Memo from Himmelstein to Amsterdam and Meltsner

    UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 90-1729

BRENDA PATTERSON,
Plaintiff-Appellant. 

v.
McLEAN CREDIT UNION,

Defendant-Appellee.

On Appeal from the United States District Court 
For the Middle District of North Carolina

0

BRIEF OF PLAINTIFF-APPELLANT

HAROLD LILLARD KENNEDY, III 
HARVEY LEROY KENNEDY, SR. 

Kennedy, Kennedy, Kennedy 
& Kennedy

710 First Union Building 
Winston-Salem, NC 27101 
(919) 724-9207

SHEILA Y. THOMAS
NAACP Legal Defense and 

Educational Fund, Inc. 
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

JULIUS L. CHAMBERS 
CORNELIA T.L. PILLARD 
NAACP Legal Defense and 

Educational Fund, Inc. 
99 Hudson Street 
16th Floor 
New York, NY 10013 
(212) 219-1900

f



TABLE OF CONTENTS

TABLE OF AUTHORITIES.......................................... ii
ISSUES PRESENTED FOR REVIEW ................................  1
STANDARDS OF REVIEW ......................................... 3
STATEMENT OF THE C A S E ....................................... 3

Nature of the C a s e ....................................  3
Course of Proceedings ................................  3
District Court Opinions ..............................  8

STATEMENT OF THE F A C T S ....................................... 10
SUMMARY OF ARGUMENT........................................... 14
A R G U M E N T ..................................................... 16

THE DISTRICT COURT ERRED IN DISMISSING 
PLAINTIFF'S PROMOTION CLAIM SUA SPONTE.
WITHOUT PRIOR NOTICE TO PLAINTIFF AND AN
OPPORTUNITY TO SUBMIT A MEMORANDUM ON THE
CONTINUED VIABILITY OF THAT CLAIM ...............  16
THE DISTRICT COURT INCORRECTLY CONSTRUED THE
"NEW AND DISTINCT RELATION" STANDARD ...........  20
The District Court Disregarded This Court's Recent 
Interpretation of the "New and Distinct Relation" 
S t andard.........................................2 0
The District Court Did Not Consider All Of the 
Relevant Factors When It Dismissed Mrs.
Patterson's Claims ..............................  23

II.

A.

B.

III. THE DISTRICT COURT IMPROPERLY USURPED THE
ROLE OF THE JURY BY MAKING FACTUAL FINDINGS . . . .  24

IV. EVEN IF THE EVIDENCE IN THE RECORD WERE
INSUFFICIENT TO RAISE A JURY ISSUE, PLAINTIFF 
WOULD BE ENTITLED TO CONDUCT DISCOVERY 
REGARDING WHETHER THE PROMOTION SHE SOUGHT 
WOULD HAVE PLACED HER IN A "NEW AND DISTINCT 
RELATION" WITH MCLEAN............................ 2 8

V. THE DISTRICT COURT'S DENIAL OF MRS. PATTERSON'S
MOTION TO REOPEN THE JUDGMENT IS AN ABUSE OF 
DISCRETION......................................... 31

CONCLUSION.................................................4 0

l



TABLE OF AUTHORITIES

CASES
Anderson v. Liberty Lobby.

477 U.S. 202 (1986) ............................
Bibbs v. Jim Lynch Cadillac. Inc..

653 F.2d 316 (8th Cir. 1981) ....................
Bovce v. Alizaduh.

595 F.2d 948 (4th Cir. 1979) ....................
Brown v. Burlington Industries. Inc.,

93 N.C. App. 431, 378 S.E.2d 232 (1989) . . 10, 34,
Brown v. Gaston County Dyeing Machine Co..

457 F.2d 1377 (4th Cir. 1972) ....................
Clinton Community Hospital Corp. v. Southern Maryland 

Medical Center,
374 F. Supp. 450 (D.C. Md. 1974) ................

Compton v. Alton Steamship Co..
608 F. 2d 96 (4th Cir. 1 9 7 9 ) ....................  38,

Council of Federated Organization v. Mize.
339 F.2d 898 (5th Cir. 1964) ....................

Crader v. Concordia College.
724 F. Supp. 558 (N.D. 111. 1989) ................

Dickens v. Purvear.
302 N.C. 437, 276 S.E.2d 325 (1981) . . . .  31,

Dixon v. Stuart.
85 N.C. App. 338, 354 S.E.2d 757 (1987) . 10, 32, 33,

Dougherty v. Harper's Magazine Co..
537 F.2d 758 (3rd Cir. 1976) ....................

EEOC v. Baltimore and O.R.R..
557 F. Supp. 1112 (D.C. Md. 1983) ................

Edwards v. Boeing Vertol Co..
717 F.2d 761 (3rd Cir. 1983), vacated on other grounds. 
468 U.S. 1201 (1984) ........................

Franklin v. State of Oregon. State Welfare Division.
662 F.2d 1337 (9th Cir. 1981)

26

25

16

35

29

18

39

17

18

33

34

17

37

25

17, 19



t

Hogan v. Forsyth Country Club.
79 N.C. App. 483, 340 S.E.2d 116 (1986) . . 10, 31, 32

Hudgens v. Harper-Grace Hospital.
728 F. Supp. 1321 (E.D. Mich. 1990) . . . .  24

Jefferson Fourteenth Associate v. Wometco de Puerto Rico.
695 F. 2d 524 (11th Cir. 1 9 8 3 ) ....................  17

Johnson v. Baskerville.
568 F. Supp. 853 (E.D. Va. 1 9 8 3 ) ................  17

Jordan v. Campbell-Taggart, Inc..
Civil Action No. 87-3595 slip op.
(4th Cir. April 17, 1990) . . . . .

Kim v. Coppin State College.
662 F.2d 1955 (4th Cir. 1981) . . . .

Lewis v. State of New York,
547 F.2d 4 (2d Cir. 1976) ................

Literature v. Quinn.
482 F.2d 372 (1st Cir. 1973) . . . .

Luna v. City and County of Denver.
718 F. Supp. 854 (D. Colo. 1989)

Lytle v. Household Manufacturing Co..
110 S. Ct. 1331 (1990) ....................

Mallory v. Booth Refrigeration Supply Co., Inc.. 
882 F.2d 908 (4th Cir. 1989) . . . .

Miller v. Shawmut Bank of Boston,
726 F. Supp. 337 (D. Mass. 1989)

Miller v. Swissre Holding Co.. Inc..
731 F. Supp. 129 (S.D.N.Y. 1990)

Munz v. Parr.
758 F.2d 1254 (8th Cir. 1985) . . . .

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

35

19, 25 

20 

17

24

25

14, 21 

24 

19 

17

passim
Patterson v. McLean Credit Union. 

887 F.2d 484 (4th Cir. 1989) 8
Patterson v. McLean Credit Union.

805 F.2d 1143 (4th Cir. 1986) . . . . 6, 29, 31, 32

ill



t

Patterson v. McLean Credit Union.
No. C—84—73—WS, slip op. (M.D.N.C. Mar. 14, 1985) . 4

Patterson v. McLean Credit Union.
729 F. Supp. 35 (M.D.N.C. 1990) . . . . • passim

Patterson v. McLean Credit Union,
Civil Action C-84-73-WS, slip op. (Jan. 24, 1990) • passim

Perez v. Ortiz.
849 F.2d 793 (2d Cir. 1988) ................ • 17, 18

Pierce v. Cook and Co..
518 F.2d 720 cert, denied. 423 U.S. 1079 (1976) • 37

Polites v. U.S..
364 U.S. 426 (1960) ........................ • 37

Ricketts v. Midwest National Bank.
874 F.2d 1177 (7th Cir. 1989) ................ • 17, 18

Rodriguez v. General Motors,
1990 U.S.App. LEXIS 8928 (9th Cir, June 6, 1990) • 25

Scjuare D Co. v. Niagara Frontier Tariff Bureau,
760 F.2d 1347 (2d Cir. 1985) ................ . 16

Stanback v. Stanback,
297 N.C. 181, 254 S.E.2d 611 (1979) • 33

Thomas v. Arn,
474 U.S. 140 (1985)............................ 17

Tingler v. Marshall,
716 F.2d 1109 (6th Cir. 1983) ................ • 17, 18

United States v. Williams,
674 F.2d 310 (4th Cir. 1982) ................ • 39

Wade v. Orange Countv Sheriff's Office,
844 F.2d 951 (2nd Cir. 1988) ................ • 25

Werner v. Carbo,
731 F.2d 204 (4th Cir. 1984) ................ • 37

Williams v. Pennsvlvania Railroad Co.,
313 F.2d 203 (2d Cir. 1963) ................ • 28

Woodruff v. Miller,
64 N.C. App. 364, 307 S.E.2d 176 (1983) 31, 33

IV



Yuclan Enterprises. Inc, v. Nakagawa.
583 F. Supp. 1574 (D.C. Hawaii 1984) . . . .  37

STATUTES
28 U.S.C. § 1 9 1 5 ( d ) ................................  17
28 U.S.C. § 2 1 0 6 ................ ....................  28
42 U.S.C. § 1981 . . . . . . . . . .  passim
Fed. R. Civ. P. 60(b)(6)....................  8, 33, 37, 38

t

v



ISSUES PRESENTED FOR REVIEW

This appeal presents four distinct questions relating to the 
propriety of the district court's decision, on remand from this 
Court and the Supreme Court, to dismiss Brenda Patterson's claim 
that McLean Credit Union discriminatorily denied her a promotion 
in violation of 42 U.S.C. § 1981:

1. Whether the district court erred in dismissing Ms. 
Patterson's promotion claim sua sponte. in the absence of any 
motion from a party and without opportunity for plaintiff to 
brief the continued viability of her promotion claim.

2. Whether the district court applied the wrong legal
standard in determining that the promotion plaintiff alleged she 
was denied would have created a "new and distinct relation" 
between the parties under Patterson v. McLean Credit Union. 109 
S. Ct. 2363 (1989).

3. Whether the district court improperly usurped the 
jury's role as the finder of fact in determining that plaintiff's 
compensation, location, office, and working conditions were the 
same as they would have been had she received the promotion she 
sought.

4. Whether the Supreme Court changed the legal standard 
governing discriminatory promotion-denial claims sufficiently 
that plaintiff is entitled to conduct further discovery of facts 
relating to the new standard.

1



This appeal also presents a question relating to plaintiff's 
claim under North Carolina law that she suffered intentional 
infliction of emotional distress:

5. Whether the district court abused its discretion when it 
denied plaintiff's motion under Federal Rule of Civil Procedure 
60(b)(6) to reopen judgment, despite recent decisions in the 
North Carolina Court of Appeals establishing that harassment such 
as Mrs. Patterson endured is sufficiently outrageous to 
constitute intentional infliction of emotional distress.

2



STANDARDS OF REVIEW

The Court must review de novo the district court's dismissal 
of the § 1981 promotion claim. The district court's dismissal of 
plaintiff's claim of intentional infliction of mental and 
emotional distress must be reviewed for an abuse of discretion.

STATEMENT OF THE CASE
Nature of the Case

Brenda Patterson appeals from two district court decisions 
disposing of her remaining claims in this case. She seeks 
reversal of the district court's decision that 42 U.S.C. § 1981 
does not encompass her claim that her former employer, McLean 
Credit Union ("McLean," "the Company"), discriminatorily denied 
her a promotion. She also seeks reversal of the district court's 
denial of her motion, based on a change in the law, to reopen its 
prior judgment dismissing her claim under North Carolina law that 
Mclean subjected her to intentional infliction of emotional 
distress.

Course of Proceedings
Mrs. Patterson filed her Complaint against McLean Credit 

Union on January 25, 1984 in the United States District Court for 
the Middle District of North Carolina, alleging that McLean 
denied her a promotion, harassed her and discharged her because

3



She alsoshe is black, all in violation of 42 U.S.C. § 1981.1 
alleged that she suffered intentional infliction of mental and 
emotional distress in violation of North Carolina law.

McLean filed a motion for summary judgment on November 6, 
1984. McLean argued that each of Mrs. Patterson's § 1981 claims 
was barred by the statute of limitations, that she had failed to 
present sufficient evidence of harassment or racial motivation to 
make out a prima facie case under § 1981, and that she had 
alleged insufficient evidence of distress to support her claim 
under North Carolina law of intentional infliction of mental and 
emotional distress. The District Court denied the motion with 
respect to these claims. Patterson v. McLean Credit Union, No. 
C-84-73-WS, slip op. (M.D.N.C. Mar. 14, 1985).2 *

A six-day jury trial was held in November 1985. At the 
close of the presentation of Mrs. Patterson's case, the court 
granted McLean's motion for a directed verdict on the intentional

Section 1981 states:
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 Mrs. Patterson had raised a second state-law claim that 

the Company had negligently breached a duty of care in retaining 
Mr. Stevenson as a supervisor of black employees when the Company 
knew that Mr. Stevenson was prejudiced against black persons. The 
district court dismissed this claim on McLean's motion for summary 
judgment as not actionable under North Carolina law. Id. at 17- 
18. Mrs. Patterson has not since pursued the claim.

4



infliction of mental and emotional distress claim, holding that 
the evidence of mistreatment "does not come anywhere near 
amounting to the types of conduct that the North Carolina Courts 
have allowed recovery on or have discussed with reference to the 
intentional infliction of emotional distress." 3 Tr. 7 4 (3 JA 
45).3 The court also granted a directed verdict on the 
harassment claim on the ground that racial harassment is not 
prohibited by § 1981. 3 Tr. 75 (3 JA 46).

At the close of all the testimony, the district court denied 
McLean's motion for directed verdict on the remaining claims, 
finding that there was sufficient evidence of racial animus to 
send the promotion-denial and discharge claims to the jury. 4 
Tr. 125-126 (JA 22-23).4 The district court instructed the jury 

that in order for Mrs. Patterson to recover for discriminatory 
promotion denial she had to prove that she was better gualified 
than the employee who was promoted into the position she sought. 
The jury found for McLean on both the promotion-denial and the 
discharge claims. 5 Tr. 12-13 (3 JA 143-44).

Mrs. Patterson appealed, contending that the trial court had 
erred, first, in granting a directed verdict on her claims of 
intentional infliction of emotional distress and racial

Citations in the form " __ JA __" refer to the volume of
the Joint Appendix and the page at which the cited material 
appears.

4 Citations in the form "SA ___" refer to the page in the
Supplemental Appendix at which the cited material appears.

5



harassment, and second, in incorrectly charging the jury on the 
promotion-denial claim.5

This Court affirmed the decision of the district court. 
Patterson v. McLean Credit Union. 805 F.2d 1143 (4th Cir. 1986). 
It held that racial harassment is not prohibited by § 1981, id. 
at 1145, and that "the conduct of McLean through its president, 
Stevenson, was not 'extreme and outrageous'" under what it 
believed to be a stringent North Carolina standard. Id. at 1146. 
The Court of Appeals also held that the district court properly 
instructed the jury that Mrs. Patterson had to show superior 
gualifications in order to recover on her promotion claim. Id. 
at 1147. On March 19, 1987, the Court denied Mrs. Patterson's 
petition for rehearing and suggestion for rehearing en banc.

The United States Supreme Court considered three issues on 
certiorari:

First, the Supreme Court determined that § 1981 prohibits 
private as well as governmental discrimination.6

Second, the Court affirmed this Court's holding that § 1981 
does not cover claims of racial harassment. The Supreme Court 
held that the § 1981 right to make contracts "extends only to the

Mrs. Patterson additionally challenged on appeal the 
district court's exclusion of testimony of one witness who had been 
the only other black employee of McLean Credit Union between 1952 
and 1972, and its exclusion of testimony of a second witness who 
offered expert testimony on personnel practices in the Winston- 
Salem area at the time.

The Supreme Court raised this question on its own 
initiative and sought additional briefing before it affirmed the 
lower courts' application of the statute to McLean. See 485 U.S. 
617 (1988) .

6



formation of a contract, and not to problems that may arise later
from the conditions of continuing employment." Patterson v. 
McLean Credit Union. 109 S. Ct. 2363 (1989). The Court commented
that, although promotions necessarily occur during the course of 
continuing employment, certain promotion-denial claims remained 
within the reach of § 1981. Whether a promotion claim is 
cognizable under § 1981, the Court explained, "depends upon 
whether the nature of the change in position was such that it 
involved the opportunity to enter into a new contract with the 
employer" rising to the level of a "new and distinct relation." 
Id. at 2377. The Supreme Court did not apply the "new and 
distinct relation" standard to plaintiff's promotion claim, 
however, "[bjecause respondent has not argued at any stage that 
petitioner's promotion claim is not cognizable under § 1981."
Id.

The third issue before the Supreme Court was whether the 
district court erroneously instructed the jury on the promotion- 
denial claim. The Court reversed on this ground, and remanded 
the promotion-denial claim because the district court "instructed 
the jury that petitioner had to prove that she was better 
qualified than the white employee who allegedly received the 
promotion," where it should have instructed that she had to prove 
only that she was qualified. Id.

In this Court on remand, plaintiff moved on the basis of an 
intervening change in North Carolina law for reconsideration of 
the Court's earlier decision affirming dismissal of her pendent

7



claim of intentional infliction of mental and emotional distress.
The Court, in a per curiam opinion, suggested that "plaintiff's 
motion is one more properly addressed to the district court as 
one to reopen a judgment under Fed. R. Civ. P. 60(b)(6)." 
Patterson v. McLean Credit Union. 887 F.2d 484, 485 (4th Cir. 
1989) .

This Court also remanded the § 1981 promotion claim to the 
district court. It instructed that "the issue of cognizability 
of the specific promotion-denial claim asserted by plaintiff 
should be considered an open one to be resolved in light of the 
Supreme Court's opinion, whether on the pleadings, or on motion 
for summary judgment, or by trial, as the course of further 
proceedings may warrant." Id. at 485 (citations omitted).

Mrs. Patterson filed a motion in the district court under 
Fed. R. Civ. P. 60(b)(6) on December 26, 1989 requesting that the 
trial court reopen the judgment against her on her intentional 
infliction of emotional distress claim. On January 24, 1990, the 
court entered an order denying her motion to reopen the judgment. 
The same day it entered a second order sua sponte dismissing her 
promotion-denial claim without notifying Mrs. Patterson that the 
issue of the cognizability of her promotion claim was before the 
court, nor giving her an opportunity to brief the issue. Mrs. 
Patterson appeals both of these orders.

8



District Court Opinions
The district court on its own initiative dismissed Mrs. 

Patterson's § 1981 claim of discriminatory promotion denial. See 
Patterson v. McLean Credit Union. 729 F. Supp. 35 (M.D.N.C. 1990) 
(SA 12). Without the benefit of briefing, the district court 
reviewed the record and construed the standard established by the 
Supreme Court for § 1981 promotion claims. The district court 
determined that whether the promotion plaintiff was denied would 
have amounted to "an opportunity for a new and distinct relation" 
between Mrs. Patterson and McLean —  and therefore could still be 
the basis for a promotion-denial claim under the Supreme Court's 
ruling —  depended on whether both positions were "compensated at 
an hourly wage basis at the same location, in the same office, 
and under the same working conditions." Id. at 36. The district 
court then determined as a factual matter, in the absence of any 
jury findings, that the two positions were not sufficiently 
distinct, as gauged by these factors, to satisfy the Supreme 
Court's test.

In a separate opinion issued the same day, the district 
court denied Mrs. Patterson's Rule 60(b)(6) motion to reopen its 
dismissal of her claim of intentional infliction of emotional 
distress on the ground that the new cases cited by plaintiff did 
not constitute a change in North Carolina law. See Patterson v. 
McLean Credit Union. Civil Action C-84-73-WS, slip op. (Jan. 24, 
1990) (SA 7). The district court held that the new legal 
standard of intentional infliction of emotional distress

9



established in a recent North Carolina decision, Dixon v. Stuart. 
85 N.C. App. 338, 354 S.E.2d 757 (1987), did not apply to this 
case because the North Carolina court applied the standard in 
reviewing the allegations of the complaint on a motion to 
dismiss, and the issue arose in this case at the directed verdict 
stage. The district court also rejected plaintiff's contention 
that another North Carolina decision, Brown v. Burlington 
Industries. Inc.. 93 N.C.App. 431, 378 S.E.2d 232 (1989),
expanded the category of conduct redressable as intentional 
infliction of emotional distress because it failed to see a 
distinction between, on one hand, the level of outrageousness 
that had previously been required under Hogan v. Forsyth Country 
Club. 79 N.C.App. 483, 340 S.E.2d 116 (1986), where the defendant 
entreated the plaintiff to have sex with him, repeatedly rubbed 
up against her in a sexual manner, and threatened her with a 
knife, and, on the other hand, the level of outrageousness held 
to be sufficient in the more recent decision in Brown. where the 
harassment was limited to sexual remarks and gestures. See slip 
op. at 4-5.

STATEMENT OF THE FACTS
Appellant Brenda Patterson, a black woman, was an employee 

of McLean Credit Union for 10 years. Robert Stevenson, the chief 
operating officer of McLean, interviewed and hired Mrs. Patterson 
as an accounting clerk. 1 Tr. 18, 60-61 (1 JA 37-39, 75-76).
When she began working at McLean on May 5, 1972, she was the sole

10



black employee in the office, 1 Tr. 22-24, 96 (1 JA 41, 96), and 
only the second black employee hired by McLean since 1953. 3 Tr.
125 (SA 20).

Although she had been hired as an accounting clerk, Mrs. 
Patterson worked as a file clerk and full-time teller for 
approximately two years, 1 Tr. 26 (1 JA 45), after which she 
principally filed and had limited part-time teller 
responsibilities. 1 Tr. 81 (1 JA 81). In 1976, after additional 
filing responsibilities had been imposed on her, Mrs. Patterson 
relinquished her part-time teller duties. 1 Tr. 81-82 (1 JA 81-
2). Mrs. Patterson worked as file coordinator in the office from 
1976 until the Company laid her off on July 19, 1982. 2 Tr. 7 (1
JA 125). McLean terminated her employment six months later. 2 
Tr. 10 (1 JA 128)

Although she had expressed an interest in an accountant 
position, Mrs. Patterson was never promoted from her filing job 
during her ten years with the Company. 1 Tr. 23, 45 (1JA42,
60). A white woman, Susan Williamson, who was hired also as an 
accounting clerk two years after Mrs. Patterson, was promoted to 
the position of accountant intermediate in 1982. Pltf. Ex. 7 (SA 
25). As a clerk, Mrs. Patterson filed documents, Deft. Ex. 15 
(SA 27). The accountant intermediate, in contrast, had 
accounting, bookkeeping and money management responsibilities. 
Deft. Ex. 14 (SA 26) .7

Mrs. Patterson did not receive notification of the 
availability of the accountant intermediate position because the 
Company does not post job vacancies as they occur. 3 Tr. 163; 1

11



If Mrs. Patterson had been promoted to accountant 
intermediate, she would have moved from her desk located in a 
vault in the back of McLean and taken on new and substantially 
different responsibilities. See 3 Tr. 76-77 (3 JA 47-8); Deft. 
Ex. 14, 15 (listing functions of each job) (SA 26, 27). The two 
jobs were so different that defendant's counsel, in arguing that 
Mrs. Patterson was unqualified for promotion to accountant 
intermediate, even contended that the facts in this case were 
analogous to a situation in which "I'm going to make a decision 
in my law firm where I'm going to make an associate a partner, 
and a paralegal comes to me and says, 'Mr. Davis, I should have 
been trained for that job.'" 3 Tr. 48 (SA 19).

Mrs. Patterson was also harassed and treated differently 
from white employees and was subjected to racially offensive 
remarks while employed at McLean. Mr. Stevenson told her in 1972 
during her interview for employment that the white women in the 
office probably would not like her because "they weren't used to 
working with blacks." 1 Tr. 19 (1 JA 38). Mr. Stevenson's 
comments made Mrs. Patterson "nervous and anxious" about starting 
her new job at McLean. 1 Tr. 19-20 (1 JA 38-9). Mr. Stevenson 
told her that "blacks are known to work slower than whites by 
nature." 1 Tr. 88 (1 JA 88). He also told a white employee who 
had recommended a black man for a computer programmer position 
that he would interview the black candidate but would not hire

Tr. 45-46 (1 JA 60-61).
12



i

him because "we don't need any more problems around here." 2 Tr. 
161 (2 JA 111).

Mr. Stevenson repeatedly stood and stared at Mrs. Patterson 
while she was working. 1 Tr. 90-91 (1 JA 90-91). He told Mrs. 
Patterson to dust and sweep although white employees were not 
told to do so. 1 Tr. 31 (1 JA 50). Mr. Stevenson assigned Mrs. 
Patterson more and more work and told her that she "could leave 
if [she] could not handle it," 1 Tr. 83 (1 JA 83), even though 
Mrs. Patterson explained to him repeatedly that she could not 
catch up with her work because she had too many assignments. 1 
Tr. 82-83 (1 JA 82-3). Mr. Stevenson also criticized
Mrs. Patterson and the one other black employee by name at staff 
meetings in front of others and did not similarly criticize white 
employees. 1 Tr. 40 (1 JA 56).

Mr. Stevenson's treatment and remarks left Mrs. Patterson 
"humiliated ... nervous ...[and] downgraded" and caused her to 
lose sleep and cry constantly. 1 Tr. 60 (1 JA 75). Dr. Myrna 
Williams, a clinical psychologist, diagnosed Mrs. Patterson's 
emotional difficulties as those of a behavioral syndrome 
associated with stress. 3 Tr. 38 (3 JA 36).

13



(

SUMMARY OF ARGUMENT
The district court's decision to dismiss Mrs. Patterson's 

§ 1981 claim was based solely on its determination that a 
promotion from file clerk to accountant intermediate would not 
present an "opportunity for a new and distinct relation" between 
Mrs. Patterson and McLean under Patterson v. McLean Credit Union. 
109 S. Ct. at 2377. This ruling should be reversed for four 
independent reasons.

First, the district court committed reversible error when it 
dismissed plaintiff's case sua sponte without giving her an 
opportunity to file a memorandum of law in support of her sole 
remaining claim. If the Court remands on this ground, it need 
not reach the other issues relating to plaintiff's § 1981 claim.

Second, the district court misconstrued the Supreme Court's 
standard for reviewing discriminatory promotion denials as this 
Court recently interpreted that standard in Mallory v. Booth 
Refrigeration Supply Co.. Inc.. 882 F.2d 908 (4th Cir. 1989).
The district court did not inquire whether plaintiff's job 
responsibilities and pay would have increased had she been 
promoted, notwithstanding that those were the critical factors 
identified by this Court in Mallory. Instead, the court below 
dismissed the claim based on its conclusions that plaintiff would 
still have been "compensated on an hourly wage basis at the same 
location, in the same office, and under the same working 
conditions." 729 F. Supp. at 36. These factors are perhaps 
marginally relevant, but are clearly insufficient standing alone.

14



(

Third, even if the legal standard the district court applied 
were correct, the court erred in making its own factual 
determinations, rather than sending the factual issues to a jury.

Fourth, even if the court below was of the view that there 
was not sufficient evidence in the original trial record to raise 
a jury issue under the new Supreme Court standard, plaintiff is 
entitled to conduct supplemental discovery of newly relevant 
facts because that standard was not announced until four years 
after the close of discovery.

The district court's decision denying plaintiff's motion to 
set aside and reopen the judgment on her state-law claim of 
intentional infliction of mental and emotional distress should 
also be reversed, for two reasons. First, the district court 
clearly erred in concluding that there had been no change in the 
law sufficient to warrant reconsideration of plaintiff's claim. 
Since the district court originally directed a verdict in 
McLean's favor on this claim, the North Carolina courts have for 
the first time held that allegations of ridicule and harassment 
on the job, similar to what Mrs. Patterson suffered, constitute 
intentional infliction of emotional distress. Second, the 
district court erroneously held that a North Carolina decision 
expanding the state law cause of action is applicable only to 
pleadings and does not similarly apply at the directed verdict 
stage. The court held, in effect, that even if allegations of 
workplace ridicule and harassment alone now suffice to state a

15



{

claim, evidence proving those allegations at trial still does not 
warrant the jury's consideration.

ARGUMENT
I. THE DISTRICT COURT ERRED IN DISMISSING

PLAINTIFF'S PROMOTION CLAIM SUA SPONTE.
WITHOUT PRIOR NOTICE TO PLAINTIFF AND AN 
OPPORTUNITY TO SUBMIT A MEMORANDUM ON THE 
CONTINUED VIABILITY OF THAT CLAIM

The decision of the district court to dismiss Mrs. 
Patterson's promotion claim must be reversed because the district 
court on its own motion dismissed plaintiff's claim without 
following the proper procedures. "The district court has no 
authority to dismiss a complaint for failure to state a claim 
upon which relief can be granted without giving the plaintiff an 
opportunity to be heard." Square D Co. v. Niagara Frontier 
Tariff Bureau. 760 F.2d 1347, 1365 (2d Cir. 1985). Unless a 
plaintiff's claims are "irreparably frivolous or malicious," the 
court "should issue an order to show cause, permitting the 
plaintiff to respond and to amend" before the claims are 
dismissed. Boyce v. Alizaduh. 595 F.2d 948, 951 (4th Cir. 1979) 
quoting Recommended Procedures for Handling Prisoner Civil Rights 
Cases in the Federal Courts (Federal Judicial Center, Tentative 
Report No. 2, 1977), 56-57. The Supreme Court has approvingly 
cited the Sixth Circuit's requirement that a plaintiff be 
notified of a proposed sua sponte dismissal and allowed to 
respond as an excellent example of a Court of Appeals exercising 
its supervisory powers in a manner "supported by sound

16



Thomas v. Arn, 474 U.S. 140,consideration of judicial economy."
146 and n. 5 (1985), citing Tingler v. Marshall. 716 F.2d 1109, 
1110-12 (6th Cir. 1983).

Every Circuit Court of Appeals to have ruled on this issue 
has agreed that a plaintiff must be afforded certain procedural 
protections before a claim is dismissed in the absence of a 
motion by a party. At a minimum, the plaintiff must be given 
notice of the court's intention and must be allowed to submit a 
written memorandum. Courts follow the same general rule, whether 
in the context of dismissal under Federal Rule of Civil Procedure 
12(b)(6), Rule 12(c), Rule 41, Rule 56 or 28 U.S.C. § 1915(d).
See. e.g.. Literature v. Quinn. 482 F.2d 372, 374 (1st Cir.
1973); Perez v. Ortiz. 849 F.2d 793, 797-98 (2d Cir. 1988); 
Dougherty v. Harper's Magazine Co.. 537 F.2d 758, 761 (3rd Cir. 
1976); Tingler v. Marshall. 716 F.2d 1109, 1110-12 (6th Cir. 
1983); Ricketts v. Midwest National Bank. 874 F.2d 1177, 1182-85
(7th Cir. 1989); Munz v. Parr. 758 F.2d 1254, 1257-58 (8th Cir.
1985) ; Franklin v. State of Oregon. State Welfare Div., 662 F.2d 
1337, 1340-42 (9th Cir. 1981); Jefferson Fourteenth Assocs. v. 
Wometco de Puerto Rico. 695 F.2d 524, 526-27 (11th Cir. 1983).
See also Council of Federated Orgs. v. Mize. 339 F.2d 898, 900- 
01 (5th Cir. 1964).8 Some courts have not ruled on the issue,

District courts within this Circuit have also adopted 
the generally accepted reguirements that plaintiffs be afforded 
notice that a district court intends to dismiss their claims, and 
an opportunity to respond. For example, in Johnson v. Baskerville. 
568 F. Supp. 853, 856-59 (E.D. Va. 1983), the court dismissed a
frivolous claim under 28 U.S.C. section 1915(d), noting that if 
"the court finds that the complaint is frivolous but that it could

17



but none has adopted a contrary rule. Failure to ensure notice 
and an opportunity for briefing is reversible error.

There are three independent reasons why these procedural 
protections are required. See. e. q. . Ricketts. 874 F.2d at 1184- 
85; Perez. 849 F.2d at 797-98; Tinaler 716 F.2d at 1111. First, 
dismissal by the court without notice prejudices the plaintiff by 
depriving her of any opportunity to amend the complaint or to 
present her best arguments against the dismissal. Mrs. Patterson 
has been prejudiced by the district court's hasty dismissal of 
her remaining federal cause of action. She preserved her 
promotion-denial claim at great expense and effort, and prevailed 
in the Supreme Court on the sole issue relating to that claim 
that the parties were still litigating. The issues on remand are 
novel and complex. The district court applied a new legal 
standard announced by the Supreme Court only months ago. The 
lower courts generally have just begun to apply that standard, 
and in doing so have given it a range of differing 
interpretations. Compare. e.q., Crader v. Concordia College, 724

be cured, the court should issue a show cause order, explaining why 
the complaint is frivolous and allowing the plaintiff an 
opportunity to respond and to amend his complaint." Id. at 859. 
The court dismissed the pro se complaint in that case without a 
response from the plaintiff because, in its view, there was no 
arguable construction of the complaint that would have entitled the 
plaintiff to relief. In Clinton Community Hospital Corp. v. 
Southern Maryland Medical Center. 374 F. Supp. 450, 453-54 (D.C. 
Md. 1974) , the court dismissed plaintiff's complaint as against all 
defendants on the basis of a motion by a single defendant only 
after it was satisfied that the requirements of notice and an 
opportunity to file a written argument had been "met, or rendered 
unnecessary." Id. at 454.

18



F. Supp. 558 (N.D. 111. 1989) (holding that denial of promotion 
from assistant director to director in housekeeping is not 
actionable), with Miller v. Swissre Holding Co., Inc.. 731 F. 
Supp. 129 (S.D.N.Y. 1990) (holding that denial of promotion from 
production coordinator to supervisor of production control is 
actionable). In these circumstances, briefing is particularly 
crucial. In the district court, however, Mrs. Patterson never 
had an opportunity to present her views on the continued

. . . . 9viability of her claim.
Second, sua sponte dismissals without notice deviate from 

the traditions of the adversarial system and "may give the 
appearance that the judiciary is a proponent rather than an 
independent entity." Franklin, 662 F.2d at 1324. An appearance 
of partisanship is a particular risk in a case such as this, in 
which the district judge has already conducted a jury trial 
during which he may well have formed his own opinions about the 
facts. In view of the complexity and novelty of the issues, the 
district court's decision to shortcut the adversarial process, 
and to seek out a ground for dismissal on its own initiative,

Even if this Court were in agreement with the district 
court that plaintiff's promotion-denial claim should be dismissed 
as not cognizable under section 1981, the deprivation of due 
process caused by the preemptory dismissal in the district court 
can not be cured even by full briefing on appeal. The federal 
system of appellate review guarantees an opportunity to present an 
issue once in the district court, and again on appeal. If 
dismissals without notice could be cured by full briefing on 
appeal, the courts of appeals would effectively become the courts 
of first instance.

19



t

creates the impression that its decision owes more to 
predisposition than to legal reasoning.

Finally, sua sponte dismissals without proper procedural 
prerequisites lead to the very waste of judicial resources that 
the district court here may have sought to avoid by dismissing 
the case. A hasty dismissal without the benefit of briefing is 
likely to include errors, and to cause "shuttling of the lawsuit 
between the district and appellate courts." Lewis v. State of 
New York. 547 F.2d 4, 6 (2d Cir. 1976). The district court here, 
for example, made procedural errors as well as errors in both law 
and fact on the merits. See infra. Points II-V. If the district 
court was motivated by a desire for judicial economy, it has 
frustrated its own purpose and triggered yet another round of 
appeals. This Court should enforce the requirement that claims 
not be dismissed without briefing, and clearly instruct the 
district courts that premature wasteful appeals will not be 
tolerated. If the decision of the district court is reversed on 
this ground, the other federal issues presented on this appeal 
should be pretermitted pending further proceedings in the 
district court.

20



t

II. THE DISTRICT COURT INCORRECTLY CONSTRUED THE
"NEW AND DISTINCT RELATION" STANDARD
A. The District Court Disregarded This 

Court's Recent Interpretation of 
the "New and Distinct Relation"
Standard

In determining whether the promotion Mrs. Patterson sought 
created a "new and distinct relation" under Patterson v. McLean 
Credit Union. 109 S. Ct. at 2377, the district court contradicted 
this Court's recent interpretation of that standard. In Mallory 
v. Booth Refrigeration Supply Co. Inc.. 882 F.2d at 910, this 
Court held that a "promotion from clerk to supervisor with a 
consequent increase in responsibility and pay" satisfies the "new 
and distinct relation" test.

Under this standard there can be no doubt that Mrs.
Patterson meets the requirements of the "new and distinct 
relation" test. The two positions were separate and distinct 
with very different responsibilities. As file coordinator, Mrs. 
Patterson filed insurance papers, titles, paid loans and other 
documents. Deft. Ex. 15 (SA 27). Susan Williamson, as 
accountant intermediate, on the other hand, had money management 
responsibilities, 3 Tr. 100 (3 JA 71), and performed numerous 
duties that required use of her bookkeeping and accounting 
knowledge. Deft. Ex. 14 (SA 26), 4 Tr. 37-38 (3 JA 119-20).

McLean repeatedly made the point at trial that the 
responsibilities of the two jobs were significantly different.
The Company's chief operating officer, Robert Stevenson, 
testified at trial that because McLean Credit Union was small,

21



jobs were specialized and "dealt with their specific type 
functions." 3 Tr. 163 (SA 21). The district court itself noted 
that "clearly from the evidence" Mrs. Patterson and Mrs. 
Williamson performed different job functions. 3 Tr. at 72 (3 JA 
42). To further emphasize the dramatic differences between the 
two jobs, the defendant compared a promotion from file 
coordinator to accountant intermediate to a promotion from 
paralegal to partner of a law firm. 3 Tr. 48 (SA 19). This is 
precisely the kind of promotion which the Supreme Court held can 
still be the basis of a § 1981 claim. 109 S. Ct. at 2377.

Mrs. Patterson would have received a pay increase if she had 
been promoted to accountant intermediate in 1982. See, Pltf. Ex. 
7, 8. In May 1982 Mrs. Patterson earned $8.04 an hour, whereas 
Mrs. Williamson at that time made $10.00 an hour after her 
promotion to accountant intermediate. Id.

The district court did not follow the holding in Mallory
when it dismissed Mrs. Patterson's promotion claim. In its
opinion the court held that

[ajfter a careful consideration of the record of this 
case, the transcript of the trial testimony, and the 
exhibits introduced at trial, the Court concludes that 
the promotion allegedly denied the plaintiff did not 
amount to "an opportunity for a new and distinct 
relation" between plaintiff and her employer.

Patterson, 729 F. Supp. at 36 (SA 13). The court concluded that
the fact that plaintiff's position and the position to 
which she was allegedly denied a promotion were both 
compensated on an hourly wage basis at the same 
location, in the same office, and under the same 
working conditions, demonstrates to the Court that 
promotion to "Accounting Clerk Intermediate" did not

22



provide plaintiff the opportunity for a new and
distinct relation with her employer.

Id.
The district court does not cite Mallory and, undoubtedly, 

failed to consider it in its determination of whether Mrs. 
Patterson's promotion claim was cognizable or not. By ignoring 
Mallory, the district court incorrectly required Mrs. Patterson 
to prove that the two positions were performed in different 
offices and that one was an hourly position and the other a 
salaried position, despite evidence that McLean considered the 
two jobs to be vastly different, that it considered the 
accountant position to be a better position than that of file 
coordinator, and that one paid considerably more than the other. 
Furthermore, although the district court noted that there was a 
salary differential, it improperly discounted its importance in 
reaching its decision. 729 F. Supp. at 36 (SA 13). Under 
Mallory. an increase in pay under the same pay system alone is 
sufficient.

B. The District Court Did Not Consider All Of 
the Relevant Factors When It Dismissed Mrs.
Patterson's Claims

The factors on which the district court relied are 
insufficient to determine whether Mrs. Patterson's claim meets 
the "new and distinct relation" test. Courts that have addressed 
the issue have "carefully examin[ed] what changes, if any, will 
result from the promotion and determin[ed] if the combined 
changes are significant enough to give rise to a new and distinct

23



relation." Hudgens v. Harper-Grace Hosps.. 728 F. Supp. 1321, 
1325 (E.D. Mich. 1990)(citing Mallory as one case illustrating 
the factual analysis necessary to deciding whether the "new and 
distinct relation" test has been met); see also. Luna v. City and 
County of Denver. 718 F. Supp. 854 (D. Colo. 1989); Miller v. 
Shawmut Bank of Boston. 726 F. Supp. 337 (D. Mass. 1989). In 
Hudgens. the Court enumerated a number of significant changes 
that courts have considered when they have addressed the issue: 
"changes in pay, in duties and responsibilities, in status from 
hourly to salaried employee, in required qualifications, in 
responsibility level in daily duties, in potential liability, and 
pension and other benefits." 728 F. Supp. at 1325.

The district court concluded in its opinion that Mrs. 
Patterson had not established a "new and distinct relation" 
because both positions were "compensated on an hourly wage basis 
at the same location, in the same office, and the same working 
conditions." The court did not consider the duties and 
responsibilities, required qualifications, or the level of 
responsibility of each position in the office, although there was 
evidence in the record on these issues.

The district court's standard disregards substantial 
practical differences in job responsibilities and pay, and 
overlooks whether the positions are at entirely different job 
tiers in the firm. Such an interpretation is contrary to the law 
in this Court and other courts that have addressed the issue. It 
also ignores how varying workplaces are run and allows employers

24



to circumvent the law by manipulating position titles and modes 
of pay.

III. THE DISTRICT COURT IMPROPERLY USURPED THE
ROLE OF THE JURY BY MAKING FACTUAL FINDINGS

Assuming, arguendo. that the district court's standard is 
correct, the decision of the district court must be reversed 
because it deprives Mrs. Patterson of her right to a jury trial 
on her §1981 promotion-denial claim. See, Lytle v. Household 
Manufacturing Co.. 110 S. Ct. 1331 (1990); Wade v. Orange County 
Sheriff's Office. 844 F.2d 951 (2nd Cir. 1988); Edwards v. Boeing 
Vertol Co.. 717 F.2d 761 (3rd Cir. 1983), vacated on other
grounds. 468 U.S. 1201 (1984); Kim v. Coppin State College. 662 
F.2d 1955 (4th Cir. 1981); Bibbs v. Jim Lynch Cadillac. Inc., 653 
F.2d 316 (8th Cir. 1981).10 When a plaintiff has "produced 
sufficient evidence to raise a genuine issue under [§] 1981," the 
trial court should allow a jury to make the "ultimate 
determination." Kim. 662 F.2d at 1061. There is no question 
that there are sufficient facts in the record to warrant sending 
Mrs. Patterson's claim to a jury. The position of file 
coordinator principally consisted of filing a variety of 
documents, whereas the accountant position included money

The Ninth Circuit Rodriguez v. General Motors. 1990 
U.S.App. LEXIS 8928 (9th Cir, June 6, 1990), correctly observed 
that the Supreme Court intended Mrs. Patterson's case to go to a 
jury, otherwise, "there would have been no need for the Supreme 
Court to set out what the appropriate jury instructions should be."

25



management responsibilities, and use of accounting and 
bookkeeping skills, and was a significantly better paid position.

The district court in this case dismissed Mrs. Patterson's 
promotion-denial claim on the basis of its own determination 
that, as a factual matter, a promotion from file coordinator to 
accountant intermediate does not create a "new and distinct 
relation" between employer and employee. The court drew 
conclusions about McLean's organizational structure from the 
testimony of witnesses and other evidence in the record in order 
to evaluate with respect to the jobs at issue here the factors it 
viewed as relevant. It also made determinations contingent on 
Mrs. Patterson's credibility, as well as the credibility of other 
witnesses. The district court concluded "after careful 
consideration of the record in this case, the transcript of the 
trial testimony, and the exhibits introduced at trial" that the 
positions of file coordinator and accountant intermediate were 
"both compensated on an hourly wage basis at the same location, 
in the same office, and under the same working conditions." 729 
F. Supp. at 36.

The district court, however, is not authorized to make such 
a determination. Anderson v. Liberty Lobby. 477 U.S. 202, 206 
(1986) (holding that credibility determinations, the weighing of 
evidence and the drawing of legitimate inferences from the facts 
are jury functions). A court reviewing evidence in support of a 
§ 1981 claim can only determine whether summary judgment is 
warranted under Federal Rule of Civil Procedure 56. In assessing

26



whether plaintiff's claim meets the standard the Supreme Court 
established, the court should have inquired whether the evidence 
of differences between the two jobs suffice to raise a factual 
issue whether the promotion would create a "new and distinct 
relation." If so, then the claim should have been submitted to 
the jury. Here, the evidence clearly shows significant 
differences between Mrs. Patterson's job and the position into 
which she sought to be promoted. Only a jury is authorized to 
determine what differences exist between the two positions and 
whether those differences are significant enough to create a "new 
and distinct relation." Thus, even if the court could grant 
summary judgment in the absence of a motion by McLean, the record 
does not support judgment in its favor.

Furthermore, the district court's factual conclusions are 
erroneous. Because the district court failed to specify the 
evidence upon which it relied, or to describe its factual inquiry 
regarding what constitutes the "same office" or "same working 
conditions," it is difficult to determine what evidence it relied 
on to reach its conclusion. An independent review of the 
transcript reveals, however, that beginning in 1980 Mrs.
Patterson worked alone in a vault in the back of the Credit 
Union. 1 Tr. 99 (1 JA 99). There is no evidence in the record 
about the location of Mrs. Williamson's office, but she did not 
work in the vault with Mrs. Patterson. Furthermore, the court 
miscalculated the wage difference between the two positions, 
since the salary differential at the time Mrs. Patterson was laid

27



off was in fact $1.96 and not 89 cents as the court found. Pay- 
Record of Susan Williamson, Pltf. Ex. 7; Pay Record of Brenda 
Patterson, Pltf. Ex. 8.

IV. EVEN IF THE EVIDENCE IN THE RECORD WERE
INSUFFICIENT TO RAISE A JURY ISSUE, PLAINTIFF 
WOULD BE ENTITLED TO CONDUCT DISCOVERY 
REGARDING WHETHER THE PROMOTION SHE SOUGHT 
WOULD HAVE PLACED HER IN A "NEW AND DISTINCT 
RELATION" WITH MCLEAN

In considering whether there is sufficient evidence of 
discriminatory promotion denial to send to a jury, the Court 
should not rely on a trial record developed before the "new and 
distinct relation" standard even existed, but should afford 
plaintiff an opportunity to conduct further discovery geared to 
that standard. Under 28 U.S.C. § 2106, an appellate court has 
the authority to vacate or reverse a lower court judgment and 
"require such proceedings to be had as may be just under the 
circumstances." Where a legal standard has been altered on 
appeal, the appropriate course is for the court to vacate the 
judgment and remand the case to the district court to allow the 
parties to present further evidence. See Williams v. 
Pennsylvania R.R. Co.. 313 F.2d 203, 214-15 (2d Cir. 1963).

This case was tried in 1985, four years before the Supreme 
Court announced the "new and distinct relation" standard. Prior 
cases interpreting § 1981 had not focused, as the Supreme Court 
did in this case, on whether a promotion would create a new 
contract between the employer and employee, but had merely 
assumed that the discriminatory denial of a promotion violates

28



the statute. See, e.q.. Patterson v. McLean Credit Union. 805 
F.2d at 1145; Brown v. Gaston County Dyeing Machine Co.. 457 F.2d 
1377 (4th Cir. 1972). Although there is some evidence in the 
record relevant to the distinction between the position Mrs. 
Patterson held and the position into which she sought to be 
promoted, that evidence was not discovered and presented in a 
manner tailored to meet the new standard. The evidence from the 
trial that relates to the distinctions between Mrs. Patterson's 
job responsibilities and those associated with the promotion at 
issue was presented to show whether Mrs. Patterson was qualified 
for the promotion, and not to show that the responsibilities of 
the job she sought were distinct from those of the one she held
at the time.11 12 Under these circumstances, plaintiff is entitled

• 12to conduct further discovery.
Although plaintiff disputes that the factors considered by 

the district court properly frame the factual inquiry into

Trial exhibits list some of the duties formally 
associated with Mrs. Patterson's job and Susan Williamson's 
accountant position, See Pltf. Exs. 14, 15, but the parties did not 
develop at trial the extent to which the descriptions are accurate. 
Whether a promotion would result in a "new and distinct relation" 
turns not on how the employer describes job duties as a formal 
matter, but upon the practical realities of the different jobs. 
Any other rule would permit an employer to circumvent § 1981's 
coverage by manipulating its written job descriptions. Further 
discovery relating to the functional distinctions in the day-to- 
day performance of these jobs would, therefore, also be 
appropriate.

12 Remand is particularly appropriate here, where the impact 
of the Supreme Court's decision was not briefed in the district 
court. See supra. Point I. Plaintiff did not even have an 
opportunity to point out to the district court how evidence that 
is in the record supports her claim.

29



whether the promotion would have created a "new and distinct 
relation," see supra. Point II, the record is incomplete with 
respect to those factors. The record reflects some aspects of 
Mrs. Patterson's working conditions, such as that her desk was 
located in the vault, and that she was continually harassed by 
Mr. Stevenson. But there is no basis in the record upon which to 
compare these conditions to those that an accountant intermediate 
worked under, to assess with respect to both jobs other aspects 
of working conditions, such as quality of work space, 
availability of secretarial and other support services, extent 
and nature of supervision, pace of work, availability of break 
time, frequency of interruptions, flexibility of schedule, 
perquisites and employee benefits, etc.13

Where there is evidence in the record on these points, 
it supports plaintiff's claim. See supra. Point III. As noted 
above, for example, the record reflects that Mrs. Patterson and 
Mrs. Williamson did not in fact work "in the same location, in the 
same office." Mrs. Patterson worked in the vault, and Mrs. 
Williamson did not.

30



V. THE DISTRICT COURT'S DENIAL OF MRS.
PATTERSON'S MOTION TO REOPEN THE JUDGMENT IS 
AN ABUSE OF DISCRETION

The district court erred when it concluded that a change in
North Carolina law did not warrant reopening the prior judgment
against Mrs. Patterson on her claim of intentional infliction of
emotional distress. The district court granted the defendant's
motion for directed verdict on this claim at the close of her
case on the ground that "the factual situation that we have here
does not come anywhere near to amounting to the types of conduct
that the North Carolina courts have allowed recovery on or have
discussed, with reference to intentional infliction of emotional
distress." 3 Tr. 74 (3 JA 45). This Court affirmed, holding
that "[t]he standard of 'outrageousness' established in the
relatively few state court decisions is understandably a
stringent one." 805 F.2d at 1146. Analyzing Woodruff v. Miller.
64 N.C. App. 364, 307 S.E.2d 176 (1983), Dickens v. Purvear. 302
N.C. 437, 276 S.E.2d 325 (1981), and Hogan v. Forsyth Country
Club. 79 N.C. App. 483, 340 S.E.2d 116 (1986), this Court
determined that "[rjecovery under that standard has been
permitted only for conduct far more egregious than any charged to
McLean in Patterson's evidence." 805 F.2d at 1146. This Court
found Hogan. the first case in North Carolina to address a claim
for intentional infliction of emotional distress in the
workplace, to be "[o]f particular relevance," id., and
distinguished Hogan on the ground that Ms. Hogan's

employer-defendant screamed and shouted at 
her, engaged in non-consensual and intimate

31



sexual touching, made sexual remarks and 
threatened her with a knife.

Id. at 1146.14 This Court held that in Mrs. Patterson's case, in 

contrast, Mr. Stevenson's conduct fell "far short" of the factual 
situations that North Carolina courts had found sufficiently 
extreme and outrageous as a matter of law to support a jury 
finding of intentional infliction of emotional distress. Id.

On remand from the Supreme Court, Mrs. Patterson filed in 
this Court a motion for reconsideration of its decision affirming 
the district court's dismissal of her claim on the grounds that 
Dixon v. Stuart. 85 N.C. App. 338, 354 S.E.2d 757 (1987), decided
since the 1985 trial, altered the law for a claim of intentional 
infliction of mental and emotional distress. (SA 3). In Dixon. 
the plaintiff recovered on his claim due to ridicule and 
harassment on the job in the absence of any physical contact.

Three plaintiffs in Hogan asserted an intentional 
infliction of emotional distress claim based on sexual harassment 
in the workplace. The Court of Appeals reversed the grant of 
summary judgment in favor of the employer in the case of one 
plaintiff, holding that the conduct shown could reasonably be 
regarded as extreme and outrageous, and therefore it was for the 
jury to determine whether the conduct was, in fact, sufficiently 
extreme and outrageous to result in liability. Hogan. 340 S.E.2d 
at 121.

The North Carolina Court of Appeals, however, affirmed the 
district court's grant of summary judgment against the other two 
plaintiffs because in the court's view, the defendant's treatment 
of them was simply not as a matter of law sufficiently outrageous 
to support their claim. id. 123. This Court in its opinion 
affirming the district court's dismissal of Mrs. Patterson's 
intentional infliction of emotional distress claim found the North 
Carolina court's ruling against these two plaintiffs significant 
in reaching its conclusion that the district court had properly 
dismissed Mrs. Patterson's claim.

32



354 S.E.2d at 759. This Court dismissed plaintiff's motion 
without prejudice suggesting "that plaintiff's motion is one more 
properly addressed to the district court as one to reopen a 
judgment under Fed. R. Civ. P. 60(b)(6)." Id. Mrs. Patterson 
then filed a motion to reopen and set aside judgment in the 
district court. The court denied Mrs. Patterson's motion.

During the 1985 trial the district court relied on three 
North Carolina cases addressing intentional infliction of mental 
and emotional distress to grant the defendant's motion for a 
directed verdict, 3 Tr. 57 (3 JA 27), although none of these 
cases involved harassment in the workplace.15 The court's 
reasoning was that there were no cases with "this exact factual 
situation ... [and] the cases in North Carolina that we have had 
are far, far more ... outrageous than we have here." 3 Tr. 74 (3 
JA 45).

In its 1990 opinion denying plaintiff's motion to reopen,
the district court stated that

[p]laintiff asserts that Dixon recognized a claim for 
intentional infliction of emotional distress where 
defendants simply ridiculed and harassed plaintiff in 
the workplace, intending to cause and actually causing 
emotional distress. Contrary to plaintiff's 
assertions, however, Dixon did not lower the standard 
for making a orima facie case. The court in Dixon only

15 Those three cases were Stanback v. Stanback. 297 N.C. 181, 
254 S.E.2d 611 (1979), Dickens v. Purvear. 276 S.E.2d 325, and 
Woodruff v. Miller. 307 S.E.2d 176 (N.C. App. 1983). Stanback was 
the first case in North Carolina to recognize the tort of 
intentional infliction of emotional distress. Its dicta suggesting 
that a plaintiff must show physical injury and that the harm 
suffered be foreseeable to prove intentional infliction of 
emotional distress was rejected later by the North Carolina Supreme 
Court in Dickens. 276 S.E.2d at 332.

33



addressed whether the trial court properly granted the 
defendant's Rule 12(b)(6) motion opposing plaintiff's 
infliction of emotional distress claim. The Dixon 
court did not consider whether plaintiff's evidence of 
intentional infliction of emotional distress rose to 
that level of conduct sufficient to support a claim or 
withstand a motion for directed verdict. Because the 
standard for granting a 12(b)(6) motion and a directed 
verdict motion are different, Dixon does not change the 
law regarding the propriety of a directed verdict on an 
emotional distress claim, and hence, will not affect 
this Court's ruling on the directed verdict motion.

Slip op. at 4.
The district court's analysis is patently erroneous. 

Subsequent opinions in the North Carolina Court of Appeals have 
changed the governing law. It is now clear that outrageous and 
extreme ridicule and harassment alone suffice, and that non- 
consensual touching or physical threats in the workplace are not 
required to sustain a claim of intentional infliction of 
emotional distress. Dixon. decided a year after this Court 
affirmed the district court, held that "extreme and outrageous 
ridiculing and harassing" is sufficient to make out an 
intentional infliction of emotional distress claim. 354 S.E.2d 
at 759. Two years later, the North Carolina Court of Appeals 
held in Brown v. Burlington Industries. 93 N.C. App. 431, 378 
S.E.2d 232, 235 (1989), a case involving sexual harassment in the 
workplace, that the plaintiff's supervisor's "remarks and 
gestures toward the plaintiff in the present case constituted 
conduct which could reasonably be found to be sufficiently 
outrageous to permit plaintiff to recover" on her intentional 
infliction of emotional distress claim. Although the district 
court asserted that the facts in Brown and Hogan "are nearly

34



identical," the facts in Brown did not include non-consensual 
touching or threats of physical injury. 378 S.E. 2d at 234-235. 
Dixon and Brown thus clearly for the first time authorize claims 
based on the kind of conduct Mrs. Patterson endured.

This Court in Jordan v. Campbell-Taggart, Inc.. Civil Action 
No. 87-3595 slip op. (4th Cir. April 17, 1990), recently 
acknowledged the new North Carolina standard when it relied on 
Dixon to reach a result opposite from that of the district court 
here in a case with analogous facts.16 The Court held in Jordan 
that "[u]nder the proper circumstances, ridicule and harassment 
can constitute an intentional infliction of emotional distress," 
slip op. at 9 (citing Dixon). Plaintiff Jordan, a bakery systems 
manager in charge of delivery operations at Minuteman Transit, 
alleged that racial harassment on the job gave rise to a claim of 
intentional infliction of emotional distress. The evidence 
showed that Burger, an employee of the defendant Campbell- 
Taggart, usurped Jordan's duties, demanded that Jordan remove 
black drivers from certain routes, preventing him from resolving 
delivery problems promptly by prohibiting him from contacting 
managers of restaurants where he made deliveries, but requiring 
that he alone deal with the managers if they were black. Id. at 
4. The Court also noted evidence that Burger told Jordan to 
"'get in here' or 'get the hell in here,'" and stated: "I never

Plaintiff relies here on Jordan because it is an 
"unpublished disposition . . . [that] has precedential value in 
relation to a material issue in [this] case and that there is no 
published opinion that would serve as well...." 4th Cir. I.O.P. 
36.5.

35



said you people couldn't do a good job. I think everybody should 
own at least one." Id. at 5. Jordan testified that he was 
"humiliated" and "degraded" by Burger's treatment. Id. at 10. 
This Court held that

[ajssessing the evidence here in the light 
most favorable to Jordan, we cannot say that 
the trial court erred in submitting the issue 
of Burger's individual liability for 
intentional infliction of emotional distress.
On the evidence in its best light, Burger's 
conduct clearly constituted far more than the 
ordinary run of insult and offense that 
people must expect to encounter and tolerate 
in work places.

Id. (citations omitted).
The district court's holding that Dixon does not "affect 

this Court's ruling on the directed verdict motion" because Dixon 
"only addressed whether the trial court properly granted the 
defendant's Rule 12(b)(6) motion opposing plaintiff's infliction 
of emotional distress claim" is clearly wrong. Patterson. slip 
op. at 4 (SA 7). The court essentially held that the 
allegations of extreme and outrageous ridicule and harassment in 
Dixon stated a claim of intentional infliction of mental and 
emotional distress as a matter of law, but that evidence 
supporting those same allegations at trial is not sufficient to 
withstand a motion for directed verdict. This analysis creates a 
different substantive legal standard for differing stages of a 
case. There district court's reasoning is erroneous. If a new 
decision establishes that allegations of less severe conduct 
suffice to withstand a motion to dismiss, then a lesser quantum 
of evidence in turn suffices to present a claim to the jury.

36



To warrant relief under Rule 60(b)(6) a "movant must make a 
showing of timeliness, a meritorious defense, a lack of prejudice 
to the opposing party and exceptional circumstances." Werner v. 
Carbo, 731 F.2d 204 (4th Cir. 1984). Mrs. Patterson meets each 
of these requirements. First, she filed a timely motion in the 
district court after this court on remand suggested that Mrs. 
Patterson's motion to reconsider its decision on her tort claim 
filed before it would "more properly be addressed to the district 
court as one to reopen a judgment under Fed. R. Civ. P.
60(b)(6)." Id.

Second, there is no prejudice to McLean. This Court has 
held that "the protraction of proceedings, the time and expense 
of a new trial" due to the vacation of a judgment is not a 
sufficient ground to prevent granting a 60(b) motion when justice 
requires it. Werner. 731 F.2d at 207.

Third, a change in state decisional law after judgment has 
been entered warrants 60(b)(6) relief. Polites v. U .S., 364 U.S. 
426 (1960); Pierce v. Cook and Co.. 518 F.2d 720, cert, denied. 
423 U.S. 1079 (1976); Yuclan Enterprises, Inc, v. Nakaqawa. 583 
F. Supp. 1574 (D.C. Hawaii 1984); EEOC v. Baltimore and O.R.R..
557 F. Supp. 1112 (D.C. Md. 1983). Plaintiff has shown that
North Carolina law on intentional infliction of mental and 
emotional distress has changed significantly since 1985 when Mrs. 
Patterson's case was first tried in court.

Finally, this case also meets the 60(b) requirement of 
exceptional circumstances. If Mrs. Patterson is not granted

37



relief under 60(b)(6), she may not have any cause of action under 
either federal or state law. The United States Supreme Court in 
its opinion remanding this case specifically noted that part of 
its basis for excluding racial harassment from § 1981 coverage 
was its "'reluct[ance] to federalize matters' traditionally 
covered by state common law." 109 S. Ct. at 2376 (citations 
omitted). Mrs. Patterson's racial harassment claim can now only 
can be addressed under state law.

Rule 60(b) "has invested federal courts with the power ... 
to accomplish justice." Compton v. Alton Steamship Co.. 608 F.2d 
96, 102 (4th Cir.1979), quoting Klapprott v. United States. 335 
U.S. 601, 614-15 (1949). Relief under Rule 60(b)(6) is 
appropriate in cases "where relief might not be available under 
any other clause in 60(b)." Id. Mrs. Patterson cannot obtain 
relief under any other subsection of Rule 60(b).17 Justice 
requires that Mrs. Patterson be given the opportunity to present 
her harassment claim before a jury. She was not afforded that 
chance during her first trial. North Carolina law now reflects 
an increased sensitivity to the psychological and emotional harm 
racially hostile environments can engender and gives Mrs. 
Patterson the chance to have her day in court on her harassment 
claim.

This Court may reverse the district court's denial of Mrs. 
Patterson's Rule 60(b)(6) motion to set aside and reopen its

17 ,This Court recognized this fact when it suggested 
plaintiff file a motion to reopen pursuant to Fed. R. Civ. P. 
60(b)(6). 887 F.2d at 485.

38



judgment against her for abuse of discretion. United States v. 
Williams, 674 F.2d 310, 312 (4th Cir. 1982); Compton v. Alton 
Steamship Co.. 608 F.2d 96 (4th Cir. 1979). The district court's 
erroneous exercise of discretion warrants reversal of the court's 
order denying Mrs. Patterson's motion.

The decision of the district court should also be reversed 
because the court purported to base its decision on the jury's 
rejection of plaintiff's harassment claim. The district court 
asserted that the plaintiff was allowed to present her evidence 
of racial harassment to the jury and that the "verdict adverse to 
plaintiff on her § 1981 claim indicates that her evidence, as it 
related to the harassment claim as well, did not ring true to the 
jury." Slip op. at 3, n. 2. But the jury did not even consider 
whether there was racial harassment, since the court dismissed 
Mrs. Patterson's harassment claim after plaintiff completed the 
presentation of her evidence. Mrs. Patterson has never had the 
opportunity to bring her racial harassment claim to a jury. The 
district court's reliance on the jury's prior verdict is thus 
incorrect as a matter of law and clearly erroneous as a statement 
of fact.

39



CONCLUSION
For the foregoing reasons, the decision below should be 

vacated and the case should be remanded to the district court for 
further discovery and a trial on the merits.

Respectfully submitted,

Educational Fund, Inc. 
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005

JULIUS L. CHAMBERS 
CORNELIA T.L. PILLARD
NAACP Legal Defense and 

Educational Fund, Inc. 
99 Hudson Street 
16th Floor 
New York, NY 10013

HAROLD LILLARD KENNEDY, III 
HARVEY LEROY KENNEDY, SR. 

Kennedy, Kennedy, Kennedy 
& Kennedy

710 First Union Building 
Winston-Salem, NC 27101

June 28, 1990

40



CERTIFICATE OF SERVICE

This will certify that I have this date served counsel 
for defendant in this action with true and correct copies of the 
foregoing Brief of Plaintiff-Appellant, Joint Appendix and the 
Supplemental Appendix by placing said copies in the U.S. Mail at 
New York, New York, First-Class postage thereon fully prepaid 
addressed as follows:

George Doughton, Jr., Esq.
H. Lee Davis, Jr., Esq.
Thomas J. Doughton, Esq.
114 W. Third Street
Winston-Salem, NC 27101

Executed this Jl&A day of June, 1990 at New York, New
York.

for Plaintiffs-Appellees