Smith v USA Reply Brief in Opposition to Certiorari

    No. 95-4171

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

JAMES T. HARVIS, JR.,

Plaintiff,

MAURICE RIVERS and ROBERT C. DAVISON, 

Plaintiffs-Appellants,

ROADWAY EXPRESS, INC., 

Defendant-Appellee.

On Appeal from the United States District Court 
for the Northern District of Ohio

REPLY BRIEF FOR PLAINTIFFS-APPELLANTS

v.

Elaine R. Jones 
Director-Counsel

Ellis Boat 
615 Griswold 
Suite 925 Ford Building 
Detroit, MI 48226 
(313) 962-2770

Theodore M. Shaw 
Norman J. Chachkin 
Charles Stephen Ralston 
NAACP Legal Defense and 

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

Terry J. Lodge 
618 N. Michigan Street 
Suite 201
Toledo, OH 43624 
(419) 255-7552

Counsel for Plaintiffs-Appellants



TABLE OF CONTENTS

I. INTRODUCTION AND COUNTER-STATEMENT .................................  1

II. THIS CASE MUST BE REMANDED FOR A TRIAL BEFORE A JURY 6

CONCLUSION ................................    11

CERTIFICATE OF SERV ICE.............................................................................  12

ADDENDUM

l



Cases: Pa8es:

Ethyl Corp. v. Steelworkers, 768 F.2dd 180 (7th Cir. 1985) ....................................8

Henry v. Daytop Village, 42 F.3d 89 (2d Cir. 1994) ............................................... 9

Lewis v. NLRB, 779 F.2d 12 (6th Cir. 1985) ...........................................................7

McDonnell Douglas v. Green, 411 U.S. 792 (1973) ........................................... 7, 9

Schwartz v. Gregori, 45 F.3d 1017 (6th Cir. 1995) ................................................. 9

Scott v. Anchor Motor Freight, 496 F.2d 276 (6th Cir. 1974) ...............................8

TABLE OF AUTHORITIES

St. Mary’s Honor Center v. Hicks, 509 U.S. __, 125 L.Ed.2d 407 (1993) . . .  8, 9

Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574 ( I9 6 0 ) ................ £

Texas Department of Social Services v. Burdine, 450 U.S. 248 (1981)............ 7, 9

Trans World Airlines v. Thurston, 469 U.S. I l l  (1985) ........................................9

United States Postal Service Board of Governors v. Aikens,
460 U.S. 711 (1983)........................................................................................... 9

Statutes: Pages:

42 U.S.C. § 1981 .............................. .................................. - ...................................10

Other authorities:

ELKOURI AND ELKOURI, H o w  Arbitration Works, Chapter 12, "Custom and 
Past Practice," (4th ed., BNA 198 5 )................................................. 8



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE SIXTH CIRCUIT

JAMES T. HARVIS, JR.,

Plaintiff,

MAURICE RIVERS and ROBERT C. DAVISON,

Plaintiffs-Appellants,

v.

ROADWAY EXPRESS, INC,

Defendant-Appellee.

On Appeal from the United States District Court 
for the Northern District of Ohio

REPLY BRIEF FOR PIAINTIFFS-APPELLANTS

I.
INTRODUCTION AND COUNTER-STATEMENT

Before responding to defendant-appellee’s legal arguments, it is first necessary 

to respond to a number of their factual assertions and to put the factual disputes it 

raises into their proper context.

The issue before this Court is whether it was proper for the district court to 

grant summary judgment rather than permitting the case to be tried to a jury. That



question, as discussed in our opening brief, depends on whether there were disputes 

as to material issues of fact which had to be resolved by a fact-finder after a full 

trial. Defendant-appellee's brief amply demonstrates that there are a wealth of 

disputes as to crucial facts, all of which must be decided by a jury.

1. In our opening brief, we noted that one of the circumstances from which 

a jury could infer that there was a retaliatory motive in discharging the plaintiffs was 

the fact that they were not discharged when they did not attend the first disciplinary 

proceeding, but only when they did not attend the second after they won their 

grievance. Brief for Plaintiffs-Appellants, p. 22. Defendant-appellee now alleges, 

for the first time, that there is an explanation for this interesting fact: that is, the 

first hearing was off the clock, while the second hearing was on the clock. Brief of 

Defendant-Appellee Roadway Express, Inc., pp. 14, 16, 18. Defendant-Appellee 

cites nothing in the record for this assertion, because there is nothing in the record 

that supports it. If there is evidence to support the assertion, it would be up a jury 

to decide whether there was in fact a difference as alleged and whether, given the 

totality of the circumstances, that difference, rather than a retaliatory motive, 

explains the firing of Rivers and Davison.

2. In any event, there is evidence in the record that the two hearings were 

not different in this respect. Thus, the trial record reflects that the hearings on both 

days were to be on the clock before 8:00 am when the night-shift employees left. 

R. 326; Transcript of Trial, Vol. I. pp. 119 (Davison Testimony); 211 (Rivers

2



Testimony); 573 (O’Neill Testimony). Again, it will be up to the jury on remand to 

resolve this issue.

3. Defendant-Appellee argues that the difference in scheduling times between 

white and black employees was caused by the Union Business Agent, Mr. Toney. 

Therefore, the Union tactics benefitted employees of all races, including Rivers and 

Davison. Brief of Defendant-Appellee Roadway Express, Inc., p. 10. However, the 

record reflects that Rivers and Davison had not been in trouble during the year in 

question to the point of having hearings requested on them until the incidents here. 

Plaintiffs’ Exhibits 37-38 (Rivers and Davison Employee Labor Logs). The Business 

Agent, therefore, had no occasion to use the alleged stalling tactics for them until 

he got them a two-day postponement from August 20 to August 22. The primary 

beneficiaries of the stalling had in fact been four white employees, Bradley, 

Sedelbauer, Swartzfagerm and Shockey. Toney had used the tactic many times since 

May to benefit whites. R. 328, Transcript of Trial, Vol. Ill, p. 723 (Testimony of 

Guy). The very first time Toney used the tactic to benefit Blacks, Mr. Guy claimed 

to have suddenly seen through it and invoked the 72-hour rule, which had been in 

effect for 15 years but had not been used until the case of Rivers and Davison. R 

327: Transcript of Trial, Vol. II, p. 415 (Testimony of McCord). Once more, it 

would be up to the jury to decide precisely what occurred. Moreover, regardless of 

whether Rivers and Davison were right that there had been racial discrimination in 

the imposition of discipline, the issue to be tried is whether Roadway retaliated 

against them for successfully winning their grievance from the first hearing by raising

3



the claim.

4. Defendant-Appellee claims that Rivers and Davison were given a direct 

order to attend the hearings on September 23. Brief of Defendant-Appellee 

Roadway Express, Inc., p. 15. Once again, what occurred is in dispute. Witnesses 

differed on whether the word "order" was used, but no Roadway witness claims that 

any management official warned plaintiffs that they would be subject to discipline 

if they didn’t go. As we have pointed out in our opening brief, the plaintiffs 

testified that no one informed them that a failure to attend the hearing could result 

in their discharge, Brief for Plaintiffs-Appellants, p. 14. And there is no evidence 

that when plaintiffs walked out of the hearing after initially attending anyone said 

they could be subject to discipline. R. 326: Transcript of Trial, Vol. I, pp. 248 

(testimony of Rivers); R. 327, Transcript of Trial, Vol. II, pp. 586, 588 (testimony 

of O’Neill). What is clear is that they were told that hearings would be held 

whether they were there or not. This is what they were told that day, as well as 

what they had been told in their written hand-delivered notices the day before. And 

they had been told the same thing for August 22 while on the clock, and no 

discipline had ensued because they did not attend.

5. Defendant-Appellee points to Mr. Toney’s testimony that he told plaintiffs 

their jobs would be in jeopardy if they did not attend their hearings. Brief of 

Defendant-Appellee Roadway Express, Inc., p. 15. But plaintiffs’ accounts dispute 

that Toney said this. In fact, after Davison’s discharge and when Rivers’ hearing 

started, no one even told him Davison had been fired, let alone that he had been

4



fired for leaving the hearing.

6. Defendant-Appellee claims that there is no evidence that Roadway had a 

custom or practice of providing employees notice of hearings. However, Mr. O’Neill 

and Mr. Guy both admitted it, and admitted that the practice changed with this 

case. R 327: Transcript of Trial, Vol. II, p. 530 (Testimony of O’Neill); R. 328: 

Transcript of Trial, Vol. Ill, 745 (Testimony of Guy);1 R. 192: Deposition of Guy. 

August 12, 1987, p. 149. Mr. Toney’s testimony and notes also confirm that he had 

argued that the failure to send notice by certified or registered mail violated the 

contract. R. 328: Transcript of Trial, Vol. Ill, pp. 791-92.

7. Defendant-Appellee argues at length that plaintiffs’ claims fail because 

they have not established that there were comparable whites who were not 

disciplined. We have discussed at length in our brief why the search for 

comparables is inapposite in this case since, by the very nature of the claim, there 

will be no whites who may have suffered retaliation for seeking to enforce their 

contractual right to grieve a disciplinary process that has favored whites. Brief for 

Plaintiffs-Appellants, pp. 23-26. Nevertheless, there were in fact whites who were 

not treated similarly to Rivers and Davison. Thus, Messrs. Russell, Zumsteg, and 

Buckley all refused direct orders and were either not fired at all (Zumsteg and

Tndeed Mr. Guy acknowledged that, since the time he arrived in 1980, he bad 
sent notice of hearings by certified mail. R. 328: Transcript of Trial, Vol. Ill, p. 745.

5



Buckley2), or fired but later reinstated.3 Mr. Sedelbauer, the white employee who 

was fired at the same time as was Rivers and Davison was not precisely similarly 

situated, since he, unlike plaintiffs, did not go into the hearing at all.4 In addition, 

evidence was presented as to forty-six other instances of intentional misconduct by 

employees of both races. Until plaintiffs’ second disciplinary hearing, the ordinary 

penalty for employees was a punishment substantially less than immediate discharge. 

The two exceptions other than plaintiffs’ cases, were the cases of Russell and 

Sedlebauer, both of which occurred after plaintiffs’ discharges. Deposition of Guy, 

August 13, 1987, Exhibit 176.

II.
THIS CASE MUST BE REMANDED FOR A TRIAL BEFORE A JURY 

Plaintiffs-Appellants, in their opening brief, have discussed at length why

2R. 327: Transcript of Trial, Vol. II, pp. 376-77 (Testimony of Crawford). In 
fact, Zumsteg and Buckley received no penalty at all.

3Russell refused a direct order and was fired. He grieved and an arbitration 
panel ordered him reinstated. On his return, Supervisor Guy told him no one had 
wanted him fired in the first place. Supervisor Horton told him he had only been 
fired to cover Roadway for the case against Rivers and Davison. Supervisor Floyd 
confirmed the same. R. 327: Transcript of Trial. Vol. II, pp. 332-36 (Testimony of 
Russell).

4Appellate counsel for Plaintiffs-Appellants wishes to call the Court’s attention 
to an error in our opening brief at pp. 15, n. 5, 24, n. 9, and p. 25, n. 11, that was 
called to his attention by trial counsel. Those footnotes identify Mr. Sedlebauer as 
the white employee who was fired, returned to work, and told that he was fired only 
to cover for the firing of Rivers and Davison. In fact, the white employee in 
question was Mr. Russell. See n. 2, supra. In any event, the treatment of Russell 
and his testimony regarding it was evidence to be considered by the jury in deciding 
whether the motive for discharging Rivers and Davison was retaliation.

6



defendant’s and the trial court’s mechanical application of the McDonnell 

Douglas/Burdine5 analysis and why the insistence on white comparators are simply 

inappropriate in this case, and we will not repeat that discussion here. We do wish 

to respond to a few points, however.

1. Defendant-appellant cites Lewis v. NLRB , 779 F.2d 12. 13 (6th Cir. 1985), 

for the proposition that it is improper to cite the assertion of arbitration panel 

member Les Singer that one of the reasons plaintiffs won their first grievance was 

because African American employees were being discriminated against. Brief of 

Defendant-Appellee Roadway Express, Inc., p. 20, n. 5. Lewis is inapposite, 

however. In that case, an arbitration panel member was called to testify about an 

arbitral rationale, and this Court disapproved the practice of calling a panel member 

as a witness. Here, by contrast, the panel member spontaneously asserted the 

arbitral rationale outside of any court proceedings. Witnesses were, therefore, free 

simply to quote what they heard as evidence not only of the reasons for the panel’s 

decision, but as evidence of Roadway management’s understanding that the claim 

of race discrimination was an element in the panel’s decision. In any event, there 

is no question buty that one of the grounds for grieving the first disciplinary action 

was racial discrimination, that the grievance was upheld, and that newer, harsher 

discipline followed almost immediately thereafter

2. Defendant-Appellant relies heavily on the argument that the three contract

5McDonnell Douglas v. Green, 411 U.S. 792 (1973); Texas Department of Social 
Services v. Burdine, 450 U.S. 248 (1981).

7



rights sought to be enforced by Rivers and Davison — to be free of racial

discrimination, to have proper notice of disciplinary hearings, and to have discipline

based only on "just cause" -  are not specifically spelled out in black letters in the

contract. Brief of Defendant-Appellee Roadway Express, Inc., pp. 23-26. However,

it is Black Letter Law that they need not be. See, e.g, Elkouri and Elkouri,

How Arbitration Works, Chapter 12, "Custom and Past Practice," pp. 437-56 (4th ed.,

BNA 1985)(discussing past practice); Steelworkers v. Warrior & Gulf Navigation Co.,

363 U.S. 574, 579 (1960)(specific words of contract not dispositive); Ethyl Corp. v.

Steelworkers, 768 F.2dd 180, 185-86 (7th Cir. 1985)(implied terms in a contract).

And, as this Court has squarely held, it is for a jury to decide the meaning of an

ambiguous contract. Scott v. Anchor Motor Freight, 496 F.2d 276 (6th Cir. 1974).

3. Defendant-appellee argues that the Supreme Court’s decision in St. Mary’s

Honor Center v. Hicks, 509 U.S. __ , 125 L,Ed.2d 407 (1993) holds that it is not

sufficient for a plaintiff to introduce evidence from which the fact-finder could

decide that the reason advanced by the employer was not the real reason in order

to establish pretext. In fact, Hicks squarely holds exactly the opposite:

The factfinder’s disbelief of the reasons put forward by the defendant 
(particularly if disbelief is accompanied by a suspicion of mendacity) 
may, together with the elements of the prima facie case, suffice to show 
intentional discrimination. Thus, rejection of the defendant’s proffered 
reasons, will permit the trier of fact to infer the ultimate fact of 
intentional discrimination, and the Court of Appeals was correct when 
it noted that, upon such rejection, "[n]o additional proof of 
discrimination is required," . . . .

8



125 L.Ed.2d at 418-19 (emphasis in original; footnote omitted).6 Thus, Hicks is 

consistent with the holding of Burdine, 450 U.S. at 256, and United States Postal 

Service Board of Governors v. Aikens, 460 U.S. 711, 716 (1983), that one way to 

establish pretext is to show that the "employer’s proffered explanation is unworthy 

of credence." This Court has adopted the correct reading of Hicks, and, therefore, 

the defendant-appellee’s attempt to ressurrect the so-called "pretext plus" rule must 

be rejected. Schwartz v. Gregori, 45 F.3d 1017, 1021 (6th Cir. 1995). See also, Henry 

v. Daytop Village, 42 F.3d 89, 96 (2d Cir. 1994).

4. Finally, the district court’s sole reliance on the McDonnell Douglas/Burdine 

analysis was inappropriate because there was evidence in the record which, if 

credited by a jury, would constitute direct evidence of retaliatory motive. See, Trans 

World Airlines v. Thurston, 469 U.S. I l l ,  121 (1985)("McDonnell Douglas test is 

inapplicable where the plaintiff presents direct evidence of discrimination.") We 

have set out at some length in our opening brief the facts and circumstances from 

which a properly instructed jury could infer retaliatory motive,7 and we will only 

highlight two here. First, three witnesses testified that Roadway Labor Relations 

Manager James O’Neill became enraged upon hearing of the panel determination, 

and vowed to hold hearings on plaintiffs again within 72 hours. R. 192: Appendix

6The Court went on to hold that the lower court erred in holding that rejection 
of the defendant’s proffered reason compelled entry of judgment for the plaintiff. 
Id.

7Brief for Plaintiffs-Appellants at pp. 20-23.

9



I, McCord Dep. 9/3/87 at 286; Rivers 7/14/87 Dep. at 327; Guy Dep. 8/12/87 at 168- 

69. O’Neill was "hollering" and was visibly upset. R. 192: Appendix I, McCord 

Dep. 9/3/87 at 286; Guy Dep. 8/12/87 at 168-69. Second, evidence showed that until 

Rivers and Davison successfully exercised their contractual rights to grieve their 

suspensions, no one had been discharged for allegedly refusing an order to attend 

a disciplinary hearing. See, supra. In short, a jury could have inferred from all of 

the circumstances that the motivation behind Roadway’s discharge of Rivers and 

Davison was to punish them for exercising their contractual rights, and plaintiffs 

were entitled, under the seventh amendment, to have a jury make that 

determination.

In summary, although defendant-appellee argues at length that the claim 

under 42 U.S.C. § 1981 of plaintiffs was obscure and difficult to enunciate, in fact 

there is nothing complex about it. (1) Plaintiffs sought to, and succeeded in, 

grieving the first discipline based on a claim of racial discrimination, of improper 

notice, and of no just cause; (2) plaintiffs won that grievance; (3) defendants 

retaliated by firing plaintiffs because they had won their grievance, that is, they had 

successfully excercised contractural rights, based, in some part, on a claim of racial 

discrimination. Under this Court’s earlier decision, these allegations made out a 

claim under 42 U.S.C. § 1981 that required a resolution by a jury trial.

10



CONCLUSION

For the foregoing reasons, the decision of the district court should be reversed 

and the case remanded for a trial by jury on plaintiffs’ claims under 42 U.S.C. § 

1981.

Elaine R. Jones 
D irector-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Charles Stephen Ralston 
NAACP Legal Defense and 

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

Ellis Boal 
615 Griswold 
Suite 925 Ford Building 
Detroit, MI 48226 
(313) 962-2770

Terry J. Lodge 
618 N. Michigan Street 
Suite 201
Toledo, OH 43624 
(419) 255-7552

11



CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing REPLY BRIEF FOR 

PLAINTIFFS-APPELLANTS, have been served by depositing same in the United 

States mail, first class postage prepaid, on this 11th of March, 1996, addressed to the 

following:

John T. Landwehr, Esq.
Eastman & Smith 
1 Seagate 
24th Floor 
PO Box 10032 
Toledo, OH 43699-0032

CHARLES STEPHEN RALSTON

12



ADDENDUM



PLAINTIFFS-APPELLANTS’ DESIGNATION OF APPENDIX CONTENTS

Appellant, pursuant to Sixth Circuit Rule 11(b), hereby designates the following 
additional filings in the district court’s record as items to be included in the joint 
appendix

1. Transcript of Trial, Vol. I, pp. 119, 211, 248. R. 326, 2/27/90/

2. Transcript of Trial, Vol. II, pp. 327, 332, 376-77, 415, 530, 537, 574, 
586, 588, 592. R. 327, 2/27/90.

3. Transcript of Trial, Vol. Ill, pp. 722-723, 739, 745, 791-92. R. 328, 
2/27/90.

4. Plaintiffs Trial Exhibits 37-38; 78-79, 81-83, and 87. (In place of Item 
5 in Plaintiff-App ell ants’ Designation of Appendix Contents in the 
Addendum to their opening brief.)

5. The following portions of Appendix I of Plaintiff in Opposition to 
[First Motion for] Summary Judgment: Davison Dep. 7/20/87, p. 222; 
Toney Deposition 8/7/87, pp. 162-69; 174-79. Rec. Entry No. 192, 
8/29/88.