff's right to assert 
§1981 and Title VII claims jointly and to obtain a jury trial on 
the §1981 claims, if in the same footnote, the Court intended to deny such rights.

The meaning of the Rivera footnote is further explained in 
two subsequent footnotes in this line. In Page v. U.s. 
Industries, Inc.. 726 F.2d at 1041 n.2 (1984), the Court referred 
to the Rivera footnote as a "rule of this Court" establishing 
when "consideration of an alternative remedy brought under §1981 
is necessary." And in its most recent citation to the Rivera 
footnote, the Fifth Circuit explained: "Because the same 
analyses apply to claims under section 1981 as under Title VII 
[citing Rivera footnote], we shall consider [the §1981] claim 
together with the Title VII claim. The district court made no 
separate finding on this issue." Smith v. Western Elec. Co.. 770 
F.2d at 521 n. 1 (1985). It is significant that the Court did 
not dismiss the §1981 claim, but merely considered it on appeal 
"together" with the Title VII claim.

This meaning of the Rivera footnote also is confirmed by 
recent Fifth Circuit decisions. In cases where the existence of 
the^ §1981 claim makes a difference in the procedures or remedy 
available, the Court has carefully protected the plaintiff's 
entitlement to the attributes of a §1981 claim, notwithstanding 
the joinder of a Title VII claim. Hamilton v. Rodgers. 791 F.2d 
439, 440-42 (5th Cir. 1986)(where §1981 and §1983 claims joined 
with Title VII claim, court notes that substantive elements of 
liability are same under all statutes, but that compensatory 
damages for emotional injury may be awarded under §198 3) ; Whiting 
supra; Claiborne, supra; Jones v. Western Geophysical Co., supra.

28



v. GSA. supra, and Great American S. & L. Ass'n v. Novotnv. 442 
U.S. 366 (1979). 612 F. Supp. at 1100. But, as noted above, the 
Brown decision carefully distinguished Johnson v.Railway Express. 
Similarly, the Court in Novotnv. in holding that "§ 1985(c)14 may 
not be invoked to redress violations of Title VII," 442 U.S. at 
378, again distinguished § 1981. The Court noted that unlike 
cases involving §1981, "[t]his case ... does not involve two 
'independent' rights." Id.15 Thus, neither Brown nor Novotnv 
can be construed to support the decision in Tafoya.

The Court in Tafoya also reasoned that to permit the 
assertion of non-independent § 1981 claims in the same lawsuit 
with a Title VII claim would "subvert" Title VII's comprehensive 
remedial scheme. 612 F.Supp. at 1101. However, this argument 
was considered and rejected in Railway Express. The Court there

14Section 1985(c) establishes a cause of action for damages 
caused by actions in furtherance of a conspiracy to deprive a 
person or class of persons of equal protection of the laws.

15The Court further explained:
This case thus differs markedly from the 
cases recently decided by this Court that 
have ... held that substantive rights 
conferred in the 19th century were not 
withdrawn, sub silentio, by the subsequent 
passage of the modern statutes. . . . And in
Johnson v. Railway Express Agency [citation 
omitted], we held that the passage of Title 
VII did not work an implied repeal of the 
substantive rights to contract conferred by 
the same 19th century statute and now 
codified at 42 U.S.C. § 1981.

Id. at 377.

29



noted that the availability of a § 1981 cause of action might 
permit a plaintiff to avoid Title VII's detailed administrative 
procedures. However, Court concluded that "these are the natural 
effects of the choice Congress has made available to the claimant 
by it conferring upon him independent administrative and judicial 
remedies." 421 U.S. at 461.

Moreover, the "independent basis" requirement of Tafoya is 
incomprehensible. The Court apparently used this phrase to refer 
to claims with an independent legal, as opposed to factual, 
basis.16 Yet, the authorities are overwhelming that a Section 
1981 race discrimination claim rests on inherently independent 
legal grounds. E.q., Johnson v. Railway Express. 421 U.S. at 
459-60; Johnson v. Ryder Truck. 575 F.2d at 473-74. Even the 
Court in Tafoya acknowledged that "independent of Title VII 
remedies, § 1981 ... provide[s] remedies for racial 
discrimination." 612 F. Supp. at 1099 (emphasis added).

Finally, the suggestion is ludicrous that a plaintiff should 
be encouraged to bring two separate lawsuits to enforce both 
Title VII and § 1981 with respect to the same set of facts. Such 
a solution, while it may be tolerated in some situations, see 
Railway Express. 421 U.S. at 461, certainly is not the preferred 
or most efficient manner of litigating independent claims that

16The Court in Tafoya distinguished a binding Tenth Circuit 
precedent, Owens v. Rush. 654 F.2d 1370 (1981), on the ground 
that the plaintiff there "alleged violations of independent 
substantive rights in addition to his Title VII claims." 612 F. Supp. at 1104 n.5.

30



are legally and factually similar.17
C. PLAINTIFF'S RETALIATION CLAIM IS ACTIONABLE 

UNDER 42 U.S.C. SECTION 1981
It is well-established that 42 U.S.C. § 1981 encompasses a 

cause of action for retaliation for the filing of race 
discrimination claims. This is because "[t]he ability to seek 
enforcement and protection of one's right to be free of racial 
discrimination is an integral part of the right itself." Goff v. 
Continental Oil Co,. 678 F.2d 593, 598 (5th Cir. 1982). "Section 
1981 would become meaningless if an employer could fire an 
employee for attempting to enforce his rights under that 
statute." Id.

Similarly, § 1981 creates a cause of action for retaliation 
against an employee who files a charge of discrimination under 
Title VII. Retaliation against someone who files an EEOC charge 
alleging racial discrimination "would inherently be in the nature 
of a racial situation." Setser v. Novack Investment Co.. 638
F • 2d 1137, 1146 (8th Cir.), modified. 657 F2d 932, cert, denied. 
102 S.Ct. 615 (1981). "[I]t would be impossible completely to

17The court in Tafoya did not explain how the two separate 
lawsuits^ would relate to each other, if at all. Presumably if 
the plaintiff lost in the first lawsuit, collateral estoppel 
would bar relitigation of facts. If plaintiff first prevailed in 
a Title VII lawsuit, a second action under §1981 would be 
necessary on any claims for compensatory or punitive damages, or 
for damages outside the two-year backpay limit of Title VII. If 
the plaintiff first prevailed in a §1981 lawsuit, a subseguent 
Title VII litigation might still be necessary to address claims 
under the disparate impact theory of liability, which is beyond the scope of §1981.

31



disassociate the retaliation claim from the underlying charge of 
discrimination." Goff. 678 F.2d at 599. For this reason, five 
federal circuits,18 and numerous district courts,19 have held 
that § 1981 prohibits retaliation for the filing of an EEOC
charge. Indeed, no federal Court of Appeals has held to the 
contrary.20

D. PLAINTIFF IS CONSTITUTIONALLY ENTITLED TO A 
JURY TRIAL ON HIS SECTION 1981 CLAIMS

It is undisputed that a plaintiff is constitutionally 
entitled to a jury trial on all legal claims for relief under

18E.q., Choudhurv v. Polytechnic Institute of New York. 735 
F .2d 38 (2d Cir. 1984); DeMatteis v. Eastman Kodak Co.. 511 F.2d 
306, 312 (2d Cir. 1975), modified on other grounds. 520 F.2d 409 
(2d Cir. 1975); Goff, supra (5th Cir.); Pinkard v. Pullman- 
Standard, 678 F .2d 1211, 1229, n.15 (5th Cir. 1982)(per curiam), 
cert denied, 459 U.S. 1105 (1983); Whiting v. Jackson State 
University, 616 F.2d 116 (5th Cir. 1980); Harris v. Richards Mfg. 
Co. , 675 F.2d 811, 812 (6th Cir. 1982); Winston v. Lear-Siecler 
Inc. , 558 F.2d 1266, 1268-70 (6th Cir. 1977); Greenwood v, Ross. 
778 F .2d 448, 455 (8th Cir. 1985); Sisco v. J.S. Alberici Const. 
Co.;../ 655 F. 2d 146, 150 (8th Cir. 1981), cert, denied. 455 U.S. 
976 (1982); Setser v. Novack. supra (8th Cir.); London v. 
Coopers & Lybrand. 644 F.2d 811 (9th Cir. 1981).

19E.q., Moffett v. Gene B. Glick Co.. 621 F. Supp. 244, 282- 
83 (N.D. Ind. 1985); Gresham v. Waffle House, Inc.. 586 F. Supp. 
1442, 1446 (N.D. Ga. 1984); Cox v. Consolidated Rail Corn.. 557 
F. Supp. 1261, 1265 (D.D.C. 1983).

20In the 1970's, a few federal district courts in the Second 
and Fifth (now Eleventh) Circuits concluded that § 1981 did not 
encompass retaliation. See Hudson v. I.B.M.. 22 FEP Cases 947 
(S.D.N.Y. 1975)(decision on merits affirmed without reaching 
retaliation issue, 620 F.2d 351 (2d Cir.), cert, denied. 449 U.S. 
1066 (1980)); Takeall v, WERD, Inc.. 23 FEP Cases 947 (M.D. Fla. 
1979) ; Grant v. Bethlehem Steel Corn.. 22 FEP Cases 680 (S.D.N.Y. 
1978), Barfield v. A.R.C. Security, Inc.. 10 FEP Cases 789 (N.D. 
Ga. 1975) . However, all of the decisions have been discredited 
by later Court of Appeals decisions. E.g.. Choudhurv. supra (2d 
Cir.); Goff, supra. (5th Cir.).

32



§1981. Harris v. Richards Mfq. Co. . 675 F.2d 811, 814-15 (6th 
Cir. 1982); Williams v. Owens-Illinois, Inc.. 665 F.2d 918, 928 
(9th Cir. 1982); Setser v. Novack Investment Co.. 638 F.2d 1137, 
1140 (8th Cir. 1981), modified on other grounds. 657 F.2d 962 (en 
banc), cert, denied. 454 U.S. 1064 (1981); Moore v. Sun Oil Co. 
of Pennsylvania. 636 F.2d 154, 156 (6th Cir. 1980). See also 
Secrara v. McDade. 706 F.2d 1301, 1304 (4th Cir. 1983) (right to 
jury trial under 42 U.S.C. §1983); Burt v. Abel. 585 F.2d 613, 
616 n. 7 (4th Cir. 1978)(same).21 In this case, Lytle asserted a 
legal claim under §1981 for compensatory and punitive damages, 
including emotional distress. JA 7 (Complaint, £> 23), JA 10 
(Amendment to Complaint).22

Lytle presented sufficient evidence to send both his 
discharge and retaliation claims to the jury. Although the 
District Court dismissed the parallel Title VII discharge claim 
under Rule 41(b), such a dismissal is not equivalent to a ruling 
that plaintiff presented insufficient evidence to send the § 1981

21In Curtis v. Loether. 415 U.S. 189, 194 (1974), the 
Supreme Court held that the Seventh Amendment applies to an 
action in federal court to enforce a civil rights statute that 
creates legal rights and remedies. The right to a jury trial 
thus applies under §1981 because that section affords plaintiffs 
both equitable and legal relief, including compensatory and, in 
some cases, punitive damages. Johnson v. Railway Express. 421 
U.S. at 460.

22Since plaintiff was entitled to a jury trial with respect 
to all legal claims arising under §1981, he was entitled to have 
a jury determine liability. Moore. 636 F.2d at 157. See. B. 
Schlei & P. Grossman, Employment Discrimination Law, 1983-84 Cum. 
Supp. 212 (2d Ed.). See also Point II, below.

33



discharge claim to the jury. A dismissal in a non-jury case 
under Rule 41(b) is "on the ground that upon the facts and the 
law the plaintiff has shown no right to relief." Fed. Rule Civ. 
Proc. 41(b)(emphasis added). Rule 41(b) by its terms applies 
only "in an action tried by the court without a jury." Id. The 
Rule explicitly provides that "the court as trier of the facts 
may determine them." Id. If the court enters a Rule 41(b) 
dismissal against the plaintiff, it "shall make findings as 
provided in Rule 52(a)." Id.

The difference between a Rule 41(b) dismissal in a non-jury
case and a directed verdict in a jury trial has been noted by
many courts. As recently explained by the Court of Appeals for
the Eighth Circuit,

the court's role [under Rule 41(b)] 
is fundamentally different from its 
role in a jury trial when ruling on 
a defendant's motion for a directed 
verdict at the close of the
plaintiff's case. In ruling on a
motion for directed verdict, the 
judge must determine if the
evidence is such that reasonable 
minds could differ on the 
resolution of the questions 
presented in the trial, viewing the 
evidence in the light most 
favorable to the plaintiff. On a 
motion for directed verdict, the 
court may not decide the facts 
itself. In deciding a Rule 41(b) 
motion, however, the trial court in 
rendering judgment against the
plaintiff is free to assess the 
credibility of witnesses and the

34



evidence and to determine that the 
plaintiff has not made out a case.23

In this case, there is no doubt that the District Court 
relied upon findings of fact in entering the Rule 41(b) dismissal 
of plaintiff's discharge claim. The District Court's conclusion 
that plaintiff had 9.8 hours of excessive unexcused absence was 
crucial to its dismissal of the discharge claim. Yet, 
plaintiff's evidence showed, and defendant did not deny, that an 
excused absence will be granted as a matter of course for 
doctor's appointments, illness and urgent family obligation. 
Lytle testified that he informed his supervisor of both his 
Friday doctor's appointment and his physical inability to work on 
Saturday. Thus, plaintiff presented sufficient proof for a jury 
to conclude that, absent racial discrimination, Lytle's absences 
on both Friday and Saturday would have been excused.24

Similarly, Lytle testified that he attempted to inform 
Miller about the emergency telephone call on Thursday afternoon 
and that Miller was abusive and would not listen. A jury could

23Continental Casualty Co. v. DHL Services. 752 F.2d 353, 
355-56 (1985). Accord Stearns v. Beckman Instruments, Inc.. 737 
F.2d 1565, 1567 (Fed. Cir. 1984)(judgment under Rule 41(b) "need 
not be entered in accordance with a directed verdict standard"); 
Wilson v. United States. 645 F.2d 728, 730 (9th Cir. 1981) ("The 
Rule 41(b) dismissal must be distinguished from a directed 
verdict under Rule 50(a)."). See generally V MOORE'S FEDERAL 
PRACTICE 41-175 to 41-179 (1985).

24See, Gairola v. Virginia Dept, of General Services. 753 
F . 2d 1231 (4th Cir. 1985) (it is for jury to weigh the evidence 
and pass on credibility); Ellis v. International Plavtex, Inc.. 
745 F .2d 292, 298 (4th Cir. 1984).

35



reasonably conclude that, absent discrimination, Lytle's failure 
to work overtime on Thursday afternoon would have been excused as 
an urgent family obligation.

Second, even if the jury determined that plaintiff was 
properly charged with unexcused absence, whether white employees 
were treated more leniently for similar offenses is a question of 
fact that also must be decided by the jury.

The District Court itself indicated that it was making 
findings of fact about issues on which reasonable individuals 
could differ. During argument on the Rule 41(b) motion, Mr. 
Lytle's attorney suggested that "the only reason Mr. Lytle is 
being charged with unexcused absence . . .  is because of Mr. 
Larry Miller's decision not to consider Friday a vacation day and 
to make Saturday a mandatory 8-hour overtime work period. And 
the misunderstanding that Mr. Lytle had about that is the only 
reason he didn't call in." TR 252-53. In response to an 
objection that the argument was "not necessarily supported by the 
evidence here" the Court stated: "It's a reasonable 
interpretation of the evidence." TR 253. Thus, had the District 
Court not dismissed plaintiff's section 1981 claim, there is no 
doubt that the Court would have sent the discharge claim to the 
jury.

Plaintiff also presented more than enough evidence to send 
his retaliation claim to the jury, as acknowledged by the 
District Court when it denied the Rule 41(b) motion on this

36



claim. The retaliation claim turns on the factual question 
whether Schwitzer's favorable letter of recommendation for Joe 
Carpenter was a mistake. This factual determination will depend 
heavily on the fact-finder's assessment of credibility. 
Therefore, plaintiff is constitutionally entitled to a jury trial 
on his retaliation claim.
II. THE TRIAL COURT'S JUDGMENT ON PLAINTIFF'S TITLE VII

CLAIMS MUST BE VACATED
In Beacon Theatres v. Westover. 359 U.S. 500, 508-12 (1959), 

the Supreme Court held that where legal and equitable claims 
based on the same factual allegations are joined in the same 
case, the District Court must, absent "the most imperative 
circumstances," try the legal claims to the jury before itself 
deciding the equitable claims. This order of proof is necessary 
to avoid depriving a party of the right to a jury trial on the 
legal claims. Id. See also Dairy Queen v. Wood. 369 U.S. 469 
(1962) .

Applying Beacon Theatres to the facts of this case, the 
District Court's decision and judgment on Lytle's Title VII 
claims must be vacated to allow a jury determination of all 
relevant facts. The appropriate procedure is for the jury to 
determine the issue of liability and for the Court subsequently 
to determine any issues of remedy that are of an equitable 
nature. See Moore v. Sun Oil. 636 F.2d at 157; Gates v. ITT 
Continental Baking Co.. 581 F. Supp. 204, 297 (N. D. Ohio
1984)("in ruling upon plaintiff's claim pursuant to [Title VII],

37



the Court is bound by the jury's determination of facts"); Thomas 
v. Resort Health Related Facility. 539 F.Supp. 630, 634 (E.D.N.Y. 
1982) .
III. PLAINTIFF ESTABLISHED A PRIMA FACIE CASE OF

DISCRIMINATORY DISCHARGE UNDER TITLE VII
A. PLAINTIFF ESTABLISHED A PRIMA FACIE CASE 

UNDER THE SUPREME COURT'S MODEL OF PROOF OF 
INDIVIDUAL DISCRIMINATORY TREATMENT

The Supreme Court has developed a model of proof to be used
in individual Title VII cases "to bring the litigants and the
court expeditiously and fairly to [the] ultimate question" of
discriminatory intent. Under this model, the plaintiff first has
the burden of establishing a prima facie case. Texas Department
of Community Affairs v. Burdine. 450 U.S. 248, 254 (1981). For
example, a plaintiff who was not rehired allegedly because of his
commission of an offense against the employer may establish a
prima facie case by showing:

(i) that he belongs to a racial 
minority; (ii) that he applied and 
was qualified for a job for which 
the employer was seeking 
applicants; (iii) that, despite his 
qualifications, he was rejected; 
and (iv) that, after his rejection, 
the position remained open and the 
employer continued to seek 
applicants from persons of 
complainant's qualifications.

McDonnell Douglas Corp. v. Green. 411 U.S. 792, 802 (1973). A
minority plaintiff's initial burden to establish a prima facie 
case "is not onerous." Id. at 253. Plaintiff in this case

38



satisfied the McDonnell Douglas requirements.25
B. PLAINTIFF ESTABLISHED A PRIMA FACIE CASE

UNDER MOORE V. CITY OF CHARLOTTE
In Moore v. City of Charlotte. 754 F.2d at 1100, 1110 (4th

Cir. 1985), this Court "clarified the showing that a plaintiff 
needs to make to establish a prima facie case in a disciplinary 
Title VII action." Under Moore, one way that a plaintiff may 
establish a prima facie case of discriminatory discipline is by 
showing "(1) that plaintiff engaged in prohibited conduct similar 
to that of a person of another race, . . . and (2) that
disciplinary measures enforced against the plaintiff were more 
severe than those enforced against the other person." 754 F.2d 
at 1105-06.

Applying Moore1s definition of the prima facie case, the 
evidence presented by plaintiff more than satisfies this burden. 
First, the evidence concerning the excessive excused absences of 
four white employees meets the prima facie burden as articulated 
in Moore. The Court in Moore recognized that it is not necessary 
for the plaintiff to establish that non-minority employees
committed the exact offense as allegedly committed by plaintiff.
Rather, the key question in whether non-minority employees were 
punished less severely for offenses of "comparable seriousness." 
754 F.2d at 1107.

Moore also established principles for assessing the relative

25See Whiting v. Jackson State University. 616 F.2d 116, 121 (1980) .
39



seriousness of different offenses. One such method of valuation 
is the classification of offenses by the employer itself. Moore 
holds that an assessment of the "similarity" of offenses 
"require[s] at least initial deference to the system of offenses 
created by the [employer]." 754 F.2d at 1108. The Court in 
Moore criticized the lower court for having "ignored the 
[employer's] own classification of disciplinary offenses in its 
assessments of comparable seriousness." Id. at 1102. Moore thus 
makes clear that where the plaintiff's alleged offense and the 
offenses of non-minority employees are classified by the employer 
as equally serious, the prima facie burden is satisfied.

The proof in this case tracks the requirements articulated 
in Moore. Section V ("Definitions") of Schwitzer's Absence 
Policy defines "excessive absence" in terms of both "excused 
absence" and "unexcused absence." PX 22, pp. 1-2. Section VII 
of the Policy ("Effect on Employment and Progress") goes on to 
provide "EXCESSIVE ABSENCE/TARDINESS/LEAVING EARLY fas defined in 
Section V) WILL, MOST LIKELY. RESULT IN TERMINATION OF 
EMPLOYMENT." PX 22, page 2 (emphasis in original). Thus, 
Schwitzer's own classification of excessive excused and unexcused 
absences draws no distinction between the two in terms of the 
"effect on employment."

The District Court, with no support from the record, 
invented a difference in severity between excessive excused 
absences and excessive unexcused absences. The Court failed to

40



recognize that any distinction between excused and unexcused 
absences is already taken into account in Schwitzer's definition 
of "excessive absence." Under Schwitzer's policy, an employee 
may have excused absences of more than 80 hours in a twelve month 
period without being "excessive."26 In contrast, unexcused 
absence in excess of eight hours is treated as "excessive." 
Given that it takes ten times as many excused absence hours as 
unexcused absence hours to trigger treatment as "excessive," 
there is simply no reason to believe that excessive excused 
absence is less serious than excessive unexcused absence.27

26For example, in the twelve month period ending March 2, 
1984, Charles M. Owen, a Schwitzer machinist, had 71.26 hours 
total absence, yet his absence percentage was only 3.9, below the 4% excessive level. PX 12-B.

27This is not to say that defendant might not be able to 
produce evidence that would rebut the natural inferences to be 
drawn from its Absence Policy. This is, of course, exactly the 
purpose of Stage Two of the McDonnell Douglas model of proof. 
However, the District Court's invention of an explanation in the 
absence of any "articulation" by Schwitzer deprived plaintiff of 
the opportunity to show that the explanation is pretext. As 
explained in a similar situation:

The district court's substitution of a reason 
of its own devising ... runs directly counter 
to the shifting allocation of burdens worked 
out by the Supreme Court in McDonnell Douglas 
and Burdine. The purpose of that allocation 
is to focus the issues and provide plaintiff 
with a 'full and fair opportunity' to attack 
the defendant's purported justification.
Thus the defendant cannot meet its burden 
merely through an answer to the complaint or 
by argument of counsel. It should not be 
necessary to add that the defendant cannot 
meet its burden by means of a justification 
articulated for the first time in the 
district court's opinion.

41



Moreover, Lytle's evidence of the lenient treatment of 
similarly situated white machinists was bolstered by more general 
evidence of discriminatory intent. All of the individuals who 
participated in the decision to fire Lytle were white. This 
decision was based on subjective judgments concerning whether all 
or a part of Lytle's absence on August 10-12 should be treated as 
excused and whether his offense was serious enough to require 
dismissal.28 The courts have uniformly recognized that 
subjective decisionmaking, particularly by an all-white 
supervisory force, provides a ready mechanism for discrimination 
and must be carefully scrutinized.29 Thus, this evidence raises 
a strong suspicion of discrimination and provides an alternative 
means of establishing a prima facie case. Cf. Moore. 754 F.2d at

Lanphear v. Prokop. 703 F.2d 1311, 1316-17 (D.C. Cir. 1983).
28That subjective judgments were involved in the decision to 

terminate Lytle is clear from the fact that other employees with 
both excessive excused and unexcused absences were not terminated 
and that supervisors exercised discretion whether to treat an absence as excused.

29E.g. , Boykin v. Georcria-Pacific Corp. . 706 F.2d 1384 (5th 
Cir. 1983), cert, denied. 465 U.S. 1006 (1984); Wright v. 01 in 
■Sorp,. , 697 F . 2d 1172, 1181 (4th Cir. 1982); Rowe v. Cleveland 
Pneumatic Corp.. 690 F.2d 88 (6th Cir. 1982); Paxton v. United 
National Bank. 688 F.2d 552, 563 n. 15 (8th Cir. 1982), cert. 
denied, 460 U.S. 1083 (1983); Burrus v. United Tel. Co.. 683 F.2d 
339 (10th Cir.), cert, denied. 459 U.S. 1071 (1982); O'Brien v. 
Sky Chefs, Inc.. 670 F.2d 864 (9th Cir. 1982); Rowe v. General 
Motors Corp. . 457 F.2d 348, 357-58 (5th Cir. 1972); Brown v. 
Gaston County Dyeing Machine Co. . 457 F.2d 1377, 1382 (4th Cir. 
1972K  cert, denied. 409 U.S. 982 (1972); Patterson v. American 
Tobacco Co.. subseguent decision. 535 F.2d 257, cert, denied. 429 
U.S. 920, subseguent decision. 634 F.2d 744 (1980), rev'd on other grounds. 456 U.S. 63 (1982).

42



1105 (individual plaintiff may establish a prima facie case 
"through evidence of a general pattern of racial 
discrimination").

The circumstances of Lytle's own hiring also contribute to 
his prima facie case. His application was at first "misplaced" 
after an interview with Larry Miller. TR 82. The interview, of 
course, gave Miller an opportunity to determine Lytle's race. 
Then, despite his extensive experience, Lytle was hired into the 
lower level job of machinist trainee, only after attending an 
unpaid training course for inexperienced machinists. TR 83-84. 
At the same time, whites with lesser qualifications than Lytle 
were hired directly into machinist jobs. TR 82-83. Finally, 
Lytle was one of only seven blacks in a company with 148 
employees. TR 14.

As noted by the Supreme Court, analysis of whether the 
plaintiff has established a prima facie case "was never intended 
to be rigid, mechanized or ritualistic." Furnco Construction 
Corp. v. Waters. 438 U.S. 567, 577. In this case, plaintiff's 
strong showing of lenient treatment of white employees with 
excessive absences, combined with the evidence of hiring 
discrimination against plaintiff, the subjective decisionmaking 
by an all-white supervisory force and the low number of blacks 
employed by Schwitzer, are more than sufficient to meet this 
burden.

43



C. PLAINTIFF ESTABLISHED A PRIMA FACIE CASE OF 
DISCRIMINATION IN THE CLASSIFICATION OF HIS 
ABSENCE AS UNEXCUSED

The District Court ruled that Lytle had not established a 
prima facie case of discrimination because he did not prove that 
white employees had accrued an equal amount of unexcused 
absences. However, the Court failed to consider whether 
Schwitzer's categorization of Lytle's absences as unexcused was 
itself discriminatory. Lytle clearly presented sufficient 
evidence to establish a prima facie case that his absences were 
categorized differently from those of other employees. He showed 
that Schwitzer routinely excuses absences for urgent personal 
business, doctor's appointments and illnesses. He testified that 
he attempted to inform Miller of the emergency telephone call on 
Thursday, August 11, and that he did inform Miller of the reason 
for his absence on Friday and Saturday, August, 12-13. With 
regard to the Friday and Saturday absences, Lytle's notification 
of Miller on Thursday complied with the Absence Policy's 
requirement that an employee notify his supervisor of an 
anticipated absence "as soon as possible in advance of the time 
lost, but no later than the end of the shift on the previous work 
day." Moreover, Lytle's emergency telephone call on Thursday 
afternoon falls within the "emergency circumstances" exception 
for advance reporting. PX 22, p.2.

In an almost identical situation, a district court concluded 
that plaintiff's complaint of discriminatory discipline should

44



not be dismissed for lack of proof of "similarity" of offenses, 
where it appears that the plaintiff's "offense" was classified 
differently than those of other employees. In Webb v . Kroger 
Co. , 620 F.Supp. 1489 (S.D. W. Va. 1985), the plaintiff was 
terminated for an admitted unexcused absence record in excess of 
that of white employees. Nonetheless, the district court 
concluded that plaintiff should be given the opportunity to prove 
that he "was subjected to disparate treatment which caused him to 
accrue an objectively dismal attendance record." Id. at 1492. 
In this case, Lytle submitted such proof. The entire period of 
Lytle's absence was treated as unexcused, even though he had 
informed his supervisor prior to his absence. In contrast, only 
one of Greg Wilson's two days of absence was treated as 
unexcused, even though Wilson had not obtained prior approval. 
The evidence that Lytle's absences would have been excused had 
Schwitzer's normal policy been applied to him was sufficient to 
establish a prima facie case of disparate treatment which caused 
him to accrue an excessive unexcused absence record.

Thus, the burden should have shifted to Schwitzer to explain 
why Lytle's absences were treated as unexcused. Schwitzer's 
treatment of the Friday absence as unexcused is particularly 
suspicious, since even Lytle's supervisor admitted that he 
initially authorized one of the days as vacation. Affidavit of 
Larry E. Miller (Pleading No. 13) . By precipitously dismissing 
Lytle's discharge claim, the District Court denied Lytle the

45



opportunity to cross-examine defendant's witnesses and to prove 
that the unexcused classification of all or a part of his 
absences was pretextual.

CONCLUSION
For the reasons stated, the judgment of the District Court 

should be reversed. The case should be remanded for a jury trial 
on plaintiff's claims under §1981 and for a decision on 
plaintiff's Title VII claims consistent with the jury's verdict.

Respectfully submitted,

JULIUS L. CHAMBERS 
RONALD L. ELLIS 
PENDA D. HAIR

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

REGAN MILLER
600 South College Street 
Charlotte, North Carolina 28202 
(704) 372-9870

Dated: October 1, 1986



TITLE 42, UNITED STATES CODE

§ 1 9 8 1 .  Equal rights under the law
All persons within the jurisdiction of the United States shall have 

the same right in every State and Territory to make and enforce 
contracts, to sue, be parties, give evidence, and to the full and equal 
benefit of all laws and proceedings for the security of persons and 
property as is enjoyed by white citizens, and shall be subject to like 
punishment, pains, penalties, taxes, licenses, and exactions of every 
kind, and to no other.

§ 2 0 0 0 e - 2 .  Unlawful employment prafctices

E m p lo y er  practices

( a )  It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or 

otherwise to discriminate against any individual with respect to 
his compensation, terms, conditions, or privileges of employ­
ment, because of such individual’s race, color, religion, sex, or 
national origin ; or

(2) to limit, segregate, or classify his employees or appli­
cants for employment in any way which would deprive or tend 
to deprive any individual of employment opportunities or other­
wise adversely affect his status as an employee, because of such 
individual's race, color, religion, sex, or national origin.

§ 2 0 0 0 e - 3 .  Other unlawful employment practices

D lM r la la i t i s i  fa r  a a k l i f  c k a i f t a , I n t l f r l a a ,  aaalatlng, or p a rtic ip a tin g  
la  eaforccaaeat proceeding*

(») It shall be an unlawful employment practice for an employer 
to discriminate against any of his employees or applicants for em­
ployment, for an employment agency, or joint labor-management 
committee controlling apprenticeship or other training or retraining, 
ineiuding on-the-job training programs, to discriminate against any in­
dividual, or for a labor organization to discriminate against any 
®*mber thereof or applicant for membership, because he has op- 

any practice made an unlawful employment practice by this 
•obchapter, or because he has made a charge, testified, assisted, or 
Participated in any manner in an investigation, proceeding, or hear- 
®f under this subchapter.



V  •

HOUSEHOLD MANUFACTURING, INC. 
d/b/a/ SCHWITZER TURBOCHARGERS

Defendant-Appellee.

On Appeal from the United States 
District Court for the Western District 
of North Carolina, Asheville, Division

BRIEF FOR APPELLANT

JULIUS L. CHAMBERS 
RONALD L. ELLIS 
PENDA D. HAIR

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

REGAN A. MILLER
James, McElroy & Diehl 
600 South College Street 
Charlotte, North Carolina 2S202 
(704) 372-9870

October 1, 1986



.ii
1
1
2
2

3
4
8
9

11
12
14

17

17

23

31

TABLE OF CONTENTS
Table of Authorities 
QUESTIONS PRESENTED 
STATEMENT OF THE CASE 
STATEMENT OF THE FACTS

A. Discriminatory Discharge
1. Plaintiff's Work History
2., Plaintiff's Termination
3. Schwitzer's Absence Policy
4. Schwitzer's Treatment of White Employees

B. Retaliation Claim
C. The Decision Below 

SUMMARY OF ARGUMENT 
ARGUMENT

I. THE DISTRICT COURT ERRONEOUSLY DISMISSED PLAINTIFF'S 
CLAIM UNDER 42 U.S.C. SECTION 1981 AND
UNCONSTITUTIONALLY DEPRIVED PLAINTIFF OF HIS RIGHT TO A JURY TRIAL
A. TITLE VII DOES NOT PREEMPT CLAIMS UNDER 42 

U.S.C. SECTION 1981
B. TITLE VII AND SECTION 1981 CLAIMS MAY BE 

BROUGHT IN THE SAME LAWSUIT
C. PLAINTIFF'S RETALIATION CLAIM IS ACTIONABLE 

UNDER 42 U.S.C. SECTION 1981
D. PLAINTIFF IS CONSTITUTIONALLY ENTITLED TO A 

JURY TRIAL ON HIS SECTION 1981 CLAIMS II.
II. THE TRIAL COURT'S JUDGMENT ON PLAINTIFF'S TITLE VII CLAIMS MUST BE VACATED



38
III. PLAINTIFF ESTABLISHED A PRIMA FACIE CASE

OF DISCRIMINATORY DISCHARGE UNDER TITLE VII
A. PLAINTIFF ESTABLISHED A PRIMA FACIE CASE

UNDER THE SUPREME COURT'S MODEL OF PROOF OF 
INDIVIDUAL DISCRIMINATORY TREATMENT 38

B. PLAINTIFF ESTABLISHED A PRIMA FACIE CASE
UNDER MOORE V. CITY OF CHARLOTTE 3 9

C. PLAINTIFF ESTABLISHED A PRIMA FACIE CASE OF
DISCRIMINATION IN THE CLASSIFICATION OF HIS 
ABSENCES AS UNEXCUSED 44

CONCLUSION 46
ADDENDUM —  Relevant Statutes

ii



TABLE OF AUTHORITIES

Page

CASES
Acosta v. Univ. of District of Columbia, 528 F.Supp.

1215 (D. D.C. 1981) ................................ 27
Alexander v. Gardner-Denver, 415 U.S. 36 (1974) ...... ...15,21,24
Barfield v. A.R.C. Security, Inc., 10 FEP Cases 789

(N.D. Ga. 1975) .................................... 32
Beacon Theatres v. Westover, 359 U.S. 500 (1959) ..... . .14,16,37
Bell v. New Jersey, 461 U.S. 773 (1983) ............... 22
Bibbs v. Jim Lynch Cadillac, Inc., 653 F.2d 316 (8th

Cir. 1981) ........................................
Bob Jones University v. United States, 461 U.S. 574

(1983) ............................................
Boykin v. Georgia-Pacific Corp., 706 F.2a 1384 

(5th Cir. 1983), cert, denied, 465 U.S.
1006 (1984) ....................................... 42

Brady v. Thurston Motor Lines, 726 F.2d 136 (4th Cir.), 
cert, denied, 84 L .Ed. 2d 53 (1984), subseauent 
decision on remedy, 753 F.2d 1269 (4th Cir. 1985) 26

Brown v. Gaston County Dyeing Machine Co., 457 F.2d 
1377. 1382 (4th Cir. 1972), cert, denied, 409 
U.S. 982 (1972) ................................... 42

Brown v. GSA, 425 U.S. 820 (1976) ..................... . .20,28,29
Burrus v. United Tel. Co., 683 F.2d 339 (10th Cir.),

cert, denied, 459 U.S. 1071 (1982) ............... 42
Burt v. Abel, 585 F.2d 613 (4th Cir. 1978) ...........
Carpenter v. Stephen F. Austin State University, 706

F .2d 608 (5th Cir. 1983) .........................

33

27

ill

27



Choudhury v. Polytechnic Institute of New York, 735
F .2d 38 (2d Cir. 1984) ...............................

Claiborne v. Illinois Central Railroad, 583 F .2d 143 
(5th Cir. 1978), cert, denied, 442 U.S. 934
(1979) ................................................ 26,

Continental Casualty Co. v. DHL Services, 752 F.2d 353
(1985) ................................................

Cox v. Consolidated Rail Corp., 557 F .Supp. 1261 (D.
D.C. 1983) ..........................................._________ ___' _____________________________________________ ________ _

Curtis v. Loether, 415 U.S. 189 (1974) ...................
Dairy Queen v. Wood, 369 U.S. 469 (1962) .................
Daniels v. Lord & Taylor, 542 F .Supp. 68 (N.D. 111.

1982) .................................................
DeMatteis v. Eastman Kodak Co., 511 F .2d 306 (2d Cir.),

modified on other grounds, 520 F.2d 409 (1975) .....
E.E.O.C. v. Gaddis, 733 F .2d 1373 (10th Cir. 1984) ......
Electrical Workers v. Robbins & Myers, Inc., 429 U.S.

229 (1976) ...........................................
Ellis v. International Playtex, Inc., 745 F .2d 292

(4th Cir. 1984) ......................................
Franks v. Bowman Transp. Co., 424 U.S. 747 (1976) .......
Furnco Construction Co. v. Waters, 438 U.S. 567 (1978) ...
Gairoia v. Virginia Dept, of General Services, 753

F .2d 1281 (4th Cir. 1985) ...........................
Gates v. I.T.T. Continental Baking, 581 F .Supp. 204

(N.D. Ohio 1984)   26,
General Building Contractors v. Pennsylvania, 458 U.S.

375 (1982)   18,19,
Goff v. Continental Oil Co., 678 F .2d 593 (5th Cir.

1982)   31,
Goss v. Revlon Inc., 548 F.2d 405 (2d Cir. 1976)

32

28

35

32
33
37

27

32
26

21

35
25
43

35

37

25

32
21

IV



32
Grant v. Bethlehem Steel Corp., 22 FEP Cases 680

S.D.N.Y. 1978) ..................................
Great American S. & L. Ass'n v. Novotny, 442 U.S. 366

(1979)   29
Greenwood v. Ross, 778 F.2d 448 (8th Cir. 1985) .........  32
Gresham v. Waffle House, Inc. 586 F .Supp. 1442 (N.D.

Ga. 1984)   32
Griggs v. Duke Power, 401 U.S. 424 (1971)   19
Hall v. Pennsylvania State Police, 570 F .2d 86 (3d

Cir. 1978)   18
Hamilton v. Rodgers, 791 F . 2d 439 (5th Cir. 19.8 ) .......  28
Harris v. Richards Mfg. Co., 675 F.2d 811 (6th Cir.

1982 )   21,26,32,33
Hudson v. I.B.M., 22 FEP Cases 947 (S.D.N.Y. 1975),

aff'd , 620 F.2d 351 (2d Cir.), cert, denied,
449 U.S. 1066 (1980)   32

Johnson v. Railway Express Agency Inc., 421 U.S. 454
1975) ...................................  18,19,20,26,29,30,33

Johnson v. Ryder Truck Lines, Inc., 575 F .2d 471 (4th
Cir. 1978), cert, denied, 440 U.S. 479 (1979) ...15,19,20,30

Jones v. Western Geophysical Co., 761 F.2d 1158 (5th
Cir. 1985)   26,28

Lanphear v. Prokop, 703 F.2d 1311, (D.C. Cir. 1983)   42
London v. Coopers & Lybrand, 644 F.2d 811 (9th Cir.

1981)   32
Lowe v. City of Monrovia, 775 F .2d 998 (9th Cir.

1985)   21,26
Mahone v. Waddle, 564 F.2d 1018 (3d Cir. 1977), cert .

denied, 438 U.S. 904 (1978)   18
Marable v. H. Walker & Associates, 644 F .2d 390 (5th

Cir. 1981)   18
McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273

(1976)   25
v



McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) ...38,39,40
Moffett v. Gene B. Glick Co., 621 F .Supp. 244 (N.D.

Ind. 1985) ...........................................  32
Moore v. City of Charlotte, 754 F.2d at 1100 (4th

Clr.), cert, denied, 105 S.Ct. 3489 (1985) .....  17,39,40,42
Moore v. Sun Oil Co. of Pennsylvania, 636 F.2d 154

(6th Cir. 1980) ......................................  33,37
New York City Transit Authority v. Beazer, 440 U.S. 568

(1979)   25
O'Brien v. Sky Chefs, Inc., 670 F.2d 864 (9th Cir. 1982) 42
Owens v. Rush, 654 F . 2d 1370 (1981) ......................  30
Page v. U.S. Industries, Inc. 726 F.2d 1038 (5th Cir.

1984) .............................................. . . 27,28
Parson v. Kaiser Aluminum and Chemical Corporation,

727 F .2d 473 (5th Cir. 1984), cert, denied, 104
S.Ct. 3516 (1984) ...................................  26

Patterson v. American Tobacco Co., subsequent decision,
535 F.2d 257, cert. denied, 429 U.S. 920, subsequent 
decision, 634 F .2d 744 (1980), rev 1d on other
grounds, 456 U.S. 63 (1982)   42

Paxton v. United National Bank, 688 F.2d 552, 563 n. 15
(8th Cir. 1982), cert, denied, 460 U.S. 1083 (1983) 42

Pinkard v. Pullman-Standard, 678 F.2d 1211 (5th Cir.
1982) ................................................. 32

Poolaw v. City of Anadarko, 738 F.2d 364 (10th Cir.
1984), cert, denied, 84 L . Ed 2d 779 (1985) .........  26

Powell v. Pennsylvania Housing Finance Agency, 563
F.Supp. 419 (M.D. Penn. 1983)   27

Rivera v. City of Wichita Falls, 665 F.2d 531 (5th
Cir. 1982)   27,28

Rowe v. Cleveland Pneumatic Corp., 690 F.2d 88
(6th Cir. 1982)   42

vi



42
Rowe v. General Motors Corp., 457 F.2d 348, 357-58

(5th Clr. 1972) ......................................
Runyan v. McCrary, 427 U.S. 160 (1976) ...................
Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th

Cir. 1970), cert.denied, 401 U.S. 948 (1971) .......  21,
Segara v. McDade, 706 F .2d 1301 (4th Clr. 1983) .........
Setser v. Novack Investment Co., 638 F.2d 1137 (8th 

Cir.), modified, 657 F.2d 932, cert.denied,
102 S.Ct. 615 (1981) ................................31,32,

Sisco v. J.S. Alberici Const. Co., 655 F.2d 146 (8th
Cir. 1981), cert, denied, 455 U.S. 976 (1982) ......

Smith v. Western Elec. Co., 770 F.2d 520 (5th Cir.
1985)   27,

Stearns v. Beckman Instruments, Inc.,.737 F.2 1565
(Fed. Cir. 1984) .....................................

Tafoya v. Adams, 612 F.Supp. 1097 (D.C.
Colo 1985)   23,24,27,28,29,30,

Takeall v. WERD, Inc., 23 FEP Cases 947 (M.D. Fla.
1979) ...... ..........................................

Texas Department of Community Affairs v. Burdine, 450
U.S. 248 (1981) ......................................

Thomas v. Resort Health Related Facility, 539 F.Supp.
630 (E.D.N.Y. 1982)   27,

Thornburg v. Gingles, 54 U.S.L.W. 4877 (June 30, 1986) ...
Waters v. Wisconsin Steelworks, 427 F.2d 476 (7th

Cir.), cert, denied, 400 U.S. 911 (1970) ............
Webb v. Kroger Co., 620 F.Supp. 1489 (S.D. W.Va. 1985) ...
Whiting v. Jackson State University, 616 F.2d 116 (5th

Cir. 1980) ....................................  26,27,28,32,
Williams v. Owens-Illinois, Inc., 665 F.2d 918 (9th 

Cir. 1982), modified on other ground, 28 FEP 
Cases 1820, cert.denied, 459 U.S. 971 (1982) .......  26,

vii

18

22
33

33

32

28

35

31

32

38

38
22

21

45

39

33



32
Winston v. Lear-Siegler, 558 F.2d 1266 (6th Cir.

1977) .................................................
Wilson v. United States, 645 F .2d 728 (9th Cir. 1981) .... 35
Wright v. Olin Corp., 697 F.2d 1172, 1181

(4th Cir. 1982) ......................................  42
Young v. International Telephone and Telegraph Co.,

438 F. 2d 757 ( 1971) .................................. 18,22
Zuben v. Allen, 396 U.S. 168 (1969) ......................  22

Constitution and Statutes
U.S. Constitution, Thirteenth Amendment .................. 18
U.S. Constitution, Fourteenth Amendment .................. 18
28 U.S.C. §1291 . .'.........................................  2
42 U.S.C. §1981 ...........................................  Passim
42 U.S.C. §1985 (c) ........................................  29
42 U.S.C. §2000e et: seg.................................... Passim

Legislative Authorities
110 Cong. Rec. (1964) .................................... 21,25
118 Cong. Rec. (1972) .................................... 23,25
H. R. Rep. No. 238, 92d Cong. 1st Sess. ( 1971) .........  19,22-25
S. Rep. No. 415, 92d Cong. 1st Sess. (1971) .............. 22

Other Authorities
Fed. Rule Civ. Proc. 8(c)(2)   15,26
Fed. Rule Civ. Proc. 41(b)   14,34
Moore's Federal Practice (1985) ..........................  35
B. Schlei & P. Grossman, Employment Discrimination Law ... 33

viii



QUESTIONS PRESENTED
1. Whether independent causes of action under 42 U.S.C. § 

1981 and Title VII of the Civil Rights Act of 1964 that are based 
on the same set of facts may be joined in the same lawsuit?

2. Whether the constitutional right to a jury trial 
applies when legal claims under 42 U.S.C. § 1981 are joined with 
equitable claims under Title VII?

3. Whether plaintiff established a prima facie case of 
discriminatory termination under Title VII?

STATEMENT OF THE CASE
John S. Lytle filed this action on December 6, 1984, seeking 

relief under Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
§2000e et seg., and the Civil Rights Act of 1866, 42 U.S.C.
§1981. JA 5. Lytle alleged that his employer, Schwitzer
Turbochargers (a subsidiary of defendant, Household 
Manufacturing, Inc.), discharged him because of his race and 
retaliated against him for filing a charge of discrimination with 
the Equal Employment Opportunity Commission. JA 5-8.

On December 26, 1984, plaintiff amended his Complaint to 
allege that he had suffered such special damages as
embarrassment, damage to his reputation, emotional distress and 
mental suffering as a result of the discriminatory and 
retaliatory acts of defendant. JA 10. Plaintiff was allowed to 
file a supplemental Complaint on November 27, 1985, which 
contained the requisite allegations to provide the court with



jurisdiction over the retaliation claim under Title VII. JA 24. 
Plaintiff requested a jury trial on his claims under Section 
1981. JA 8.

On April 19, 1985, defendant moved for summary judgment on 
several grounds, including that plaintiff's claim of 
discriminatory discharge was barred by the doctrine of collateral 
estoppel. (Pleading No. 11). On May 17, 1985, the District
Court denied the motion on the ground that "there is a genuine 
issue as to material facts." JA 23.

On February 26, 1986, the Court dismissed plaintiff's claims 
under 42 U.S.C. §1981, and denied plaintiff's request for a jury 
trial. TR 2-10. Plaintiff's Title VII claims were tried to the 
District Court on February 26-27, 1986. At the close of 
plaintiff's case, the Court made findings of fact, and granted a 
motion under Fed. Rule Civ. Proc. 41(b) to dismiss the claim of 
discriminatory discharge. TR 258-59. At the close of all of the 
evidence, the Court, after making findings of fact and
conclusions of law, ruled for defendant on the retaliation claim. 
The Court entered a judgment in favor of defendant on all claims 
on March 12, 1986. TR 300-01.

Plaintiff filed a timely notice of appeal on April 11, 1986. 
JA 63. This Court has jurisdiction under 28 U.S.C. §1291.

STATEMENT OF THE FACTS
A. DISCRIMINATORY DISCHARGE
This case involves the firing of a black employee for

2



alleged unexcused absences on two days. Plaintiff, supported by 
his doctor, claimed that he was ill and that his absence should 
have been classified as excused in accordance with defendant's 
absence policy. Plaintiff also showed that white employees with 
"excessive absence" in violation of defendant's policy were not 
fired.

1. Plaintiff's Work History
John Lytle, a black person, first applied for a job as a 

machine operator at the Arden, North Carolina, plant of Schwitzer 
Turbochargers on February 29, 1980. TR 80. Schwitzer is engaged 
in the business of manufacturing turbochargers and fan drives. TR 
13.

At the time he applied with Schwitzer, Lytle had about 2 0 
years experience operating the kinds of machines used by 
Schwitzer. TR 84. Nonetheless, after an initial interview, he 
received no response to his application. TR 81. When he 
contacted Schwitzer's Human Resources Counselor, Judith Boone, 
Lytle was told that his application had been "misplaced on the 
floor." TR 82. Then, rather than consider Lytle for a machinist 
job, Boone told him that "there would be a chance for [him] to be 
hired" if he attended an unpaid training course. TR 83. It was 
not until January 15, 1981, after Lytle had completed this 
training course, in which many of the trainees had never operated 
a machine, that he was hired by Schwitzer into the lower level 
position of machinist trainee. TR 83-84, 87. Less experienced

3



whites were hired directly into machine operator positions, TR 
82-83.

During Lytle's employment at Schwitzer, his immediate 
supervisor was Larry Miller, the Production Superintendent was A1 
Duquenne, the Employee Relations Manager was Lane Simpson and the 
Human Resources Counselor was Judith Boone, all of whom were 
white. (Defendant's Answer to Plaintiff's First Request for 
Admissions, £]? 1-4). In 1983, only seven of Schwitzer's 148
employees were black. TR 14.

Lytle slowly progressed into higher paying jobs and finally 
achieved the highest graded machinist classification. TR 87-89. 
In his 1982 performance evaluation, Lytle was commended for his 
good attendance record. TR 86; PX 6. He was never reprimanded 
or disciplined for attendence problems. TR 86-87.

2. Plaintiff's Termination
In February, 1983, Lytle began taking courses in mechanical 

engineering at Asheville-Biltmore Technical College. TR 91. 
These courses were taken "to better my job performance" and 
"qualify for some of the better jobs at Schwitzer." Id. Lytle 
was encouraged by his supervisors at Schwitzer to undertake this 
educational program and, in fact, Schwitzer provided tuition 
reimbursement. TR 92-93.

Lytle enrolled in a program which required that he attend 
classes at least four evenings a week. TR 95. Since his shift 
at Schwitzer normally ended at 3:30 p.m., these evening classes

4



did not conflict with his work schedule. TR 90-92. On class 
days, Lytle left work at 3:30 p.m., arrived home about 4:00 p.m., 
had something to eat, arrived at the college library to study at 
4:30 or 5:00 p.m., and attended class from 6:30 p.m. until 
between 9:00 and 11:00 p.m. TR 92. He also frequently found it 
necessary to study in the late evening and early morning hours. 
TR 120.

By Summer, 1983, Lytle had begun to suffer health problems 
as a result of this arduous schedule. He complained to the plant 
nurse that he was dizzy, run down and possibly suffering from 
high blood pressure. TR 71-72, 121. The nurse recommended that 
he consult a doctor. Id. In June or July, Lytle also informed 
his supervisor, Larry Miller, of these health problems and stated 
that for this reason he preferred not to work overtime. TR 120.

At the beginning of August, 1983, Lytle cut back his school 
program to two evenings per week. TR 95. During the first week 
of August, Schwitzer machinists were called upon to work a 
substantial amount of overtime in order to keep up with 
production requirements. TR 238. Lytle worked a total of five 
hours of overtime during that week. TR 127.

The next week, Lytle's health problems became worse and on 
one occasion he became so dizzy that he fainted. TR 132. He 
scheduled an appointment for Friday, August 12, 1983, with a 
doctor who had been recommended by the Schwitzer nurse. TR 122, 
130-131. On Thursday morning, August 11, Lytle asked his

5



supervisor, Miller, for permission to schedule Friday, August 12, 
as a vacation day. TR 129-132. Although sick leave would have 
been granted for a doctor's appointment, Lytle preferred to have 
the absence treated as a vacation day. TR 194. Such treatment 
meant that the day would not be counted as an absence under 
Schwitzer's policy regarding "excessive absence." TR 208. 
Treating absences because of illness as vacation days was a 
common practice among Schwitzer's employees. TR 208.

Miller at first informed Lytle that there was no problem 
with a vacation day on Friday the 12th. TR 130. However, later 
in the day, Miller stated to Lytle: "if you're off Friday, you 
have to work Saturday." TR 131. Saturday was not a normal work 
day for Lytle, but Miller stated that Lytle was required to work 
overtime on Saturday. TR 132. Lytle "explained that I wanted 
Friday off to see the doctor, and I wouldn't be able to work 
Saturday because I was physically unfit." TR 131-32. Miller 
still insisted that Lytle work on Saturday, at which point Lytle 
stated that if it were required, he would also take Saturday as a 
vacation day. TR 132. Miller walked off, without objecting to 
this suggestion. TR 132. Lytle understood that Friday would be 
treated as a vacation day, and that he had sufficiently informed 
Miller that he was physically unable to work on Saturday. TR 
191.

About an hour later, Miller's assistant came to Lytle's work 
station with a message that Lytle had received an emergency

6



TR 133.telephone call. TR 13 3. Lytle went to the employee's pay 
telephone and tried to call home. TR 134. When he could not get 
through, Lytle went to the nearest company telephone to call the 
switchboard operator. He intended to inquire whether his wife 
had stated the nature of the emergency. TR 135.1

While Lytle was talking with the switchboard operator, 
supervisor Miller entered the room. TR 135-36. Lytle 
immediately hung up the telephone and went out into the hallway 
where Miller was waiting. TR 136. Miller then "jumped all over" 
Lytle. TR 136. Miller kept repeating that Lytle could not use 
the company telephone or leave his job station without 
permission. TR 136. Lytle "tried to explain to him what I was 
doing on the'phone, but he wouldn't listen." TR 136. Because he 
found it impossible to reason with Miller, Lytle "walked off and 
went back to work." TR 136.

As Lytle was getting ready to go home, Miller "threw ... in 
[Lytle's] tool box" a schedule of overtime for the following 
week. TR 136-37. Miller again did not indicate that he had 
disapproved Lytle's request to take Friday and Saturday as 
vacation days. TR 137.

On Friday, August 12, Lytle kept his appointment with 
Dr. Caldwell. TR 139. Dr. Caldwell testified at the trial as an 
expert in internal medicine. TR 198. Dr. Caldwell diagnosed

1Lytle later found out that his child had suffered a medical 
emergency while at school. TR 138-39.

7



Lytle as suffering from fatigue and depression. He recommended 
that Lytle reduce his activities "in regard to ... work and/or 
school" and that he get more rest. TR 2 00. He also felt that 
Lytle was under too much stress and "that an impending major 
illness might follow." Id. Dr. Caldwell concluded that Lytle 
was ill on the day that he was examined, and he would have given 
Lytle an excuse for not working the next day. TR 201, 203.

Except for three hours in Dr. Caldwell's office, Lytle 
stayed at home and rested on Friday and Saturday, August 12-13. 
TR 140-41.

On Monday, August 15, Lytle returned to work as usual. TR 
141. During the day he was called into the office of Mr. A1 
Duquenne, the plant manager. TR 142. Duquenne questioned him 
about his absence on Friday and Saturday. Id. Lytle stated that 
he had been granted permission to take a vacation day for the 
Friday doctor's appointment. Id. Lytle also informed Duquenne 
that he had discussed with Miller the fact that he was physically 
unable to work on Saturday. TR 145. Later in the day, Lytle was 
informed that he had been terminated. Id.

3. Schwitzer's Absence Policy
In February, 1982, Schwitzer adopted an Absence Policy which 

outlined "the procedure to be used by our employees to schedule 
or report necessary absences, tardiness or leaving early." PX 
22, p. 1. Pursuant to this policy, an employee was to report all 
anticipated absences to his or her supervisor "as soon as

8



possible in advance of the time lost, but not later than the end 
of the shift on the previous workday." Id.

This Policy provided that absences would be excused for 
urgent personal business, urgent family obligation and personal 
illness. PX 22, p. 2. The policy also provided that "excessive" 
absence "will, most likely, result in termination of employment." 
PX 22, p. 3. It defined "Excessive Absence" as either "a total 
absence level which exceed[s] 4% of the total available working 
hours, including overtime" or "any unexcused absence which 
exceeds a total of 8 hours (or one scheduled work shift) within 
the preceding 12-month period." PX 22, pp 2-3.

4. Schwitzer's Treatment of White Employees
Plaintiff introduced evidence from defendant's own records 

of white employees who were not terminated despite "excessive 
absence." Several white employees had excessive excused 
absences. In January, 1983, Donald Rancourt, a white machinist, 
TR 217-18, ■ received a written warning from Larry Miller 
concerning an absence rate of 7.5%. TR 222, 230. In April,
1983, Rancourt's annual performance review noted that his absence 
rate as of the week ending March 20, 1983 was 5.6%. TR 48; PX
15—C, page 4. Rancourt was not terminated. TR 54.

As of March 2, 1984, Jeffrey C. Gregory, a white machinist, 
had an annual absence level of 6.3% of total available working 
hours. TR 57-58; PX 28-B. He was not terminated. TR 58. It is 
not clear whether he was even counselled concerning his excessive

9



absenteeism. TR 58.
On July 13, 1983, approximately one month prior to 

Schwitzer's termination of Lytle, Rick Farnham, a white machine 
operator, was counselled for excessive absenteeism. TR 55-56; PX
12- B. At that time Farnham's annual absence rate was 4.3%. TR 
56; PX 12-B.. Farnham was not terminated.

On August 23, 1982, David Calloway, a white machinist, was 
given his second warning in three months about excessive 
absenteeism. In June, 1982, his absence percentage was 4.5% and 
he was warned that "an immediate improvement must be made." PX
13— B, p. 1. In August, his absence percentage remained at 4.5%. 
He had been absent for a total of 16.2 hours since the June 
warning, and two absences were on consecutive Mondays. TR 44. 
Instead of termination, Calloway was given an additional sixty 
days in which to correct the problem. PX 13-B.

In addition, Greg Wilson, a white machinist, was absent two 
successive days without obtaining prior approval. TR 23-24. Of 
the sixteen hours of absence, eight were categorized as 
unexcused. The second day's absence was "excused" because Wilson 
called to inform his supervisor that he was ill. This two-day 
absence followed three unexcused tardies. Thus, as of March, 
1983, Mr. Wilson had accumulated excessive unexcused absences. 
TR 67. Yet, Wilson was not fired, but merely counselled to 
improve his absence record. The record of employee counselling, 
dated March 3, 1983 states:

10



"On 3-2-83, Greg was absent from 
work for 8 hours without calling 
in, and was unexcused for this 
reason. Greg has had 3 previous 
unexcused absences for tardiness, 
for which he was verbally warned.
... Greg has exceeded the unexcused 
absence limit defined in our 
Absence Policy and will be 
terminated if further unexcused 
absence occurs within the next 12- 
month period."

PX 14B. (Emphasis added).
B. RETALIATION CLAIM

On August 23, 1983, Lytle filed a charge of discrimination 
with the Equal Employment Opportunity Commission. TR 61; PX 1. 
This charge was received by Schwitzer's Human Resources 
Counselor, Judith Boone, shortly thereafter. TR 61-62. Around 
the same time, Lytle began seeking employment with other 
businesses in the Asheville area without success. He was 
informed by some of these prospective employers that they were 
having difficulty getting an adequate reference from his former 
employer, Schwitzer. TR 111.

Mr. Adrienne Finch interviewed Lytle for a position at ABF 
Freight Systems. TR 100. Judith Boone, Schwitzer's Human 
Resources Counselor, received an employment reference tracer for 
Lytle from ABF headquarters. Although the form stated that 
applicants could not be hired unless the questionnaire was 
completed, Boone refused to answer the questions or return the 
form. In a telephone interview, she provided only job title, 
date of hire, and date of termination. TR 65-67.

11



Lytle was also informed by Steve Yates, Personnel Director 
of Thomas and Howard, that he was not able to obtain sufficient 
information from Schwitzer in order to determine whether or not 
to hire Lytle. TR 111. Judith Boone refused to provide any 
information to Thomas and Howard except for dates of employment 
and position title. TR 112.

Schwitzer claimed that it was merely applying its normal 
policy with respect to references for individuals who have been 
involuntarily terminated. TR 261. Yet, Joe Carpenter, a white 
male, obtained a favorable letter of reference signed by Mr. Lane 
Simpson, the Personnel Director of Schwitzer. This letter 
stated: "Joe proved to be both willing and competent in
performing any duty required of him. I can recommend Joe to any 
potential employer. ..." PX 10. Carpenter, who was terminated 
from his position as a Machine Operator II for falsification of 
timesheets, was the only machinist involuntarily terminated prior 
to Lytle in 1983. Defendant claimed that Mr. Carpenter's letter 
of reference was a mistake. TR 270.
C. THE DECISION BELOW

In dismissing plaintiff's claims under the Civil Rights Act
of 1866, 42 U.S.C. section 1981, the Court reasoned:

I will find from the pleadings in 
this cause that there is no 
independent basis alleged in the 
1981 action. I will conclude, 
based upon the reasoning of the 
Tafoya case, that Title VII 
provides the exclusive remedy, and 
this case will be tried by the

12



Court without a jury, and the 1981 
claim is dismissed.

TR 8.
In granting a Rule 41(b) dismissal of plaintiff's claim of 

discriminatory discharge, the Court concluded that plaintiff had 
not established a prima facie case of discrimination. The Court 
first stated that plaintiff had 9.8 hours of unexcused absence. 
TR 258. The Court also found that plaintiff had shown evidence 
of four white employees who exceeded the excused absence limit 
and who were given warnings. Id. The Court ruled "that the 
conduct on the part of the white employees is not substantially 
similar in seriousness to the conduct for which plaintiff was 
discharged." TR 259. The Court therefore concluded "as a matter 
of law that [plaintiff] has not established a prima facie case, 
since he has not established that Blacks were treated 
differently, and in fact committed violations of the company's 
policy of sufficient seriousness." TR 259.

With regard to the retaliation claim, the Court, after 
hearing all of the evidence, made findings of fact that defendant 
had a policy "that when asked for references from prospective 
employees, the defendant provided only the dates of employment 
and the job title and, if requested, a description." TR 300. 
The Court found as fact "that the granting of that one favorable 
letter of reference was done through inadvertence." TR 300.

13



SUMMARY OF ARGUMENT
Plaintiff, alleging that his employer fired him because of 

his race and then retaliated against him for filing an EEOC 
charge, joined claims under both 42 U.S.C. § 1981 and Title VII 
of the Civil Rights Act of 1964. He requested a jury trial. The 
primary issue raised by this appeal is whether the District Court 
improperly dismissed plaintiff's claim under 42 U.S.C. § 1981 and 
thus deprived plaintiff of a jury trial on the critical questions 
of discriminatory and retaliatory intent. If plaintiff was 
entitled to a jury trial on his claims under § 1981, then the 
District Court's determinations on plaintiff's Title VII claims 
must be vacated to await resolution of joint factual issues by 
the jury. Beacon Theatres v. Westover. 359 U.S. 500 (1959).

Plaintiff also argues that the District Court erred in 
ruling that he did not establish a prima facie case of 
discrimination under Title VII. However, in dismissing 
plaintiff's discharge claim under Rule 41(b), the District Court 
relied upon findings of fact on issues that should have been 
reserved for the jury. Thus, this Court need not reach the Title 
VII issue if it agrees that plaintiff is entitled to a jury trial 
on the issue of liability.

With regard to the first issue, the United States Supreme 
Court, this Court and a vast number of lower federal courts have 
concluded that Title VII does not preempt claims under § 1981. 
Rather, "Section 1981 affords a federal remedy against racial

14



discrimination in employment that is 'separate, distinct, and
independent' from the remedies available under Title VII." 
Johnson v. Ryder Truck Lines. Inc.. 575 F.2d 471 (4th Cir. 1978), 
cert, denied. 440 U.S. 979 (1979). These decisions rest squarely 
on explicit legislative history that Title VII was not "meant to 
affect existing rights granted under other laws." S. Rep. No. 
415, 92d Cong., 1st Sess. 24 (1971).

It is not necessary that a victim of employment 
discrimination "elect" remedies. Rather, "Title VII manifests a 
congressional intent to allow an individual to pursue 
independently rights under both Title VII and other application 
state and federal statutes." Alexander v. Gardner-Denver. 415 
U.S. 36, 48 (1974)(emphasis added).

Section 1981 and Title VII claims may be joined in a single 
proceeding. Fed. Rule Civ. Proc. 8(e)(2). Indeed, such joinder 
should be encouraged to avoid the expense and inconvenience of 
separate lawsuits. The United States Supreme Court, this Court 
and scores of other federal courts have entertained complaints 
joining § 1981 and Title VII claims.

Moreover, plaintiff in this case presented triable issues of 
fact that should have been submitted to the jury. Plaintiff was 
fired allegedly for excessive unexcused absences over a two and a 
half day period in August, 1983. Plaintiff's so-called unexcused 
absences consisted of leaving at the normal end of his shift on a 
Thursday afternoon, rather than working overtime. Plaintiff

15



explained that he was required to leave on that afternoon because 
of an emergency telephone call. Plaintiff was absent on the 
following Friday and Saturday because of a doctor's appointment 
and illness. Plaintiff submitted evidence that all of these 
absences should have been excused under defendant's normal policy 
of excusing absences caused by doctor's appointments, illness or 
an urgent personal emergency. Clearly plaintiff's evidence 
raised a triable question of fact as to whether discrimination 
motivated the classification of his absences as unexcused.

Plaintiff also submitted evidence that five whites in his 
department had excessive absences under the defendant's Absence 
Policy and were not terminated. This evidence, particularly when 
combined with plaintiff's more general evidence of discriminatory 
intent, was sufficient to raise a question of fact concerning 
defendant's motive in terminating plaintiff.

If the Court rules that plaintiff was unconstitutionally 
denied the right to a jury trial, the trial court's dismissal of 
his Title VII claims must be vacated. Under Beacon Theatres, all 
joint issues of fact concerning legal and equitable claims that 
have been raised in a single lawsuit must first be decided by the 
jury. Only then may the remaining equitable issues be decided by 
the Court. The District Court erred in this case by denying the 
request for a jury trial and then deciding the Title VII claims. 
To correct this error, the Title VII judgment must be vacated and 
remanded for entry of a ruling consistent with the jury's verdict

16



on the § 1981 claims.
If this Court does not order a jury trial on joint issues of 

fact affecting plaintiff's Title VII claims of discrimination and 
retaliation, then the Court must decide whether plaintiff 
established a prima facie case of discriminatory discharge. 
Under the standards announced in Moore v, City of Charlotte. 754 
F.2d at 1100, 1110 (4th Cir.), cert, denied. 105 S.Ct. 3489
(1985), plaintiff clearly met this burden. Moore directs that 
the District Court analyze similarity of offenses by utilizing 
the employer's own scale of seriousness of offenses. Here, 
plaintiff showed that other employees had "excessive absences" 
within the meaning of his employer's definition and yet were not 
terminated. Moreover, plaintiff presented a prima facie case of 
discrimination in the classification of absences as unexcused in 
circumstances where the absences of white employees were excused. 
Thus, the District Court's Rule 41(b) dismissal of plaintiff's 
claim of discriminatory discharge must be reversed.

ARGUMENT
I. THE DISTRICT COURT ERRONEOUSLY DISMISSED PLAINTIFF'S 

CLAIM UNDER 42 U.S.C. SECTION 1981 AND 
UNCONSTITUTIONALLY DEPRIVED PLAINTIFF OF HIS RIGHT TO A 
JURY TRIAL
A. TITLE VII DOES NOT PREEMPT CLAIMS UNDER 42 

U.S.C. SECTION 1981
Plaintiff's complaint joined claims under both Title VII of 

the Civil Rights Act of 1964 and the Civil Rights Act of 1866, 
codified as 42 U.S.C. § 1981. Title VII and § 1981, "although

17



related, and although directed to most of the same ends, are
separate, distinct and independent." Johnson v. Railway Express 
Agency Inc., 421 U.S. 454, 461 (1975). Section 1981 authorizes a 
civil action to secure "a limited category of rights, 
specifically defined in terms of racial equality." General 
Building Contractors Ass'n v. Pennsylvania. 458 U.S. 375, 384 
(1982).2 The rights protected by § 1981 are based on the 
fundamental principles of the Thirteenth and Fourteenth 
Amendments.3 Section 1981 "on its face relates primarily to 
racial discrimination in the making and enforcement of 
contracts," including discrimination in employment.4 Railway

2Section 1981 is derived from §1 of the Civil Rights Act of 
1866. See General Building Contractors. 458 U.S. at 384. It was 
recodified as §16 of the Civil Rights Act of 1870. Id. at 385.

As currently codified, 42 U.S.C. §1981 provides:
All persons within the jurisdiction 
of the United States shall have the 
same right ... to make and enforce 
contracts ... as is enjoyed by 
white citizens.

3General Building Contractors. 458 U.S. at 396, n.17; Mahone 
v. Waddle. 564 F.2d 1018, 1030 (3d Cir. 1977), cert, denied. 438 
U.S. 904 (1978); Young v. International Telephone and Telegraph 
Co. , 438 F.2d 757, 759 (1971); Waters v. Wisconsin Steelworks. 
427 F.2d 476, 482 (7th Cir. 1970), cert, denied. 400 U.S. 911 (1970).

4The reach of section 1981 is not limited to employment 
discrimination. See, e.g.. Runvan v. McCrary. 427 U.S. 160, 172- 
73 (1976)(§1981 prohibits private, nonsectarian, commercially- 
operated schools from denying admission on the basis of race); 
Marable v. H. Walker & Associates. 644 F.2d 390, 395 (5th Cir. 
1981)(§1981 applied to invidious discrimination in housing); Hall 
v. Pennsylvania State Police. 570 F.2d 86, 91-2 (3d Cir. 
1978)(§1981 requires commercial enterprises to extend the same

18



Express. 421 U.S. at 459-60.
Title VII, by contrast is limited in its coverage to 

employment discrimination. However, Title VII covers such 
discrimination on the basis of religion, sex and national origin 
as well as race and color. Moreover, Title VII prohibits 
unintentional discrimination under the disparate impact theory of 
liability, while §1981 liability requires a finding of 
discriminatory intent.5

Section 1981 and Title VII also provide different procedures 
and remedies. "[T]he two procedures augment each other and are 
not mutually exclusive." H.R. Rep. No. 238, 92d Cong. 1st Sess. 
19 (1971). Section 1981 provides the right to a jury trial,
while Title VII does not. In addition, Title VII provides a 
mandatory, comprehensive administrative scheme of enforcement. 
"[T]he filing of a Title VII charge and resort to Title VII's 
administrative machinery are not prerequisites for the 
institution of a § 1981 action." Railway Express. 421 U.S. at 
460. Section 1981 authorizes compensatory and punitive damages, 
as well as the types of equitable relief provided by Title VII. 
Id.

In Johnson v. Ryder Truck Lines. Inc.. 575 F.2d 471 (4th 
Cir. 1978), cert, denied. 440 U.S. 979 (1979), this Court held

treatment to contractual customers).
5Compare Griggs v. Duke Power Co.. 401 U.S. 424 (1971), with 

General Building Contractors. 458 U.S. at 389.

19



that Title VII does not preclude relief under 42 U.S.C. §1981. 
The Court concluded: "The Civil Rights Act of 19 64 did not 
repeal by implication any part of §1981 ... Section 1981 affords 
a federal remedy against racial discrimination in private 
employment that is 'separate, distinct, and independent' from the 
remedies available under Title VII of the 1964 Act." Id. at 473- 
74.

This Court's decision in Ryder Truck Lines is consistent 
with binding Supreme Court precedents and with the overwhelming 
weight of authority in the lower federal courts. In Johnson v. 
Railway Express Agency. 421 U.S. at 461, the Supreme Court 
rejected the theory that Title VII is the exclusive remedy for 
private employment discrimination. In that case, the Court held 
that the timely filing of a charge with the EEOC under Title VII 
did not toll the running of the limitations period for a §1981 
claim based upon the same facts. Id. at 466. The Court 
concluded "that Congress clearly has retained § 1981 as a remedy 
against private employment discrimination separate from and 
independent of the more elaborate and time-consuming procedures 
of Title VII." Id. at 466.

The Supreme Court reaffirmed the Railway Express decision in 
Brown v. GSA. 425 U.S. 820, 829 (1976). Brown held that section 
717 of Title VII. provides the exclusive judicial remedy for 
claims of discrimination in federal employment. The Court 
contrasted this exclusive remedy for federal employees with the

20



Railway Express decision governing private employment. Id. The 
Court in Brown further noted that Johnson rested on an explicit
legislative history of Title VII which "'manifests a
congressional intent to allow an individual to pursue
independently his rights under both Title VII and other
applicable state and federal statutes.'" 425 U.S. at 833 
(emphasis added)(quoting Alexander v. Gardner-Denver. 415 U.S. at 
48). See also Electrical Workers v. Robbins & Mvers, Inc.. 429 
U.S. 229, 236-37 (1976).

The District Court's conclusion that "Title VII provides the 
exclusive remedy" also conflicts with decisions of numerous lower 
federal courts holding that Title VII did not preempt §1981.6

These court decisions are soundly based on the legislative 
history of Title VII. In 1964, Congress rejected an amendment 
proposed by Senator Tower that would have made Title VII the 
exclusive federal remedy for employment discrimination. 110 
Cong. Rec. 13650-52 (1964). In support of this amendment, 
Senator Ervin read the text of §1981 into the record. 110 Cong. 
Rec. 13075. Thus, Congress' knowledge of the §1981 cause of 
action when it rejected Senator Tower's amendment cannot be 
doubted.

6E*ct- . Lowe v. City of Monrovia. 775 F.2d 998, 1010 (9th
Cir. 1985); Harris v. Richards Mfq. Co. . 675 F.2d 811, 814 (6th 
Cir. 1982); Goss v. Revlon Inc. . 548 F.2d 405, 407 (2d Cir.
1976); Sanders v. Dobbs Houses. Inc.. 431 F.2d 1097, 1100 (5th
Cir. 1970), cert, denied. 401 U.S. 948 (1971); Waters v.
Wisconsin Steelworks. 427 F.2d 476, 434-85 (7th Cir.), cert.denied. 400 U.S. 911 (1970).

21



When Title VII was extended to cover state and local
employees in 1972, both the House and the Senate Reports
reaffirmed the continued viability of § 1981 as a remedy for
employment discrimination. The House Report stated:

[T]he Committee wishes to emphasize 
that the individual's right to file 
a civil action in his own behalf, 
pursuant to the Civil Rights Act of 
1870 . . ., 42 U.S.C. § 1981, . . . 
is in no way affected.
Title VII was envisioned as an 
independent statutory authority 
meant to provide an aggrieved 
individual with an additional 
remedy to redress employment 
discrimination.

H.R. Rep. No. 238, 92d Cong., 1st Sess. 18-19 (1971).7 The
Senate Report similarly provided that Title VII was not "meant to 
affect existing rights granted under other laws." S. Rep. No. 
415, 92d Cong., 1st Sess. 24 (1971).8

In addition, in 1972 Congress twice rejected a proposed 
amendment that would have made Title VII an exclusive remedy.

7The Committee also noted with approval the Court decisions 
in Young v. I.T. & T.. 438 F.2d 757 (3d Cir. 1971) and Sanders v. 
Dobbs House, supra. holding that Title VII and § 1981 remedies 
augment each other and are not mutually exclusive. id.

8 Subsequent legislative history is most authoritative when 
Congress relies on its understanding of the meaning of a statute 
in revising the statute. E.g.. Bell v. New Jersey. 461 U.S. 773, 
784-85 & n. 12 (1983)? Bob Jones University v. United States. 461 
U.S. 574, 599-602 (1983).

The Supreme Court has repeatedly recognized that the 
authoritative source for legislative intent lies in the committee 
reports on the bill. Thornburg v. Gingles. 54 U.S.L.W. 4877, 
4881 n.7 (June 30, 1986). See also. Zuben v. Allen. 396 U.S. 168, 186 (1969).

22



118 Cong. Rec. 3373, 3965. Senator Hruska, sponsor of the
proposed amendment, called upon the Senate to cure "the defects 
of the existing law" and to avoid what he perceived to be an 
unnecessary multiplicity of suits under other laws. 118 Cong. 
Rec. 3960. He warned that without the Amendment, "the employee 
could completely bypass both the E.E.O.C. and the N.L.R.B. and 
file a complaint in Federal court under the provisions of the
Civil Rights Act of 1866---- " 118 Cong. Rec. 3173. Senator
Hruska reminded his colleagues that Title VII did not grant 
exclusive jurisdiction of employment discrimination cases to the 
EEOC. On the contrary, the design of Title VII provided for use
of "all available means." 118 Cong. Rec. 3960. Senator
Williams, in opposing the amendment, cautioned that the passage 
of the Amendment would "wipe out" §1981, "one of the basic civil 
rights statutes that have guided the country for a century." 118 
Cong. Rec. 3963. Thus, Congress in 1972 was fully aware that 
§1981 rights were not preempted by Title VII when it again 
rejected an amendment to make Title VII the exclusive remedy for 
employment discrimination.

B. TITLE VII AND SECTION 1981 CLAIMS MAY BE
BROUGHT IN THE SAME LAWSUIT

The Court below, and the Tafova decision upon which it
relied, attempted to fashion two exceptions to the employment 
discrimination victim's right to pursue both Title VII and §1981 
remedies. First, the Court below appears to suggest that a 
plaintiff may pursue only one of the two remedies available to

23



him. See TR 8 ("It would appear from a very cursory reading of 
Johnson [v. Railway Express] that the Title VII action was never 
filed as a lawsuit in that case."). Second, the Court in Tafoya 
V . Adams, 612 F. Supp. 1097 (D.C. Colo. 1985), concluded that 
while "Congress did not intend to preclude [state and local 
employees] from bringing §§ 1981 and 1983 claims completely," 612 
F. Supp. at 1101, the claims may not be joined "in the same 
judicial proceeding" unless the § 1981 claims "are independent 
and are not based on violations of rights set forth in Title 
VII." Id. at 1102-1103. Both of these suggested limitations on 
the availability of Title VII and § 1981 remedies are at odds 
with the court authorities and legislative history and must be 
rejected.

The suggestion that a victim of employment discrimination 
must "elect" remedies has been rejected by the Supreme Court. In 
Alexander v. Gardner-Denver Co.. 415 U.S. 36, 46, 49 (1974), the 
Court reversed rulings by a District Court and Court of Appeals 
that "the doctrine of election of remedies" could apply to 
preclude Title VII lawsuits. Instead, the Court held that "Title 
VII manifests a congressional intent to allow an individual to 
pursue independently his rights under both Title VII and other 
applicable state and federal statutes." Id. at 48 (emphasis 
added).

The legislative history mandates this conclusion. As noted 
above, Congress intended that Title VII would provide an

24



1981 would not beadditional remedy and that rights under §
affected. H. R. Rep. No. 238, supra, at 18-19. Obviously,
forcing a plaintiff to elect remedies "affects" the availability
of the § 1981 remedy. Moreover, Congress was aware of the
existence of multiple remedies. See 110 Cong. Rec. 13651
(1964)(Senator Tower). In 1972, Senator Hruska argued for
exclusivity because:

Court decisions issued subsequent 
to the passage of Title VII have 
held that Title VII has not 
preempted the field of civil rights 
in employment and thus an 
individual has an independent cause 
of action in cases of employment 
discrimination pursuant to the 
provisions of the Civil Rights Act 
of 1866 (42 U.S.C. 1981) and 1871
(42 U.S.C. section 1983) and that 
actions may be brought under all 
three laws simultaneously.

118 Cong. Rec. 1791-92. (Emphasis added).
The notion that Title VII and § 1981 claims may not be

brought in the same proceeding unless the § 1981 claim is
supported by an "independent basis" is equally erroneous. Since 
enactment of Title VII, the Supreme Court on numerous occasions 
has issued decisions in cases where the plaintiff joined in the 
same lawsuit a Title VII and a § 1981 claim based on the same 
facts.9 Yet, the Court has never hinted that such a procedure is

9E.g., General Building Contractors, supra; New York City 
Transit Authority v, Beazer. 440 U.S. 568, 577 (1979); McDonald
— Santa Fe Trail Transp. Co.. 427 U.S. 273, 285, 296 (1976);

Franks v. Bowman Transp. Co.. 424 U.S. 747, 750, n.l (1976).
25



prohibited or that two separate lawsuits should instead be 
pursued.10 *

Similarly, this Court,11 and other federal courts in scores 
of cases have heard both Title VII and §1981 claims based on the 
same facts in the same lawsuit. See Fed. Rule Civ. Proc. 
8(e)(2). These courts have afforded to plaintiffs the procedural 
and substantive protections available under both statutes.12

10The Court in Johnson v. Railway Express appeared to 
recommend such joinder of claims, when it suggested that a § 1981 
plaintiff could ask the District Court to stay the § 1981 
proceedings until the Title VII administrative process has been 
completed. 421 U.S. at 465.

X1E.g., Brady v. Thurston Motor Lines. 726 F.2d 136, 138 
(4th Cir.), cert, denied. 84 L.Ed.2d 53 (1984)(affirming finding 
that defendant's employment practices violated both Title VII and 
§ 1981) , subsequent decision on remedy. 753 F.2d 1269 (4th Cir. 1985).

I2Lowe v. City of Monrovia. 775 F.2d 998, 1010 (9th Cir. 
1985); Jones v. Western Geophysical Co.. 761 F.2d 1158, 1159 (5th 
Cir. 1985)(Title VII and § 1981 claims tried simultaneously by 
court sitting without a jury); Poolaw v. City of Anadarko. 738 
F.2d 364, 368 (10th Cir. 1984), cert, denied. 84 L.Ed. 2d 779 
(1985) (bench trial on Title VII and jury trial on § 1981 claims 
conducted simultaneously); E.E.O.C. v. Gaddis. 733 F.2d 1373 
(10th Cir. 1984); Harris v. Richards Mfq. Co.. 675 F.2d 811, 814 
(6th Cir. 1982)("private plaintiff who sues under both Title VII 
and Section 1981 may obtain the equitable relief provided by 
Title VII and such equitable relief as well as legal relief by 
way of compensatory and punitive damages afforded by Section 
1981"); Williams v, Owens-Illinois. Inc.. 665 F.2d 918, 922, 925 
(9th Cir. 1982), modified on other grounds. 28 FEP Cases 1820, 
cert.denied. 459 U.S. 971 (1982)(§ 1981 claims tried to jury and 
Title VII claims tried to court with advice of jury) ; Bibbs v. 
Jim Lynch Cadillac, Inc.. 653 F.2d 316 (8th Cir. 1981); Whiting
3L:__Jackson State University. 616 F.2d 116 (5th Cir. 1980);
Claiborne v. Illinois Central Railroad. 583 F.2d 143, 146, 154 
(5th Cir. 1978), cert, denied. 442 U.S. 934 (1979) (punitive 
damage award under § 1981 proper "even when the section 1981 
claim is joined with Title VII claims"); Gates v. I.T.T.

26



Other than the decision below, which is void of any legal 
reasoning, Tafoya v. Adams stands alone in its holding that an 
independent factual basis is required for the assertion of a 
§1981 claim concurrently with a Title VII cause of action.13 The

Continental Baking, 581 F.Supp. 204 (N.D. Ohio 1984)(plaintiff 
asserting both Title VII and §1981 claims based on defendant's 
rejection of his employment application entitled to jury trial on 
§1981 claim for punitive damages and back pay); Powell v. 
Pennsylvania Housing Finance Agency. 563 F.Supp. 419 (M.D. Penn. 
1983); Daniels v. Lord & Tavlor. 542 F.Supp. 68 (N.D. 111. 
1982)(plaintiff charging discriminatory failure to promote, 
discipline and discharge under both Title VII and §1981, entitled 
to jury trial on §1981 legal claims); Thomas v. Resort Health 
Related Facility. 539 F.Supp. 630 (E.D.N.Y. 1982)(plaintiff 
bringing joint Title VII and §1981 claims for discriminatory 
discharge entitled to jury trial on §1981 claim for mental 
anguish); Acosta v. Univ. of District of Columbia. 528 F.Supp. 
1215 (D.C. D.C. 1981).

13 Defendant in the court below relied upon a series of 
footnotes in Fifth Circuit cases. See Rivera v. City of Wichita 
Falls. 665 F.2d 531, 534 n.4 (5th Cir. 1982); Carpenter v. 
Stephen F. Austin State University. 706 F.2d 608, 612 n.l (5th 
Cir. 1983); Page v. U.S. Industries. Inc.. 726 F.2d 1038, 1041 
n.2 (5th Cir. 1984); Parson v. Kaiser Aluminum & Chemical Corn.. 
727 F . 2d 473, 475 n.l (5th Cir. 1984), cert, denied. 104 S.Ct. 
3516 (1984).' See also Smith v. Western Elec. Co.. 770 F.2d 520, 
521 n.l (5th Cir. 1985).

However, it is clear that this line of footnotes addresses 
only the appropriate procedure for appellate review of the 
substantive question of liability in situations where the 
plaintiff joins Title VII and §1981 claims that both rest on 
allegations of intentional discrimination. They arise out of the 
specific situation in Rivera, in which the legal basis for the 
§1981 claim was unclear because the discrimination was on the 
grounds of national origin, not race. This line of footnotes 
stands only for the unexceptional proposition that in this 
circumstance, the substantive elements of liability under §1981 
parallel those under Title VII, and thus on appeal it is not 
necessary for the Court to consider the liability questions 
separately for §1981.

This line of footnotes stems from the Fifth Circuit's 
conclusion in Whiting v. Jackson State University. 616 F.2d 116,

27



reasoning of the Tafoya decision is severely flawed. The Court 
in Tafoya relied heavily on the Supreme Court decisions in Brown

121 (5th Cir. 1980), that "[w]hen section 1981 is used as a 
parallel remedy with section 706 of Title VII against disparate 
treatment in employment, its elements appear to be identical to 
those of section 706." In Whiting. Title VII and §1981 claims 
were joined in the same lawsuit and the plaintiff obtained a jury 
trial. Thus, it is clear that the statement in Whiting refers 
only to the elements of substantive liability, and does not to 
deny the availability of both remedies, including their different 
procedures or remedies.

The footnote in Rivera. the lead case relied upon by 
defendant, cites Whiting as an explanation for its conclusion 
that "consideration of alternative remedies was not necessary." 
It is inconceivable that the Fifth Circuit would cite with 
approval a case that affirmed the plaintiff's right to assert 
§1981 and Title VII claims jointly and to obtain a jury trial on 
the §1981 claims, if in the same footnote, the Court intended to 
deny such rights.

The meaning of the Rivera footnote is further explained in 
two subsequent footnotes in this line. In Page v. U.s. 
Industries, Inc.. 726 F.2d at 1041 n.2 (1984), the Court referred 
to the Rivera footnote as a "rule of this Court" establishing 
when "consideration of an alternative remedy brought under §1981 
is necessary." And in its most recent citation to the Rivera 
footnote, the Fifth Circuit explained: "Because the same 
analyses apply to claims under section 1981 as under Title VII 
[citing Rivera footnote], we shall consider [the §1981] claim 
together with the Title VII claim. The district court made no 
separate finding on this issue." Smith v. Western Elec. Co.. 770 
F.2d at 521 n. 1 (1985). It is significant that the Court did 
not dismiss the §1981 claim, but merely considered it on appeal 
"together" with the Title VII claim.

This meaning of the Rivera footnote also is confirmed by 
recent Fifth Circuit decisions. In cases where the existence of 
the §1981 claim makes a difference in the procedures or remedy 
available, the Court has carefully protected the plaintiff's 
entitlement to the attributes of a §1981 claim, notwithstanding 
the joinder of a Title VII claim. Hamilton v. Rodgers. 791 F.2d 
439, 440-42 (5th Cir. 1986)(where §1981 and §1983 claims joined 
with Title VII claim, court notes that substantive elements of 
liability are same under all statutes, but that compensatory 
damages for emotional injury may be awarded under §198 3) ; Whiting 
supra; Claiborne, supra; Jones v. Western Geophysical Co.. supra.

28



v. GSA. supra, and Great American s'. & L. Ass'n v. Novotnv. 442 
U.S. 366 (1979). 612 F. Supp. at 1100. But, as noted above, the 
Brown decision carefully distinguished Johnson v.Railway Express. 
Similarly, the Court in Novotnv. in holding that "§ 1985(c)14 may 
not be invoked to redress violations of Title VII," 442 U.S. at 
378, again distinguished § 1981. The Court noted that unlike 
cases involving §1981, "[t]his case ... does not involve two 
'independent' rights." Id.15 Thus, neither Brown nor Novotnv 
can be construed to support the decision in Tafova.

The Court in Tafova also reasoned that to permit the 
assertion of non-independent § 1981 claims in the same lawsuit 
with a Title VII claim would "subvert" Title VII's comprehensive 
remedial scheme. 612 F.Supp. at 1101. However, this argument 
was considered and rejected in Railway Express. The Court there

14Section 1985(c) establishes a cause of action for damages 
caused by actions in furtherance of a conspiracy to deprive a 
person or class of persons of equal protection of the laws.

15The Court further explained:
This case thus differs markedly from the 
cases recently decided by this Court that 
have ... held that substantive rights 
conferred in the 19th century were not 
withdrawn, sub silentio, by the subsequent 
passage of the modern statutes. . . . And in 
Johnson v. Railway Express Agency [citation 
omitted], we held that the passage of Title 
VII did not work an implied repeal of the 
substantive rights to contract conferred by 
the same 19th century statute and now 
codified at 42 U.S.C. § 1981.

Id. at 377.

29



noted that the availability of a § 1981 cause of action might 
permit a plaintiff to avoid Title VII's detailed administrative 
procedures. However, Court concluded that "these are the natural 
effects of the choice Congress has made available to the claimant 
by it conferring upon him independent administrative and judicial 
remedies." 421 U.S. at 461.

Moreover, the "independent basis" requirement of Tafova is 
incomprehensible. The Court apparently used this phrase to refer 
to claims with an independent legal, as opposed to factual, 
basis.16 Yet, the authorities are overwhelming that a Section 
1981 race discrimination claim rests on inherently independent 
legal grounds. E.q., Johnson v. Railway Express. 421 U.S. at 
459-60; Johnson v. Ryder Truck. 575 F.2d at 473-74. Even the 
Court in Tafoya acknowledged that "independent of Title VII 
remedies, § 1981 ... provide[s] remedies for racial 
discrimination." 612 F. Supp. at 1099 (emphasis added).

Finally, the suggestion is ludicrous that a plaintiff should 
be encouraged to bring two separate lawsuits to enforce both 
Title VII and § 1981 with respect to the same set of facts. Such 
a solution, while it may be tolerated in some situations, see 
Railway Express. 421 U.S. at 461, certainly is not the preferred 
or most efficient manner of litigating independent claims that

16The Court in Tafoya distinguished a binding Tenth Circuit 
precedent, Owens v. Rush. 654 F.2d 1370 (1981), on the ground 
that the plaintiff there "alleged violations of independent 
substantive rights in addition to his Title VII claims." 612 F. Supp. at 1104 n.5.

30



are legally and factually similar.17
C. PLAINTIFF'S RETALIATION CLAIM IS ACTIONABLE 

UNDER 42 U.S.C. SECTION 1981
It is well-established that 42 U.S.C. § 1981 encompasses a 

cause of action for retaliation for the filing of race 
discrimination claims. This is because "[t]he ability to seek 
enforcement and protection of one's right to be free of racial 
discrimination is an integral part of the right itself." Goff v. 
Continental Oil Co.. 678 F.2d 593, 598 (5th Cir. 1982). "Section 
1981 would become meaningless if an employer could fire an 
employee for attempting to enforce his rights under that 
statute." Id.

Similarly, § 1981 creates a cause of action for retaliation 
against an employee who files a charge of discrimination under 
Title VII. Retaliation against someone who files an EEOC charge 
alleging racial discrimination "would inherently be in the nature 
of a racial situation." Setser v. Novack Investment Co.. 638
F • 2d 1137, 1146 (8th Cir.), modified. 657 F2d 932, cert, denied. 
102 S.Ct. 615 (1981). "[I]t would be impossible completely to

17The court in Tafoya did not explain how the two separate 
lawsuits would relate to each other, if at all. Presumably if 
the plaintiff lost in the first lawsuit, collateral estoppel 
would bar relitigation of facts. If plaintiff first prevailed in 
a Title VII lawsuit, a second action under §1981 would be 
necessary on any claims for compensatory or punitive damages, or 
for damages outside the two-year backpay limit of Title VII. If 
the plaintiff first prevailed in a §1981 lawsuit, a subsequent 
Title VII litigation might still be necessary to address claims 
under the disparate impact theory of liability, which is beyond the scope of §1981.

31



disassociate the retaliation claim from the underlying charge of 
discrimination." Goff. 678 F.2d at 599. For this reason, five 
federal circuits,18 and numerous district courts,19 have held 
that § 1981 prohibits retaliation for the filing of an EEOC
charge. Indeed, no federal Court of Appeals has held to the 
contrary.20

D. PLAINTIFF IS CONSTITUTIONALLY ENTITLED TO A 
JURY TRIAL ON HIS SECTION 1981 CLAIMS

It is undisputed that a plaintiff is constitutionally 
entitled to a jury trial on all legal claims for relief under

18E.ct. , Choudhury v. Polytechnic Institute of New York. 735 
F . 2d 38 (2d Cir. 1984); DeMatteis v. Eastman Kodak Co.. 511 F.2d 
306, 312 (2d Cir. 1975), modified on other grounds. 520 F.2d 409 
(2d Cir. 1975); Goff, supra (5th Cir.); Pinkard v. Pullman- 
Standard, 678 F .2d 1211, 1229, n.15 (5th Cir. 1982)(per curiam), 
cert denied. 459 U.S. 1105 (1983); Whiting v. Jackson State 
University. 616 F.2d 116 (5th Cir. 1980); Harris v. Richards Mfq. 
Co« t 675 F.2d 811, 812 (6th Cir. 1982); Winston v. Lear-Siealer 
Inc_i_, 558 F.2d 1266, 1268-70 (6th Cir. 1977); Greenwood v. Ross. 
778 F .2d 448, 455 (8th Cir. 1985); Sisco v. J.S. Alberici Const. 
Cp-v, 655 F . 2d 146, 150 (8th Cir. 1981), cert, denied. 455 U.S. 
976 (1982); Setser v. Novack. supra (8th Cir.); London v . 
Coopers & Lybrand. 644 F.2d 811 (9th Cir. 1981).

19E.q.. Moffett v. Gene B. Glick Co.. 621 F. Supp. 244, 282- 
83 (N.D. Ind. 1985); Gresham v. Waffle House, Inc.. 586 F. Supp. 
1442, 1446 (N.D. Ga. 1984); Cox v. Consolidated Rail Corp.. 557 
F. Supp. 1261, 1265 (D.D.C. 1983).

20In the 1970's, a few federal district courts in the Second 
and Fifth (now Eleventh) Circuits concluded that § 1981 did not 
encompass retaliation. See Hudson v. I.B.M.. 22 FEP Cases 947 
(S.D.N.Y. 1975)(decision on merits affirmed without reaching 
retaliation issue, 620 F.2d 351 (2d Cir.), cert, denied. 449 U.S. 
1066 (1980)); Takeall v. WERD, Inc.. 23 FEP Cases 947 (M.D. Fla. 
1979); Grant v. Bethlehem Steel Corn. . 22 FEP Cases 680 (S.D.N.Y. 
1978), Barfield v. A.R.C. Security. Inc.. 10 FEP Cases 789 (N.D. 
Ga. 1975) . However, all of the decisions have been discredited 
by later Court of Appeals decisions. E.g.. Choudhury, supra (2d 
Cir.); Goff, supra. (5th Cir.).

32



§1981. Harris v. Richards Mfg. Co. . 675 F.2d 811, 814-15 (6th 
Cir. 1982) ; Williams v. Owens-Illinois, Inc.. 665 F.2d 918, 928 
(9th Cir. 1982); Setser v. Novack Investment Co.. 638 F.2d 1137, 
1140 (8th Cir. 1981), modified on other grounds. 657 F.2d 962 (en 
banc), cert, denied. 454 U.S. 1064 (1981); Moore v. Sun Oil Co. 
of Pennsylvania. 636 F.2d 154, 156 (6th Cir. 1980). See also 
Segara v. McDade, 706 F.2d 1301, 1304 (4th Cir. 1983) (right to 
jury trial under 42 U.S.C. §1983); Burt v. Abel. 585 F.2d 613, 
616 n. 7 (4th Cir. 1978)(same).21 in this case, Lytle asserted a 
legal claim under §1981 for compensatory and punitive damages, 
including emotional distress. JA 7 (Complaint, £ 23), JA 10 
(Amendment to Complaint).21 22

Lytle presented sufficient evidence to send both his 
discharge and retaliation claims to the jury. Although the 
District Court dismissed the parallel Title VII discharge claim 
under Rule 41(b), such a dismissal is not equivalent to a ruling 
that plaintiff presented insufficient evidence to send the § 1981

21In Curtis v. Loether. 415 U.S. 189, 194 (1974), the 
Supreme Court held that the Seventh Amendment applies to an 
action in federal court to enforce a civil rights statute that 
creates legal rights and remedies. The right to a jury trial 
thus applies under §1981 because that section affords plaintiffs 
both equitable and legal relief, including compensatory and, in 
some cases, punitive damages. Johnson v. Railway Express. 421 U.S. at 460.

22Since plaintiff was entitled to a jury trial with respect 
to all legal claims arising under §1981, he was entitled to have 
a jury determine liability. Moore. 636 F.2d at 157. See. B. 
Schlei & P. Grossman, Employment Discrimination Law, 1983-84 Cum. 
Supp. 212 (2d Ed.). See also Point II, below.

33



discharge claim to the jury. A dismissal in a non-jury case 
under Rule 41(b) is "on the ground that upon the facts and the 
law the plaintiff has shown no right to relief." Fed. Rule Civ. 
Proc. 41(b)(emphasis added). Rule 41(b) by its terms applies 
only "in an action tried by the court without a jury." Id. The 
Rule explicitly provides that "the court as trier of the facts 
may determine them." Id. If the court enters a Rule 41(b) 
dismissal against the plaintiff, it "shall make findings as 
provided in Rule 52(a)." Id.

The difference between a Rule 41(b) dismissal in a non-jury
case and a directed verdict in a jury trial has been noted by
many courts. As recently explained by the Court of Appeals for
the Eighth Circuit,

the court’s role [under Rule 41(b)] 
is fundamentally different from its 
role in a jury trial when ruling on 
a defendant's motion for a directed 
verdict at the close of the
plaintiff's case. In ruling on a
motion for directed verdict, the 
judge must determine if the
evidence is such that reasonable 
minds could differ on the 
resolution of the questions 
presented in the trial, viewing the 
evidence in the light most 
favorable to the plaintiff. On a 
motion for directed verdict, the 
court may not decide the facts 
itself. In deciding a Rule 41(b) 
motion, however, the trial court in 
rendering judgment against the
plaintiff is free to assess the 
credibility of witnesses and the

34



evidence and to determine that the 
plaintiff has not made out a case.23

In this case, there is no doubt that the District Court 
relied upon findings of fact in entering the Rule 41(b) dismissal 
of plaintiff's discharge claim. The District Court's conclusion 
that plaintiff had 9.8 hours of excessive unexcused absence was 
crucial to its dismissal of the discharge claim. Yet, 
plaintiff's evidence showed, and defendant did not deny, that an 
excused absence will be granted as a matter of course for 
doctor's appointments, illness and urgent family obligation. 
Lytle testified that he informed his supervisor of both his 
Friday doctor's appointment and his physical inability to work on 
Saturday. Thus, plaintiff presented sufficient proof for a jury 
to conclude that, absent racial discrimination, Lytle's absences 
on both Friday and Saturday would have been excused.24

Similarly, Lytle testified that he attempted to inform 
Miller about the emergency telephone call on Thursday afternoon 
and that Miller was abusive and would not listen. A jury could

23Continental Casualty Co. v. DHL Services. 752 F.2d 353, 
355-56 (1985). Accord Stearns v. Beckman Instruments, Inc.. 737 
F.2d 1565, 1567 (Fed. Cir. 1984)(judgment under Rule 41(b) "need 
not be entered in accordance with a directed verdict standard"); 
Wilson v. United States. 645 F.2d 728, 730 (9th Cir. 1981) ("The 
Rule 41(b) dismissal must be distinguished from a directed 
verdict under Rule 50(a)."). See generally V MOORE'S FEDERAL 
PRACTICE 41-175 to 41-179 (1985).

24See, Gairola v. Virginia Dept, of General Services. 753 
F • 2d 1231 (4th Cir. 1985) (it is for jury to weigh the evidence 
and pass on credibility); Ellis v. International Plavtex. Inc. - 
745 F .2d 292, 298 (4th Cir. 1984).

35



reasonably conclude that, absent discrimination, Lytle's failure 
to work overtime on Thursday afternoon would have been excused as 
an urgent family obligation.

Second, even if the jury determined that plaintiff was 
properly charged with unexcused absence, whether white employees 
were treated more leniently for similar offenses is a question of 
fact that also must be decided by the jury.

The District Court itself indicated that it was making 
findings of fact about issues on which reasonable individuals 
could differ. During argument on the Rule 41(b) motion, Mr. 
Lytle's attorney suggested that "the only reason Mr. Lytle is 
being charged with unexcused absence . . .  is because of Mr. 
Larry Miller's decision not to consider Friday a vacation day and 
to make Saturday a mandatory 8-hour overtime work period. And 
the misunderstanding that Mr. Lytle had about that is the only 
reason he didn't call in." TR 252-53. In response to an 
objection that the argument was "not necessarily supported by the 
evidence here" the Court stated: "It's a reasonable 
interpretation of the evidence." TR 253. Thus, had the District 
Court not dismissed plaintiff's section 1981 claim, there is no 
doubt that the Court would have sent the discharge claim to the 
jury.

Plaintiff also presented more than enough evidence to send 
his retaliation claim to the jury, as acknowledged by the 
District Court when it denied the Rule 41(b) motion on this

36



claim. The retaliation claim turns on the factual question 
whether Schwitzer's favorable letter of recommendation for Joe 
Carpenter was a mistake. This factual determination will depend 
heavily on the fact-finder's assessment of credibility. 
Therefore, plaintiff is constitutionally entitled to a jury trial 
on his retaliation claim.
II. THE TRIAL COURT'S JUDGMENT ON PLAINTIFF'S TITLE VII

CLAIMS MUST BE VACATED
In Beacon Theatres v. Westover. 359 U.S. 500, 508-12 (1959), 

the Supreme Court held that where legal and equitable claims 
based on the same factual allegations are joined in the same 
case, the District Court must, absent "the most imperative 
circumstances," try the legal claims to the jury before itself 
deciding the equitable claims. This order of proof is necessary 
to avoid depriving a party of the right to a jury trial on the 
legal claims. Id. See also Dairy Queen v. Wood. 369 U.S. 469 
(1962) .

Applying Beacon Theatres to the facts of this case, the 
District Court's decision and judgment on Lytle's Title VII 
claims must be vacated to allow a jury determination of all 
relevant facts. The appropriate procedure is for the jury to 
determine the issue of liability and for the Court subsequently 
to determine any issues of remedy that are of an equitable 
nature. See Moore v. Sun Oil. 63 6 F.2d at 157; Gates v. ITT 
Continental Baking Co.. 581 F. Supp. 204, 297 (N. D. Ohio
1984)("in ruling upon plaintiff's claim pursuant to [Title VII],

37



the Court is bound by the jury's determination of facts"); Thomas 
v. Resort Health Related Facility. 539 F.Supp. 630, 634 (E.D.N.Y. 
1982) .
III. PLAINTIFF ESTABLISHED A PRIMA FACIE CASE OF

DISCRIMINATORY DISCHARGE UNDER TITLE VII
A. PLAINTIFF ESTABLISHED A PRIMA FACIE CASE 

UNDER THE SUPREME COURT'S MODEL OF PROOF OF 
INDIVIDUAL DISCRIMINATORY TREATMENT

The Supreme Court has developed a model of proof to be used
in individual Title VII cases "to bring the litigants and the
court expeditiously and fairly to [the] ultimate question" of
discriminatory intent. Under this model, the plaintiff first has
the burden of establishing a prima facie case. Texas Department
of Community Affairs v. Burdine. 450 U.S. 248, 254 (1981). For
example, a plaintiff who was not rehired allegedly because of his
commission of an offense against the employer may establish a
prima facie case by showing:

(i) that he belongs to a racial 
minority; (ii) that he applied and 
was qualified for a job for which 
the employer was seeking 
applicants; (iii) that, despite his 
qualifications, he was rejected; 
and (iv) that, after his rejection, 
the position remained open and the 
employer continued to seek 
applicants from persons of 
complainant's qualifications.

McDonnell Douglas Corn, v. Green. 411 U.S. 792, 802 (1973). A
minority plaintiff's initial burden to establish a prima facie 
case "is not onerous." Id. at 253. Plaintiff in this case

38



satisfied the McDonnell Douglas requirements.25
B. PLAINTIFF ESTABLISHED A PRIMA FACIE CASE 

UNDER MOORE V. CITY OF CHARLOTTE
In Moore v. City of Charlotte. 754 F.2d at 1100, 1110 (4th 

Cir. 1985), this Court "clarified the showing that a plaintiff 
needs to make to establish a prima facie case in a disciplinary 
Title VII action." Under Moore, one way that a plaintiff may 
establish a prima facie case of discriminatory discipline is by 
showing "(1) that plaintiff engaged in prohibited conduct similar 
to that of a person of another race, . . . and (2) that
disciplinary measures enforced against the plaintiff were more 
severe than those enforced against the other person." 754 F.2d 
at 1105-06.

Applying Moore1s definition of the prima facie case, the 
evidence presented by plaintiff more than satisfies this burden. 
First, the evidence concerning the excessive excused absences of 
four white employees meets the prima facie burden as articulated 
in Moore. The Court in Moore recognized that it is not necessary 
for the plaintiff to establish that non-minority employees 
committed the exact offense as allegedly committed by plaintiff. 
Rather, the key question in whether non-minority employees were 
punished less severely for offenses of "comparable seriousness." 
754 F .2d at 1107.

Moore also established principles for assessing the relative

25See Whitincr v. Jackson State University. 616 F.2d 116, 121 (1980) .
39



seriousness of different offenses. One such method of valuation 
is the classification of offenses by the employer itself. Moore 
holds that an assessment of the "similarity" of offenses 
"require[s] at least initial deference to the system of offenses 
created by the [employer]." 754 F.2d at 1108. The Court in 
Moore criticized the lower court for having "ignored the 
[employer's] own classification of disciplinary offenses in its 
assessments of comparable seriousness." Id. at 1102. Moore thus 
makes clear that where the plaintiff's alleged offense and the 
offenses of non-minority employees are classified by the employer 
as equally serious, the prima facie burden is satisfied.

The proof in this case tracks the requirements articulated 
in Moore. Section V ("Definitions") of Schwitzer's Absence 
Policy defines "excessive absence" in terms of both "excused 
absence" and "unexcused absence." PX 22, pp. 1-2. Section VII 
of the Policy ("Effect on Employment and Progress") goes on to 
provide "EXCESSIVE ABSENCE/TARDINESS/LEAVING EARLY fas defined in 
Section V) WILL, MOST LIKELY. RESULT IN TERMINATION OF 
EMPLOYMENT." PX 22, page 2 (emphasis in original). Thus, 
Schwitzer's own classification of excessive excused and unexcused 
absences draws no distinction between the two in terms of the 
"effect on employment."

The District Court, with no support from the record, 
invented a difference in severity between excessive excused 
absences and excessive unexcused absences. The Court failed to

40



recognize that any distinction between excused and unexcused 
absences is already taken into account in Schwitzer's definition 
of "excessive absence." Under Schwitzer's policy, an employee 
may have excused absences of more than 80 hours in a twelve month 
period without being "excessive."26 In contrast, unexcused 
absence in excess of eight hours is treated as "excessive." 
Given that it takes ten times as many excused absence hours as 
unexcused absence hours to trigger treatment as "excessive," 
there is simply no reason to believe that excessive excused 
absence is less serious than excessive unexcused absence.27

26For example, in the twelve month period ending March 2, 
1984, Charles M. Owen, a Schwitzer machinist, had 71.26 hours 
total absence, yet his absence percentage was only 3.9, below the 4% excessive level. PX 12-B.

27This is not to say that defendant might not be able to 
produce evidence that would rebut the natural inferences to be 
drawn from its Absence Policy. This is, of course, exactly the 
purpose of Stage Two of the McDonnell Douglas model of proof. 
However, the District Court's invention of an explanation in the 
absence of any "articulation" by Schwitzer deprived plaintiff of 
the opportunity to show that the explanation is pretext. As 
explained in a similar situation:

The district court's substitution of a reason 
of its own devising ... runs directly counter 
to the shifting allocation of burdens worked 
out by the Supreme Court in McDonnell Douglas 
and Burdine. The purpose of that allocation 
is to focus the issues and provide plaintiff 
with a 'full and fair opportunity' to attack 
the defendant's purported justification. ...
Thus the defendant cannot meet its burden 
merely through an answer to the complaint or 
by argument of counsel. It should not be 
necessary to add that the defendant cannot 
meet its burden by means of a justification 
articulated for the first time in the 
district court's opinion.

41



Moreover, Lytle's evidence of the lenient treatment of 
similarly situated white machinists was bolstered by more general 
evidence of discriminatory intent. All of the individuals who 
participated in the decision to fire Lytle were white. This 
decision was based on subjective judgments concerning whether all 
or a part of Lytle's absence on August 10-12 should be treated as 
excused and whether his offense was serious enough to require 
dismissal.28 The courts have uniformly recognized that 
subjective decisionmaking, particularly by an all-white 
supervisory force, provides a ready mechanism for discrimination 
and must be carefully scrutinized.29 Thus, this evidence raises 
a strong suspicion of discrimination and provides an alternative 
means of establishing a prima facie case. Cf. Moore. 754 F.2d at

Lanphear v. Prokop. 703 F.2d 1311, 1316-17 (D.C. Cir. 1983).
28That subjective judgments were involved in the decision to 

terminate Lytle is clear from the fact that other employees with 
both excessive excused and unexcused absences were not terminated 
and that supervisors exercised discretion whether to treat an absence as excused.

29E.g., Boykin v. Georgia-Pacific Coro.. 706 F.2d 1384 (5th 
Cir. 1983), cert, denied. 465 U.S. 1006 (1984); Wright v. 01 in 
<2orP • / 697 F.2d 1172, 1181 (4th Cir. 1982) ; Rowe v. Cleveland 
Pneumatic Corp., 690 F.2d 88 (6th Cir. 1982); Paxton v. United 
National Bank, 688 F.2d 552, 563 n. 15 (8th Cir. 1982), cert. 
denied, 460 U.S. 1083 (1983); Burrus v. United Tel. Co.. 683 F.2d 
339 (10th Cir.), cert, denied. 459 U.S. 1071 (1982); O'Brien v. 
Skv Chefs. Inc.. 670 F.2d 864 (9th Cir. 1982); Rowe v. General 
Motors Corp. , 457 F.2d 348, 357-58 (5th Cir. 1972); Brown v. 
Gaston County Dyeing Machine Co.. 457 F.2d 1377, 1382 (4th Cir. 
1972K  cert, denied, 409 U.S. 982 (1972); Patterson v. American 
Tobacco Co., subsequent decision. 535 F.2d 257, cert, denied. 429 
U.S. 920, subsequent decision. 634 F.2d 744 (1980), rev'd on other grounds. 456 U.S. 63 (1982).

42



1105 (individual plaintiff may establish a prima facie case 
"through evidence of a general pattern of racial 
discrimination").

The circumstances of Lytle's own hiring also contribute to 
his prima facie case. His application was at first "misplaced" 
after an interview with Larry Miller. TR 82. The interview, of 
course, gave Miller an opportunity to determine Lytle's race. 
Then, despite his extensive experience, Lytle was hired into the 
lower level job of machinist trainee, only after attending an 
unpaid training course for inexperienced machinists. TR 83-84. 
At the same time, whites with lesser qualifications than Lytle 
were hired directly into machinist jobs. TR 82-83. Finally, 
Lytle was one of only seven blacks in a company with 148 
employees. TR 14.

As noted by the Supreme Court, analysis of whether the 
plaintiff has established a prima facie case "was never intended 
to be rigid, mechanized or ritualistic." Furnco Construction 
Corp. v. Waters, 438 U.S. 567, 577. In this case, plaintiff's 
strong showing of lenient treatment of white employees with 
excessive absences, combined with the evidence of hiring 
discrimination against plaintiff, the subjective decisionmaking 
by an all-white supervisory force and the low number of blacks 
employed by Schwitzer, are more than sufficient to meet this 
burden.

43



C. PLAINTIFF ESTABLISHED A PRIMA FACIE CASE OF 
DISCRIMINATION IN THE CLASSIFICATION OF HIS 
ABSENCE AS UNEXCUSED

The District Court ruled that Lytle had not established a 
prima facie case of discrimination because he did not prove that 
white employees had accrued an equal amount of unexcused 
absences. However, the Court failed to consider whether 
Schwitzer's categorization of Lytle's absences as unexcused was 
itself discriminatory. Lytle clearly presented sufficient 
evidence to establish a prima facie case that his absences were 
categorized differently from those of other employees. He showed 
that Schwitzer routinely excuses absences for urgent personal 
business, doctor's appointments and illnesses. He testified that 
he attempted to inform Miller of the emergency telephone call on 
Thursday, August 11, and that he did inform Miller of the reason 
for his absence on Friday and Saturday, August, 12-13. With 
regard to the Friday and Saturday absences, Lytle's notification 
of Miller on Thursday complied with the Absence Policy's 
requirement that an employee notify his supervisor of an 
anticipated absence "as soon as possible in advance of the time 
lost, but no later than the end of the shift on the previous work 
day." Moreover, Lytle's emergency telephone call on Thursday 
afternoon falls within the "emergency circumstances" exception 
for advance reporting. PX 22, p.2.

In an almost identical situation, a district court concluded 
that plaintiff's complaint of discriminatory discipline should

44



not be dismissed for lack of proof of "similarity" of offenses, 
where it appears that the plaintiff's "offense" was classified 
differently than those of other employees. In Webb v. Kroger 
Co. , 620 F.Supp. 1489 (S.D. W. Va. 1985), the plaintiff was 
terminated for an admitted unexcused absence record in excess of 
that of white employees. Nonetheless, the district court 
concluded that plaintiff should be given the opportunity to prove 
that he "was subjected to disparate treatment which caused him to 
accrue an objectively dismal attendance record." Id. at 1492. 
In this case, Lytle submitted such proof. The entire period of 
Lytle's absence was treated as unexcused, even though he had 
informed his supervisor prior to his absence. In contrast, only 
one of Greg Wilson's two days of absence was treated as 
unexcused, even though Wilson had not obtained prior approval. 
The evidence that Lytle's absences would have been excused had 
Schwitzer's normal policy been applied to him was sufficient to 
establish a prima facie case of disparate treatment which caused 
him to accrue an excessive unexcused absence record.

Thus, the burden should have shifted to Schwitzer to explain 
why Lytle's absences were treated as unexcused. Schwitzer's 
treatment of the Friday absence as unexcused is particularly 
suspicious, since even Lytle's supervisor admitted that he 
initially authorized one of the days as vacation. Affidavit of 
Larry E. Miller (Pleading No. 13) . By precipitously dismissing 
Lytle's discharge claim, the District Court denied Lytle the

45



opportunity to cross-examine defendant's witnesses and to prove 
that the unexcused classification of all or a part of his 
absences was pretextual.

CONCLUSION
For the reasons stated, the judgment of the District Court 

should be reversed. The case should be remanded for a jury trial 
on plaintiff's claims under §1981 and for a decision on 
plaintiff's Title VII claims consistent with the jury's verdict.

Respectfully submitted,
(?-£/_odl c_ ~D>. __.

JULIUS L. CHAMBERS 
RONALD L. ELLIS 
PENDA D. HAIR

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

REGAN MILLER
600 South College Street 
Charlotte, North Carolina 28202 
(704) 372-9870

Dated: October 1, 1986



ADDENDUM



TITLE 42, UNITED STATES CODE

§ 1 9 8 1 . Equal rights under the law
All persons within the jurisdiction of the United States shall have 

the same right in every State and Territory to make and enforce 
contracts, to sue, be parties, give evidence, and to the full and equal 
benefit of all laws and proceedings for the security of persons and 
property as is enjoyed by white citizens, and shall be subject to like 
punishment, pains, penalties, taxes, licenses, and exactions of every 
kind, and to no other.

§ 2 0 0 0 e  -  2 . Unlawful employment prabtices

E m p lo y er practices

fa) It shall be an unlawful employment practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or 

otherwise to discriminate against any individual with respect to 
his compensation, terms, conditions, or privileges of employ­
ment, because of such individual’s race, color, religion, sex, or 
national origin; or

(2) to limit, segregate, or classify his employees or appli­
cants for employment in any way which would deprive or tend 
to deprive any individual of employment opportunities or other­
wise adversely affect his status as an employee, because of such 
individual's race, color, religion, sex, or national origin.

§ 2 0 0 0 e - 3 .  Other unlawful employment practices

H x i l B l M l i n  fa r  ■ • k l i f  ehargeo, m t l f r i i K ,  u i l x l n c ,  or p a rtic ip a tin g  
!■  enforcem en t proceed Inna

(*) It shall be an unlawful employment practice for an employer 
to discriminate against any of his employees or applicants for em­
ployment, for an employment agency, or joint labor-management 
committee controlling apprenticeship or other training or retraining, 
lac*u<**nK on-the-job training programs, to discriminate against any in­
dividual, or for a labor organization to discriminate against any 
member thereof or applicant for membership, because he has op- 

any practice made an unlawful employment practice by this 
•obchapter, or because he has made a charge, testified, assisted, or 
P'^cipated in any manner in an investigation, proceeding, or hear- 

under this subchapter.



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