Lytle v. Household Manufacturing Inc. Petitions and Briefs
Public Court Documents
March 13, 1990
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The Suprem e Court of the United States
Lytle
versus (88-334)
Household Manufacturing, Inc.
Petitions and Briefs
NAACP LEGAL DEFENSE FUND
LNR ' E Y
99 HUDSON S'SECT
NEW YORK, N. Y. 10013.
mar 13 mo
Labor Law Series
Volume 23, No. 10
1989/90 Term of Court
Law Reprints
TABLE OF CONTENTS
John S. Lytle
Household Manufacturing, Inc.
Docket Sheet. . . . . . . . . . . . . . . . . . . . . . . . ii
Petition for Writ of Certiorari. . . . . . . . . . . . . 1
Opposition. . . . . . . . . . . . . . . . . . . . . . . . . 65
BRIEFS ON THE MERITS
Petitioner. . . . . . . . . . . . . . . . . . . . . . . . . 91
Respondent. . . . . . . . . . . . . . . . . . . . . . . . 161
Reply Brief of Petitioner. . . . . . . . . . . . . . . 205
AMICUS CURIAE BRIEF ON THE MERITS
Equal Employment Advisory Council. . . . . . . . . . . 249
- i -
DOCKET SHEET
Ho. 88-334-CFX Title: John S. Lytic, Petitioner
Status: GRANTED v.
Household Manufacturing, Inc., dbn Schwitzer
Turbochargers
Docketed:
Auqunt. ?4, 1988 Court: United States Court of Appeals
for the Fourth Circuit
Counsel for petitioner: Reed,Judith
Counsel for respondent: Donnard Jr.,H. Lane, Clarke,A. Bruce
Entry Datei Note Proceedings and Orders
1 Jul 14 1988 G Application (A88-46) to extend the time to file a petition
for a writ of certiorari from July 26, 1988 to August
25, 1988, submitted to The Chief Justice.
2 Jill 19 1988 Application (A88-46) granted by the Chief Justice
extending the time to file until August 25, 1988.
3 Aug 24 1988 G Petition for writ of certiorari filed.
4 Sep 23 1988 Brief of respondent Household Manufacturing Inc. in
opposition filed.
5 Sep 28 1988 DISTRIBUTED. October 14, 1988
6 Jun 16 1989 REDISTRIBUTED. June 22, 1989
8 Jun 23 1989 REDISTRIBUTED. June 29, 1989
9 Jul 3 1989 Petition GRANTED.
a ******************************************************'
1 1 Aug 1 1989 Order extending time to file brief of petitioner on the
merits until September 2, 1989.
1 3 Sep 1 1989 Joint appendix filed.
1 4 Sep 1 1989 Brief of petitioner John S. Lytle filed.
16 Sep 18 1989 Order extending time to file brief of respondent on the
merits until October 19, 1989.
12 Sep 29 1989 * Record filed.
Certified copy of original record and proceedings, 8
volumes, box, received.
17 Oct 19 1989 Brief of respondent filed.
18 oct 19 1989 Brief amicus curiae of Equal Employment Advisory Council
filed.
19 Nov 13 1989 G Application (AB9-365) to extend the time to file a reply
brief from November 18, 1989 to November 28, 1989,
submitted to The Chief Justice.
20 Nov 14 1989 Application (A89-365) granted by the Chief Justice
extending the time to file until November 28, 1989.
21 Nov 27 1989 SET FOR ARGUMENT MONDAY, JANUARY 8, 1990. (3RD CASE)
22 Nov 28 1989 Reply brief of petitioner filed.
23 Nov 30 1989 CIRCULATED.
24 Jan 8 1990 ARGUED.
i i
No. 88-334
I n t h e
(Emirt of tlje Imtpfc States
O ctober T e r m , 1988
.Jo h n S . L y t le ,
v.
P etitioner,
H o u seh old M a n u f a c t u r in g I n c .,
d / b / a S c i iw it z e r TuRnociiARGERS,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
J u l iu s L f.V o n n e C h a m ber s
C h a rle s S t e p h e n R alston
R onald L. E llis
J u d i t h R e e d *
E ric S c itn apper
NAACP Legal Defense &
Educational Fund, Inc.
99 Hudson S treet
16th Floor
New York, New York 10013
(212) 219-1900
P en da D. H air
1275 IC Street, N.W.
Suite 301
W ashington, D.C. 20005
(202) 682-1300
A ttorneys fo r P etitioner
*Counsel of Record
1
QUESTION PRESENTED
Did the Fourth Circuit correctly
hold that district court violations of
the Seventh Amendment are unreviewable by
the appellate courts if the trial judge,
after violating the Amendment by refusing
to empanel a jury, compounds that
constitutional infraction by deciding
himself the very factual issue which
should have been presented to and decided
by a jury?
i
2
PARTIES
All parties in this matter are set
forth in the caption.
ii
3
TABLE OF CONTENTS
Question Presented ..... i
Parties ...................... ii
Table of Contents ............ iii
Table of Authorities ........ v
Citations To Opinions Below .. 2
Jurisdiction ................. 2
Statutes, Constitutional Pro
vision and Rules
Involved................. 3
Statement of the Case ....... 5
Reasons for Granting The
Writ .................... 11
I. The Holding of the Fourth
Circuit Has Been
Expressly Rejected By
Four Other Circuits, And
Is Inconsistent With the
Practices of Nine Other
Circuits ................ 11
II. The Decision Below
Conflicts With Eight
Decisions of this Court.. 30
III. The Decision Below Poses
Serious Problems for
Efficient Judicial
Administration. .......... 37
Page
iii
4
Page
IV. The Decision Below
Should Be Summarily
Reversed...................... 4 3
Conclusion ................... 53
Appendix *
Opinion of the Court of the
Appeals, October 20,
1987 ............... la
Order Denying Rehearing and
Rehearing En Banc,
April 27 , 1988 .............. 22a
District Court Decision from
the Bench, Trial Tran
script of February 26,
1986..................... 25a
Judgment, February 27, 1986 .. 32a
Order of Dismissal,
February 27, 1986............ 34a
Ed. Note: • Denotes materia! not reprinted herein.
TABLE OF AUTHORITIES
Cases Page
Amoco Oil Co. v. Torcomian,
722 F.2d 1099 (3d Cir. 1983).. 29
Baylis v. Travelers'
Insurance Co., 113 U.S. 316
(1885)........................ 32
Beacon Theatres, Inc. v.
Westover, 359 U.S. 500
(1959) .................. 14,21,22,32-35
Bibbs v. Jim Lynch Cadillac,
Inc., 653 F.2d 316
(8th Cir. 1981) 29
Bouchet v. National Urban
League, 730 F.2d 799
(D.C. Cir. 1984) 27,28
Cohen v. Beneficial Industrial
Loan Corp., 337 U.S. 541
(1949)....................... 39
Curtis v. Loether, 415 U.S. 189
(1974)....................... 32
Dairy Queen, Inc. v. Wood,
369 U.S. 469 (1962)........ 14,34-35,48
EEOC v. Corry Jamestown Corp.,
719 F.2d 1219 (3d Cir. 1983). 26,29
Hall v. Sharpe, 812 F.2d 644
(11th Cir. 1987)............ 29
v
Cases: Page
Hildebrand v. Bd. of Trustees
of Michigan State Univ.,
607 F.2d 705 (6th Cir. 1979).. 29
Hodges v. Easton, 106 U.S. 408
(1882) 32
Hussein v. Oshkosh Motor
Truck Co., 816 F.2d 348
(7th Cir. 1987)........... 9,15,21-23,25
Johnson v. Mississippi,
100 L. Ed. 2d 575 (1988)...... 17
Johnson v. Railway Express
Agency, 421 U.S. 454 (1975).. 7
Keller v. Prince George's
County, 827 F.2d 952
(4th Cir. 1987).............. 40
Lewis v. Thigpen, 767 F.2d 252
(5th Cir. 1985).............. 29
Marshak v. Toneti, 813 F.2d 13
(1st Cir. 1987).............. 29
Matter of Merrill,
594 F.2d 1064 (5th Cir.
1979)........................ 29
Meeker Oil v. Ambassador Oil
Corp., 375 U.S. 160
(1963)................... 13,14,32-35,41
Morgantown v. Royal Insurance
Co., 337 U.S. 264 (1949).... 40,41,47
Palmer v. United States,
652 F.2d 893 (9th Cir. 1981). 29
vi
7
Cases: Page
Parklane Hosiery v. Shore,
439 U.S. 322 (1979)......... Passim
Patterson v. McLean Credit
Union, No. 87-107........... 44
Pernell v. Southall Realty,
416 U.S. 263 (1974)......... 32
Richardson Greenshields
Securities, Inc. v. Lau,
825 F.2d 647 (2d Cir. 1987).. 28
Ritter v. Mount Saint Mary's
College, 814 F.2d 986
(4th Cir. 1987).............. Passim
Roebuck v. Drexel University,
(3rd Cir. No. 87-1301)
(July 26, 1988)......... . 23-26,43
Runyon v. McCrary, 427 U.S. 160
(1976)....................... 7,44
Schoenthal v. Irving Trust Co.,
287 U.S. 92 (1932).......... 32
Sibley v. Fulton DeKalb
Collection Service, 677
F .2d 830 (11th Cir. 1982).... 29
Tull v. United States,
95 L.Ed.2d 365 (1987).... 9,30--32,50-51
United States v. One 1976
Mercedes Benz, 618 F.2d 453
(7th Cir. 1980).......... . 49
vii
8
Cases: Page
United States v. State of
New Mexico, 642 F.2d 397
(10th Cir. 1981)....... .....
Volk V . Coler, 845 F.2d 1422
(7th Cir. 1988)............ 21,23
Wade v. Orange County
Sheriff's Office, 844 F.2d
951 (2d Cir. 1988)..........
Webster v. Reid, 52 U.S. 437
(1850)...................... .
Western Elec. Co. v. Milgro
Electronic Corp,, 573 F.2d
255 (5th Cir. 1978).........
Other Authorities:
Seventh Amendment,
United States Constitution...
28 U.S.C. § 1254 (1)...........
42 U.S.C. § 1981....... .......
Title VII, 1964 Civil Rights
Act..........................
Rule 38, Federal Rules of
Civil Procedure..............
Rule 39, Federal Rules of
Civil Procedure..............
viii
29
,25,43
28,43
32
39
Passim
3
3
Passim
4
5
9
Page
R.Revesz and P. Karlan,
"Nonmajority Rules and the
Supreme Court," 136
U.Pa.L.Rev. 1067 (1988)..... 44
ix
10
No. 88-
IN THE
UNITED STATES SUPREME COURT
OCTOBER TERM, 1988
JOHN S. LYTLE,
Petitioner,
v .
HOUSEHOLD MANUFACTURING INC.,
d/b/a SCHWITZER TURBOCHARGERS,
Respondent.
PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
The petitioner, John S. Lytle,
respectfully prays that a writ of
certiorari issue to review the judgment
and opinion of the United States Court of
11
2
Appeals for the Fourth Circuit entered in
this proceeding on October 20, 1987.
CITATIONS TO OPINIONS BELOW
The opinion of the court of appeals
is unpublished, and is set out in the
Appendix to this petition at pages la-
213. The order of the court of appeals
denying rehearing, which is not reported,
is set out at pp. 22a-24a of the
Appendix. The district judge's bench
opinion, which is unreported, is set out
in the Appendix, at pp. 25a-31a. The
order of the district court dismissing
the case is set out in the Appendix at
pp. 34a-35a.
JURISDICTION
The judgment of the court of appeals
affirming the district court's dismissal
of the case was entered on October 20,
1987. (App. la.) A timely petition for
rehearing was denied on April 27, 1988.
12
3
On July 19, 1988, Chief Justice Rehnquist
entered an order extending the time for
filing a petition for writ of certiorari
to and including August 25, 1988. The
jurisdiction of this Court is invoked
under 28 U.S.C. § 1254(1).
STATUTES. CONSTITUTIONAL PROVISIONS
AND RULES INVOLVED
Section 1981 of 42 U .S .C . provides:
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.
Section 703 (a) of Title VII of the 1964
Civil Rights Act, 42 U.S.C. § 2000e-
(2)(a), provides in pertinent part:
It shall be an unlawful
employment practice for an employer-
(1) to fail or refuse to hire
or to discharge any individual, or
13
4
otherwise to discriminate against
any individual with respect to his
compensation, terms, conditions, or
privileges of employment because of
such individual's race, color,
religion, sex, or national
origin....
The Seventh Amendment to the United
States Constitution provides:
In suits at common law, where the
value in controversy shall exceed
twenty dollars, the right of trial
by jury shall be preserved and no
fact tried by jury shall be
otherwise re-examined in any Court
of the United States, than according
to the rules of the common law.
Rule 38 of the Federal Rules of Civil
Procedure provides in pertinent part:
(a) Right Preserved. The
right of trial by jury as declared
by the Seventh Amendment to the
Constitution or as given by a
statute of the United States shall
be preserved to the parties
inviolate.
(b) Demand. Any party may
demand a trial by jury of any issue
triable of right by a jury by
serving upon the other parties a
demand therefor in writing at any
time after the commencement of the
action and not later than 10 days
after the service of the last
pleading directed to such issue.
14
5
Such demand may be indorsed upon a
pleading of the party.
Rule 39 of the Federal Rules of Civil
Procedure provides in pertinent part:
(a) By Jury. When trial by
jury has been demanded as provided
in Rule 38, the action shall be
designated upon the docket as a jury
action. The trial of all issues so
demanded shall be by jury, unless
(1) the parties or their attorneys
of record, by written stipulation
filed with the court or by an oral
stipulation made in open court and
entered in the record, consent to
trial by the court sitting without a
jury or (2) the court upon motion or
of its own initiative finds that a
right of trial by jury of some or
all of those issues does not exist
under the Constitution or statutes
of the United States.
STATEMENT OF THE CASE
Petitioner filed this action in
December, 1984, alleging that the
respondent employer had engaged in racial
discrimination in violation of Title VII
of the 1964 Civil Rights Act and of 42
U.S.C. § 1981. Petitioner claimed
specifically that respondent had fired
15
6
him because of his race, and that
respondent subsequently had retaliated
against him because he had filed a charge
of discrimination with the EEOC.
Petitioner requested a jury trial on his
section 1981 claims.
Petitioner's discrimination claims
raised several straightforward factual
issues. Petitioner was dismissed in
August of 1983 after he had missed two
days of work due to illness. Petitioner
asserted that he had notified respondent
in advance that he would be absent, and
that company officials had agreed to his
taking the days off. Company officials
insisted that the absence was in fact
unexcused. There was also conflicting
evidence regarding how respondent treated
white workers who had problems with
absenteeism.
16
7
The district court dismissed
plaintiff's claims under section 1981,
holding -- despite Runyon v. McCrary. 427
U.S. 160 (1976) and Johnson v. Railway
Express Agency. 421 U.S. 454 (1975)--
that Title VII ordinarily provides the
exclusive remedy for employment
discrimination. (App. 26a). Having thus
removed petitioner's legal claims, the
district judge conducted a bench trial on
the equitable Title VII claims. At the
close of the plaintiff's case, the
d i s t r i c t judge d i s m i s s e d the
discriminatory discharge claims;
following the close of all the evidence,
the judge ruled from the bench in favor
of respondent on the retaliation claim.
(App. 2 6a-3la) . The trial judge
subsequently entered a judgment for
defendant on all issues. (App. 32a-35a).
17
8
Petitioner appealed to the Fourth
Circuit, arguing, inter alia, that he had
been denied his right to a jury trial in
violation of the Seventh Amendment. A
majority of the Fourth Circuit panel
acknowledged that the dismissal of
petitioner's § 1981 claim, and thus the
denial of a jury trial, was "apparently
erroneous." (App. 7a n.2). The panel
c o n c l u d e d , h o w e v e r , that that
c o n s t i t u t i o n a l e r r o r was "not
controlling," because an appellate court
was powerless to correct any such Seventh
Amendment violation. The panel insisted
that the district judge's decision on the
merits of petitioner's allegations, even
though issued in contravention of the
Seventh Amendment, could be relied on to
collaterally estop the petitioner from
litigating the claims involved before a
jury. (App. 8a-9a) . Finding that the
18
9
judge's resolution of the factual issues
was "not clearly erroneous," the majority
affirmed. (App. 10a-13a).^
Judge Widener, in a dissenting
opinion, noted that the majority's view
of collateral estoppel was inconsistent
with a seventh circuit decision on
"exactly this issue" in Hussein v.
Oshkosh Motor Truck Co. , 816 F.2d 348
(7th Cir. 1987) (App. 19a), and that it
was "not consistent with" the recent
decision of this Court in Tull v. United
States. 95 L.Ed.2d 365 (1987). (App. 19a
1 The district judge found that
petitioner had failed to establish a
prima facie case with regard to his
dismissal claim. (App. 26a-29a). The
court of appeals reasoned that whether or
not petitioner had made out a prima facie
case turned on a number of disputed
subsidiary facts; the appellate court
found that the trial judge's resolution
of those subsidiary issues, and thus his
conclusion regarding the sufficiency of
the evidence to establish a prima facie
case, were not clearly erroneous. (App.
10a-12a).
19
10
n.4). Judge Widener criticized the
majority's reliance on the earlier Fourth
Circuit decision in Ritter v. Mount Saint
Mary's College. 814 F.2d 986 (4th Cir.
1987) , insisting that the circumstances
and thus the issue in Ritter were
"significantly different" than in the
instant case. (App. 18a). Judge Widener
concluded that if the appellate courts
were powerless to correct the erroneous
denial of a jury trial merely because the
j u d g e i n v o l v e d had i ssued a
constitutionally tainted decision of his
own on the merits, "the Seventh Amendment
means less today than it did yesterday."
(App. 19a). A timely petition for
rehearing and suggestion for rehearing en
banc were denied; Judges Widener, Russell
and Murnaghan voted to rehear the case en
banc. (App. 22a-24a).
20
11
REASONS FOR GRANTING THE WRIT
I. THE HOLDING OF THE FOURTH CIRCUIT HAS
BEEN EXPRESSLY REJECTED BY FOUR OTHER
CIRCUITS, AND IS INCONSISTENT WITH
THE PRACTICES OF NINE OTHER CIRCUITS
As Judge Widener observed in his
dissenting opinion below, (App. 19a), this
case presents a clear conflict among the
circuits regarding a problem of
considerable importance -- whether Seventh
Amendment violations are rendered
unreviewable if the trial judge who
improperly denied a jury trial compounds
that constitutional error by deciding
himself the very issue that should have
been decided by a jury. The Fourth
Circuit has now twice held that such
constitutional violations can neither be
reviewed nor corrected on appeal. These
decisions of the Fourth Circuit are flatly
inconsistent with the practice in nine
other circuits, and the reasoning of the
21
12
decision below has been expressly rejected
by recent decisions in the Second, Third,
Seventh and District of Columbia Circuits.
These inter-circuit conflicts arise
out of a dispute regarding the meaning of
this Court's decision in Parklane Hosiery
V. Shore. 439 U.S. 332 (1979). In
Parklane Hosiery certain factual issues,
regarding which the petitioner would
otherwise have been entitled to a jury
trial, had earlier been decided adversely
to petitioner by a trial judge in another
action. This Court held that collateral
estoppel, based on a prior decision in a
non-jury trial, could be used to preclude
litigation of those same issues before a
jury. 439 U.S. at 333-37. Footnote 24 of
the majority opinion expressly noted that
the lack of a jury in the earlier
proceeding, an eguitable injunctive action
brought by the SEC, was entirely proper.
22
13
439 U.S. at 337 n. 24.2 But the majority
opinion was silent regarding whether
collateral estoppel might also be
available where the earlier denial of a
jury trial was erroneous, and as to
whether collateral estoppel might be
invoked in order to prevent correction of
that very error. In a dissenting opinion
in Parklane Hosiery. Chief Justice
Rehnguist warned that the majority opinion
might be interpreted as calling into
question the longstanding rule that an
intervening non-jury decision on the
merits of a case did not preclude an
appellate court from reversing the earlier
improper denial of a jury trial. 439 U.S.
at 351 n. 19.3
2 See also 439 U.S. at 351 n. 18
(Rehnquist, J., dissenting).
3 "Meeker Oil v. Ambassador Oil
£prp̂ _, 375 U.S. 160 (1963) (per curiam),
is a case where the doctrine of collateral
estoppel yielded to the right to a jury
23
14
The Fourth Circuit's expansive view
of Parklane Hosiery began last year in
Ritter v. Mount Saint Mary's College. 814
F.2d 986 (4th Cir. 1987), cert, denied
U.S. ___ (1987).4 In Ritter, the Fourth
trial. In Meeker, plaintiffs asserted
both equitable and legal claims, which
presented common issues, and demanded a
jury trial. The trial court tried the
equitable claim first, and decided that
claim, and the common issues, adversely to
plaintiffs. As a result, it held that
p l a i n t i f f s were precluded from
relitigating those same issues before a
jury on their legal claim.... Plaintiffs
appealed, alleging a denial of their right
to a jury trial.... This Court reversed
... on the basis of Beacon Theatres Inc,
v, Westover, 359 U.S. 500 (1959) and Dairy
Queen. Inc, v. Wood. 369 U.S. 469 (1962),
even though, unlike those cases, the
equitable action in Meeker had already
been tried and the common issues
determined by the court. Thus, even
though the plaintiffs in Meeker had
received a "full and fair" opportunity to
try the common issues in the prior
equitable action, they nonetheless were
given the opportunity to retry those
issues before a jury. Today's decision is
totally inconsistent with Meeker and the
Court fails to explain this inconsistency."
4 In opposing review by this Court
in Ritter. the respondent emphasized that
the trial judge's resolution of the
24
15
equitable Title VII claim in that case had
been upheld in an earlier appeal, and was
thus not in dispute when it was relied on
to collaterally estop the plaintiff from
receiving a jury trial. The respondent in
Ritter conceded that the application of
collateral estoppel in the circumstances
presented by the instant case would be
both incorrect and inconsistent with the
Seventh Circuit decision in Hussein v.
Oshkosh.Motor Truck Co.. 816 F.2d 348 (7th
Cir. 1987 ) :
"In Ritter, petitioner had
numerous opportunities to avoid the
application of collateral estoppel,
but availed herself of none....
During her first appeal she had the
opportunity to seek prevention of the
application of collateral estoppel by
requesting reversal of the Title VII
judgment based on the arguments she
makes here.
"In Hussein ...[ujnlike Ritter
••• [t ]h e Seventh Circuit was
requested to invoke collateral
estoppel in Hussein's first and only
appeal. If it did so, Hussein would
have been deprived of any opportunity
to develop his legal claims and
present them to a jury....
"... Ritter and Hussein differ
because there was an earlier valid
and reviewed judgment in Ritter, but
not in Hussein. The Fourth Circuit
reviewed and affirmed the Title VII
judgment in the first appeal, and was
25
16
Circuit acknowledged that the trial judge,
in passing on the disputed facts rather
than referring them to a jury, had
violated the Seventh Amendment, but
insisted that it was permitted, indeed
required, to give conclusive weight to
that very constitutionally tainted
decision. "The fact that the judge in
this case was in error in dismissing the
legal claims ... is irrelevant." 814 F.2d
not asked to vacate that judgment
until the second appeal.... Hussein,
on the other hand, presented a
situation where there was no earlier
valid judgment. The Title VII
judgment there was on review for the
first time so the appellate court was
not asked to vacate its earlier
judgment. The Seventh Circuit used
the lack of an earlier valid judgment
in its attempt to distinguish
Parklane.... That distinction is
absent in the instant case."
Respondent's Brief in Opposition, No. 87-
309, pp. 6-7.
26
17
at 991.5 Even though the bench trial that
had occurred in Ritter violated the
constitution, the fourth circuit insisted,
"One trial of common facts is enough."
J_d. A plaintiff's right to the
constitutional trial guaranteed by the
Seventh Amendment, it reasoned, had to
give way under Parklane Hosiery to "the
interests of the judicial system in a
speedy and economical resolution of
litigation." Id. The fact that a
plaintiff would lose his or her right to a
jury trial because of the error of the
trial judge was, in the words of the
circuit court, only "apparently unfair."
814 F.2d at 991.
The panel decision in the instant
This Court subsequently held
that state courts cannot rely on such
constitutionally infirm prior decisions.
Johnson v. Mississippi. 100 L.Ed.2d 575
(1988) .
27
18
case expands Ritter6 and Parklane Hosiery
to the point where they virtually preclude
enforcement of the Seventh Amendment
following an unconstitutional non-jury
verdict. First, the decision below
extends Ritter to a case in which the
validity of the non-jury verdict on the
equitable issues was itself challenged on
direct appeal; as Judge Widener noted in
his dissent, the plaintiff in Ritter was
not challenging that portion of the
district judge's action in that case.
(Pet. App. 17a). Second, the panel in the
instant case holds that, since the
appellate courts are powerless to correct
Judge Widener observed in his
dissenting opinion below that the
c i r c u m s t a n c e s of R i t t e r were
distinguishable from those of the instant
case, since at the time when the
collateral estoppel issue arose the
plaintiff in Ritter was no longer
challenging the trial judge's rejection of
her equitable Title VII claims. (App.
17a-18a).
28
19
a Seventh Amendment violation, a circuit
court simply has no reason to decide
whether the action of the trial judge
denied one of the parties its
constitutional right to trial by jury.
This court held in Ritter
that the findings of the trial
court made in a Title VII action
are entitled to collateral
estoppel effect, thus preventing
relitigation of those facts
before a jury under a "legal"
theory arising out of the same
facts. We found that collateral
estoppel would obtain even where
the trial court had erroneously
dismissed the plaintiff's legal
claims. As the Supreme Court
determined in Parklane Hosiery
. . . , the judicial interest in
economy of resources is
sufficient to override the
l i t i g a n t ' s i n t e r e s t in
relitigating his case, even
where the consequence of the
failure to permit relitigation
is to deny the plaintiff his
right to a jury trial. Whether
the district court has committed
e r r o r in s t r i k i n g the
appellant's [legal] claims ...
is not controlling.
(App. 8a-9a). It is perhaps coincidental,
but nonetheless disturbing, that these two
29
20
landmark Fourth Circuit decisions, holding
that the unconstitutional denial of a jury
trial cannot be corrected on appeal, both
come in cases in which the underlying
legal claim involved intentional invidious
d i s c r i m i n a t i o n , in w h i c h the
unconstitutional bench trial resulted in a
judgment for the defendant, and in which,
at least in the instant case, the trial
court's reasons for denying a jury trial
seem insubstantial.7
No other circuit permits the use of
collateral estoppel to prevent correction
on appeal of an unconstitutional denial of
a jury trial. The interpretation of
7 In the instant case, the Fourth
Circuit noted that the legal claims
stricken by the district judge had long
before been held by that court of appeals
to state a cause of action. (Pet. App.
7a, n. 2) . The first Fourth Circuit
opinion in Ritter, holding that the legal
claims in that case were not properly
dismissed prior to trial, is not
published. (See App. 16a).
30
21
Parklane Hosiery embraced by the Fourth
Circuit in this case and Ritter has twice
been expressly rejected by the Seventh
Circuit. Hussein v. Oshkosh Motor Truck
Co. . 816 F . 2d 348 (7th Cir. 1987); Volk V .
Coler■ 845 F.2d 1422 (7th Cir. 1988). The
procedural posture of Hussein was
precisely the same as that in the instant
case; after the trial judge there
erroneously dismissed the plaintiff's
legal claims and then decided himself the
underlying factual questions, the
defendant insisted on appeal that Parklane
Hosiery precluded an appellate court from
correcting such a constitutional
violation. The Seventh Circuit rejected
this interpretation of Parklane Hosiery:
Oshkosh Truck argues that,
despite the prohibitions of the
seventh amendment and the
concerns noted in Beacon
Theatres. the Supreme Court's
holding in Parklane Hosiery . . .
requires us to apply collateral
estoppel in this case....
31
22
We believe that the present
case prevents a substantially
different situation than that
before the Supreme Court in
Parklane. Here, there is no
earlier valid judgment....
It is hardly "needless
litigation" to reverse a
judgment on the ground that the
plaintiff was denied his right
to a jury trial through no fault
of his own solely because of the
error of the trial court. It is
i n a p p r o p r i a t e to a p p l y
collateral estoppel to preclude
review of an issue on which the
appellant could not have
previously sought review.. . .
The b u r d e n on j u d i c i a l
administration is no more than
in other situations in which
legal error is committed and a
retrial is required.... We
cannot sanction an application
of collateral estoppel which
would permit findings made by a
court ... to bar further
litigation of a legal issue . . .
when those findings were made
only because the district court
erroneously dismissed the
plaintiff's legal claim. To
permit such an application would
allow the district court to
accomplish by error what Beacon
Theatres otherwise prohibits it
from doing.
32
23
816 F.2d at 355-57. Judge Posner noted in
a concurring opinion that he "agree[d]
with everything in" the majority opinion
regarding collateral estoppel. The
Seventh Circuit rule that collateral
estoppel cannot prevent direct appellate
review of the denial of a jury trial was
reiterated in Volk v. Coler. 845 F.2d at
1437-38. See also id. at 1439 (Manion,
J. , concurring) .
The reasoning and holding in Ritter
were also expressly rejected by the Third
Circuit in Roebuck v. Drexel University.
(No. 87-1301, July 26, 1988). The
plaintiff in that case had sought relief
from racial discrimination under both
section 1981 and Title VII. The district
judge initially permitted the 1981 case to
be heard by a jury, but when the jury
returned a verdict for the plaintiff, the
trial judge granted judgment n.o.v. and
33
24
ruled for the defendant on the Title VII
claim. On appeal the Third Circuit held
that the judge had erred in overturning
the jury verdict, and ordered a new jury
trial of the section 1981 claims.8
Rejecting the Ritter doctrine that the
judge's own decision on the Title VII
claim controlled, and thus precluded, a
new jury trial, the Third Circuit adopted
the opposite rule, vacating the judge's
decision on the Title VII claim, and
directing him on remand to await, and
conform his disposition of that claim to,
the jury verdict on the section 1981
claim.
We acknowledge that in Ritter
... the court held that a
district court's findings in a
Title VII suit are preclusive in
a subsequent trial to a jury on
an ADEA claim, even though the
ADEA claim itself was filed
jointly with the Title VII claim
A new trial was required for
other reasons.
34
25
but had been erroneously
dismissed by the district
court.... [ T ] o avoid the
problems faced by the Fourth
Circuit in Ritter ..., we
believe that the better course
is that followed by the Seventh
Circuit in Volk v. Coler;... In
Volk. the court held that where
p l a i n t i f f had presented
sufficient evidence on her §§
1983 and 1985(3) claims to allow
the case to go to the jury, but
the d i s t r i c t court had
improperly taken the case away
from the jury, plaintiff was
"entitlefd] to a jury trial on
the [legal] claims before the
trial court decides her Title
VII eguitable claims." ....
Hence, the court set aside the
district court's premature Title
VII judgment and we do likewise.
Cf. Hussein v. Oshkosh Motor
Trucks CoT9
The Third Circuit expressly disapproved
the Fourth Circuit's interpretation of
Parklane Hosiery.10 and noted that Ritter
Slip opinion, pp. 51-53
(footnote omitted; emphasis in original).
10 Slip opinion, p. 52 n. 42 ("The
Ritter court relied heavily on Parklane
Hosier Co. v. Shore.... We, however, find
Parklane Hosiery inapposite because,
unlike Parklane plaintiff here brought his
Title VII and § 1981 suits together and
35
26
seemed "inconsistent with th[e] weight of
authority."11
The Fourth Circuit rule is
inconsistent as well with decisions of the
District of Columbia and Second Circuits. 11
hence is entitled to a jury determination
of all common issues of fact.") (emphasis
in original).
11 Slip opinion, p. 49 n. 39. The
Fourth Circuit rule in the instant case
— that a judge's decision regarding jury
issues must be affirmed, despite the
Seventh Amendment, unless clearly
erroneous under Rule 52 — was summarily
rejected by the Third Circuit in EEOC v.
Corrv Jamestown Corp., 719 F.2d 1219,
1225-26 (3rd Cir. 1983) ("Corry Jamestown
is mistaken when it argues that the denial
of a jury trial is harmless error unless
the district court's findings of fact can
be shown to be clearly erroneous. To the
contrary, denial of a jury trial is
reversible error unless a directed verdict
would have been appropriate.... In this
case ... the Commission's evidence was
clearly sufficient to withstand a directed
verdict.... The order of the district
court striking the Commission's demand for
a jury trial will be reversed, and the
case remanded for a new trial before a
jury." Compare App. 9a (petitioner not
entitled to remand for jury trial, despite
improper denial of jury trial, if
intervening decision on merits by trial
judge "was not clearly erroneous").
36
27
In Bouchet v. National Urban League. 730
F. 2d 799 (D.C.Cir. 1984), the plaintiff
complained that the district judge had
improperly dismissed her legal claims, and
then resolved against her the similar
issues raised by her equitable claims.
The District of Columbia Circuit concluded
that it was obligated to decide whether
the dismissal of the plaintiff's legal
claims and the resulting denial of a jury
trial were proper, since an error in that
regard would require not merely a jury
trial on the legal claims, but also
reversal of the judge's decision as to the
equitable claims. Writing for the panel
in that case, then Judge Scalia explained:
[An] erroneous denial of her ...
law claims and the consequent
denial of her demand for jury
trial w o u l d i n fect the
disposition of her [equitable]
claim as well, since most if not
all of its elements would have
been presented to the wrong
trier of fact. Not only would a
jury trial on her tort claims be
37
26
required, but the [equitable]
judgment — even if otherwise
valid -- would have to be
vacated, and the whole case
retried, giving preclusive
effect to all findings of fact
by the jury.
730 F.2d at 803-04. This holding in
Bouchet was quoted and expressly endorsed
by the Second Circuit in Wade v. Orange
County Sheriff's Office. 844 F.2d 951,
954-55 (2d Cir. 1988).12 13 The Fourth
Circuit in Ritter. on the other hand,
disapproved Judge Scalia's opinion in
Bouchet as inadequately reasoned.13
12 The Second Circuit has also
recognized the conflict between the Fourth
Circuit decision in Ritter and the Seventh
Circuit decision in Hussein. Richardson
Greenshields Securities. Inc, v. Lau. 825
F.2d 647, 651 n. 4 (2d Cir. 1987).
13 814 F.2d at 991:
"The Bouchet proposition is ...
set forth without reference to
Parklane. despite the clear
relevance of that case to the
issues presented. We find
th[is] lower court opinio[n]
unpersuasive...."
38
29
The decisions of the Fourth Circuit
in the instant case and Ritter are also
squarely contrary to the practice of nine
other circuits, which in the period since
Parklane Hosiery have reversed and
remanded for a jury trial district court
decisions that had improperly denied such
jury trials, despite the fact that in each
case the trial judge, after denying the
jury demand, had himself resolved on the
merits the issues on which a jury trial
had been sought.14
14 Marshak v. Tonetti. 813 F.2d 13
(1st Cir. 1987); Hall v. Sharpe. 812 F.2d
644 (11th Cir. 1987); Lewis v. Thigpen,
767 F. 2d 252 (5th Cir. 1985); Davis & Cox
v, Sumroa Corn. . 751 F.2d 1507 (9th Cir.
198 5) ; Amoco Oil Co. v. Torcomian. 72 2
F.2d 1099 (3d Cir. 1983); EEOC v. Corrv
Jamestown Coro. . 719 F.2d 1219 (3d Cir.
1983); Sibley v, Fulton DeKalb Collection
Service, 677 F.2d 830 (11th Cir. 1982);
Bibbs v. Jim Lynch Cadillac, Inc. , 6 5 3
F.2d 316 (8th Cir. 1981); Palmer v. United
States, 652 F.2d 893 (9th Cir. 1981);
United States v. State of New Mexico, 642
F.2d 397 (10th Cir. 1981); United States
3L One 1976 Mercedes Benz, 618 F.2d 453
(7th Cir. 1980) ; Hildebrand v. Bd. of
39
30
II. THE DECISION BELOW CONFLICTS WITH
EIGHT DECISIONS OF THIS COURT
Judge Widener observed in his
dissenting opinion in this case that the
decision of the court below "is not
consistent with the broad construction of
the Seventh Amendment recently given by
the Supreme Court in Tull v . United
States. 55 U.S.L.W. 451 (U.S. April 28,
1987)." (App. 19a). In fact the panel's
opinion conflicts with a total of eight
separate decisions of this Court issued
over the course of more than a century.
The jury trial issue arises in this
case in precisely the same way it has
arisen in innumerable past Seventh
Amendment appeals. The plaintiff filed a
complaint containing a claim within the
scope of the Seventh Amendment, and made a
Trustees of Michigan State Univ., 607 F.2d
705 (6th Cir. 1979) ; Matter of Merrill,
594 F.2d 1064 (5th Cir. 1979).
40
31
timely request for a trial by jury. The
district judge, after incorrectly ruling
that no jury trial was required, proceeded
to consider himself the factual issues
raised by the complaint, and decided the
case on the merits. For over 130 years
this Court has consistently redressed such
Seventh Amendment violations by directing
that the issues improperly heard by a
judge be retried before a jury.
In Tull v. United States. 95 L.Ed.2d
365 (1987), decided only sixteen months
ago, the district court, after denying
Tull's request for a jury trial, conducted
a 15 day bench trial of the merits of the
government's claims under the Clean Water
Act, resolved the underlying factual
disputes in favor of the government, and
imposed $70,000 in civil penalties. 95
L.Ed.2d at 371. This Court, concluding
that Tull was constitutionally entitled to
41
32
a jury trial on the liability issues
decided by the judge, reversed the
decision below and remanded the case for a
jury trial. 95 L.Ed.2d at 378-79. On at
least seven prior occasions, the first in
1850, this Court has reversed the
erroneous denial of a jury trial and
remanded the claims for trial by jury,
despite an intervening decision on the
merits by a trial judge.15
The propriety of redressing Seventh
Amendment violations in this traditional
manner was expressly upheld in Meeker Oil
v. Ambassador Oil Corn.. 375 U.S. 160
(1963) (per curiam). In Meeker, as in
Beacon Theatres. Inc, v. Westover. 359
15 Pernell v. Southall Realty. 416
U.S. 263 (1974); Curtis v. Loether. 415
U.S. 189 (1974); Meeker v. Ambassador Oil
Corp., 375 U.S. 160 (1963); Schoenthal v.
Irving Trust Co.. 287 U.S. 92 (1932);
Bavlis v. Travelers' Insurance Co. , 113
U.S. 316 (1885); Hodges v. Easton. 106
U.S. 408 (1882); Webster v. Reid, 52 U.S.
437 (1850) .
42
33
U.S. 500 (1959), the pleadings raised both
legal and equitable issues, and a jury-
trial was duly requested. In Beacon
Theatres. which came to this Court prior
to trial on a petition for a writ of
mandamus, the Court held that in such
cases the legal claims must be tried first
before a jury, lest a premature non-jury
decision on the equitable claims preclude
a jury trial on those legal issues. 359
U.S. at 508-11. In Meeker. the trial
judge, in violation of Beacon Theatres,
had decided the equitable claims first,
and then relied on his own decision in
favor of defendants to deny plaintiffs a
jury trial, or any other relief, on their
legal claims. The Tenth Circuit, despite
Beacon Theatres. held that the trial
court's decision on the equitable claims
precluded any jury trial on the legal
claim, which alleged slander to title:
43
34
tW]e cannot say that his finding
[on the merits of the equitable
issues] ... was erroneous. The
Meekers would have been entitled
to a jury trial of any issues
remaining for determination on
their [legal] claim. However,
the trial court, in the exercise
of its equity jurisdiction, had
determined . . . that the Meekers
had no title.... Since the
Meekers had no title that could
have been slandered by the acts
of the defendants, no issues
were left to be tried on the
Meekers' [legal] claim.
308 F .2d 875, 884 (10th Cir. 1962)
(emphasis added). The plaintiffs sought
review by this Court to correct "[t]he
error of the Court of Appeals in holding
that the petitioners were in any way
estopped or prohibited from contesting"
their legal c l a i m s . This Court granted
certiorari, and after briefing and
argument reversed the Tenth Circuit per
curiam, citing Beacon Theatres and Dairy
xb P e t i t i o n for Writ of
Certiorari, October Term 1963, No. 46, p.
44
35
Queen, Inc, v. Wood. 369 U.S. 469 (1962).
375 U.S. 469 (1963).
This case presents precisely the
problem anticipated in Chief Justice
Rehnquist's dissenting opinion in Parklane
Hosiery. The procedural posture of this
case is identical to that of Meeker, and,
if Meeker is still good law, the decision
below is necessarily wrong. The Fourth
Circuit, however, believes that Beacon
Theatres and Dairy Queen, on which Meeker
was expressly based, have since been
modified by Parklane Hosiery.17 The
Fourth Circuit's interpretation of the
1979 decision in Parklane Hosiery, as
Judge Widener recognized, is simply
inconsistent with this Court's 1987
decision in Tull. The Fourth Circuit's
insistence that Seventh Amendment
Ritter v. Mount Saint Mary's
College. 814 F.2d 986, 990 (4th Cir. 1987).
45
36
violations are rendered unreviewable by a
subsequent, albeit constitutionally
tainted, decision by the trial judge,
cannot be reconciled with this Court's
century long practice of reviewing and
overturning such trial judge decisions.
46
37
III. THE DECISION BELOW POSES SERIOUS
PROBLEMS FOR EFFICIENT JUDICIAL
ADMINISTRATION__________________
The conflicts among the circuits, and
between the decision below and the prior
decisions of this Court, are important for
three distinct reasons. First, the Fourth
Circuit decision creates the unprecedented
situation in which an acknowledged and
prejudicial constitutional violation
simply cannot be corrected on direct
appeal; indeed, as the instant case
demonstrates, the Fourth Circuit's
approach precludes appellate panels from
even deciding whether there was a
constitutional violation at all. Any
procedural doctrine precluding direct
appellate review of an entire class of
constitutional claims would be serious in
and of itself. In this instance,
moreover, the constitutional provision at
issue is directed, not at private persons
47
38
or ordinary government officials, but
solely at federal judges. If the Fourth
Circuit precluded appellate review of
claims that prison authorities had
violated the Eighth Amendment, those
claims would still be subject to
evaluation by an independent federal
district judge. But where an appellant
asserts that a district judge himself
violated the Constitution, a denial of
appellate review means the appellants
constitutional claim will never be heard
by a disinterested federal judge.
Second, if the denial of a jury trial
cart no longer be litigated on direct
appeal following an unconstitutional non
jury trial, the only way the appellate
courts could enforce the Seventh Amendment
would be to intervene prior to trial. The
Fourth Circuit bar to direct appeal of
such issues eliminates any ground for
48
39
denying a writ of mandamus to review a
trial court order denying, or granting, a
jury trial. Moreover, if, as the Fourth
Circuit has held, a denial of a jury trial
is no longer subject to direct appellate
review after judgment in that circuit,
such denials would necessarily fall within
the collateral order doctrine of Cohen v.
Beneficial Industrial Loan Coro., 337 U .S .
541 (1949). Until now, the collateral
order doctrine has been held inapplicable
to denials of jury trials precisely
because the circuit courts believed that
collateral estoppel could not be used
after judgment to prevent appellate review
of, and redress for, any Seventh Amendment
violation. See e .a .. Western Elec. Co. v.
Milaro Electronic Corp, 573 F.2d 255, 256-
57 (5th Cir. 1978). In the Fourth Circuit
today interlocutory appeals are not only a
technical possibility but a practical
49
40
necessity for any litigant who wishes to
preserve his or her asserted right to a
jury trial. In the district courts
throughout that circuit, any attorney
whose request for a jury trial is refused
has no choice but to immediately take a
protective interlocutory appeal, since he
or she is unlikely to be able to raise
that constitutional claim on appeal at any
stage later in the proceeding.18 Almost
forty years ago in Morgantown v. Royal
x° It would be an exaggeration to
assert that the current state of the law
in the Fourth Circuit is entirely
coherent. Ritter was decided on April 2,
1987. Four months later, on August 26,
1987, a different panel in that circuit,
without referring to Ritter. applied the
traditional rule that jury trial claims
may be reviewed despite an intervening
decision on the issues by a trial judge.
Keller v. Prince George's County. 827 F.2d
952 (4th Cir. 1987). The instant case was
decided on October 20, 1987, and stamped
"unpublished," a label which, under Fourth
Circuit rules, means that the decision
is not as a practical matter available to
most attorneys. On April 27, 1988, the
fourth circuit denied rehearing in the
instant case by a vote of 8 to 3.
50
41
Insurance Co.. 337 U.S. 264 (1949), this
Court, emphasizing that denials of jury
trials could be corrected on appeal, held
that such denials could not ordinarily be
made the subject of interlocutory appeals;
Justice Frankfurter emphasized that that
decision was necessary to preserve the
"deep-rooted general principle" of
" [n]onappealability of intermediate orders
in the federal courts." 337 U.S. at 261
(concurring opinion). If, however, as
Chief Justice Rehnquist feared, Parklane
Hosiery has indeed overruled Meeker, then
Morgantown too would be bad law.
Third, the Fourth Circuit rule
necessarily extends not only to orders
regarding jury trials, but more broadly to
any decision regarding who is to determine
the merits, or any other factual aspect,
of a controversy. If, for example, a
trial judge improperly referred an issue
51
42
to a magistrate, a special master, or a
non-Article III judge, collateral estoppel
based on the resulting decision would,
under Ritter and the opinion below,
preclude vindication of a litigant's right
to have his or her claim decided by an
Article III federal judge. The Fourth
Circuit's view of collateral estoppel
would seem equally efficacious in
preventing direct review of many disputes
regarding venue and forum non-conveniens.
Similarly, direct appellate review of
questions concerning if in the instant
case the district judge had granted a jury
trial, but had then directed that the case
be tried by a jury consisting of only
residents of some distant state, or of
only 2 jurors, that method of jury
composition would of course have been
patently illegal, but its verdict under
Ritter and the decision below would still
52
43
collaterally estop petitioner from trying
the claims before a jury selected in a
constitutional manner.
All of these problems arise on a
regular basis. Since certiorari was
denied less than a year ago in Ritter,
there have been four other circuit court
opinions on the same issue. Wade. Roebuck
and Volk in the Second, Third and Seventh
Circuits, respectively, have rejected the
holding in Ritter, while the instant case
has applied and extended Ritter.
IV. THE DECISION BELOW SHOULD DE
SUMMARILY REVERSED
In the instant case the substantive
legal claim for which petitioner sought a
jury trial was an allegation that
respondent had violated 42 U.S.C. § 1981
>y engaging in racial discrimination in
'mployment. The application of section
981 to private discrimination in
ontractual relations, upheld by this
53
44
Court in Runvon v. McCrary, 427 U.S. 160
(1976), is now the subject of the
scheduled reargument in Patterson v.
McLean Credit Union. No. 87-107. Under
ordinary circumstances the appropriate
disposition of this proceeding would be to
hold the petition and defer action until
the decision in Patterson. See R. Revesz
and P. Karlan, "Nonmajority Rules and the
Supreme Court," 136 U.Pa.L.Rev. 1067,
1109-31 (1988).
This case presents a problem,
however, which warrants a departure from
that practice. If action is deferred
pending the decision in Patterson, it is
likely that the instant case could not be
heard until the October 1989 term, and
would not be decided until the spring of
1990. In the intervening years, the
decision below, in conjunction with
Ritter . will inexorably lead to
54
45
considerable confusion and a serious
dissipation of judicial resources. Any-
informed attorney defending on appeal the
denial of a jury trial, excepting perhaps
in the Second, Third, Seventh and District
of Columbia Circuits, would today argue
that collateral estoppel precludes
appellate consideration of that issue;
similar contentions would be egually
plausible in appeals regarding venue,
forum non conveniens, and any other issue
concerning the identity of the correct
trier of fact. Any Fourth Circuit
attorney whose request for a jury trial is
denied in a district court must now pursue
an immediate interlocutory appeal, and any
attorney who thinks a jury trial was
improperly granted undoubtedly must also
appeal at once, rather than await final
judgment. Cautious lawyers may well feel
obligated to do the same in other
55
46
circuits, or to file such appeals
regarding other types of disputes about
the identity of the proper trier of fact.
A significant portion of all now pending
federal civil cases could well become
embroiled in the ensuing tangle of
interlocutory appeals, motions, and
arguments.
The questions raised by the instant
case, however they are to be resolved,
ought be resolved with dispatch. If, as
has been the law in the past, jury trial
and other related issues can still be
addressed on direct appeal after final
judgment, that should be reaffirmed before
the decision below and Ritter wreak havoc
in the federal appellate courts. If, on
the other hand, interlocutory appeals will
henceforth be the only method of raising
jury trial and similar trier of fact
issues in the circuit courts, federal
56
47
litigants throughout the nation ought be
told that promptly, before continued
reliance on the contrary majority rule
creates enormous problems of unfairness
and retroactivity.
A prompt resolution of this question
might be achieved by granting certiorari
and accelerating the time for briefing and
arguments, or by granting certiorari and
summarily reversing the decision below.
We believe that summary reversal would be
appropriate. The Fourth Circuit's
decision is squarely contrary to the
century long practice, in this Court and
the circuit courts of appeals, o f
reviewing on appeal claims that a litigant
was improperly denied a jury trial. The
decision below that collateral estoppel
precludes any appellate consideration of
such a claim flies in the face of this
Court's decision in City of Morgantown v.
57
48
Royal Insurance Co. . 337 U.S. 254, 258
(1949), that "[t]he rulings of the
district court granting or denying jury
trials are subject to the most exacting
scrutiny on appeal." Dairy Queen. Inc, v.
Wood, 369 U.S. 469 (1962), held that
[OJnly under the most imperative
circumstances, circumstances
which in view of the flexible
procedures of the Federal Rules
we cannot now anticipate, can
the right to a jury trial of
legal issues be lost through
prior determination of equitable
claims.
369 U.S. at 510-11. Surely the Court did
not intend that a trial judge's own error
in refusing to permit a jury trial, a
circumstance present in Dairy Queen
itself, could constitute one of the
"imperative circumstances" warranting loss
of the right to a jury trial; were that
the rule, the holding in Dairy Queen would
literally be inapplicable in any case in
which Dairy Queen itself was violated.
58
49
Parklane Hosiery emphasized that
collateral estoppel could only be invoked
with regard to an earlier decision that
had been "fully litigated." 439 U.S. at
327, 328. In the instant case, however,
the merits of petitioner's Title VII
claims have not been fully litigated; on
the contrary, the correctness of the trial
judge's action in deciding himself the
Title VII claims is one of the central
issues in this appeal. Rather than giving
collateral effect to a fully litigated
issue, the decision below invoked
collateral estoppel in order to prevent
full litigation, indeed to prevent any
appellate consideration at all, of
petitioner's claim that the trial judge
violated the Seventh Amendment in
improperly passing on the merits of the
Title VII claims.
59
50
The action of the Fourth Circuit
bespeaks, not simply a misunderstanding of
this Court's Seventh Amendment decisions,
but a considered determination to ignore
those precedents. On April 2, 1987, the
Fourth Circuit held in Ritter that an
appellate court could not correct a
Seventh Amendment violation by directing
that issues improperly decided by a judge
be referred instead to a jury. On April
28, 1987, this Court in Tull v. United
States. unanimously issued precisely the
type of remedial order held impermissible
in Ritter. Yet on October 20, 1987, the
Fourth Circuit panel in the instant case
insisted that appellate courts were
powerless to provide the very remedy
awarded in Tull less than seven months
earlier. Judge Widener, in his dissenting
opinion below, correctly observed that the
60
51
panel's action "is not consistent with ...
Tull v. United States." (App. 19a n. 4).
This Court does not lightly take
summary action on the basis of a
certiorari petition and opposing papers,
in part because of the possibility that
summary disposition may fail to come to
grips with the full ramifications of a
novel issue, in part because of the risk
of unfairness to the opposing party. The
question raised by this case, however, is
not new; it has arisen in this Court and
been resolved in a manner contrary to the
decision below on repeated occasions over
the course of more than a century. The
instant petition, by expressly suggesting
that this is an appropriate case for
summary disposition, affords respondent a
reasonable opportunity to present in its
memorandum in opposition arguments
supporting the decision below or urging
61
52
that the issues are of sufficient
complexity to warrant full briefing and
argument.
62
53
CONCLUSION
For the above reasons, certiorari
should be granted to review the judgment
and opinion of the Fourth Circuit, and the
decision below should be summarily
reversed.
Respectfully submitted,
JULIUS LeVONNE CHAMBERS
CHARLES STEPHEN RALSTON
RONALD L. ELLIS
JUDITH REED*
ERIC SCHNAPPER
NAACP Legal Defense and
Educational Fund, Inc.
99 Hudson Street
16th Floor
New York, New York 10013
(212) 219-1900
PENDA D. HAIR
Suite 301
1275 K Street, N.W.
Washington, D.C. 20005
(202) 682-1300
Attorneys for Petitioner
*Counsel of Record
63
N o. 88-334
I n T u b
j^ufumttr (Emtrt nf tljr Iltutlrh
O c t o b e r T e r m , 1988
J o h n S . L y t l e ,
Petitioner, v. ’
H o u s e h o l d M a n u f a c t u r i n g , I n c .,
d / b / a S c h w i t z e r T u r b o c h a r g e r s ,
____ R e s p o n d e n t .
On I*e( it ion for a W rit of C ertio rari lo the
United S ta te s C ourt of Appeals
fo r tlie F o u rth C ircuit
R E S P O N D E N T ’S B R IE F IN O PPO SIT IO N II.
II . L a n e D k n n a k d , J r .*
O g l e t u e e , D e a r i n s , N a s h ,
S m o a k a n d S t e w a r t
3 8 0 0 O n e A t l a n t i c Center
1301 \V. P e a c h t r e e Street
A t l a n t a , ( l e u r g i a 3 0 3 0 9
( 4 0 1 ) 881 130 0
A . B r i i c h ( 'L AItKn
C . M a t t h e w K e e n
O g i .k t k k i :, D e a r i n s , N a s h ,
S m o a k a n d S t e w a r t
P ost. 01 l ice B o x 3 1 6 0 8
R a l e i g h , N o r t h C a r o l i n a 2 7 6 2 2
( 9 1 9 ) 7 8 7 - 9 7 0 0
A ttorn ey a f o r R espondent
* Counsel of Record
65
Q U ESTIO N S P R E S E N T E D
1. Was the Court of Appeals correct in applying col
lateral estoppel to Petitioner’s § 1981 claims after a full
and fa ir hearing was held on his Title VII claims, the
elements of which are identical to those under § 1981?
2. Does the Seventh Amendment require that Peti
tioner receive a new jury trial on his § 1981 claims when
he failed to establish a prima facie case of discrimination
during the trial of his Title VII claims?
(i)
66
ii
The Respondent, Household Manufacturing, Inc., is a
wholly-owned subsidiary of Household International, Inc.
All other parties in this matter are set forth in the
caption.
LIST OF PARTIES
67
TABLE OF CONTENTS
QUESTIONS PR E S E N T E D ................................... i
L IST OF PA R T IE S ................................................................. n
TA BLE OF A U TH O R ITIES ............................................... iv
STA TEM EN T OF TH E FACTS ........................................ 1
STA TEM EN T OF T H E CASE .......................................... 3
SUMMARY OF REASONS FOR D ENY ING TH E
P E T IT IO N ........................ 4
ARGUM ENT ............................................................................... 4
I. T H E FOURTH C IR CU IT’S A PPLIC A TIO N OF
COLLATERAL E S T O P PE L IS CONSISTENT
W ITH T H E D ECISION OF TH IS COURT........ 4
II. D ISM ISSAL OF T H E § 1981 CLAIMS HAD
NO E F F E C T ON T H E OUTCOME OF TH IS
CASE ................................................................................ 11
III. SUMMARY R EV ER SA L IS IN A PPR O PR IA T E
IN TH IS C A S E ........................................................... 17
CONCLUSION ............................................................................ 19
Page
(iii)
IV
TABLE OF A U TH O R ITIES
C a s e s Page
A tw o o d , v . P a c i f ic M a r i t i m e A s s o c ia t io n , 657 F.2d
1055 (9th Cir. 1981) .................................................. 12
B e a c o n T h e a t r e s , In c . v . W e s t o v e r , 359 U.S. 500
(1 9 5 9 )................................................................................ p a s s i m
B o u c h e t v. N a t i o n a l U r b a n L e a g u e , 730 F.2d 799
(D.C. Cir. 1984) ...................... '................................... 9
B o w le s v. U nited , S t a t e s A r m y C o r p s o f E n g in e e r s ,
841 F.2d 112 (5th Cir. 1 9 8 8 )................................. 12
B r a d y v . S o u t h e r n R a i l r o a d , 320 U.S. 476 (1943).. 12
C a n in o v . E E O C , 707 F.2d 468 (11th Cir. 1983).. 16
C la r k v. C o m m u n i t y f o r C r e a t i v e N o n v io le n c e ,
468 U.S. 288 (1984)................................................... 5
G a l lo w a y v . U n i t e d S t a t e s , 319 U.S. 372 (1943).. 11
G a r c ia v. G lo o r , 618 F.2d 264 (5th Cir. 1980),
c e r t , d e n ie d , 449 U.S. 1113 (1981) ..................... 13
G u y v . C i t y o f P h o e n ix , 668 F. Supp. 1342 (D.
Ariz. 1987) ..................................................................... 15
H a r r i s v. R i v e r a , 454 U.S. 337 (1 9 8 1 )..................... 18
H e r n a n d e z v . H i l l C o u n t r y T e l e p h o n e C o o p e r a t i v e ,
849 F.2d 139 (5th Cir. 1988)................................... 7
H i l d e b r a n d v . B d . o f T r u s t e e s o f M ic h ig a n S t a t e
U n i v e r s i t y , 607 F.2d 705 (6th Cir. 1979) ......... 12
H o w a r d v . P a r i s i a n , 807 F.2d 1560 (11th Cir.
1987) ................................................................................. 12
H u s s e in v . O s h k o s h M o t o r Co., 816 F.2d 348 (7th
Cir. 1987) ........................................................................ 10, 12
In r e N -500L C ases, 691 F.2d 15 (1st Cir. 1982).. 11
In re P ro fess io n a l A ir Traffic C ontrollers O rgani
zation o f A m erica , 724 F.2d 205 (D.C. Cir.
1984) ................................................................................ 12
I r b y v . S u l l i v a n , 737 F.2d 1418 (5th Cir. 1984).... 15
J o h n s o n v . M i s s i s s i p p i , 108 S. Ct. 1981 (1988)...... 7
J o h n s o n v . R a i l w a y E x p r e s s A g e n c y , In c . , 421
U.S. 454 (1975) ........................ 7
K a t c h e n v . L a n d y , 382 U.S. 323 (1966) .................. 4
K e l l e r v . P r in c e G e o r g e 's C o u n ty , 827 F.2d 952
(4th Cir. 1987) ................................................ 12
69
V
Page
K i n g v . U n i t e d B e n e f i t F i r e I n s u r a n c e Co., 377
F.2d 728 (10th C ir.) , c e r t , d e n ie d , 389 U.S. 857
(1967) ............................................................................... 12
K i n g v . U n i v e r s i t y o f M in n e s o ta , 774 F.2d 224
(8th Cir. 1985), c e r t , d e n ie d , 475 U.S. 1095
(1986) ................................................................................ 12
L a s k a r i s v . T h o r n b u r g , 733 F.2d 260 (3d C ir.),
c e r t , d e n ie d , 469 U.S. 886 (1 9 8 4 )............................... 11
M c D o n n e l l D o u g l a s C o r y . v . G r e e n , 411 U.S. 792
(1973) .............................................................................. 13
M o o r e v . C i t y o f C h a r lo t t e , 754 F.2d 1100 (4th
C ir.) , c e r t , d e n ie d , 472 U.S. 1021 (1 9 8 5 )............... 13,14
P a r lc la n e H o s i e r y Co. v . S h o r e , 439 U.S. 322
(1979) ...............................................................................p a s s i m
P a t t e r s o n v . M c L e a n C r e d i t U n io n , 805 F.2d 1143
(4th Cir. 1986), c e r t , g r a n t e d , 108 S. Ct. 65
(1987), r e s t o r e d to c a l e n d a r f o r r e a r g u m e n t ,
108 S. Ct. 1419 (1988) ................................... 7, 15, 17, 19
R i t t e r v . M o u n t S a i n t M a r y ’s C o l leg e , 814 F.2d 986
(4th C ir.) , c e r t , d e n ie d , 108 S. Ct. 260 (1987) . .p a s s i m
R i v e r a v . C i t y o f W ic h i ta F a l l s , 665 F.2d 531
(5th Cir. 1982) ........................................................... 7
R o e b u c k v . D r e x e l U n i v e r s i t y , 852 F.2d 715 (3d
Cir. 1 9 8 8 )........................................................................ 9
S o m m e r v i l l e v . U n i t e d S t a t e s , 376 U.S. 909
(1964) .............................................................................. 10
T a f o y a v. A d a m s , 612 F. Supp. 1097 (D. Colo.
1985), a f f ’d on o th e r g r o u n d s , 816 F.2d 555
(10th C ir.) , c e r t , d e n ie d , 108 S. Ct. 152 (1987).. 7, 15
T h e M o n r o s a v . C a r b o n B la c k , Inc . , 359 U.S. 180
(1959) .............................................................................. 10
T u l l v . U n i t e d S t a t e s , 107 S. Ct. 1831 (1987)........ 8
U n i t e d S t a t e s v . N e w Y o r k T e le p h o n e Co., 434
U.S. 159 (1 9 7 7 )............................................................. 11
W a d e v . O r a n g e C o u n t y S h e r i f f ’s Office, 844 F.2d
951 (2d Cir. 1988) ..................................................... 9
TABLE OF AUTHORITIES— Continued
70
TA BLE OF A U TH O R ITIES— Continued
S t a t u t e s Page
29 U.S.C. § 2 0 6 d .................................................................. 5
29 U.S.C. § 621 e t s e q ......................................................... 5
42 U.S.C. § 1981.................................................................. 15
42 U.S.C. § 2000e e t s e q ..................................................... 3
O t h e r A u t h o r i t i e s
Fed. R. Civ. P. 41 (b ) ........................................................ 3 ,14
Fed. R. Civ. P. 5 0 a ............................................................. 12
Fed. R. Civ. P. 6 1 ................................................................ 11, 16
5A M oore’s Federal P ractice H 50.02 ........................... 12
v i
71
I n T h e
§>ujUTim> CEmul xtf tip Hinttth glatni
O c t o b e r T e r m , 1988
No. 88-334
J o h n S . L y t l e ,
Petitioner,
v.
H o u s e h o l d M a n u f a c t u r i n g , I n c .,
d / b / a S c h w i t z e r T u r b o c h a r g e r s ,
Respondent.
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
R E SPO N D E N T ’S B R IE F IN O PPO SITIO N
ST A T E M E N T OF T H E FACTS
Schwitzer Turbochargers manufacturers turbochargers
at its facility in Arden, North Carolina. John Lytle, the
Petitioner, was employed by Schwitzer as a machinist.
Like many employers, Schwitzer maintains an absentee
policy which distinguishes between excused and unexcused
absences.1 Excessive excused absenteeism is defined as a
total absence level which exceeds four percent of the total 1
1 Joint Appendix at 47.
72
2
available working time, including overtime.2 Excessive
unexcused absenteeism is defined as unexcused absences
exceeding eight hours (equivalent to one work shift) in
a twelve month period. Excessive absences of either type
can result in termination.3
On Thursday, August 11, 1983, Lytle was notified that
he and four other machinists would be required to work
overtime on Saturday, August 13.4 * Lytle asked his super
visor, Larry Miller, if he could take Friday, August 12,
as a vacation day. Miller agreed on the condition that
Lytle would work on Saturday." Despite this understand
ing, Lytle left work 1.8 hours early on Thursday and did
not report or call in on either Friday or Saturday.6 These
absences gave Lytle a total of 17.8 hours of unexcused
absences, o r-9.8 hours of excessive unexcused absences.7
Pursuant to company policy, Lytle was terminated on
Monday, August 15, 1983, for excessive unexcused ab
sences. After his termination, Schwitzer provided pro
spective employers with a letter of reference which in
cluded Lytle’s dates of employment and job title.8 No
mention was made of the reason for his discharge or his
pending EEOC charge or lawsuit.
2 Id. a t 48.
8 Id. a t 49.
4 Id. a t 140.
8 P e t i t i o n e r m a i n t a i n e d a d i a r y w h i le h e w o rk e d a t S c h w i tz e r ,
In h i s e n t r y f o r T h u r s d a y , A u g u s t 11, 1983, h e a d m i t s t h a t : " A t
1 0 :3 0 I a s k e d L a r r y f o r a v a c a t io n d a y f o r F r i d a y , A u g u s t 12 th .
H e s a id ok ay , b u t I w o u ld h a v e to w o r k S a t u r d a y t h e 1 3 th .”
J .A . a t 143.
6 Id. a t 141-42.
7 P e t i t i o n , A p p . 28a .
8 Id. a t 93, 177-81.
73
3
Lytle filed suit in the United States District Court for
the Western District of North Carolina alleging that he
was discharged because of his race. He further alleged
that Schwitzer had retaliated against him for filing a
charge with the Equal Employment Opportunity Commis
sion by refusing to provide prospective employers with
a detailed letter of reference. Relying on exactly the
same factual allegations, Petitioner sued under both Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq., and 42 U.S.C. § 1981. The district court dis
missed the § 1981 claims prior to trial, holding that in
the absence of an independent factual basis to support
a § 1981 claim, Title VII provides the exclusive remedy
for employment discrimination. At the close of Plaintiff’s
evidence, the court dismissed the Title VII discriminatory
discharge claim pursuant to Fed. R. Civ. P. 41(b). The
court also dismissed Lytle’s Title VII retaliation claim at
the close of all the evidence under Rule 41(b).
Petitioner appealed to the United States Court of Ap
peals for the Fourth Circuit. The court of appeals af
firmed the district court’s determination that Petitioner
failed to present a prima facie case on his Title VII dis
charge and retaliation claims. After observing that the
elements of proof are identical for Title VII and § 1981,
the Fourth Circuit held that the district court’s factual
findings on the Title VII claims collaterally estopped
relitigation of the § 1981 claims. Petitioner filed a mo
tion for rehearing and rehearing en banc with the court
of appeals. The motion for rehearing was denied by the
original panel and the motion for rehearing en banc was
denied by the full court.
Despite a complete trial on the merits followed by a
thorough review by the court of appeals of his Title VII
claims, Petitioner now seeks to overturn these judgments
and begin anew because he was denied a jury trial in his
companion § 1981 suit. Respondent submits that the hold
ing of the court of appeals, based on the sound teachings
STATEM ENT OF THE CASE
74
4
of this Court, provided a correct disposition of the issues
raised and issuance of a w rit of certiorari is, therefore,
unnecessary,
SUMMARY OF REASONS
FO R D EN Y IN G T H E P E T IT IO N
The decision of the court of appeals is consistent with
this Court’s decisions in Parklane Hosiery Co. v. Shore,
439 U.S. 322 (1979) and Katchen v. Landy, 382 U.S.
323 (1966). Therefore, this petition presents no new or
important issue warranting review by this Court. More
over, any potential error committed by the district court
in dismissing the § 1981 claims was utterly harmless,
since Respondent would have received a directed verdict
and the case would never have reached the jury. Accord
ingly, this Court need not address the collateral estoppel
issue or the alleged conflict between circuits to deny this
petition.
ARGUM ENT
I. T H E FO U R TH CIR CU IT’S A PPLIC A TIO N OF COL
LA TER A L E S T O P PE L TO P E T IT IO N E R ’S §1981
CLAIMS IS C O N SISTEN T W ITH D ECISIO N S OF
T H IS COURT
Petitioner contends that the Court’s decision in Beacon
Theatres, Inc. v. Westover, 359 U.S. 500 (1959), requires
reversal of the Fourth Circuit’s decision. Beacon Thea
tres holds that when legal and equitable claims are joined
in one proceeding, the legal claims should be tried first
before a jury if possible. This doctrine, although derived
from the Seventh Amendment, is nothing more than a
“general prudential rule” for courts to follow. Parklane
Hosiery Co. v. Shore, 439 U.S. 322, 335 (1979).9 Like
most other rules of constitutional origin, the Beacon
0 I n Katchen v. Landy, 382 U .S . 323 ( 1 9 6 6 ) , th e C o u r t s t a t e d t h a t
th e Beacon Theatres r u l e is a n e q u i t a b l e d o c t r in e w h ic h is i n a p
p l icab le w h e n C o n g r e s s d ev e lo p s a s t a t u t o r y s c h e m e c o n te m p la t in g
th e p r o m p t t r i a l o f d i s p u te d c la im s w i t h o u t th e i n t e r v e n t io n o f
a j u r y .
75
5
Theatres doctrine cannot be woodenly applied and must
yield when outweighed by other important principles of
law.10 11
In Parklane Hosiery, this Court addressed a conflict
between the Beacon Theatres rule and the principle of
judicial economy underlying the doctrine of collateral
estoppel. Importantly, the Court noted that the major
premise of Beacon Theatres was that a decision of a court
sitting in equity could have collateral estoppel effect in
subsequent legal proceedings. Parklane Hosiery, 439 U.S.
at 334. The Court rejected the argument that the
Seventh Amendment prohibits application of collateral
estoppel to preclude a jury trial of facts previously de
cided by an equity court and found that the Seventh
Amendment does not establish such a rigid barrier to the
efficient operation of our legal system. Instead, the Court
adopted a more pragmatic view of the Seventh Amend
ment, one which guarantees the plaintiff a full and fair
opportunity to litigate his claims, but prohibits needless
relitigation of facts already decided. Thus, application
of collateral estoppel does not violate the Seventh Amend
ment where "there is no further fact-finding function for
the jury to perform, since the common factual issues have
been decided.” Id. at 336. Using this realistic approach,
the Court held that any harm caused by the denial of a
jury trial was clearly outweighed by the judicial interest
in the economical resolution of cases.
In Ritter v. Mount Saint Mary's College, 814 F.2d 986
(4th Cir.), cert, denied, 108 S. Ct. 260 (1987), the
Fourth Circuit applied the rationale of Parklane Hosiery
to a case in which the district court dismissed plaintiff’s
Age Discrimination A ct11 and Equal Pay A c t12 claims,
10 Cf. Clark v. Community fo r Creative Nonviolence, 468 U .S . 288
(1 9 8 4 ) ( F i r s t A m e n d m e n t r i g h t s s u b j e c t to r e a s o n a b le r e s t r i c t i o n s ) .
11 29 U .S .C . § 621 et seq.
12 29 U .S .C . § 2 0 6 ( d ) . U n l ik e T i t l e V I I , b o th o f t h e s e s t a t u t e s
p ro v id e f o r t r i a l b y j u r y .
76
6
and tried the Title VII claims without a jury. After
determining that the legal and equitable claims shared
common elements, the court held that the factual deter
minations made by the district judge in dismissing the
Title VII suit collaterally estopped relitigation of the
legal claims. The court found this situation squarely
within the Court’s holding in Parklane Hosiery, stating:
This court need not involve itself in the laborious
and inconclusive policy analysis suggested by the
parties on this issue, however, because the Supreme
Court has already undertaken this policy analysis
for us. Parldane decided that the judicial interest
in the economical resolution of cases, which interest
underlies the doctrine of collateral estoppel, does
override the interest of the plaintiff in re-trying be
fore a jury the facts of a case determined by a court
sitting in equity.
Ritter, 814 F.2d at 991.
The same policy considerations support the Fourth
Circuit’s decision in the instant case. Petitioner received
a full and fa ir opportunity to try his claims before the
district judge. His claims were involuntarily dismissed
and a new trial of the same facts is unnecessary.
Petitioner seeks to distinguish Ritter and the Fourth
Circuit’s decision in Lytle from Parklane Hosiery on the
grounds that the dismissal of Plaintiff’s legal claims in
Ritter and Lytle was erroneous. This attempted distinc
tion is without merit. First, the distinction advanced by
Petitioner does not impact the applicability of Parklane.
The same considerations of judicial economy apply
whether or not dismissal of the legal claims was in error.
Second, it is fa r from clear that the district court erred
when it dismissed Lytle’s § 1981 claims and thereby de
nied a trial by jury. This Court has never squarely ad
dressed the issue of whether a plaintiff can sue under
both Title VII and § 1981 on the same factual allega-
n
7
tions.13 In dismissing those 1981 claims, the district court
relied on a line of cases decided by the Fifth Circuit and
other federal courts, which hold that a § 1981 claim can
be brought concurrently with a Title VII claim only if
there is an independent factual basis. See Rivera v. City
of Wichita Falls, 665 F.2d 531, 534 n. 4 (5th Cir. 1982) ;
Tafoya v. Adams, 612 F. Supp. 197 (D, Colo. 1985), aff’d
on other grounds, 816 F.2d 555 (10th Cir.), cert, denied,
108 S. Ct. 152 (1987).14 Furthermore, the applicability
of § 1981 to private employment, and, if applicable, the
scope of such coverage, will be at issue this term when
the Court hears Patterson v. McLean Credit Union, No.
87-107. Until this decision is rendered, the premise of
Petitioner’s argument is very much in doubt.
More importantly, under Parklane Hosiery, the critical
issue is not whether the trial court’s denial of the jury
trial was correct, but whether harm resulted from the
denial. Ritter, 814 F.2d at 991.™ As long as the district
judge’s factual findings are not erroneous, Petitioner was
not prejudiced and the judicial interests underlying the
doctrine of collateral estoppel outweigh any nominal in
jury.™ Otherwise, each dismissal of a legal claim would
18 Johnson v. Railway Express Agency, 421 U .S . 454 ( 1 9 7 5 ) , r e l ie d
on b y p e t i t i o n e r , spec if ica l ly h o ld s o n ly t h a t a c l a i m a n t ’s p u r s u i t o f
a d m i n i s t r a t i v e r e m e d ie s u n d e r T i t l e V I I does n o t to ll t h e s t a t u t e
o f l i m i t a t i o n s u n d e r § 1981.
14 T h e F i f t h C i r c u i t h a s a p p a r e n t l y r e t r e a t e d f r o m th i s r a t io n a l e .
See Hernandez v. Hill Country Telephone Cooperative, Inc., 849 F .2 d
139 ( 5 t h C i r . 1 9 8 8 ) .
18 I n Parklane Hosiery, t h e C o u r t r e c o g n iz e d t h a t " t h e p r e s e n c e
o r a b se n c e o f t h e j u r y a s a f a c t f i n d e r is b a s ic a l ly n e u t r a l . ” Parklane
Hosiery, 439 U .S . a t 334 n.20.
18 P e t i t i o n e r c i t e s Johnson v. Mississippi, 108 S. C t. 1981 ( 1 9 8 8 ) ,
f o r t h e p r o p o s i t i o n t h a t e r r o n e o u s d e c is io n s c a n n o t b e re l ie d u p o n
f o r c o l l a te r a l e s to p p e l p u rp o s e s . T h i s c i t a t i o n is, a t b e s t , m i s l e a d in g .
I n Johnson, t h e c o u r t he ld t h a t a p r i o r co n v ic t io n w h ic h w a s s u b s e
q u e n t l y o v e r t u r n e d cou ld n o t b e u s e d a s a n a g g r a v a t i n g f a c t o r in
d e c id in g w h e t h e r t o im p o se t h e d e a th p e n a l ty . T h i s c a s e d id n o t
78
8
initiate an interlocutory appeal in which the merits of
the case would be indirectly determined without the bene
fit of a record. Alternatively, the parties must conduct a
full trial to the bench with the risk it may be for naught
if any of the legal claims are reversed and remanded to
be tried by a jury, at a cost of substantial time and re
sources to the court and to the litigants. Id. Fortunately,
in Parklane Hosiery this Court balanced the interests in
volved and found that the scale tipped in favor of apply
ing collateral estoppel. Where, as here, Petitioner has
been provided a full and fair opportunity to litigate his
claims, “one trial of common facts is enough.” Ritter,
814 F.2d at 991.
Although petitioner places great emphasis on Beacon
Theatres and its progeny, the holdings of Parklane,
Ritter, and the instant case do not vitiate the impact of
these decisions. In the vast majority of cases the federal
courts will continue to follow the prudential rule of
Beacon Theatres and decide legal claims first whenever
they are joined in the same action with equitable claims.
In the rare case where the equitable issues are tried first,
Parklane Hosiery holds that the Seventh Amendment does
not compel the expensive, time-consuming relitigation of
factual issues already decided. The Fourth Circuit’s deci
sion in the instant case comports with this philosophy
and should not be disturbed.* 17
invo lve c o l l a te r a l e s to p p e l o r t h e S e v e n th A m e n d m e n t . I n s t e a d , i t
w as b a s e d on t h e c ru e l a n d u n u s u a l p u n i s h m e n t c la u s e o f t h e E i g h t h
A m e n d m e n t a n d sh o u ld b e d i s r e g a r d e d .
17 T h e C o u r t ’s d e c is io n in Tull v. United States, 107 S. C t. 1831
( 1 9 8 7 ) , is n o t i n c o n s i s t e n t . I n Tull, t h e C o u r t a d d r e s s e d th e i s s u e
o f w h e t h e r t h e r i g h t t o j u r y t r i a l exists u n d e r t h e C lean W a t e r A c t .
T h e C o u r t w a s n o t fa c e d w i t h a s i t u a t i o n like t h e i n s t a n t c a s e w h e r e
th e t r i a l c o u r t a f t e r d i s m i s s i n g t h e j u r y c la im s h e a r d th e e q u i t a b le
c la im s u n d e r a p a ra l le l e q u i t a b l e c a u s e o f a c t io n . T h e r e f o r e , Tull
fa l ls u n d e r t h e g e n e r a l r u l e o f Beacon Theatres r a t h e r t h a n th e
e x c e p t io n o f Parklane Hosiery a n d does n o t a p p ly to t h e c a s e a t
h a n d .
79
9
Petitioner contends that the Fourth Circuit’s holding is
in conflict with other circuits. However, most of the cases
relied upon by Petitioner are inapplicable to the specific
question a t issue in this case. In Wade v. Orange County
Sheriff’s Office, 844 F.2d 951 (2d Cir. 1988), the parties
concurrently tried the § 1981 claim to the jury and the
Title VII claim to the court. The jury entered a verdict
for plaintiff on the § 1981 claim and the judge incon
sistently ruled for defendant on the Title VII claim. The
court applied the general rule of Beacon Theatres and
held that the judge was bound by the factual conclusions
of the jury. Since the legal and equitable claims were
tried simultaneously, collateral estoppel was not at issue.
Accordingly, this case is not relevant to the determination
of the instant case.
Roebuck v. Drexel University, 852 F.2d 715 (3d Cir.
1988), is also inapposite. In Roebuck, the trial judge al
lowed the jury to hear the § 1981 claim, but set aside its
verdict for the plaintiff. The district court also ruled in
favor of the employer on the Title VII claims. The Third
Circuit found sufficient evidence existed to defeat Drexel’s
motion for judgment n.o.v., but agreed that the ju ry’s
verdict was against the clear weight of the evidence.
Faced with such conflicting factual determinations, the
only logical result was a new trial. The situation in Roe
buck differs markedly from the one in the instant case,
where the Fourth Circuit was not presented with a jury
verdict and faced only the decision of the district judge.
Unlike Wade and Roebuck, the district court here did not
substitute its own view of the facts for the verdict of the
jury.18 Therefore, these cases do not help in the resolu
tion of this case.
18 S im i l a r ly , t h e p a s s a g e from Bouchct v. National Urban League,
730 F .2 d 799 (D .C . C i r . 1 9 8 4 ) , c i t e d b y P e t i t i o n e r , is obiter dictum.
T h e a c tu a l h o ld in g o f t h a t c a se w a s t h a t t h e t r i a l j u d g e correctly
d is m is s e d th e leg a l c la im s a n d s t r u c k t h e j u r y t r i a l d e m a n d .
80
10
Thus, of the circuit court decisions on which Petitioner
relies, only the Seventh Circuit’s decision in Hussein v.
Oshkosh Motor Co., 816 F.2d 348 (7th Cir. 1987), argu
ably conflicts with Ritter and the case at hand. In Hus
sein, the Seventh Circuit misinterpreted the teachings of
Parklane and failed to respect its holding. In an equivocal
decision which produced four opinions from a three-judge
panel, the Seventh Circuit placed undue emphasis on the
error of the judge in dismissing the jury rather than the
consequent harm to plaintiff. As a result, the court ig
nored the balance of the competing policy concerns of
collateral estoppel and the Beacon Theatres rule already
provided by this Court in Parklane. The decision of the
Fourth Circuit represents a more reasoned approach, one
that is faithful to this Court’s holding in Parklane Hosiery.
In any event, the presence of an apparent conflict be
tween the Fourth and Seventh Circuits does not require
issuance of a w rit of certiorari. As discussed in more
detail below, the denial of a jury trial did not affect the
result in this case. {See P art II of this Brief, infra).
While the Fourth and Seventh Circuits may disagree
over the collateral estoppel issue, both are in agreement
that a new trial is not warranted if the denial of the
jury trial was harmless error. Hussein, 816 F.2d at 354
n.6. Even if a jury had been impaneled, Petitioner’s evi
dence was insufficient to defeat a motion for directed ver
dict. Thus, resolution of the apparent conflict is unnec
essary, since the case can be decided on other grounds.
See The Monrosa v. Carbon Black, Inc., 359 U.S. 180,
184 (1959) (a conflict should only be resolved in the
context of meaningful litigation) ; Som.merville v. United
States, 376 U.S. 909 (1964) (certiorari denied when res
olution of the conflict would not change the result below).
For these reasons, this Petition should be denied.
81
11
II. DISMISSAL OF THE §1981 CLAIMS HAD NO
EFFECT ON THE OUTCOME OF THIS CASE
Assuming, arguendo, that the court of appeals erred in
holding that relitigation of Petitioner’s § 1981 claim was
precluded by collateral estoppel, such error was harmless
under Fed. R. Civ. P. 61 and does not w arrant a new
trial.10 This Court has long recognized that when a plain
tiff’s evidence is insufficient to establish a prima facie
case, the Seventh Amendment is not violated by the issu
ance of a directed verdict. Galloway v. United States,
319 U.S. 372 (1943). In Galloway, this Court pointed
out that the Seventh Amendment guarantees both a plain
tiff’s right to have legitimate claims heard by a jury and
a defendant’s right to attack the legal sufficiency of plain
tiff’s evidence without protracted litigation. Id. at 392-
93. The Court rejected the contention that the Seventh
Amendment requires a new trial where, as here, plaintiff
cannot establish a critical element of his claim. Id. at
394.
Other courts of appeals addressing this issue agree
with the F irst Circuit that “There is no constitutional
right to have twelve men sit idle and functionless in a
jury box.” In re N-500L Cases, 691 F.2d 15, 25 (1st
Cir. 1982). In Laskaris v. Thornburg, 733 F.2d 260 (3d
Cir.), cert, denied, 469 U.S. 886 (1984), the Third Cir
cuit affirmed the district court’s dismissal of plaintiff’s
§ 1981 claims alleging politically motivated discharges.
The court held that the dismissal of these claims, and the
affiliated right to jury trial, constituted harmless error
10 T h i s p o i n t w a s a r g u e d b y R e s p o n d e n t b e f o r e t h e c o u r t o f
a p p e a ls , b u t t h e c o u r t d id n o t r e a c h t h i s is su e . H o w e v e r , i t is well
e s t a b l i s h e d t h a t a r e s p o n d e n t c a n s e e k a f f i rm an ce on a n y g r o u n d
d isc lo sed b y t h e re c o r d . United States v. New York Telephone Co.,
434 U .S . 159, 166 n .8 ( 1 9 7 7 ) .
82
12
since the evidence adduced at trial was insufficient to
avoid a directed verdict if a jury had been impaneled,”
The cases relied upon by Petitioner are not inconsis
tent. For example, in Hussein v. Oshkosh Motor Truck
Co., 816 F.2d 348 (7th Cir. 1987), the court stated that
before addressing the collateral estoppel issue, there must
be an inquiry into whether the denial of the jury consti
tutes harmless error. Hussein 816 F.2d at 354 n.6. In
fact, Petitioner agrees that if a directed verdict could
have been granted, the denial of a jury trial is harmless
error. See Petition, page 26 n. 11.
Here, Petitioner suffered no harm due to the absence
of a jury. Federal Rule of Civil Procedure 50(a) governs
motions for directed verdict. A directed verdict is appro
priate when there is a complete absence of proof on an
issue material to the cause of action or when there are no
controverted issues of fact upon which reasonable jurors
could differ. Brady v. Southern Railroad, 320 U.S. 476
(1943) ; 5A Moore’s Federal Practice at H 50.02. The
evidence must be viewed in the light most favorable to
the non-moving party. Id.
The evidence presented by Petitioner in this case, even
when viewed in the most favorable light, is insufficient to
defeat a directed verdict. As the Fourth Circuit cor
rectly noted, ‘‘it is established beyond peradventure that
the elements of a prima facie case of employment discrim- 20
20 Accord Bowles v. United States Army Corps o f Engineers, 841
F .2 d 112 ( 5 t h C ir . 1988) ; Keller v. Prince George's County, 827
F .2 d 952 ( 4 t h C ir . 1 9 8 7 ) ; Howard v. Parisian, 807 F .2 d 1560 (1 1 th
C ir . 1987) ; King v. University of Minnesota, 774 F .2 d 224 ( 8 t h C ir .
1 985) , cert, denied, 475 U .S . 1095 ( 1 9 8 6 ) ; In re Professional Air
Traffic Controllers Organization o f America, 724 F .2 d 205 (D .C . C ir .
1 9 8 4 ) ; Atwood v. Pacific Maritime Association, 657 F .2 d 1055 ( 9 th
C ir . 1 9 8 1 ) ; Hildebrand v. Board of Trustees o f Michigan State
University, 607 F .2 d 705 ( 6 t h C ir . 1 9 7 9 ) ; King v. United Benefit
Fire Insurance Co., 377 F .2 d 728 ( 1 0 t h C i r . ) , cert, denied, 389 U .S.
857 ( 1 9 6 7 ) .
83
13
ination alleging disparate treatm ent under Title VII and
§ 1981 are identical.” Slip. op. at 7. Facts that preclude
relief under Title VII also preclude a § 1981 claim. Gar
cia v. Gloor, 618 F.2d 264, 271 (5th Cir. 1980), cert,
denied, 449 U.S. 1113 (1981). In McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973), the Court estab
lished the elements necessary to make out a prima facie
case of disparate treatm ent under both statutes. In Moore
v. City of Charlotte, 754 F.2d 1100 (4th Cir.), cert, de
nied, 472 U.S. 1021 (1985), the Fourth Circuit refined
the elements applicable to suits, like this one, which allege
discriminatory disciplinary action. The court held that to
establish a prima facie case of racial discrimination in a
case involving a discharge for violation of company rules
or policies, the plaintiff must show: (1) that he is black;
(2) that he was discharged for violation of a company
rule; (3) that he engaged in prohibited conduct similar
to that of a person of another race; and (4) that disci
plinary measures enforced against him were more severe
than those enforced against the other person. Moore, 754
F.2d a t 1106.
Application of these factors to this case reveals that
Petitioner failed to establish a prima facie case. Schwit-
zer’s absentee policy distinguishes between excused and
unexcused absences, with a stricter standard for the lat
ter based on the greater disruptive effect of unexcused
absences on Respondent’s operation. It is undisputed that
Petitioner left early on August 11, and did not report or
call in August 12, or August 13, 1983, and that such
conduct constitutes unexcused absences under Schwitzer’s
policies.21 Petitioner was unable to identify a single, non
black employee guilty of a similar violation who was not
also discharged. This inability to identify an individual
guilty of a similar offense who was treated preferen-
21 J A 5 1 ,1 4 0 -4 2 .
84
14
tially prevented Lytle from establishing a vital element
of a prima facie case. Id.
Petitioner attempted to support his claims through evi
dence of white employees who had excessive excused ab
sences but were not terminated. However, Schwitzer’s
policies clearly distinguish excessive excused and unex
cused absences. Therefore, these two violations are not
“similar” as that term is used in Moore, and comparison
of the two does not establish a prima facie case.
Significantly, after hearing all of Lytle’s evidence, Dis
trict Judge David B. Sentelle granted Schwitzer’s motion
for involuntary dismissal under Fed. R. Civ. P. 41(b) on
the discriminatory discharge claim. In making this deter
mination, the court recognized the difference between ex
cused and unexcused absences under Schwitzer’s attend
ance policy. (App. 27a). The court also found that the
excused absences of white employees were not as serious
as Lytle’s unexcused absences. As a result, the court con
cluded that the plaintiff had not established a prima facie
case of race discrimination.22 Although the standards * I
22 A t t h e c lose o f P e t i t i o n e r ’s case , t h e D i s t r i c t J u d g e m a d e th e
fo l lo w in g specific d e t e r m i n a t i o n s :
I w ill find by plaintiff's awn evidence p la in t i f f h a d e x cess u n e x
cu sed a b s e n c e o f 9.8 h o u r s , a n d t h a t , w i t h r e f e r e n c e to t h i s
u n e x c u s e d a b se n c e , h e d id n o t fo l low t h e c o m p a n y po licy o f
c a l l in g i n ;
I w ill find t h a t th e c o n d u c t on th e p a r t o f t h e w h i t e em p lo y ees
is n o t s u b s t a n t i a l l y s i m i l a r in s e r io u s n e s s to t h e c o n d u c t f o r
w h ic h p la in t i f f w a s d i s c h a r g e d .
B a se d on t h e s e f in d in g s , t h e c o u r t c o n c lu d e d :
I will c o n c lu d e a s a m a t t e r o f la w t h a t th e C o u r t h a s j u r i s d i c
t io n o f t h i s m a t t e r , a n d t h a t th e p la in t i f f h a s e s t a b l i s h e d t h a t
h e is a m e m b e r o f a p r o t e c te d c a te g o r y , a n d t h a t h e w a s d i s
c h a r g e d f o r v io la t io n o f t h e c o m p a n y ’s policy , b u t 7 will con
clude as a m a t te r of law that he has not es tablished a pr im a
facie case, s in ce h e h a s n o t e s t a b l i s h e d t h a t B la c k s w e r e t r e a t e d
85
15
vary under Rules 41(b) and 50(a), the court’s decision
did not rest on credibility determinations. Rather, Peti
tioner’s inability to establish a critical element of a prima
facie case as a m atter of law would have guaranteed a
directed verdict even if a jury been impaneled. Since
Respondent would have received a directed verdict, the
denial of a jury is harmless error and remand of the case
is unnecessary.
Similarly, a directed verdict would have been proper
on Lytle’s $ 1981 retaliation claims.23 First, the protec
tion of § 1981 is limited to the right to “make and en
force contracts.” 42 U.S.C. § 1981. As such, it’s scope
is substantially less broad than that of Title VII and does
not extend to claims of retaliation, even though this con
duct is prohibited by Title VII. Patterson v. McLean
Credit Union, 805 F.2d 1143 (4th Cir. 1986), cert,
granted, 108 S. Ct. 65 (1987), restored to calendar for
reargument, 108 S. Ct. 1419 (1988). In Patterson, the
court reasoned that while racial harassment and, by
analogy, retaliation, implicates “the terms and conditions
of employment” under Title VII, it does not abridge the
right to “make and enforce contracts.” Patterson, 805
F.2d a t 1145.24 Similarly, in Tafoya v. Adams, 816 F.2d
555 (10th Cir. 1987), the Tenth Circuit held that unlike
Title VII, the protections of § 1981 do not encompass a
retaliation cause of action. See also Guy v. City of
d i f f e re n t ly , a n d in f a c t c o m m i t t e d v io la t io n s o f th e c o m p a n y ’s
p o licy o f su f f ic ien t s e r io u s n e s s ;
A n d I w il l o r d e r t h a t t h e c la im a s to th e d i s c h a r g e b e d is m is s e d .
(A p p . 2 8 a -2 9 a ) ( e m p h a s i s a d d e d ) .
235 J u s t a s w i t h t h e d i s c r i m i n a t o r y d i s c h a r g e c la im , th e e le m e n ts
o f a n a c t io n f o r r e t a l i a t i o n u n d e r § 1981, w h e r e a l low ed , a r e th e
s a m e a s t h o s e u n d e r T i t l e V I I . Irby v. Sullivan, 737 F .2 d 1418 ( 5 th
C i r . 1 9 8 4 ) .
24 O f co u rs e , t h i s C o u r t w ill d e t e r m i n e w h e t h e r § 1981 even
a p p l i e s to p r i v a t e e m p l o y m e n t w h e n Patterson is dec ided .
86
16
Phoenix, 668 F. Supp. 1342, 1350 (D. Ariz. 1987)
(§ 1981 limited to discrimination which impacts employ
ment decisions affecting plaintiff).
Even if § 1981 encompasses claims of retaliation, Peti
tioner failed to estabish a prima facie case. In order
to establish a prima facie case of retaliation, Plain
tiff must prove the following three elements by a pre
ponderance of the evidence: (1) the employee engaged
in protected activity; (2) the employer took adverse em
ployment action against the employee; and (3) a causal
connection between the protected activity and the adverse
action. Because Petitioner could only establish the first
of the three mandatory elements, his retaliation claim
was properly dismissed. Canino v. EEOC, 707 F.2d 468
(11th Cir. 1983) (dismissal proper when plaintiff satis
fied only two elements of a prima facie case).
Petitioner alleged that Schwitzer treated him adversely
following the filing of his EEOC charge by providing a
neutral letter of reference to prospective employers which
contained only his dates of employment and former job
title. However, Schwitzer has a well-established company
policy of providing such limited references. Respondent
presented evidence of many other instances when em
ployees who had not filed EEOC charges received the
same limited reference provided for Lytle. I t appears
that in one case a more detailed reference was supplied,
but this incident was found to be a single, unintentional
aberration to an otherwise uniform company policy. Ac
cordingly, at the end of all the evidence the district judge
held that Lytle’s retaliation claim was without foundation
as a matter of law and entered judgment for Respondent
under Rule 41(b) (App. 29-31). Thus, even if §1981
prohibits retaliation, Petitioner’s failure to establish a
prima facie case would have warranted a directed verdict.
Therefore, the denial of a jury trial was harmless error
under Fed. R. Civ. P. 61.
87
17
III. SUMMARY REVERSAL IS INAPPROPRIATE IN
THIS CASE
As demonstrated above, the Court should not issue a
w rit of certiorari in this case. The Fourth Circuit’s deci
sion is consistent with prior decisions of this Court.
Moreover, the alleged conflict with the Seventh Circuit
need not be resolved, since Respondent would have re
ceived a directed verdict if a jury had been impaneled.
Because resolution of the apparent conflict would not
change the result below, certiorari should be denied.
If the Court decides to review this case, however, the
Petitioner correctly notes that the normal procedure
would be to defer judgment of the case pending disposi
tion of the closely-related case already set for argument.
Contrary to Petitioner’s assertions, this case presents no
reason to depart from this practice. In Patterson v.
McLean Credit Union, No. 87-107, the Court will decide
whether § 1981 is applicable to discrimination in private
employment. If the Court responds negatively to this
question, it will remove the foundation of Petitioner’s
entire argument. This Petition is premised on the as
sumption . that the district court erroneously dismissed
Lytle’s § 1981 claims and the concomitant right to a jury
trial. By postponing disposition of this case until after
the decision in Patterson, the Court can obviate the need
to address the remaining issues of this appeal. In addi
tion, the Court would save the parties and the Court from
an unnecessary appellate argument and potentially
another full trial.
Petitioner provides several hypothetical problems which
could occur if the Court does not hastily dispose of his
petition. A brief examination of these warnings reveals
that Petitioner is merely “crying wolf.” With respect to
his fear that this decision will “wreak havoc on the fed
eral appellate courts,” 25 the court of appeals’ decision
25 Petition at 46.
18
in this case is an officially “unpublished” opinion. Cita
tions of unpublished opinions are disfavored by the
Fourth Circuit.26 Due to its unpublished status, its ex
posure to the legal community is quite limited. Even if
its reasoning is incorrect, it is unlikely that this opinion
will cause any disruption in the federal court system.
Petitioner’s use of hyperbole is unfounded.
In Parklane Hosiery, the Court held that in cases such
as this where plaintiff is provided a full and fa ir oppor
tunity to litigate his claims before a judge sitting in
equity, the Seventh Amendment does not compel relitiga
tion of the same issues before a different factfinder. This
rationale, followed by the court of appeals below, provides
a well-reasoned and eminently fair result. Lytle had a
full opportunity to present any and all evidence and his
efforts fell short. To allow these same claims to be re
litigated wTould unduly prejudice Respondent and need
lessly burden the court system. In Parklane Hosiery, the
Court refused to read the Seventh Amendment to require
such an inequitable result, and this case presents no rea
son to depart from this principle. If a decision as im
portant as Parklane Hosiery is to be reversed or re
trenched by the Court, it should not be done without
briefing and argument and it should be explained to the
lower federal courts in more detail than a one-sentence
memorandum opinion allows. See Harris v. Rivera, 454
U.S. 337, 349 (1981) (Marshall J., dissenting). Accord
ingly, should the Court decide to grant this Petition, the
parties should be allowed to fully brief and argue the
issues presented.
2,5 I n f o r m a l O p e r a t i n g P r o c e d u r e s o f th e F o u r t h C i r c u i t 36.4 , 36.5.
89
19
CONCLUSION
Based on the foregoing reasons, this Petition for a
W rit of Certiorari should be denied. Alternatively,
should the Petition be granted, Petitioner’s request for
summary dismissal should be denied and the case should
be docketed for briefing and argument following this
Court’s decision in Patterson v. McLean Credit Union,
depending on the outcome in that case.
Respectfully submitted,
H . L a n e D e n n a r d , J r .*
O g l e t r e e , D e a k i n s , N a s h ,
S m o a k a n d S t e w a r t
3800 One A tlantic Center
1201 W. Peachtree S treet
A tlanta, Georgia 30309
(404) 881-1300
A . B r u c e C l a r k e
C. M a t t h e w K e e n
O g l e t r e e , D e a k i n s , N a s h ,
S m o a k a n d S t e w a r t
P ost Office Box 31608
Raleigh, N orth Carolina 27622
(919) 787-9700
A ttorn eys fo r R espondent
* Counsel of Record
90
No. 88-334
In The
Supreme Court of tfjc fHntteb States
October Term , 1989
J o h n S . L y t l e
P e t i t i o n e r ,
v.
H o u s e h o l d M a n u f a c t u r i n g , I n c .,
d / b / a S c h w i t z e r T u r b o c h a r g e r s ,
Respondent
BRIEF FOR PETITIONER
J u l i u s L e V o n n e C h a m b e r s
C h a r l e s S t e p h e n R a l s t o n
R o n a l d L . E l l i s
E r i c S c h n a p p e r
J u d i t h R e e d *
NAACP Legal Defense &
Educational Fund, Inc.
99 Hudson Street 16th Floor
New York, New York 10013
(212) 219-1900
P e n d a D . H a i r
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005
(202) 682-1300
P a m e l a S. K a r l a n
University of Virginia
School of Law
Charlottesville, VA 22901
(804) 924-7810
A t t o r n e y s f o r P e t i t i o n e r
* Counsel of Record
91
QUESTION PRESENTED
Did the Fourth Circuit err in holding violations of
the Seventh Amendment unreviewable on direct appeal
when the district court compounds the violation by decid
ing itself the questions that should have been presented
to the jury?
92
LIST O F PA RTIES
The respondent, Household Manufacturing, Inc., is a
wholly owned subsidiary of Household International, Inc.
All other parties in this m atter are set forth in the
caption.
ii
93
T A B L E O F CO N TEN TS
Page
QUESTION PRESENTED ................................................ >
LIST OF PA R T IE S................................................................ »
OPINIONS B E L O W ........................................................... 1
JU R ISD IC TIO N ................................................................... 1
STATUTES, CONSTITUTIONAL PROVISION, AND
RULES IN V O L V E D .............................................. 2
STATEMENT OF THE CASE ...................................... 5
1. Background................................................... 5
2. Petitioner’s Termination .......................... 8
3. Respondent’s Retaliation .......................... 13
4. Proceedings in the District C o u rt............ 14
5. Proceedings in the Court of Appeals . . 19
SUMMARY OF ARGUMENT ..................................... 22
A R G U M E N T ........................................................................ 25
in
94
THE DECISION BELOW DEPRIVED
PETITIONER OF HIS RIGHTS UNDER THE
SEVENTH A M E N D M E N T ................................ 25
A. The District Court Erroneously Deprived
Petitioner of His Right to a Jury Trial on
His § 1981 C la im s ............. .. ..................... 25
B. Petitioner Was Denied the Benefit of the
Fundamental Values Protected by the
Seventh Amendment Right to Trial by
Jury ................................................................ 28
I. THE DENIAL OF SEVENTH AMENDMENT
RIGHTS IS SUBJECT TO REVERSAL PER
SE ON DIRECT A PP E A L ................................... 34
A. This Court Has Always Treated Seventh
Amendment Violations as Reversible Per
Se ..................... 34
B. A Violation of the Seventh Amendment,
Like Other Errors Which Result in the
Wrong Entity Finding the Facts, Is
Subject To Reversal Per S e ...................... 41
II. THE COURTS BELOW ERRED IN
APPLYING PRINCIPLES OF COLLATERAL
ESTOPPEL TO THIS C A S E ............................. 45
A. Parklane Hosiery Does Not Apply to this
C a s e .......................................................... 46
iv
95
B. The Fourth Circuit’s Approach Would in
Fact Undermine the Interest in Judicial
Economy that the Doctrine of Collateral
Estoppel Is Intended to S e r v e ................ 52
CO NCLUSIO N............................................. ........................ 55
v
96
T A B L E O F A U T H O R IT IE S
Cases Page
Aetna Insurance Co. v. Kennedy,
301 U.S. 389 (1 9 3 7 ) ............................................................ 54
Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986) . . . 43
Aetna Life Ins. Co. v. Ward, 140 U.S. 76 (1 8 9 1 )........... 31
Amoco Oil Co. v. Torcomian, 722 F.2d 1099
(3d Cir. 1 9 8 3 ) ....................................................................... 36
Arizona v. California, 460 U.S. 605 ( 1 9 8 3 ) ...................... 47
Arlington Heights v. Metropolitan Housing Corp.,
429 U.S. 252 ( 1 9 7 7 ) ............................................................ 31
Bank of Columbia v. Okely, 17 U.S.
(4 Wheat.) 235 (1819) . . .'.............................................. 35
Baylis v. Travelers’ Ins. Co.,
113 U.S. 316 ( 1 8 8 5 ) .............................. .. ............. 28, 29, 35
Beacon Theatres, Inc. v. Westover, 359 U.S. 500
(1959) ............................................................................... passim
Bibbs v. Jim Lynch Cadillac, Inc., 653 F.2d 316
(8th Cir. 1981) ....................................................................... 36
vi
97
Buzard v. Houston, 119 U.S. 451 (1886) ........................ 35
Cohen v. Beneficial Industrial Loan Corp.,
337 U.S. 541 (1 9 4 9 ) ................................................... 24, 53
Coopers & Lybrand v. Livesay,
437 U.S. 463 (1 9 7 8 ) ........................................................... 53
Curtis v. Loether, 415 U.S. 189 (1 9 7 4 ) ............. . 22, 26, 35
Dairy Queen, Inc. v. Wood, 369
U.S. 469 (1962)........................................................ 23, 40, 50
Davis & Cox v. Summa Corp.,
751 F.2d 1507 (9th Cir. 1 9 8 5 ) ....................................... 36
Duncan v. Louisiana, 391 U.S. 145 (1968) ..................... 30
Dwyer v. Smith, 867 F.2d 184 (4th Cir. 1 9 8 9 )................ 45
EEOC v. Corry Jamestown Corp.,
719 F.2d 1219 (3d Cir. 1983) ........................................ 36
Ellis v. Union Pac. R.R. Co., 329 U.S. 649 (1947) . . . . 31
Estes v. Dick Smith Ford, Inc.,
856 F.2d 1097 (8th Cir. 1 9 8 8 ) ........................................ 32
Bouchet v. National Urban League, 730 F.2d 799
(D.C.Cir. 1984) ................................................................ 48, 49
Flem m ing v. Nestor, 363 U.S. 603 ( 1 9 6 0 ) .......................... 44
vii
98
Gomez v. United States, 109 S.Ct. 2237 (1989) . . . . . . 43
Goodman v. Lukens Steel Co.,
107 S.Ct. 2617 (1 9 8 7 ) ........................................................ 27
Granfinanciera S.A. v. Nordberg,
109 S.Ct. 2782
(1989) ................... .. ............................. .......... 23, 36, 37, 47
Gulfstream Aerospace v. Mayacamus Corp.,
109 S.Ct. 1133 (1 9 8 8 ) ................ ......................................... 52
Hall v. Sharpe, 812 F.2d 644 (11th Cir. 1 9 8 7 )........... 36, 54
Hardin v. Straub, 109 S.Ct. 1998, (1989) . ...................... 27
Hildebrand v. Bd. of Trustees of
Michigan State Univ.,
607 F.2d 705 (6th Cir. 1 9 7 9 ) ............................................ 36
Hodges v. Easton, 120 U.S. 408 (1882) .............. 22, 29, 36
Hussein v. Oshkosh Motor Truck Co.,
816 F.2d 348 (7th Cir. 1 9 8 7 ) .............................. 20, 48, 49
Hyde v. Booraem & Co., 41 U.S.
(16 Pet.) 232 (1 8 4 2 ) ........... ................................................. 32
Gargiulo v. D elso le , 769 F.2d 77 (2d Cir. 1985) ............ 54
Jacob v. City o f N ew York, 315 U .S . 752 ( 1 9 4 2 ) ............ 29
viii
99
Katchen v. Landy, 382 U.S. 323 (1966) ................... 50, 51
Keller v. Prince George’s County,
827 F.2d 952 (4th Cir. 1 9 8 7 ) ........................................... 45
Killian v. Ebbinghaus, 110 U.S. 246 (1 8 8 4 )...................... 35
Lauro Lines S.R.L. v. Chasser,
109 S.Ct. 1976
(1989) ............................................................. 25, 41, 42, 53
Lewis v. Cocks, 90 U.S. 70 (1 8 7 4 ) ..................... .. ............. 36
Lewis v. Thigpen, 767 F.2d 252 (5th Cir. 1 9 8 5 )............. 36
Liljeberg v. Health Services Acquisition Corp.,
108 S.Ct. 2194 (1 9 8 8 )........................................................ 43
Lincoln v. Board of Regents, 697 F.2d 928 (11th Cir.
1983) ..................................................................................... 27
Marshak v. Tonetti, 813 F.2d 13 (1st Cir. 1987) ........... 36
Matter of Merrill, 594 F.2d 1064 (5th Cir. 1 9 7 9 )........... 36
Meeker v. Ambassador Oil Corp., 375 U.S. 160
(1963) ............................................................................. passim
Midland Asphalt Corp. v. United States,
109 S.Ct. 1494 (1 9 8 9 ) ....................................................... 52
Johnson v. Railway Express Agency,
421 U.S. 454 ( 1 9 7 5 ) ................................................................. 25
ix
100
Morgantown v. Royal Insurance Co.,
337 U.S. 264 ( 1 9 4 9 ) ................ .. ................................ 53
North v. Madison Area Ass’n for Retarded
Citizens, 844 F.2d 401 (7th Cir. 1988) ......................... 27
Owens v. Okure, 109 S.Ct. 573 ( 1 9 8 9 ) .............................. 27
Palmer v. United Sta
652 F.2d 893 (9th Cir. 1 9 8 1 ) ............................................36
Parklane Hosiery Co. v. Shore, 439 U.S. 322
(1979) .............................................................................passim
Patterson v. McLean Credit Union,
105 L.Ed.2d 132 (1989) ...................................... 22, 25, 26
Pennoyer v. Neff, 95 U.S. (5 Otto) 714 (1877) .............. 46
Pernell v. Southall Realty, 416 U.S. 263 (1 9 7 4 ) .............. 35
Ritter v. Mount St. Mary’s College,
814 F.2d 986 (4th Cir. 1 9 8 6 ) .............................. 20, 45, 49
Roebuck v. Drexel University,
852 F.2d 715 (3d Cir. 1988) ................................... .. 48
Rose v. Clark, 478 U.S. 570 ( 1 9 8 6 ) .................................... 41
M oore v. Sun Oil Co., 636 F.2d 154 (6th Cir. 1980) . . 27
Schoenthal v. Irving Trust Co., 287 U.S. 92 (1932) . . . 35
x
101
Setser v. Novack, 638 F.2d 1137 (8th Cir. 1 9 8 1 ) ...........27
Sibley v. Fulton DeKalb Collection Service,
677 F.2d 830 (11th Cir. 1 9 8 2 ) ...................................... 36
Sioux City & Pacific R.R. Co. v. Stout,
84 U.S. (17 Wall.) 657 (1 8 7 4 ) ................................ 22, 29
Skinner v. Total Petroleum,
859 F.2d 1439 (10th Cir. 1988) ..................................... 27
Standard Oil Co. v. Brown 218 U.S. 78 ( 1 9 1 0 ) ............. 32
Stevens v. Nichols, 130 U.S. 230 (1 8 8 9 ) ........................... 44
Swentek v. USAir, 830 F.2d 552 ( 1 9 8 7 ) ........................... 45
Taylor v. Louisiana, 419 U.S. 522 (1975) ........................ 30
Tennant v. Peoria & Pekin Union Ry. Co.,
323 U.S. 29 (1 9 4 4 )............................................................. 31
Thiel v. Southern Pacific Co., 328 U.S. 217 (1945) 30, 44
Tull v. United States,
95 L.Ed.2d 365 (1987) ..................................... 21, 23,37,
38, 47
United States v. One 1976 Mercedes Benz 208 S,
618 F.2d 453 (7th Cir. 1 9 8 0 ) ................................... 30, 36
Scott v. N eely, 140 U.S. 358 ( 1 8 9 1 ) ................. .................... 35
xi
102
United States v. State of New Mexico,
642 F.2d 397 (10th Cir. 1 9 8 1 ) ......................................... 36
Volk v. Coler, 845 F.2d 1422 (7th Cir. 1988) ................ 48
Wade v. Orange County Sheriffs Office,
844 F.2d 951 (2d Cir. 1988) ................... .. ...................... 48
Webster v. Reid, 52 U.S. 437 ( 1 8 5 0 ) ...................... .. 36
Western Elec. Co. v. Milgro Electronic Corp,
573 F.2d 255 (5th Cir. 1 9 7 8 ) ............................................ 53
Williams v. Cerberonics, Inc.,
871 F.2d 452 (4th Cir. 1 9 8 9 ) ............................................ 48
Williams v. Owens-Illinois, Inc.,
665 F.2d 918 (9th Cir.),
cert, denied, 459 U.S. 971 (1 9 8 2 ).................................... 27
Wilson v. Garcia, 471 U.S. 261 ( 1 9 8 5 ) .............................. 27
Statutes. Constitutional Provisions and Rules
28 U.S.C. § 455 ........................................................................ 43
28 U.S.C. § 1 2 5 4 (1 )........................................................................ 2
28 U.S.C. § 1 8 6 1 ...................................... ; ..............................30
42 U.S.C. § 1981 passim
xii
103
42 U.S.C. § 2000e-5 ...................................................................5
Rule 38, Federal Rules of Civil Procedure . . . . 4, 27, 54
Rule 39 of the Federal Rules of Civil Procedure ............. 4
Rule 41(b), Federal Rules of Civil P rocedure.................... 33
Rule 52(a), Federal Rules of Civil Procedure.................... 43
Title VII of the Civil Rights Act of 1964 ................ passim
U.S. Const, amend. VII ....................................................passim
Other Authorities
9 Wright & Miller,
Federal Practice and Procedure § 2322 .................... 54
18 Wright, Miller & Cooper,
Federal Practice and Procedure § 4418
(1989 S u p p .) ........................................................................... 48
Schnapper, Judges Against Juries -
Appellate Review of Federal Jury Verdicts,
1989 Wis.L.Rev. 237 ................................................ 31, 32
42 U .S.C. § 2000e-(2)(a) ............................................................... 3
xiii
104
BRIEF FOR PETITIONER
OPINIONS BELOW
The opinion of the court of appeals is unpublished,
and is set out in the Appendix to the petition for writ of
certiorari ("App.") at pages la-21a. The order of the
court of appeals denying rehearing, which is not
reported, is set out at App. 22a-24a. The district judge’s
bench opinion, which is unreported, is set out at App.
25a-31a and in the Joint Appendix (JA) at pages 56-64.
The order of the district court dismissing the case is set
out at App. 34a-35a.
JURISDICTION
The judgment of the court of appeals affirming the
district court’s dismissal of the case was entered on
October 20, 1987. App. la. A timely petition for
105
rehearing was denied on April 27, 1988. On July 19,
1988, Chief Justice Rehnquist entered an order extending
the time for filing a petition for writ of certiorari to and
including August 25, 1988. The petition for writ of
certiorari was filed on August 23, 1988, and was granted
on July 3, 1989. The jurisdiction of this Court is invoked
under 28 U.S.C. § 1254(1).
STATUTES, CONSTITUTIONAL PROVISION,
AND RULES INVOLVED
The Seventh Amendment to the United States
Constitution provides:
In suits at common law, where the value in
controversy shall exceed twenty dollars, the right of
trial by jury shall be preserved and no fact tried by
jury shall be otherwise re-examined in any Court of
the United States, than according to the rules of the
common law.
2
106
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.
Section 703(a) of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e-(2)(a), provides in pertinent
part:
Section 1981 of 42 U.S.C. provides:
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 employment
because of such individual’s race, color, religion, sex,
or national origin . . . .
3
107
Rule 38 of the Federal Rules of Civil Procedure provides
in pertinent part:
(a) Right Preserved. The right of trial by
jury as declared by the Seventh Amendment to the
Constitution or as given by a statute of the United
States shall be preserved to the parties inviolate.
(b) Demand. Any party may demand a trial
by jury of any issue triable of right by a jury by
serving upon the other parties a demand therefor in
writing at any time after the commencement of the
action and not later than 10 days after the service of
the last pleading directed to such issue. Such
demand may be indorsed upon a pleading of the
party.
Rule 39 of the Federal Rules of Civil Procedure provides
in pertinent part:
(a) By Jury. When trial by jury has been
demanded as provided in Rule 38, the action shall
be designated upon the docket as a jury action. The
trial of all issues so demanded shall be by jury,
unless (1) the parties or their attorneys of record, by
written stipulation filed with the court or by an oral
stipulation made in open court and entered in the
record, consent to trial by the court sitting without a
jury or (2) the court upon motion or of its own
initiative finds that a right of trial by jury of some or
4
108
all of those issues does not exist under the
Constitution or statutes of the United States.
STATEMENT OF THE CASE
This action involves claims of intentional racial
discrimination in violation of 42 U.S.C. § 1981 and Title
VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. § 2000e-5. Petitioner John S. Lytle, a black
person, contends that he was fired by respondent on
account of his race and that respondent then retaliated
against him for pursuing his federal equal employment
opportunity claims.
1. Background
Schwitzer Turbochargers, a subsidiary of respondent
Household Manufacturing, Inc. [hereafter referred to as
"Schwitzer"], makes turbochargers and fan drives at its
Arden, North Carolina, plant. Tr. 13. In February 1982,
5
109
Schwitzer adopted an employee absence policy with the
following salient features. First, workers must report all
anticipated absences to their supervisors "as soon as
possible in advance of the time lost, but not later than
the end of the shift on the previous workday." PX 22, p.
1. Second, certain kinds of absences — in particular,
those involving personal illness, PX 22, p. 2 -- are
characterized as "excused." Third, even though absence
due to illness is excused, an "excessive" level of such
absences -- defined as a "total absence level which
exceed[s] 4% of the total available working hours,
excluding overtime," id. at 2-3 - "will, most likely, result
in termination of employment." Id. at 3. Fourth, a
worker also faces termination for excessive absence if he
has "any unexcused absence which exceeds a total of 8
hours (or one scheduled work shift) within the preceding
12-month period.” Id.
6
no
Petitioner is an experienced machine operator.1 Tr.
84. In January 1981, he was hired by respondent as a
machinist trainee at the Arden plant. Less experienced
whites were hired directly into machine operator
positions. Tr. 83-84, 87. Ultimately, petitioner achieved
the highest graded machinist classification. Tr. 87-89. In
his 1982 performance evaluation, he was commended for
his good attendance record. Tr. 86; PX 6. Until the
events that precipitated this lawsuit, he had never been
reprimanded or disciplined for attendance problems. Tr.
86-87. 1
1 This discussion of the events pertaining to petitioner's
discharge claim is based primarily on Lytle’s testimony at trial. The
district court dismissed his discharge claim at the close of
petitioner’s evidence; hence, virtually all the record testimony on
behalf of the respondent goes only to retaliation, not discharge.
7
111
2. Petitioner’s Termination
In February 1983, petitioner embarked on a rigorous
evening program studying mechanical engineering at
Asheville-Biltmore Technical College. Tr. 90-95.2 By the
summer, he began to suffer health problems. The plant
nurse recommended that he consult a doctor. Tr. 71-72,
121. In June or July, Lytle also informed his supervisor,
Larry Miller, who was white, of his 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
2 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.
8
112
were called upon to work a substantial amount of
overtime in order to keep up with production
requirements. Tr. 238.
The next week, Lytle’s health problems worsened,3
and 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 supervisor for
permission to schedule Friday, August 12, as a vacation
day. Tr. 129-132/
At the time, Miller approved petitioner’s request.
Tr. 130. However, later in the day, Miller told petitioner
that "if you’re off Friday, you have to work on Saturday," *
* 3 On one occasion he became so dizzy that he fainted. Tr.
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.
9
113
Tr. 131, which was not a normal work day for Lytle, 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. When Miller still
insisted that Lytle work on Saturday, Lytle told him that
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. Moreover, Lytle repeated his intentions to the
10
114
Human Resources Counselor, Judith Boone. Tr. 137-
138.5
Lytle returned to work on Monday, August 15.
After a meeting with Schwitzer’s personnel manager and
Miller, during which Lytle was asked to provide an
explanation for his absence, Lytle was fired. Tr. 142-
143. The apparent reason for the termination was for
alleged excessive unexcused absences, primarily the
Friday and Saturday shifts Lytle had missed as a result of
his health problems.6 JA 8; Tr. 220. Had petitioner’s
Boone confirmed that Lytle had a conversation with
her that day regarding problems with Miller; however, she testified
that she did not recall any mention of vacation scheduling. Tr. 60-
61.
In addition to the two days in question, apparently
Schwjtzer treated Lytle’s departure on Thursday, August 11, shortly
after the normal end of his shift, as 1.8 hours of "unexcused
absence," because he did not work two hours of overtime that may
or may not have been scheduled. There was conflicting evidence
concerning whether Lytle was in fact scheduled for overtime on
Thursday and whether his purported failure to inform Miller that he
had to leave was directly attributable to Miller’s behavior toward
Lytle. Tr. 135. In any event, the district judge found Lytle to have
had 9.8 hours of unexcused absence. JA 59-60.
11
115
absences been properly classified either as vacation days
or as excused absences, he would not have fallen within
the terms of the excessive absence policy. Tr. 252-253.
Moreover, Schwitzer’s records showed that white
employees were not terminated despite "excessive
absence." Instead, these white workers were given
warnings and an opportunity to improve.7
7 Donald Rancourt, a white machinist, received a written
warning from Lany Miller concerning an absence rate of 7.5% in
January, 1983. Tr. 217-18, 222, 230. Rancourt’s April 1983 annual
performance review mentioned an absence problem 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
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
lime 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
12
116
3. Respondent’s Retaliation
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,
who is white, shortly thereafter. Tr. 61-62.
At approximately the same time, Lytle began looking
for another job in the Asheville area. Several
prospective employers told him that they were having
difficulty getting an adequate reference from Schwitzer.
Tr. 111. Boone refused to return questionnaires from
correct the problem. PX 13-B.
Finally, 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, Wilson had
accumulated excessive unexcused absences. Tr. 67. Yet, Wilson was
not fired, but merely counselled to improve his absence record. PX
14B.
13
117
two employers. Although Schwitzer claimed that it was
merely applying its normal policy with respect to
references for individuals who have been involuntarily
terminated, Tr. 261, the company had in fact provided a
favorable letter of reference for Joe Carpenter, a white
male, the only other machinist involuntarily terminated
prior to Lytle in 1983. See PX 10.
4. Proceedings in the District Court
Lytle filed a complaint in federal district court
alleging that respondent had fired him because of his
race and retaliated against him for filing a charge of
discrimination with the Equal Employment Opportunity
Commission, all in violation of both Title VII and Section
1981. JA 9-10. The notation "Jury Trial Demanded"
appears on the first page of the complaint, JA 4, and at
the end of the complaint was the following statement:
14
118
"Plaintiff requests a jury trial of all issues triable herein
by a jury." JA 14. The relief requested involved
backpay, damages for "emotional and mental suffering,"
punitive damages, and injunctive relief including
reinstatement.
Respondent answered the complaint and ultimately
moved for summary judgment on several grounds. On
May 17, 1985, the district court denied the motion,
finding that "there is a genuine issue as to material facts."
Dkt. Nr. 19.
On the day of trial, the district court granted
Schwitzer’s motion to dismiss all claims under § 1981,
holding that Title VII provides the exclusive remedy for
employment discrimination. The dismissal of petitioner’s
§ 1981 claims necessarily meant the striking of his jury
15
119
demand. JA 56-57.8 The court then conducted a bench
trial of petitioner’s Title VII claims.
In essence, the trial revolved around four issues -
whether Lytle had in fact received permission from
Miller not to work on Friday and Saturday, whether the
decision to fire Lytle was based in whole or in part on
impermissible racial motives, whether Schwitzer’s absence
policies had been applied to white workers who were
similarly situated, and whether the refusal to provide a
reference for Lytle involved retaliation for his having
filed a Title VII charge. Resolution of each of these
issues was critically dependent on the factfinder’s
assessment of the credibility of the witnesses and the
plausibility of their conflicting stories.
8 The district court did not rule on the proposal made by
Lytle’s attorney that the court "dismiss the Title VII action and go
to the jury on the 1981 action." Tr. 4. The district court also
denied Lytle’s motion for reconsideration of the § 1981 dismissal
made on the second day of trial. JA 97-98.
16
120
At the close of petitioner’s case, the court dismissed
petitioner’s Title VII discriminatory discharge claims,
finding that he had failed to present a prima facie case.
The district judge found that, while Lytle had
demonstrated that one white employee, Greg Wilson, had
exceeded the limit on unexcused absences and that at
least four white employees who violated the excessive
absence policy were only given warnings, the conduct of
these employees was not "substantially similar in
seriousness" to that of petitioner. Tr. 259; JA 59-60.
This determination was based apparently on the judge’s
supposition that Schwitzer treated excused and unexcused
absences differently, and that Wilson’s infraction was de
minimis. However, there was no evidence that the
employer intended to treat the classes of absences
differently as to the ultimate penalty that could be
17
121
imposed,9 and the record was, by the trial judge’s own
recognition, unclear on the exact amount of Wilson’s
additional absences.10
Following the close of all the evidence, the judge
ruled from the bench in favor of respondent on the
Indeed, the record contradicts such a conclusion in the
several respects. First, Schwitzer’s absence policy itself includes both
excused and unexcused absences in the category for which
termination will "most likely result," when the staled limits are
exceeded. PX 22, p. 2. Second, the policy notes that termination of
employment may result even before maximum limits are reached,
where a pattern of absence, excused or unexcused, is observed. Id.,
p. 3. Finally, Schwitzer has already made a distinction between
unexcused and excused absences by adopting a policy that permits
excused absences to total at least 72 hours, assuming a year
consisting of 48 weeks of 40 hours each, while tolerating only 8
hours, of unexcused absences. Id.; Tr. 17 ("On the excused portion
. . . , we have allowed more flexibility there.’). The trial judge’s
addition of yet another layer of distinction, by finding that excessive
excused absences are not "serious," in the face of a policy statement
that "absence hurt us all" (PX 22, p. 3), suggests that the trial judge,
was not acting merely as a factfinder, but was drawing a number of
inferences from the evidence. Opposite inferences could have as
easily been drawn. See, infra, Argument, Sec. I.B.
10 The trial judge concluded that Wilson had exceeded the
limit by only six minutes, based on his interpretation of the
documents. Tr. 251-252. ("Frankly, the evidence wouldn’t support
this, but I think that decimal number . . . really means minutes
rather than hundreths.") Cf. PX 14-B; Tr. 39, line 16-17; PX 14-C
(indicating nine tardy incidents during the period of March 1983
through February 1984).
18
122
retaliation claim.11 App. 26a-31a. The trial judge
subsequently entered a judgment for defendant on all
issues. App. 32a-35a.
5. Proceedings in the Court of Appeals
On appeal to the Fourth Circuit, petitioner argued,
among other things, that the district court’s erroneous
dismissal of his § 1981 claim had denied him his Seventh
Amendment right to a jury trial.
A majority of the Fourth Circuit panel acknowledged
that the district court had erred in dismissing petitioner’s
§ 1981 claim. App. 7a, n.2. But although the Court
recognized that petitioner had been wrongfully denied
the right to present his claims of intentional racial
11 The district judge found that the fact that Schwitzer had
issued a favorable letter of recommendation for a white who was the
only other employee whose employment had been involuntarily
terminated was not sufficient; rather the judge found that instead of
Lytle receiving disparate treatment, the white employee had simply
been treated "disproportionately favorably." Tr. 203.
19
123
discrimination to a jury, it refused to correct this
constitutional error. Instead, the appellate court followed
Ritter v. Mount St. Mary’s College. 814 F.2d 986 (4th
Cir. 1986), cert, denied. 108 S. Ct. (1987), and held that
the findings made by the district judge during the bench
trial of petitioner’s Title VII claims collaterally estopped
petitioner from litigating his § 1981 claim. App. 8a-9a.
Notably, the Court of Appeals did not conclude that a
jury would necessarily have reached the same factual
conclusions as the district judge. Rather, it determined
only that the district judge’s findings of fact were "not
clearly erroneous." App. 10a-13a.
Judge Widener, in a dissenting opinion, noted that
the majority’s view of collateral estoppel was inconsistent
with a Seventh Circuit decision on "exactly this issue" in
Hussein v. Oshkosh Motor Truck Co.. 816 F.2d 348 (7th
Cm 1987), and that it was "not consistent with" the
2 0
124
recent decision of this Court in Tull v. United States. 95
L.Ed.2d 365 (1987). App. 19a. He concluded that if the
appellate courts were powerless to correct the erroneous
denial of a jury trial merely because the judge involved
had issued a constitutionally tainted decision of his own
on the merits, "the Seventh Amendment means less today
than it did yesterday." ]d, A timely petition for
rehearing and suggestion for rehearing en banc were
denied with Judges Widener, Russell and Murnaghan
voting to rehear the case en banc. Id. at 22a-24a.
21
125
SUMMARY OF ARGUMENT
I. Throughout this nation’s history the right to
trial before a jury of one’s peers has held a revered
place in American jurisprudence. Hodges v. Easton, 120
U.S. 408 (1882). The jurisprudence of this Court has
recognized that juries bring to their evaluation of the
facts a perspective that is distinct from that of judges.
Sioux City & Pacific R.R. Co. v. Stout. 84 U.S. (17 Wall.)
657 (1874).
The Seventh Amendment preserved the right
to a jury in actions at law and therefore those brought to
enforce statutory rights. Curtis v, Loether, 415 U.S. 189
(1974). Thus, plaintiffs possess that right in actions
brought under section 1981, provided that, as here, a
proper demand has been made. Patterson v. McLean
Credit Union. 105 L.Ed.2d 132 (1989). Where legal
22
126
and equitable claims are joined in the same action, this
Court has held that the right to a jury trial on the legal
claims is not lost, and the jury claims are to be tried first,
absent compelling circumstances. Beacon Theatres. Inc,
v. Westover. 359 U.S. 500 (1959); Dairy Queen. Inc, v.
Wood. 369 U.S. 469 (1962).
II. When a district court flouts this rule, this
Court has consistently reversed the judgment below and
remanded for trial before a jury. This Court has never
sanctioned appellate review that proceeds as if the error
never happened. Granfinanciera S.A. v. Nordberg. 109
S.Ct. 2782 (1989); Tull v. United States. 481 U.S. 412
(1987); Meeker v. Ambassador Oil Corp.. 375 U.S. 160
(1963).
The court of appeals fundamentally misapplied this
Court’s decision in Parklane Hosiery Co. v. Shore. 439
U.S. 322 (1979). Parklane cannot be read, as did the
23
127
Fourth Circuit, to apply collateral estoppel to preclude
review on direct appeal of a Seventh Amendment
violation. Parklane applies by its terms, as do all
principles of preclusion, to subsequent proceedings rather
than to appellate review in a single proceeding. This
Court has never held that a district court may accomplish
by error what Beacon Theatres prohibits it from doing
purposefully.
III. A rule that an appellate court may not review
violations of the Seventh Amendment, so long as the
district court’s findings are not clearly erroneous, would
fail to serve the interest in judicial repose fostered by the
rules of preclusion. Instead, such a procedure would
increase the burden on appellate courts by requiring
parties to proceed by mandamus or take an interlocutory
appeal, whenever their constitutional right to a jury has
been violated. Lauro Lines S.R.L. v. Chasser, 109 S.Ct.
24
128
1976 (1989); Cohen v. Beneficial Industrial Loan Corp,.
337 U.S. 541 (1949).
ARGUMENT
I. THE DECISION BELOW DEPRIVED
PETITIONER OF HIS RIGHTS UNDER THE
SEVENTH AMENDMENT
A. The District Court Erroneously Deprived
Petitioner of His Right to a Jury Trial on His
§ 1981 Claims
The Court of Appeals correctly recognized that
petitioner’s complaint stated a claim under § 1981.
Johnson v. Railway Express Agency. 421 U.S. 454 (1975).
In fact, the complaint raised two distinct violations of §
1981.12 It alleged that respondent had fired petitioner on 12
12 In Patterson v. McLean Credit Union. 105 L.Ed.2d 132
(1989), this Court reaffirmed the application of § 1981 to private
conduct and held that § 1981 covered the making and enforcing of
employment contracts, although it did not cover racial harassment
occurring after the formation of the contract.
25
129
account of race, and it alleged that respondent had
retaliated against petitioner because petitioner had
pursued his rights under Title VII.
Petitioner was entitled to a jury trial of his § 1981
claims.13 As this Court noted in Curtis v. Loether, 415
U.S. 189 (1974), the "Seventh Amendment . . . applies]
to actions enforcing statutory rights, and requires a jury
trial upon demand, if the statute creates legal rights and
remedies enforceable in an action for damages in the
ordinary courts of law." Id. at 194.14 Applying that
principle, every court of appeals to have addressed the
issue has recognized that the Seventh Amendment
13 The fact that the district court denied respondent’s
summary judgment motion on petitioner’s Title VII claims because
it saw "a genuine issue as to material facts" regarding what in fact
happened, JA 23, strongly substantiates the conclusion that, had the
court not applied erroneous legal principles to petitioner’s § 1981
claims, petitioner would have been entitled to present the facts
underlying those claims at trial.
14 See also, Patterson v. McLean Credit Union. 105
L.Ed.2d 132, 156 (1989) (addressing jury instruction issue).
26
130
applies to § 1981 actions when the jury demand has been
properly preserved.15 That conclusion is further
buttressed by this Court’s holding that cases under the
Reconstruction Civil Rights Acts resemble traditional tort
actions (which lie within the core of the Seventh
Amendment), and thus that the state statutes of
limitations to "borrow" in § 1981 cases are those used in
tort cases. See, e.g.. Hardin v. Straub. 109 S.Ct. 1998,
2000 (1989); Owens v. Okure. 109 S.Ct. 573 (1989);
Goodman v. Lukens Steel Co.. 107 S.Ct. 2617 (1987);
Wilson v. Garcia. 471 U.S. 261 (1985).
It is undisputed in this case that Lytle made a timely
request for a jury trial pursuant to Fed. R. Civ. P. 38,
15 See, e.g., Moore v. Sun Oil Co.. 636 F.2d 154 (6th Cir.
1980) ; North v. Madison Area Ass'n for Retarded Citizens. 844 F.2d
401 (7th Cir. 1988); Setser v. Novack. 638 F.2d 1137, 1147 (8th Cir.
1981) : Williams v. Owens-Illinois. Inc.. 665 F.2d 918, 929 (9th Cir.),
gert, denied. 459 U.S. 971 (1982) ; Skinner v. Total Petroleum. 859
F.2d 1439 (10th Cir. 1988); Lincoln v. Board of Regents. 697 F.2d
928, 935 (11th Cir. 1983).
27
131
and that he never waived that demand. In fact, he
continued to object to the denial of his Seventh
Amendment rights even after trial was underway. Thus,
the district court erred by "substituting] itself for the jury
and, passing upon the effect of the evidence, finding] the
facts involved in the issue and rendering] judgment
thereon." Bavlis v. Travelers’ Ins. Co.. 113 U.S. 316, 321
(1885).
B. Petitioner Was Denied the Benefit of the
Fundamental Values Protected bv the Seventh
Amendment Right to Trial by Jury
The Seventh Amendment provides in pertinent part
that "[i]n suits at common law, where the value in
controversy shall exceed $20, the right of the trial by jury
shall be preserved . . . ." That entitlement holds a
special, privileged position in American jurisprudence as
a "basic and fundamental" right to be jealously guarded.
28
132
Jacob v. City of New York. 315 U.S. 752 (1942); Bavlis v.
Travelers’ Ins. Co., supra: Hodges v. Easton. 106 U.S.
(16 Otto) 408 (1882).
This Court has long, recognized the critical function
juries perform:
[I]t is a matter of judgment and discretion, of
sound inference, what is the deduction to be
drawn from the undisputed facts . . . . It is this
class of cases and those akin to it that the law
commits to the decision of a jury. Twelve men of
the average of the community, comprising men
of education and men of little education, men of
learning and men whose learning consists only in
what they have themselves seen and heard, the
merchant, the mechanic, the farmer, the laborer;
these sit together, consult, apply their separate
experience of the affairs of life to the facts
proven, and draw a unanimous conclusion. This
average judgment thus given it is the great effort
of the law to obtain. It is assumed that twelve
men know more of the more common affairs of
life than does one man, that they can draw wiser
and safer conclusions from admitted facts thus
occurring than can a single judge.
Sioux City & Pacific R.R. Co. v. Stout. 84 U.S. (17 Wall.)
657, 664-64 (1874). It is precisely because the system of
29
133
adjudication benefits so strongly from "the infusion of the
earthy common sense of a jury," United States v. One
1976 Mercedes Benz 208 S, 618 F.2d 453, 469 (7th Cir.
1980), that the Court and Congress16 have repeatedly
insisted, in both civil and criminal cases, that juries be
drawn from the widest possible section of the community.
See; e.g.. Taylor v. Louisiana. 419 U.S. 522 (1975);
Duncan v. Louisiana. 391 U.S. 145 (1968); Thiel v.
Southern Pacific Co.. 328 U.S. 217 (1945). As Chief
Justice Rehnquist noted in his dissent in Parklane
Hosiery Co. v. Shore. 439 U.S. 322, 344 (1979), "juries
represent the layman’s common sense, the ’passional
elements in our nature,’ and thus keep the administration
of law in accord with the wishes and feelings of the
16 28 U.S.C. § 1861 et seq. (Jury System Improvements
Act of 1978).
30
134
community. O. Holmes, Collected Legal Papers 237
(1920)."
The right to litigate claims under § 1981 before a
jury can be especially important. When a plaintiffs claim
rests on the assertion that a facially neutral action was
undertaken for invidious racial purposes, the factfinder’s
assessment will often depend on "a sensitive inquiry into
such circumstantial, and direct evidence of intent as may
be available." Arlington Heights v. Metropolitan Housing
Corp.. 429 U.S. 252, 266 (1977). The factfinder will
often be called upon to draw on his or her experience in
the real world in assessing the plausibility of conflicting
testimony,17 and making inferential judgments.18 The
17 Aetna Life Ins. Co. v. Ward. 140 U.S. 76, 88 (1891); Ellis
v. Union Pac. R.R. Co.. 329 U.S. 649, 653 (1947). See, also,
Schnapper, Judges Against Juries -- Appellate Review of Federal
Jury Verdicts. 1989 Wis.L.Rev. 237, 265-67.
18 Tennant v. Peoria & Pekin Union Rv. Co.. 321 U.S. 29,
34-35 (1944) ("It is the jury, not the court, which . . . weighs the
contradictory evidence and inferences . . . and draws the ultimate
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135
perspectives of lay people, of different racial and ethnic
backgrounds, both male and female, many of whom are
likely to have had employment histories similar to a
plaintiff, are bound often to result in juries reaching
conclusions "that a judge either could not or would not
reach." Parklane Hosiery Co. v. Shore, 439 U.S. at 344
(Rehnquist, J., dissenting). That a factual "dispute
relates to an element of a prima facie case under
McDonneli-Douglas . . . does not make it any less a
matter for resolution by the jury." Estes v. Dick Smith
Ford. Inc.. 856 F.2d 1097, 1101 (8th Cir. 1988).
The instant case, involving straightforward claims but
conclusion as to the facts. The veTy essence of its function is to
select from among conflicting inferences and conclusions that which
it considers most reasonable."); Standard Oil Co, v. Brown 218 U.S.
78, 86 (1910) ("[Wjhal the facts were . . . and what conclusions were
to be drawn from them were for the jury and cannot be reviewed
here,"); Hvde v. Booraem & Co.. 41 U.S. (16 Pet.) 232, 236 (1842)
("We have no authority, as an appellate court, upon a writ of error,
to revise the evidence in the court below, in order to ascertain
whether the judge rightly interpreted the evidence or drew right
conclusions from it. That is the proper province of the jury . , . .’).
Schnapper, n. 17, at 277-83.
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136
conflicting evidence, is precisely the sort of litigation
where a judge and jury might well have reached
diametrically opposite conclusions.19 A jury of
laypersons, who resided in North Carolina and who
worked in a similar setting, might well have concluded,
for example, that Lytle was justified in believing that he
did not have to call in on Saturday, because both Friday
and Saturday were excused.20 Had Miller testified, a jury
might well have decided that his treatment of Lytle was
not free from racial motives, based on credibility
determinations, inferences from the evidence that racial
discrimination had entered into Lytle’s hiring (supra, p.7),
19 Lytle’s testimony of the events is all that was before the
district, since the trial judge’s Rule 41(b) dismissal truncated the
proof. While it may be presumed that Miller would have disputed
some of this testimony, he has never testified as to his version of
the events of August 11, 1983.
20 The trial judge agreed that such a conclusion would be
a "reasonable interpretation of the evidence." Tr. 252-53. Moreover,
the district court found that at least one of the days in question was
excused. See n. 6, supra.
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137
or the fact that white employees were treated differently.
Similarly, with regard to Lytle’s claim of retaliation, a
jury might well have concluded, not that the glowing
letter of reference for Carpenter was inadvertent21 but,
that no such reference was given to Lytle because he had
taken action to redress an alleged violation of his
federally granted rights.
II. THE DENIAL OF SEVENTH AMENDMENT
RIGHTS IS SUBJECT TO REVERSAL PER SE
ON DIRECT APPEAL
A. This Court Has Always Treated Seventh
Amendment Violations as Reversible Per Se
This Court has long recognized that "the claims of
the citizen on the protection of this court [and, since the
21 Joe Carpenter was fired for falsification of timesheets. ,
Tr. 214-25. Carpenter, a white machinist who was the only
Schwitzer employee other than Lytle fired in 1983, PX 19. Thus,
although Lane Simpson, Schwitzer’s manager of human resources
testified on direct examination' that he confused Carpenter with
somebody else, a jury might have rejected this assertion based on
that fact as well as on statements he made during cross examination.
See, Tr. 271-274.
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138
development of the courts of appeals, on those courts as
well] are particularly strong" when a litigant has been
denied his Seventh Amendment rights. Bank of
Columbia v. Okelv. 17 U.S. (4 Wheat.) 235, 240 (1819).
Thus, the Court has repeatedly and consistently redressed
Seventh Amendment violations by directing that the
issues improperly heard by a judge be retried before a
jury. This Court has never excused the Seventh
Amendment violation by holding that the judge’s
intervening factual findings pretermit presentation of a
litigant’s case to a jury. See, e.g.. Pernell v. Southall
Realty. 416 U.S. 263 (1974); Curtis v. Loether. 415 U.S.
189 (1974); Meeker v. Ambassador Oil Corp., 375 U.S.
160 (1963); Schoenthal v. Irving Trust Co.. 287 U.S. 92
(1932); Scott v. Neelv. 140 U.S. 358, 360 (1891); Buzard
v. Houston. 119 U.S. 451, 454 (1886); Bavlis v. Travelers’
Insurance Co.. 113 U.S. 316 (1885); Killian v.
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139
Ebbinghaus. 110 U.S. 246, 248-249 (1884); Webster v.
Reid, 52 U.S. 437 (1850); Lewis v. Cocks, 90 U.S. 70, 71
(1874); Hodges v. Easton, 106 U.S. 408 (1882).22
As recently as last Term, this Court once again
applied this longstanding rule. In Granfinanciera S.A. v.
Nordberg, 109 S.Ct. 2782 (1989), the bankruptcy court
denied the petitioners’ request for a trial by jury,
conducted a bench trial, and entered findings and a
judgment against the petitioners, h i at 2787. The
district court and court of appeals affirmed the
22 Other than the Fourth Circuit, all courts of appeals to
have addressed this question have also treated Seventh Amendmcni
violations as reversible per se. See, e.g.. Marshak v. Tonetti, 813
F.2d 13 (1st Cir. 1987); Amoco Oil Co. v. Torcomian, 722 F.2d 1099
(3d Cir. 1983); EEOC v. Corrv Jamestown Corn.. 719 F.2d 1219 (3d
Cir. 1983); Lewis v, Thigpen. 767 F.2d 252 (5th Cir. 1985); Matter
of Merrill. 594 F.2d 1064 (5th Cir. 1979); Hildebrand v. Bd. of
Trustees of Michigan State Univ.. 607 F.2d 705 (6th Cir. 1979);
United States v. One 1976 Mercedes Benz. 618 F.2d 453 (7th Cir.
1980) ; Bibbs v. Jim Lynch Cadillac. Inc„ 653 F.2d 316 (8th Cir.
1981) ; Davis & Cox v. Summa Corn.. 751 F.2d 1507 (9th Cir. 1985);
Palmer v. United States. 652 F.2d 893 (9th Cir. 1981); United Slates
v. State of New Mexico. 642 F.2d 397 (10th Cir. 1981); Hall v.
Sharpe. 812 F.2d 644 (11th Cir. 1987); Sibley v. Fulton DeKalb
Collection Service. 677 F.2d 830 (11th Cir. 1982).
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140
bankruptcy judge’s findings.
This Court concluded that the petitioners had been
denied their rights under the Seventh Amendment. Id.
at 2789-2800. Having reached that conclusion, the Court
held that "the Seventh Amendment entitles petitioners to
the jury trial they requested," id. at 2802, reversed the
judgment of the court of appeals, and remanded for
further proceedings, presumably including the jury trial
petitioners had wrongly been denied. Notably, this Court
accorded no weight whatsoever to the bankruptcy court’s
factual findings. Nor, of course, did it direct the court of
appeals to review those improperly entered findings for
correctness. In short, unlike the Fourth Circuit in Lytle’s
case, this Court in Granfinanciera did not hold that
petitioner’s Seventh Amendment claims were precluded
by the decision in the bench trial.
This Court took the same approach in Tull v. United
37
141
States. 481 U.S. 412 (1987). In that case, the district
court denied Tull’s timely demand for a jury trial in a
suit seeking civil penalties under the Clean Water Act,
conducted a 15-day bench trial, entered findings against
Tull, and imposed substantial fines. ]d, at 415. This
Court concluded that Tull had "a constitutional right to a
jury trial to determine his liability on the legal claims," id.
at 425, and remanded for him to be afforded a trial by
jury, id. at 427. Again, in direct contrast to the approach
used by the Fourth Circuit in Lytle’s case, this Court in
Tull afforded no weight whatsoever to the factual
findings entered after the bench trial.23
23 Of particular salience, Tull also involved issues which were
properly assigned to the judge rather than the jury. See 481 U.S. at
425-27 (size of civil fine). But this Court did not find that the
judge’s proper participation in the last stage of the proceeding
immunized his erroneous appropriation of the jury’s role, even
though, in adjudicating the penalty, the judge necessarily revisited
many of the factual issues involved in the finding of liability.
Similarly, the fact that the judge in this case was the
appropriate factfinder on Lytle’s Title VII claims should not
immunize his unwarranted appropriation of the jury’s role in
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142
Of this Court’s earlier cases, Meeker Oil v.
Ambassador Oil Corp.. 375 U.S. 160 (1963) (per curiam),
represents a particularly decisive rejection of the Fourth
Circuit’s position. In Beacon Theatres. Inc, v. Westover.
359 U.S. 500 (1959), a case which came before this Court
on a petition for a writ of mandamus, the Court held
that when the pleadings raise both legal and equitable
issues, and a jury trial has been timely requested, the
legal claims must be tried first before a jury, lest a
premature non-jury decision on the equitable claims
preclude a jury trial on those legal issues. Id. at 508-11.
In Meeker, the trial judge, in violation of Beacon
Theatres, decided the equitable claims first, and then
relied on his own decision in favor of defendants to deny
plaintiffs a jury trial, or any other relief, on their legal
claims. The Tenth Circuit affirmed. 308 F.2d 875 (10th
determining Lytle’s § 1981 claims.
39
143
Cir. 1962). The petition for certiorari in Meeker
challenged "[t]he error of the Court of Appeals in
holding that the petitioners were in any way estopped or
prohibited from contesting" their legal claims.24 This
Court granted certiorari, and after briefing and argument
reversed the Tenth Circuit per curiam, citing Beacon
Theatres and Dairy Queen. Inc, v. Wood. 369 U.S. 469
(1962).
In all significant respects, the present case is Meeker.
Here, too, the court of appeals has relied on the district
court’s findings on a plaintiffs equitable claims to justify
not presenting legal claims raised in the same action to
the jury. The fact that the district court here dismissed
Lytle’s legal claims before the bench trial, rather than
simply holding them in abeyance pending the outcome of
24 Petition for Writ of Certiorari, October Term 1963, No.
46, p. 5.
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144
the bench trial, does not alter the conclusion that the
district court’s errors denied the plaintiff his Seventh
Amendment rights and must be reversed.
B. A Violation of the Seventh Amendment. Like
Other Errors Which Result in the Wrong
Entity Finding the Facts. Is Subject To
Reversal Per Se
This Court has repeatedly held that when "the wrong
entity" has conducted a trial over the objection of a
litigant, reversal is the required appellate response
"regardless of how overwhelming] the evidence . . .
Rose v. Clark. 478 U.S. 570, 578 (1986) (judge cannot
direct verdict for conviction). This principle lies at the
heart of the Court’s decision last Term in Lauro Lines
S.R.L, v. Chasser. 109 S.Ct. 1976 (1989). In Chasser.
respondent sued petitioner in the Southern District of
New York, over petitioner’s objection that a forum-
selection clause on respondent’s ticket required all suits
41
145
to be brought in Naples, Italy. The Court held that the
denial of petitioner’s motion to dismiss on the basis of
the forum-selection clause was not immediately
appealable. It stated that "[petitioner's claim that it may
be sued only in Naples, while not perfectly secured by
appeal is adequately vindicable at that stage -- surely as
effectively vindicable as a claim that the trial court lacked
personal jurisdiction over the defendant . . . ." Id. at
1979. The clear import of the Court’s analysis is that, if
the forum-selection clause was violated, any verdict
obtained in the Southern District will have to be set
aside, regardless of whether the evidence would support
it, because such a verdict will have been obtained from a
factfinder not entitled to adjudicate the claims presented.
The perspective underlying Chasser is reflected in a
wide array of cases in this Court which have rejected the
assumption that the participation of an incorrect
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145
factfinder is irrelevant if a proper factfinder could have
reached the same result.25 Cf.. e.p.. Gomez v. United
States. 109 S.Ct. 2237 (1989) (when magistrate, rather
than judge, presided over jury selection, reversal per se is
required regardless of overwhelming evidence of guilt to
support jury verdict); Lilieberg v. Health Services
Acquisition Corp.. 108 S.Ct. 2194, 2206 n. 16 (1988)
(when judge should have recused himself under 28 U.S.C.
§ 455, new trial was required even though court of
appeals held that his findings of fact had not been clearly
erroneous); Aetna Life Ins. Co. v. Lavoie. 475 U.S. 813,
825-28 (1986) (when judge should have disqualified
25 In any event, the clearly erroneous standard of Rule 52(a)
applied by the court of appeals, see App. 10a-13a, simply cannot be
appropriate to this kind of case. The Fourth Circuit did not decide
that a jury could not or would not have found for Lytle. AH its
Rule 52(a) analysis determined was that a jury was not required as
ajnatter of law to have done so, and thus that the judge’s findings
for the defendant were not wholly unsupportable. This Court has
never held, in the case of a constitutional violation, that the
appropriate standard of review is sufficiency of the evidence.
43
147
himself, reversal was required without regard to whether
court would have decided the same way in the absence
of the judge); Thiel v. Southern Pacific Co., 328 U.S. 217,
225 (1946) (verdict of jury selected from venire from
which daily wage earners had improperly been excluded
had to be set aside regardless of whether plaintiff was in
any way prejudiced by its decision); Stevens v, Nichols,
130 U.S. 230 (1889) (where matter was improperly
removed from state to federal court the latter’s judgment
after trial would be reversed for trial by state court);
Flemming v. Nestor. 363 U.S. 603, 606-607 (1960) (where
a statute mandates a three-judge court, judgment entered
by a single judge must be reversed and remanded for
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148
trial before a three-judge court, and consideration of the
merits is precluded).
ED. THE COURTS BELOW ERRED IN APPLYING
PRINCIPLES OF COLLATERAL ESTOPPEL TO
THIS CASE
The linchpin of the Fourth Circuit’s analysis was its
fundamentally flawed reading of this Court’s opinion in
Parklane Hosiery Co. v. Shore. 439 U.S. 322 (1979). Not
only did the court of appeals misread Parklane Hosiery,
but its interpretation would in fact fail to serve the
interests in judicial economy embodied in the doctrine of
collateral estoppel.26
The Fourth Circuit declined to apply the collateral
estoppel rule, announced in Ritter v, Mount St. Mary’s College. 814
F.2d 986 (4th Cir. 1987), cert, denied. 108 S. Ct. (1987), and
followed by the panel in the instant case, in Swentek v. USAir. 830
F.2d 552, 559 (4th Cir. 1987). See also, Keller v. Prince George's
County, 827 F.2d 952 (4th Cir. 1987) (applying the traditional rule
that jury trial claims may be reviewed despite an intervening decision
on the issues by a trial judge, but without referring to Ritter). But
ch Dwyer v. Smith. 867 F.2d 184, 192 (4th Cir. 1989) (noting
inconsistency both within and without circuit, but holding that Ritter
45
149
A. Parklane Hosiery Does Not Apply to this
Case
The question presented in Parklane Hosiery was
"whether a party who has had issues of fact adjudicated
adversely to it in an equitable action may be collaterally
estopped from relitigating the same issues before a jury
in a subsequent legal action brought against it by a new
party." 439 U.S. at 324 (emphasis added). Parklane
Hosiery Company was the defendant in two lawsuits: the
first, an equitable action by the SEC; the second, a
damages action by its stockholders. The question was
whether the findings entered in the SEC’s non-jury trial,* 27
preclusion rule is binding in the circuit).
27 In concluding that collateral estoppel was permitted (not,
contrary to the Fourth. Circuit’s rule in this case, that it was
required, see 439 U.S. at 331), the Court expressly noted that "[t]he
petitioners did not have a right to a jury trial in the equitable
injunctive action brought by the SEC." 439 U.S. at 338 n. 24. Thus,
Parklane Hosiery rests on the premise that the first proceeding was
decided in a proper forum. Cf. Pennover v. Neff. 95 U.S. (5 Otto)
46
150
and affirmed on appeal, id. at 325, could bind Parklane
Hosiery in the later damages action. The Court
answered that question in the affirmative.
Parklane Hosiery clearly says nothing about whether
the denial of the right to trial by jury is reviewable on
direct appeal. Thus, Parklane Hosiery in no way
undermines the force of the Meeker-Tull-Granfinanciera
line of cases. Indeed, application of collateral estoppel
presumes "litigation [which] proceeds through preliminary
stages, generally matures at trial, and produces a
judgment, to which, after appeal, the binding finality of
res judicata and collateral estoppel will attach." Arizona
y. California. 460 U.S. 605, 619 (1983) (emphasis added).
As courts and commentators have recognized, there is a
vast "difference between correction of procedural errors
714 (1877) (when a prior judgment was obtained in an improper
forum, collateral estoppel is inappropriate).
47
151
on appeal in a single lawsuit and the refusal to inquire
into possible errors when a prior judgment is offered to
support preclusion." 18 Wright, Miller & Cooper,
Federal Practice and Procedure § 4418 (1989 Supp.) at
104 (footnote omitted); see Roebuck v. Drexel
University. 852 F.2d 715, 738 (3d Cir. 1988); Volk v.
Colei, 845 F.2d 1422, 1437 (7th Cir. 1988) (same); Wade
v. Orange County Sheriffs Office. 844 F.2d 951, 954-55
(2d Cir. 1988); Hussein v. Oshkosh Motor Truck Co.. 816
F.2d 348 (7th Cir. 1987) (same); Bouchet v. National
Urban League. 730 F.2d 799 (D.C.Cir. 1984) (same).
See also, Williams v. Cerberonics, Inc.. 871 F.2d 452, 463
(4th Cir. 1989) (Phillips, J., dissenting).28
28 The appellant in Bouchet argued that the district judge
had improperly dismissed her legal claims, and then resolved against
her the similar issues raised by her equitable claims. Writing for the
panel in that case, then-Judge Scalia explained that not only was the
appellant entitled to a jury trial on her legal claims but the
erroneous denial of her
law claims and the consequent denial of her demand for
jury trial would infect the disposition of her [equitable]
48
152
Thus, as the Seventh Circuit noted in Hussein, a case
whose procedural posture was identical to that of the
present case:
We believe that the present case presents
a substantially different situation than that before
the Supreme Court in Parklane. Here, there is
no earlier valid judgment . . . .
It is hardly "needless litigation" to reverse
a judgment on the ground that the plaintiff was
denied his right to a jury trial through no fault
of his own solely because of the error of the trial
court. It is inappropriate to apply collateral
estoppel to preclude review of an issue on which
the appellant could not have previously sought
r e v ie w ............... The burden on judicial
administration is no more than in other
situations in which legal error is committed and
claim as well, since most if not all of its elements would
have been presented to the wrong trier of fact. Not only
would a jury trial on her tort claims be required, but the
[equitable] judgment - even if otherwise valid - would
have to be vacated, and the whole case retried, giving
preclusive effect to all findings of fact by the jury.
730 F.2d at 803-04.
The Fourth Circuit has expressly rejected then-Judge Scalia’s
reasoning: "The Bouchet proposition is . . . set forth without
reference to Parklane. despite the clear relevance of that case to the
issues presented. We find th[is] lower court opinio[n] unpersuasive
----- " Ritter. 814 F.2d at 991.
49
153
a retrial is required . . . . We cannot sanction
an application of collateral estoppel which would
permit findings made by a court . . . to bar
further litigation of a legal issue . . . when those
findings were made only because the district
court erroneously dismissed the plaintiffs legal
claim. To permit such an application would
allow the district court to accomplish by error
what Beacon Theatres otherwise prohibits it
from doing.
816 F.2d at 355-57.
Under the Fourth Circuit’s approach, the narrow
Katchen exception29 would swallow up the broad Meeker
Oil-Beacon Theatres-Dairv Queen rule. Faced with cases
raising both legal and equitable claims, it would be the
rare judge indeed who would not try the equitable claims
first. Conducting the bench trial first would avoid the
expenses and delays associated with jury trials. It would
obviate the need for the kind of evidentiary rulings and
29 In Katchen v. Landv. 382 U.S. 323 (1966), the Court
held that the Seventh Amendment is not violated by limiting trial to
the court in a specialized bankruptcy scheme.
50
154
instructions that attend jury trials. And it would save the
judge from facing the vast majority of post-trial motions
for a judgment n.o.v. or for a new trial. Moreover, the
preclusion afforded those bench rulings means that a trial
court faces no costs in denying the right to a jury: even
if the Seventh Amendment right was violated, the trial
judge will not be required ever to conduct a jury trial.
In short, the Fourth Circuit has created a powerful
inducement for trial courts to violate the Seventh
Amendment.
The holding in Parklane Hosiery was clearly not
intended to create a perverse incentive for jower courts
to violate the Seventh Amendment. Indeed, the Court’s
approving citation of Beacon Theatres’ general prudential
rule and the discussion of the limited situations under
which that rule should not be followed, see 439 U.S. at
334-35 (discussing Katchen v. Landv. 382 U.S. 323
51
155
(1966)), show that Parklane Hosiery cannot be read to
eliminate Seventh Amendment rights whenever bench
trials have occurred.
B. The Fourth Circuit’s Approach Would in Fact
Undermine the Interest in Judicial Economy
that the Doctrine of Collateral Estoppel Is
Intended to Serve
The Seventh Amendment clearly is not a provision
whose violation can be rendered harmless in the normal
course of events by subsequent proceedings. Cf. Midland
Asphalt Corp. v. United States. 109 S.Ct. 1494 (1989).
Thus, the Fourth Circuit’s rule cannot be read to bar aH
appellate review of Seventh Amendment claims. But if
review of final judgments is barred, then appellate review
must necessarily occur at some interlocutory phase of the
litigation -- either (1) through mandamus proceedings
prior to trial, see, e.g.. Gulfstream Aerospace v.
52
156
Mavacamus Corp., 109 S.Ct. 1133, 1143 n. 13 (1988) (an
"order that deprives a party of the right to trial by jury is
reversible by mandamus"); Beacon Theatres. Inc, v.
Westover, 359 U.S. 500, 510-11 (1959) (same), or (2)
through application of the collateral order doctrine of
Cohen v. Beneficial Industrial Loan Corp.. 337 U.S. 541
(1949).30
In either event, the result is the same: appellate
30 Until now, the collateral order doctrine has been held
inapplicable to denials of jury trials precisely because wrongful
denials of jury trials could be corrected on appeal. See Morgantown
v. Roval Insurance Co.. 337 U.S. 264 (1949); Western Elec. Co. v.
Milgro Electronic Corp. 573 F.2d 255, 256-57 (5th Cir. 1978)
(specifically tying that conclusion to the nonapplicability of collateral
estoppel when the Seventh Amendment had been violated).
But under the Fourth Circuit rule, denials of jury demands wil]
fall under the collateral order doctrine, since they will satisfy all
three prongs of the Cohen rule. See, e.g.. Lauro Lines, 109 S.Ct. at
1978 (setting out the three conditions); Coopers & Lvbrand v,
Livesav, 437 U.S. 463, 468 (1978) (same). First, such orders will
"conclusively determine the disputed question," idL, namely, whether
the litigant has the right to trial before a jury. Second, they will
"resolve an important issue completely separate from the merits of
the action," id., since who the factfinder should be is in no sense
equivalent to what the facts are. Finally, the very nature of the
Fourth Circuit rule is to hold such orders entirely "unreviewable on
appeal from final judgment." Id.
53
157
courts will continue to face claims of Seventh
Amendment violations. The primary effect of the Fourth
Circuit’s rule will be to require interlocutory appellate
review, and to prompt appeals in ah cases in which a
jury demand has been denied (and not only in cases
where the party demanding the jury subsequently loses at
the bench trial),31 since parties whose demands have
been denied will no longer be able to appeal that denial
as part of an appeal from a generally adverse final
31 The availability of collateral review or mandamus does not,
however, mean that an aggrieved party who elects not to utilize
those avenues of review, but instead awaits conclusion of the district
court proceedings, loses the right of review. 9 Wright, & Miller,
Federal Practice and Procedure: Civil § 2322 at p. 105 (1971). The
failure to take an immediate appeal of the denial of a Seventh
Amendment right has never been construed as a waiver of that
constitutional right. Rule 38, Fed. R. Civ. P., specifies what
constitutes waiver of the right: failure to make a timely demand.
And such waiver is not to be implied lightly. See, e.g., Aetna
Insurance Co. v. Kennedy. 301 U.S. 389, 393 (1937) ("the right of
jury trial is fundamental [and] courts [must] indulge every reasonable
presumption against waiver"); Hall v, Sharpe. 812 F.2d 644, 649
(11th Cir. 1987); Gargiulo v, Delsole. 769 F.2d 77, 79 (2d Cir. 1985)
("plaintiffs were not required to walk out of the courtroom rather
than proceed with the bench trial in order to preserve [their right of
appeal]").
54
158
judgment. Thus, the Fourth Circuit’s rule will have the
ironic consequence of increasing the burden on courts of
appeals.
In short, the Fourth Circuit’s rule does not even
serve the goals it purports to further. In light of the
tremendous costs it imposes on a fundamental
constitutional right, it is entirely unjustified.
CONCLUSION
For the foregoing reasons, the decision below should
be reversed.
Respectfully submitted,
JULIUS LEVONNE CHAMBERS
CHARLES STEPHEN RALSTON
RONALD L. ELLIS
ERIC SCHNAPPER
JUDITH REED*
NAACP Legal Defense and
Educational Fund, Inc.
99 Hudson Street
16th Floor
55
159
New York, New York 10013
(212) 219-1900
PENDA D. HAIR
NAACP Legal Defense and
Educational Fund, Inc.
Suite 301
1275 K Street, N.W.
Washington, D.C. 20005
(202) 682 1300
PAMELA S. KARLAN
University of Virginia
School of Law
Charlottesville, VA 22901
(804) 924-7810
Attorneys for Petitioner
* Counsel of Record
August, 1989
56
160
N o. 88-334
I n T he
gotpmuT ( ta r t nf luitrii §tatni
October Term, h >«8
J o h n S . L y t l e ,
Petitioner, v. ’
H o u s e h o l d M a n u f a c t u r i n g , I n c .,
d / b / a S c h w i t z e r T u r i i o c i i a u g e r s ,
________ Respondent.
On Petition for a Writ of Certiorari to the
United S ta les Court of Appeals
for the Fourth Circuit
RESPONDENT'S BRIEF
14. Lank, I jennakd, J r.*
OCLETKEE, U E A K IN S, N A S H ,
S m o a k a n ij S t e w a r t
3 8 0 0 O n e A t l a n t i c C e n t e r
4 2 0 1 W . P e a c h t r e e S t r e e t
Atlanta, ( I c n r g i a 3 0 3 0 9
( 4 0 4 ) 881 -101)0
A. Bruce t ’i.auke
C . M a t t h e w K e e n
O g l e t r k e , D e a r i n s , N a s h ,
Smoak a n d S t e w a r t
Post Cilice Box 31608
Raleigh, North Carolina 27622
(91.9) 787-0700
A ttorn ey s fo r R espon den t
* Counsel of Record
161
QUESTIONS PRESENTED
1. Whether Petitioner is precluded from maintaining a
cause of action for discriminatory termination and re
taliation under this Court’s holding in Patterson v. Mc
Lean Credit Union that 42 U.S.C. § 1981 does not en
compass conduct after the formation of an employment
contract?
2. Was the Court of Appeals correct in applying collat
eral estoppel to Petitioner’s § 1981 claims after a full
and fair hearing was held on his Title VII claims, the
elements of which are identical to those under § 19817
3. Does the Seventh Amendment require that Petitioner
receive a new jury trial on his § 1981 claims when he
failed to establish a prima facie case of discrimination
during the trial of his Title VII claims?
(i)
162
ii
Schwitzer Turbochargers is no longer a subsidiary of,
or affiliated with, Household Manufacturing, Inc. The
facility in question is now operated as Schwitzer U.S.
Inc., a wholly-owned subsidiary of Schwitzer Inc. Schwit
zer Inc. is a publicly-traded corporation.
L IST OF PARTIES
163
TABLE OF CONTENTS
Page
QUESTIONS P R E S E N T E D ...................................................... i
L I S T O F P A R T I E S ......................................................................................... H
TABLE OF A U T H O R IT IE S .................................................... iv
STATEM ENT OF TH E C A S E ................................................ 1
A . S u m m a r y o f t h e F a c t s ................................................................... 1
B . P e t i t i o n e r ’s E m p l o y m e n t R e c o r d .......................................... 2
C . T h e E v e n t s o f A u g u s t 1 1 -1 5 , 1 9 8 3 ..................................... 4
D . P o s t - D i s c h a r g e E m p l o y m e n t R e f e r e n c e s ........................ 6
E . S u m m a r y o f t h e P r o c e e d i n g s .................................................... 8
SUMMARY OF A RGUM EN T................................................. 9
A R G U M E N T
I. TH E FOURTH CIRCU IT’S JUDGM ENT
SHOULD BE A FFIR M ED ON TH E BASIS
OF THIS COURT’S DECISION IN P A T T E R
S O N v . M c L E A N C R E D I T U N I O N .......................... H
II. TH E SEV EN TH AM ENDM ENT DOES NOT
REQUIRE RETR IA L OF ISSUES ALREADY
DECIDED BY TH E DISTRICT C O U R T........... 19
I I I . DISM ISSAL OF TH E § 1981 CLAIMS HAD
NO E F FE C T ON TH E OUTCOME OF THIS
C A S E .................................................................................... 27
CONCLUSION................................................................................ 34
(iii)
164
TABLE OF A U TH O RITIES
Cases Page
A l l e n v . M c C u r r y , 449 U.S. 90 (1 9 8 0 )...................... 20
A r l i n g t o n H e i g h t s v . M e t r o p o l i t a n H o u s in g C o rp . ,
429 U.S. 252 (1 9 7 7 ).................................................... 33
A r m e o S t e e l C o r p . v . R e a l t y I n v e s t m e n t Co., 273
F.2d 483 (8th Cir. 1 9 6 0 )........................................... 29
A t w o o d v . P a c i f ic M a r i t i m e A s s o c ia t io n , 657 F.2d
1055 (9th Cir. 1981).................................................... 28
B a r f ie ld v . A . R .C . S e c u r i t y , Inc., ------ F. Supp.
■------ , 10 F E P Cases 789 (N.D. Ga. 1975)........... 19
B e a c o n T h e a tr e s , In c . v . W e s t o v e r , 359 U.S. 500
(1959) ...............................................................................p a s s i m
B lo n d e r - T o n g u e L a b o r a to r i e s , Inc. v . U n i v e r s i t y
o f I l l in o is F o u n d a t io n , 402 U.S. 313 (1971)........ 20
B lu m v . B a c o n , 457 U.S. 132 (1982) ........................ 12
B o i d e s v . U n i t e d S t a t e s A r m y C o r p s o f E n g in e e r s ,
841 F.2d 112 (5th C ir.), c e r t , d en ie d , 109 S. Ct.
33 (1 9 8 8 )................................... 28
B r a d y v . S o u t h e r n R a i l r o a d , 320 U.S. 476 (1943).. 29
B r o o m s v . R e g a l T u b e Co., 881 F.2d 412 (7th Cir.
1989) ................................................................................. 13
C a n in o v . E E O C , 707 F.2d 468 (11th Cir. 1983).... 33
C la r k v . C o m m u n i t y f o r C r e a t i v e N o n v io le n c e , 468
U.S. 288 (1 9 8 4 )............................................................. 21
C o p p e r id g e v . T e r m i n a l F r e i g h t H a n d l in g Co.,
------ F. Supp. ------ , 50 F E P Cases 812 (W.D.
Term. 1989).................................................................... 16
C u r t i s v . L o e t h e r , 415 U.S. 189 (1974)..................... 23
D a n g e r f ie ld v . M is s io n P r e s s , ------ F. S u p p .--------,
50 F E P Cases 1171 (N.D. 111. 1 9 8 9 ).................... 17
D w y e r v . S m i t h , 867 F.2d 184 (4th Cir. 1989)...... 25
E i c h m a n v . I n d ia n a S t a t e U n i v e r s i t y B o a r d o f
T r u s t e e s , 597 F.2d 1104 (7th Cir. 1979).............. 18
G a l lo w a y v . U n i t e d S t a t e s , 319 U.S. 372, r e h e a r in g
d e n ie d , 320 U.S. 214 (1943).................................... 10,27
G a r c ia v . G loor , 618 F.2d 264 (5th Cir. 1980),
c e r t , d e n ie d , 449 U.S. 1113 (1 9 8 1 )......................... 29
G e n e r a l B ld g . C o n t r a c to r s A s s ’n v . P e n n s y l v a n ia ,
458 U.S. 375 (1982)..................................................... 30
iv
165
V
TABLE OF AUTHORITIES—Continued
Page
G il le sp ie v . F i r s t I n t e r s t a t e B a n k o f W is c o n s in
S o u th e a s t , 717 F. Supp. 649 (E.D. Wise. 1989).. 13
G off v . C o n t in e n ta l O il Co., 678 F.2d 593 (5th Cir.
1982) 19
G o m e z v . U n i t e d S ta t e s , ------ U.S. ------ , 104 L.
Ed. 2d 923 (1989)........................................................ 28
G o o d m a n v. L v k e n s S t e e l Co., 482 U.S. 656
(1 9 8 7 )............................................................................... 13,15
G ra n f in a n c ie ra v . N o r d b e r g , ------ U.S. ------ , 106
L. Ed. 2d 26 (1989)................ 23
G r a n t v. B e th le h e m S te e l C o rp . , ------ F. Supp.
------ , 22 F E P Cases 680 (S.D.N.Y. 1978)........ 19
G r e a t A m e r i c a n S av i? igs & L o a n A s s o c ia t io n v .
N o v o tn y , 442 U.S. 366 (1 9 7 9 )............................... 17,24
G r e g g s v . H i l lm a n D i s t r i b u t i n g C o . , ------ F. Supp.
------ , 50 F E P Cases 1173 (S.D.N.Y. 1989)........ 16
G ro ss v . S o u th e r n R y . Co., 446 F.2d 1057 (5th Cir.
1971) ................................................................................ 29
G ro sso s M u s ic v . M it lcen . Inc., 753 F.2d 117 (4th
Cir. 1981)........................................................................ 26
H a ll v. C o u n ty o f C ook , S t a t e o f I l l in o is , ------
F. Supp. ------ (N.D. HI. 1989) [1989 W estlaw
99802] .............................................................................. 16
H i l d e b r a n d v . B o a r d o f T r u s t e e s o f M ic h ig a n S t a t e
U n i v e r s i t y , 607 F.2d 705 (6th Cir. 1 9 7 9 )............ 28
H o iv a r d v . P a r i s ia n , 807 F.2d 1560 (11th Cir.
1987)................................................................................. 28
H u d s o n v . I B M , ------ F. Supp. ---------, 22 F E P
Cases 947 (S.D.N.Y. 1 9 7 5 )...................................... 18
H u s s e in v . O s h k o s h M o t o r T r u c k Co., 816 F.2d 348
(7th Cir. 1987)............................................................. 28
In r e N - 5 0 0 L C a ses , 691 F.2d 15 (1st Cir. 1982).... 27
In re P r o f e s s i o n a l A i r Traffic C o n tr o l l e r s O r g a n i
z a t i o n o f A m e r ic a , 724 F.2d 205 (D.C. Cir.
1984) ............................................................................... 28
I n d e p e n d e n t F e d e r a t io n o f F l ig h t A t t e n d a n t s v.
Z ip e s , ------ U.S. ------ , 105 L. Ed. 2d 639
(1989) .............................................................................. 25
I r b y v . S u l l iv a n , 737 F.2d 1418 (5th Cir. 1984).... 32
166
vi
J e a n v . N e ls o n , 472 U.S. 846 (1985).................. ........ 12
K a t c h e n v . L a n d y , 382 U.S. 323 (1 9 6 6 ).................... 20, 21
R e l i e f v . P r i n c e G e o r g e ’s C o u n ty , 827 F.2d 952
(4th Cir. 1 987)........... .................................................. 28
K i n g v . U n i t e d B e n e f i t F i r e I n s u r a n c e Co., 377
F.2d 728 (10th C ir.), c e r t , d e n ie d , 389 U.S. 857
(1967)............................................................................... 28
K i n g v . U n i v e r s i t y o f M in n e s o ta , 774 F.2d 224
(8th Cir. 1985), c e r t , d e n ie d , 475 U.S. 1095
(1 9 8 6 )............................................................................... 28
L a s k a r i s v . T h o r n b u r g , 733 F.2d 260 (3d C ir.),
c e r t , d e n ie d , 469 U.S. 886 (1 9 8 4 )............................. 11,27
L a u r o L in e s S .R .L . v . C h a s s e r , ------ U .S .------- , 104
L. Ed. 2d 548 (1989)............................................. 28
L e o n g v. H i l t o n H o te l s , Inc., ------ F. Supp. --------,
50 F E P Cases 733 (D. Haw aii 1989)..................... 13, 16
L i l j e b e r g v . H e a l th S e r v i c e s A c q u i s i t i o n C o rp . ,
486 U.S. 847 (1 9 8 8 )................................................... 28
M c D a n ie l v . T e m p le I n d e p e n d e n t S c h o o l D i s t r i c t ,
770 F.2d 1340 (5th Cir. 1 9 8 5 )................................ 81
M c D o n n e l l D o u g la s C o r p . v . G ree n , 411 U.S. 792
(1 9 7 3 )............................................................................... 29
M e e k e r v . A m b a s s a d o r O i l C o r p . , 375 U.S. 160
(1 9 6 3 )............................................................................... 24
M o o r e v . C i t y o f C h a r lo t t e , 754 F.2d 1100 (4th
C ir.), c e r t , d e n ie d , 472 U.S. 1021 (1 9 8 5 ).......29, 30, 31
M o r g a n v . K a n s a s C i t y A r e a T r a n s p o r t a t i o n A u
t h o r i t y , ------ F . Supp. ------ (W.D. Mo. 1989)
[1989 W estlaw 101802]............................................. 13
O v e r b y v . C h e v r o n U .S .A . , Inc . , 884 F.2d 470 (9th
Cir. 1 9 8 9 ) ....................................................... ............13, 17,18
P a d i l l a v . U n i t e d A i r L in e s , 716 F. Supp. 485
(D. Colo. 1 989)....... 16
P a r k la n e H o s i e r y v . S h o re , 439 U.S. 322 (1979) . . . .passim ,
P a t t e r s o n v . M c L e a n C r e d i t U n i o n , ------ U .S .------- ,
105 L. Ed. 2d 132 (1989)............................................p a s s i m
P e r n e l l v . S o u th a l l R e a l t y , 416 U.S. 363 (1974).... 23
P ic c ir i l lo v . N e w Y o r k , 400 U.S. 548 (1971)........... 11
TABLE OF AUTHORITIES—Continued
Page
167
R i t t e r v . M o u n t S a i n t M a r y ’s C o l leg e , 814 F.2d 986
(4th C ir.), c e r t , d en ie d , 484 U.S. 913 (1987).... 21, 22,
23,25
R o s e v . C la rk , 478 U.S. 570 (1986).............................. 28
S a l d i v a r v . C a d e n a , 622 F. Supp. 949 (W.D. Wise.
1 985)................................................................................. 17
S c h o e n th a l v . I r v i n g T r u s t Co., 287 U.S. 92
(1932)............................................................................... 23
S c h w e i k e r v . H o g a n , 457 U.S. 569 (1982)................ 12
S o f fe r in v . A m e r i c a n A i r l in e s , Inc., 717 F. Supp.
587 (N.D. 111. 1 9 8 9 ).................................................... 16
S p e c t o r M o t o r Co. v . M c L a u g h l in , 323 U.S. 101
(1944)............................................................................... 12
S u r e -T a n , Inc. v . N L R B , 467 U.S. 883 (1984)........ 12
T a k e a l l v . W E R D , Inc., ------ F. Supp. ------ , 23
F E P Cases 947 (M.D. Fla. 1 979)........................... 18
T i g h t s In c . v . S ta n l e y , 441 F.2d 336 (4th C ir.),
c e r t , d en ie d , 404 U.S. 852 (1971)........................... 26
T u ll v . U n i t e d S t a t e s , 481 U.S. 412 (1987).............. 23, 24
U n i te d S t a t e s v . G iv e n s , 767 F.2d 574 (9th C ir.),
c e r t , d en ie d , 474 U.S. 953 (1985).............................. 13
U n i te d S t a t e s v . N e w Y o r k T e le p h o n e Co., 434
U.S. 159 (1977) .......................................................... 12,27
U n i v e r s i t y o f T e n n e s s e e v . E l l i o t t , 478 U.S. 788
(1986)............................................................................... 20,25
V e r d e l l v . W ilso n , 602 F. Supp. 1427 (E.D. N.Y.
1985)................................................................................. 31
W a r r e n v . H a l s t e a d I n d u s t r i e s , ------ F. Supp.
------ , 33 F E P Cases 1416 (M.D.N.C. 1983)........ 17
W a s h in g to n v . Y a k i m a I n d ia n N a t io n , 439 U.S.
463 (1979)...................................................................... 12
W il l ia m s v . C e r b e r o n ic s , Inc . , 871 F.2d 452 (4th
Cir. 1989)......................................................................... 25
W il l ia m s v . N a t io n a l R a i l r o a d P a s s e n g e r C o rp . ,
716 F. Supp. 49 (D.D.C. 1989).................................. 17
S t a t u t e s a n d C o n s t i tu t io n a l P r o v i s io n s
29 U.S.C. § 2 0 6 d ................................................................. 21
vii
TABLE OF AUTHORITIES— Continued
Page
168
29 U.S.C. § 621 e t s e q ......................................................... 21
33U.S.C . § 1319.................................................................. 24
42 U.S.C. § 1981.................................................................. passim
42 U.S.C. § 2000e e t s c q .....................................................passim
U.S. Const, amend. V I I .....................................................passim
O th er A u t h o r i t i e s
Fed. R. Civ. P. 41 (b ) .......................................................8, 31, 32
Fed. R. Civ. P. 5 0 (a ) ...................................................29, 32, 33
Fed. R. Civ. P. 61................................. .............................. 27, 33
5A M oore’s Federal P ractice P arag rap h 50.02......... 29
7 Moore’s Federal P ractice P arag rap h 61.06............ 33
viii
TABLE OF AUTHORITIES—Continued
Page
169
I n T h e
î upmnp (Emtrt nf % Unttpli
O c t o b e r T e r m , 1989
No. 88-334
J o h n S . L y t l e ,
Petitioner,
S c h w i t z e r U .S . I n c .,
A S u b s i d i a r y o f S c h w i t z e r I n c .,
________ Respondent.
On Writ of Certiorari to the United States Court of Appeals
for the Fourth Circuit
BRIEF FOR RESPONDENT
STATEMENT OF THE CASE
John S. Lytle filed this action in December, 1984, un
der 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). Joint Appendix (J.A.) 4. Lytle claimed
he was discharged because of his race, and retaliated
against after his discharge because he filed a charge of
discrimination with the Equal Employment Opportunity
Commission (J.A. 4-14).
A. Summary of the Facts 1
Petitioner was a machinist at Schwitzer’s Arden,
North Carolina facility for over two and one-half years. 1
1 S in c e P e t i t i o n e r ’s d is c h a rg e c la im w as d ism isse d a f t e r h is ev i
dence, R e sp o n d e n t’s fu l l c a se on th is is su e is n o t a v a ila b le in th is
p ro c e e d in g . T h is s u m m a ry is n e c e s s a r ily l im ite d to c la im s p re
s e n te d b y th e P e t i t i o n e r a t t r ia l , to e x h ib i ts a n d to o th e r i te m s o f
re c o rd or p o in ts w h ich a r e n o t in d is p u te .
170
2
He had the ability to become a satisfactory machinist,
but refused to consistently apply himself and meet the
employer’s standards. As production demands grew at
the newly established plant, his productivity limitations
and avoidance of overtime assignments became serious
liabilities. Petitioner received several disciplinary warn
ings and performance evaluations critical of his produc
tivity and time wasting.
On August 11, 1983, Petitioner asked to be off work
August 12 as a vacation day. The request , was granted
on the condition that he work Saturday, August 13. Pe
titioner left work early and unannounced on August 11,
and did not report or call in on August 12 or 13. On
Monday, August 15, he was discharged for violating
Schwitzer’s unexcused absence policy. This case squarely
presents an employee discharge based upon the insub
ordinate violation of an essential company policy.
B. P etitio n er’s Em ploym ent Record
John S. Lytle applied for employment with Schwitzer
Turbochargers (then, a subsidiary of Household Manu
facturing, Inc.) on February 29, 1980. At that time,
Schwitzer’s new Arden, North Carolina facility had not
yet begun production, and was in the initial phases of
plant layout and procedures development. Lytle’s employ
ment application listed his prior experience as forklift
driving, quality control, press operation, mechanics, form
grinding, milling, and lathes. While Lytle had previously
worked with drills and some metal lathes used at Schwit
zer, most of his experience was with equipment Schwitzer
did not utilize.2 Transcript (Tr.) 84; Plaintiff’s Exhibit
(PX) 5.
2 L y tle ’s te s t im o n y c le a r ly e s ta b lish e d h e w a s e x p e rie n c e d in som e
face ts o f b a s ic m a c h in in g , b u t h a d n o t o p e ra te d th e e q u ip m e n t
S c h w itz e r u se d In i ts p ro c e sse s . See T r . 84 ( ” Q : A re th o se
m ach in es [o n y o u r e m p lo y m e n t a p p lic a t io n th e s a m e m a c h in e s ]
th a t a r e u se d o u t th e r e a t S c h w itz e r? A : N o. N o t b a s ic a lly . D ril ls
are, a n d so m e o f th e la th e s .” ) C o n tra r y to P e t i t i o n e r ’s b r ie f , th e r e
is no ev id e n c e t h a t le s s q u a lified a p p lic a n ts (w h i te o r b la c k ) w e re
171
3
Judith Boone, Schwitzer’s Human Resources Coun
selor, asked Lytle to attend a company-paid training
class a t the local technical college. At the end of this
class, lasting approximately two weeks, Lytle would be
evaluated for employment. Tr. 83. Most of the applicants
in this training class were hired, including Lytle. Tr.
160.
New Schwitzer employees were promoted as they
proved their ability to operate more complicated machines.
Tr. 89. Lytle admittedly received promotions to more
responsible and higher paying machinist positions “right
along with” others hired from the same training class.
His last position with Schwitzer was the highest paid
production job in the plant, Machine Operator IV. Tr. 87,
89. During most of Lytle’s employment at Schwitzer, his
supervisor was Larry Miller. Tr. 16.
Despite Lytle’s initial testimony that there were no
complaints about his job performance, Lytle ultimately
recalled that Larry Miller cautioned him several times
concerning deficient work habits. Tr. 164. For example,
on July 27, 1982, Miller issued a written warning to
Lytle encouraging him to use his time more efficiently
and spend less time away from the machines. Tr. 164,
166-67, Lytle’s annual evaluation, issued April 29,
1982, by supervisor Mike McCrary, stated: “John can
improve by accepting other assignments as a challenge,
not punishment. He also needs to stay on the job as
signed, and not leave it to talk to other employees, or go
to break early, etc.” Tr. 168-69; PX 6 (emphasis in
original). The evaluation also noted on page three that
Lytle “loses interest in tasks; enthusiasm fluctuates,” and
on page four that he “wastes a lot of time” (emphasis in
original). The January, 1983 performance evaluation,
prepared by Larry Miller, reiterated Lytle’s resistance
t r e a te d p re f e re n t ia l ly in th e h i r in g p ro cess . A t m o s t, P e t i t io n e r
m ad e a n u n s u p p o r te d a lle g a tio n a t t r i a l t h a t h e k n ew o f h ir e e s w ho
h e b e liev ed w e re le ss q u a lified . T r . 82.
172
4
to supervision by stating Lytle should accept assignments
“as a challenge and not as punishment; this would im
prove his initiative, relations with others, schedule con
sciousness and dependability.” Tr. 170; PX 7.
On August 3, 1983, Miller again warned Lytle that
he was spending too much time away from his machine
while it was in operation.3 Tr. 167. Despite this un
equivocal warning, Miller was forced to warn Lytle, the
very next day, that his production level must increase or
his job may be jeopardized. Tr. 166. These selected
warnings establish Miller’s efforts to focus Lytle’s atten
tion on his job and correct his consistently subpar pro
duction levels.4
C. The Events of August 11-15,1983
Respondent maintained written policies governing em
ployee absenteeism. PX 22; Tr. 17. The purpose of the
absence policy was to recognize, provide for and schedule
necessary personal absence, tardies and early departures.
PX 22, p. 1. Excessive excused absence, tardy, etc., was
defined as a total absence level which exceeded four per
cent of the total available working hours including over
time. Tr. 18. Excessive unexcused absence, tardy, etc.,
3 T h e u n c o n tro v e r te d ev id en c e , e s ta b lis h e d b y M ille r’s a ff id av it in
d e fe n d a n t’s M o tio n f o r S u m m a ry J u d g m e n t, w a s t h a t L y tle fa i le d
to r e p o r t t h a t h is m a c h in e w a s o u t o f o r d e r f o r f o u r h o u rs . M ille r
U rged L y tle to u se t im e m o re e ff ic ien tly in o r d e r to a v o id o v e r t im e
a s s ig n m e n t (D o c k e t E n t r y N o. 1 3 ) .
4 M ille r m e t w i th L y tle f o r th e sp ec ific p u rp o s e o f d is c u s s in g th is
poor p ro d u c tio n re c o rd . F o r ex am p le , L y tle ’s sch ed u led p ro d u c tio n
ra te in A u g u s t , 1983, w a s 513 b e a r in g h o u s in g s p e r w eek . D u r in g
th e f i r s t w e e k in A u g u s t, h e p ro d u c e d o n ly 408 p a r t s , o r 105 p a r t s
sh o r t o f th e go al. O n M o n d ay , A u g u s t 8, M ille r in fo rm e d L y tle
o v e rtim e w o u ld b e r e q u ir e d t h a t e n t i r e w eek to re d u c e th e b e a r in g
h o u sin g defic it. A n o v e r t im e n o tic e w a s p o s te d r e p e a t in g th i s
schedule . See d e f e n d a n t’s M o tio n f o r S u m m a ry J u d g m e n t (A ffid av it
of L a r r y M ille r) a n d A tta c h m e n t A th e r e to (D o c k e t E n t r i e s 11,
12, a n d 1 8 ) .
173
5
was defined as unexcused absence which exceeds eight
hours (or one work shift) in the preceding twelve
months. Tr. 17. Either type of excessive absence could
lead to termination. Tr. 19. Employees were also in
structed to phone the plant when an absence must occur.
Tr. 21-22.
On Thursday, August 11, 1983, Supervisor Miller posted
a notice in Lytle’s department requiring eight hours of
overtime on Saturday, August 13, for Lytle and four
other machinists, in addition to the overtime which had
previously been scheduled for that week. See n. 4, supra.1
That same day, Lytle asked Miller for a vacation day off
on Friday, August 12, and Miller agreed. Tr. 130. Later
in the day (pursuant to the previously posted overtime
schedule), Miller reminded Lytle of his obligation to
work Saturday. Tr. 131, Tr. 140-41. Lytle claimed at
trial that he explained he was going to the doctor Friday
(August 12) and was unfit to work Saturday (August
13). However, according to Lytle’s own workplace diary
and his own trial testimony, Miller clearly and consist
ently told Lytle he would have to select and work one of
the two days as a condition of receiving any time off.8
5 D e fe n d a n t’s M o tio n f o r S u m m a ry J u d g m e n t, A ffid av it o f L a r r y
M ille r, P a r a g r a p h 9. L y tle h a d w o rk e d o n ly 17 o f h is 28 sch ed u led
o v e r t im e h o u rs in th e p re v io u s th r e e w eek s, Id.., A ffid av it o f A1
D u q u en n e , P a r a g r a p h 15 (D o c k e t E n t r i e s N o. 12 a n d 1 3 ) .
8 P la in t i f f m a in ta in e d a d ia r y a t w o rk in w h ich th e A u g u s t 11,
1983, e n t r y r e a d s : “ A t 1 0 :3 0 I a sk e d L a r r y f o r a v a c a tio n d a y f o r
F r id a y , A u g u s t th e 1 2 th . H e s a id o k ay , b u t I w o u ld h a v e to w o rk
S a tu r d a y th e 1 3 th .” T r . 174. In a d d it io n , Lytle te s tif ie d a t t r ia l ,
r e g a r d in g th e c o n v e rs a tio n w ith M ille r on th e a f te rn o o n o f T h u r s
d ay , A u g u s t 1 1 :
A. I t w a s ro u g h ly tw o o ’clock, I w a s g o in g to g e t a too l— .
A . . . . a n d I e n c o u n te re d M r. M ille r. H e th e n a sk e d m e w h a t
w a s I g o in g to do a b o u t S a tu r d a y , a n d I a sk e d h im w h a t
174
6
Lytle admittedly left work 1.8 hours before completion
of his scheduled overtime hours on Thursday, August 11;
without telling Miller. Tr. 133, 172-73. He did not call
in or report to work Friday, August 12, and did not call
in or report to work on Saturday, August 13. Tr. 172-73.
Pursuant to company policy, Lytle was terminated on
Monday, August 15, 1983, for excessive unexcused ab
senteeism.
D. Post-Discharge Employment References
Eight days after his discharge, Lytle filed a charge of
discrimination with the Equal Employment Opportunity
Commission (EEOC) alleging race discrimination. PX
1; Tr. 146. He later applied for work with ABF Truck
ing, Thomas & Howard (Ingles Warehouse), Uniforce
Temporary Service, and Perfection Gear. Tr. 147-48, 179-
80. Each prospective employer requested and received a
reference from Schwitzer. Pursuant to Schwitzer’s estab
lished reference policy, only Lytle’s dates of employment
and job title were provided to prospective employers. Tr. * I
a b o u t S a tu r d a y . H e sa id , i f y o u ’r e off F r id a y , y o u h a v e to
w o rk S a tu r d a y .
I e x p la in e d to h im th e n t h a t I w a n te d F r id a y off to see
th e d o c to r , a n d I w o u ld n ’t b e ab le to w o rk S a tu r d a y b e c a u se
I w a s p h y s ic a lly u n fit. A n d a t t h a t t im e h e s t i l l s ta te d , w ell,
y o u ’re g o in g to h a v e to w o rk one o f th e d ay s . W ell, y o u ’ll
h a v e to w o rk S a tu r d a y . A n d I to ld h im I c o u ld n ’t, t h a t i f 1
h a d to I ’d g iv e h im a n o th e r v a c a t io n d ay , b e c a u se I d id h av e
th a t . B u t I d id m ak e k in d o f a jo k e t h a t i f I g a v e y o u a day ,
w h ic h I c o u ld n ’t w o rk , i f I g a v e y o u one o f m y v a c a tio n d ay s ,
w ell, y o u ’re g o in g to p a y m e t im e a n d a h a lf f o r t h a t v a c a
t io n day .
A t t h a t t im e , h e w a lk e d off, a n d I w e n t to th e to o l su p p ly
ro o m . . . ( T r . 1 3 1 -3 2 ) .
M ille r s t a te d in h is a ff id a v it s u p p o r t in g d e f e n d a n t’s M o tio n f o r
S u m m a ry J u d g m e n t t h a t L y tle w a s to ld to se le c t o n e o f th e tw o
days a s v a c a tio n , o r t h e r e q u e s t w o u ld b e d e n ie d as to both d ay s.
L ytle d id n o t g iv e a re a s o n f o r th e v a c a tio n r e q u e s t even th o u g h
M ille r a s k e d f o r a re a s o n ( P a r a g r a p h 10 -12 ; D o ck e t E n t r y N o . 1 8 ) .
175
7
64, 260-64. Both Uniforce and Perfection Gear hired
Lytle. Id.
The personnel director at Thomas & Howard testified
that Schwitzer’s reference included Lytle’s employment
dates and last job title held. See Tr. 112; Tr. 263. This
reference was similar to references that Thomas &
Howard had received in the past from other employers.
Tr. 115. Schwitzer did not provide any negative infor
mation concerning Lytle or his discharge. Tr. 115.
Thomas & Howard’s decision to reject Lytle’s application
was not based on information provided or withheld by
Schwitzer. Tr. 114-188. The branch manager of ABF
Freight Systems (ABF Trucking), Adrienne Finch, testi
fied that Lytle applied for work in late 1983. Tr. 100.
Finch forwarded Lytle’s application to the Fort Smith,
Arkansas headquarters where all hiring decisions are
made. Tr. 103-06. Finch had no personal knowledge of
the reference provided by Schwitzer to the Fort Smith
office. Tr. 105-06. Significantly, Schwitzer’s Human Re
source Counselor Boone provided ABF Freight with the
same neutral reference she had given prospective em
ployers of other terminated employees. Tr. 66, 261-62.T
Lytle began working at Perfection Gear as a tempo
rary employee provided by Uniforce Temporary Services
in October, 1984. Tr. 280. He became a permanent em
ployee of Perfection Gear in December, 1984. On May
24, 1985, Lytle exceeded the maximum number of per
missible absences under Perfection’s absenteeism policy.
Tr. 284. On that day, Lytle called Perfection Gear and
resigned. Tr. 284-85. 7
7 B o o n e’s u n c o n tra d ic te d te s t im o n y w a s t h a t sh e h a d a p o licy and
p ra c t ic e o f p ro v id in g th e sa m e n e u tr a l r e f e re n c e f o r a ll d is c h a rg e d
em ployees. A s ex am p le s , sh e c ite d H a ro ld M e sse n g e r , P a t D odge
a n d A rn o ld H en so n . E a c h o f th e s e f o r m e r em p lo y ees is w h i te and
n o n e h a d filed c h a rg e s w ith th e E E O C . T r . 264-65 , 267. A d d itio n a l
ex am p le s w e re a v a ila b le , b u t th e t r i a l ju d g e s u s ta in e d a n o b jec tio n
to f u r th e r te s tim o n y o n th i s is su e . T r . 267.
176
8
E. Sum m ary of the Proceedings
Petitioner’s action was tried before the court on Febru
ary 26-27, 1986. The court granted Schwitzer’s pre-trial
motion to dismiss all claims under 42 U.S.C. § 1981
because no independent factual basis was alleged to sup
port them, leaving Title VII as the exclusive remedy.
J.A. 56-57. At the close of Petitioner’s evidence, the court
granted a Rule 41(b) motion by Respondent as to the dis
charge claim. The court found by Lytle’s own evidence
that he violated the unexcused absence policy by 9.8 hours,
which was not comparable to a white employee’s six min
ute violation.8 Thus, the Court concluded, as a matter of
law, that Petitioner had not presented a prima facie case
to the court. J.A. 58-60. After Respondent’s evidence re
garding retaliation, the court granted a Rule 41(b) mo
tion and dismissed the action.
The Fourth Circuit Court of Appeals affirmed the dis
trict court in an unpublished opinion on October 20, 1987.
While the court found that the trial court erred in dis
missing Lytle’s § 1981 claims prior to trial, the court
concluded that remand was unnecessary because the dis
trict court’s Title VII findings were entitled to collateral
estoppel effect and would prevent the relitigation of these
findings under a “legal” theory arising out of the same
facts. Rehearing was denied April 27, 1987. The petition
for a writ of certiorari was filed August 23, 1988, and
granted July 3, 1989.
8 P e t i t i o n e r ’s b r i e f a s s e r t s t h a t th e t r i a l c o u r t fo u n d t h a t L y tle
had a to ta l o f 9.8 h o u r s u n e x c u se d ab sen ce . See P e t. B r . a t 11
n. 6 a n d 83 n. 20. In f a c t , h o w e v e r, th e c o u r t fo u n d t h a t L y tle ’s
own ev id en c e e s ta b lis h e d th a t h e h a d 9.8 h o u rs o f "excess u n ex cu sed
absence” (J .A . 5 9 ; e m p h a s is a d d e d ) — i.e., 9.8 h o u rs in ex cess o f
the 8 h o u r s a llo w ed u n d e r S c h w itz e r ’s u n e x c u se d ab se n c e po licy .
Even i f P e t i t i o n e r ’s c u r r e n t v e rs io n is accep ted , L y tle ’s u n ex cu sed
absences w e re p la in ly d if f e re n t in k in d a n d d e g re e f r o m a n y o th e r
em ployee on re c o rd .
177
9
SUMMARY OF ARGUMENT
There are at least three separate and independent
grounds for this Court to affirm the judgment of the
Fourth Circuit. The most appropriate basis for such an
affirmance is the Court’s recent decision in Patterson v.
McLean Credit U nion,------U .S .------- , 105 L. Ed. 2d 132
(1989), decided after the Fourth Circuit’s decision
herein. Although the statutory viability of Lytle’s § 1981
claims was not addressed by the court of appeals, it is
well established that Schwitzer, as the prevailing party
below, may defend the lower court’s judgment on any
basis fairly presented by the record. Moreover, disposi
tion on the basis of Patterson is especially appropriate
here, because it will permit the Court to avoid unneces
sarily deciding the constitutional questions raised by Peti
tioner.
Turning to the impact of Patterson, it is clear that
Petitioner’s asserted § 1981 claims for discriminatory dis
charge and retaliation cannot survive this Court’s con
struction of that statute in Patterson. The Court held
quite emphatically in that case that § 1981 does not pro
vide a general proscription of race discrimination in all
aspects of contract relations. Rather, the statute protects
only the right “to make” contracts and the right “to
enforce” contracts on the same basis as white citizens.
These terms must be interpreted in accordance with their
plain meaning, with the result that conduct occurring
after the formation of a contract is generally not cov
ered by § 1981 unless it involves race-based efforts to
impede access to legal process to resolve contract claims.
Neither of Petitioner’s claims falls into these cate
gories. His discharge claim obviously involves only post-
formation conduct, and it amounts to an allegation of
disparate rule enforcement which, according to Patterson,
falls outside the purview of § 1981. Similarly, his retalia
tion claim involves only post-formation conduct, is purely
a creature of a different statute (Title VII of the Civil
178
10
Rights Act of 1964), and does not even involve race-based
discrimination (which is the gravamen of § 1981 actions).
Thus, on the basis of Patterson, this Court should affirm
the judgment of the Fourth Circuit or, alternatively, dis
miss the w rit of certiorari as improvidently granted.
The second basis for affirming the judgment below is
the analysis of the Fourth Circuit itself. The court of
appeals correctly concluded that the doctrine of collateral
estoppel precludes relitigation of the district court’s Title
VII findings, and hence that Lytle had no viable § 1981
claims inasmuch as the elements of Title VII and § 1981
claims are identical.
This decision is consistent with Parklane Hosiery v.
Shore, 439 U.S. 322 (1979), in which the Court held that
judicial factual determinations could constitutionally pre
clude relitigation of the same facts before a jury pursu
ant to a legal cause of action. In addition, it is not in
consistent with Beacon Theatres, Inc. v. Westover, 359
U.S. 500 (1959), which only establishes a prudential rule
whereby courts are directed to permit juries to determine
all issues common to both legal and equitable claims where
both types of claims are being tried in the same proceed
ing. That is not the situation here, however, because the
trial court’s findings were made when there were no
pending legal claims which would require jury determina
tion. Thus, this case is more similar to the situation in
Parklane Hosiery—factual issues on which petitioners
had a right to jury trial were tried and determined ad
versely by the courts under parallel equitable claims
which the courts had a constitutional right to decide given
the posture of the case.
Finally, the district court’s dismissal of the § 1981
claims did not impact the proper resolution of this case.
When a plaintiff’s evidence is insufficient to defeat a mo
tion for a directed verdict, the Seventh Amendment is not
violated by the failure to submit the case to the jury.
Galloway v. United States, 319 U.S. 372, rehearing de
nt
11
nied, 320 U.S. 214 (1943). Similarly, when a directed
verdict is appropriate, the erroneous denial of a jury trial
constitutes harmless error. Laskaris v. Thornburg, 733
F.2d 260 (3d Cir.), cert denied, 469 U.S. 886 (1984).
Here, the district court dismissed Lytle’s Title VII dis
charge claim a t the conclusion of Lytle’s evidence, ruling,,
as a matter of law, that Lytle had not established the ele
ments of a prima facie case. The court made a similar
ruling regarding the retaliation claim at the conclusion
of all the evidence. Thus, Petitioner’s evidence would not
have withstood a motion for a directed verdict and, as a
consequence, any error regarding denial of a jury trial
would have to be deemed harmless error.
ARGUMENT
I. THE FOURTH CIRCUIT’S JUDGMENT SHOULD BE
AFFIRM ED ON THE BASIS OF THIS COURT’S DE
CISION IN P A T T E R S O N v . M c L E A N C R E D I T
U N I O N
Petitioner contends that the Fourth Circuit’s decision
Improperly deprived him of his Seventh Amendment right
to a jury trial on his § 1981 claims for discriminatory
discharge and retaliation. However, the Court’s recent
decision in Patterson v. McLean Credit Union, ------U.S.
------, 105 L. Ed. 2d 132 (1989), makes clear that § 1981
does not provide a cause of action for discriminatory dis
charge, or for retaliation in response to protected activi
ties. Accordingly, this Court should affirm the Fourth
Circuit’s judgment on the basis of Patterson or, alterna
tively, dismiss the writ of certiorari as improvidently
granted. See Piccirillo v. New York, 400 U.S. 548, 548-
59 (1971) (writ dismissed as improvidently granted be
cause intervening court decision meant that constitutional
question on which Court granted certiorari was no longer
necessary to resolution of the case).
Initially, it is well settled that Schwitzer, as the pre
vailing party below, may defend the appellate court’s
180
12
judgment on any ground raised in the courts below,
whether or not that ground wras relied upon, rejected or
even considered by the lower courts. E.g., Washington v.
Yakima Indian Nation, 439 U.S. 463, 476 n. 20 (1979) ;
United States v. New York Telephone Co., 434 U.S. 159,
166 n. 8 (1977) (“prevailing party may defend a judg
ment on any ground which the law and the record per
mit. . . .” ). Indeed, a respondent or appellee before this
Court may even defend a judgment on grounds not previ
ously urged in the lower courts,0 and this is especially
appropriate where, as here, an intervening decision by
this Court has changed controlling law. See Sure-Tan,
Inc. v. NLRE, 467 U.S. 883, 896 n. 7 (1984) (permitting
a petitioner, who is normally limited to issues presented
in the petition for certiorari, to raise issue for first time
before this Court because of intervening change in con
trolling law). Finally, it is particularly appropriate for
the Court to consider alternative statutory grounds for
affirmance where, as here, the Petitioner has posed a con
stitutional challenge to the decision below. See Jean v.
Nelson, 472 U.S. 846, 854 (1985), quoting Spector Motor
Co. v. McLaughlin, 323 U.S. 101, 105 (1944) (federal
courts must consider statutory grounds for judgment be
fore reaching any constitutional questions because “ [i]f
there is one doctrine more deeply rooted than any other
. . ., it is that we ought not to pass on questions of con
stitutionality . . . unless such adjudication is unavoid
able” ).
In short, both this Court’s precedents and the posture
of this case suggest very strongly that the Court should
dispose of the instant case on the Patterson issues rather 9
9 Schweiker v. Hogan, 457 U .S . 569, 585 & n. 24 (1 9 8 2 ) , quoting
Blum v. Bacon, 457 U .S . 132, 137 n . 5 (1 9 8 2 ) ( " A lth o u g h ap p e llees
d id n o t a d v a n c e th i s a r g u m e n t in th e D is t r i c t C o u rt, th e y a re n o t
p rec lu d ed f ro m a s s e r t in g i t a s a b a s is on w h ic h to affirm th e c o u r t ’s
ju d g m e n t . . . [b e c a u s e i t ] 'i s w ell a c c e p te d th a t . . . a n ap p e llee
m ay re ly u p o n a n y m a t t e r a p p e a r in g in th e re c o rd in s u p p o r t o f
th e ju d g m e n t .’ ” ) .
181
1 3
than the Seventh Amendment issues raised by Petitioner.
Here, Schwitzer has asserted from the outset that Peti
tioner could not maintain causes of action for termina
tion and retaliation under § 1981 (J.A. 44, 51-56). Pat
terson provides significant new guidance on that question,
and it presents purely legal, non-constitutional issues that
can be decided on the instant record with no prejudice to
the parties. Accordingly, we turn now to a discussion
of how Patterson impacts this case and requires affirm
ance of the Fourth Circuit’s judgment.10
The relevant portion of § 1981 under scrutiny in Pat
terson provides that “ [a] 11 persons within the jurisdic
tion of the United States shall have the same right in
every State and Territory to make and enforce contracts
. . . as is enjoyed by white citizens. . . .” 42 U.S.C. § 1981.
The Patterson Court emphasized that, contrary to the
trend in lower court cases, § 1981 “cannot be construed
as a general proscription of racial discrimination in all
aspects of contract relations.” Patterson, 105 L. Ed. 2d at
150. Rather, the Court held that the right “to make”
contracts “extends only to the formation of a contract,”
that is, “the refusal to enter into a contract with some
one, as well as the offer to make a contract only on dis
criminatory terms.” Id. Thus, the Court refused to ex-
10 T h e Patterson d ec is io n a p p lie s r e t ro a c t iv e ly . See, e.g„ Morgan
v. Kansas City Area Transportation Authority, — •— F . S u p p . ------
(W .D . M o. 1989) [1 9 8 9 W e s tia w 1 0 1 8 0 2 ]; Leong v. Hilton Hotels,
Inc., ------- F . S u p p . ------- , 50 F E P C a se s 733 (D . H a w a i i 1 9 8 9 ).
T h e m a jo r i ty o f c o u r ts fa c e d w ith th i s is su e h a v e im p lic it ly fo u n d
t h a t th e d e c is io n sh o u ld b e a p p lie d re t ro a c t iv e ly . See, e.g., Overby
v. Chevron U.S.A., Inc., 884 F .2 d 470 (9 th C ir . 1 9 8 9 ) ; Brooms v.
Regal Tube Co., 881 F .2 d 412 (7 th C ir . 1 9 8 9 ) , But see Gillespie
v. F irst Interstate Bank o f Wisconsin Southeast, 717 F . S u p p . 649
(E .D . W ise . 1 9 8 9 ) . R e tro a c tiv e a p p lic a tio n o f ju d ic ia l d e c is io n s is
th e ru le , n o t th e e x c ep tio n , United States v, Givens, 767 F .2 d 574,
578 (9 th C i r . ) , cert, denied, 474 U .S . 953 (1 9 8 5 ) . In a d d itio n ,
*‘[ t ] h e u su a l ru le is t h a t fe d e r a l c a se s sh o u ld be d ec id ed in acc o rd
an ce w ith th e la w a t th e t im e o f d e c is io n .” Goodman v. Lukens
Steel Co., 482 U .S . 656, 662 (1 9 8 7 ) .
182
14
tend this aspect of § 1981’s coverage to discriminatory-
conduct occurring after the formation of a contract:
[T]he right to make contracts does not extend, as a
m atter of either logic or semantics, to conduct by
the employer after the contract relationship has been
established, including breach of the terms of the con
tract or imposition of discriminatory working condi
tions. Such post-formation conduct does not involve
the right to make a contract, but rather implicates
the performance of established contract obligations
and the conditions of continuing employment. . . .
105 L. Ed. 2d at 150-51. See also 105 L. Ed. 2d at 152,
155. Consistent with this rationale, the Court held that
Patterson’s claim of pervasive workplace racial harass
ment involved only post-formation conduct which was not
cognizable under § 1981.11
The Court gave a similarly restrictive reading to the
second relevant aspect of § 1981. The Court held that
the right “to enforce” contracts established in § 1981
“embraces protection of a legal process, and of a right
to access to legal process, that will address and resolve
contract>law claims without regard to race.” 105 L. Ed. 2d
at 151. While this protection may extend to private
race-based efforts to impede access to contract relief,11 12
11 T h e C o u r t re c o g n iz e d t h a t § 1981 m a y c o v e r p o s t- fo rm a tio n
c o n d u c t in th o s e l im ite d s i tu a t io n s w h e re th e c o n d u c t d e n ie s an
em ployee th e r i g h t to “ m a k e ” a n e w e m p lo y m e n t c o n tr a c t w ith th e
em p lo y er. F o r e x a m p le , a ra c e -b a se d r e f u s a l to p ro m o te m a y o r m ay
n o t b e a c tio n a b le u n d e r § 1981, d e p e n d in g u p o n w h e th e r th e n a tu r e
o f th e c h a n g e in p o s i t io n is su c h t h a t i t w o u ld inv o lv e e n te r in g in to
a n ew c o n tr a c t w i th th e em p lo y e r. 105 L . E d . 2d a t 156. “ O nly
w h e re th e p ro m o tio n r is e s to th e level o f a n o p p o r tu n i ty f o r a new
and d is t in c t re la t io n s h ip b e tw e e n th e em p lo y ee a n d th e e m p lo y e r is
such a c la im a c tio n a b le u n d e r § 1 9 8 1 .” Id.
12 T h e C o u r t c ite d th e ex am p le o f a la b o r u n io n w h ic h b e a rs e x
p lic it r e s p o n s ib i l i ty f o r p ro s e c u tin g em p lo y ee c o n tr a c t g rie v a n c e s
an d w h ic h c a r r ie s o u t t h a t r e s p o n s ib i l i ty in a ra c ia lly d is c r im in a -
183
15
the right “does not . . . extend beyond conduct by an
employer which impairs an employee’s ability to enforce
through legal process his or her established contract
rights.” Id.
Aside from the fact that these constructions comport
with the “plain and common sense meaning” of § 1981’s
statutory language (105 L. Ed. 2d at 156 n. 6), the
Patterson Court also recognized that strong policy con
siderations support such limited constructions. 105 L.
Ed. 2d at 152-53. An employee who suffers post-forma
tion discrimination may seek relief under the adminis
trative procedures provided in Title VII. In that statute,
Congress established an elaborate administrative pro
cedure designed to assist in the investigation of discrim
ination claims and to work towards the resolution of
these claims through conciliation rather than litigation.
See 42 U.S.C. § 2000e-5(b). Only after these procedures
have been exhausted may a plaintiff bring a Title VII
action in court See 42 U.S.C. § 2000e-5(f) (1). Thus,
permitting an employee to pursue a parallel claim under
§ 1981 without resort to the statutory prerequisites would
“undermine the detailed and well-crafted procedures for
conciliation and resolution of Title VII claims,” render
ing such procedures “a dead letter.” Patterson, 105
L. Ed. 2d a t 153.
Applying the Patterson standards to the instant case,
it is clear that the Petitioner has no viable claims under
§ 1981. Petitioner does not contend that Respondent
prevented him from entering into or enforcing a con
tract because of his race. Instead, he contends that Re
spondent discriminatorily discharged him and then re
taliated against him for filing a charge with the EEOC.
Petitioner’s right under § 1981 to make or enforce a con
tract on a race-neutral basis is therefore not implicated.
to r y m a n n e r . 105 L . E d . 2d a t 151, citing Goodman v. Lukens Steel
Co., supra.
184
16
First, a discharge is, by definition, post-formation con
duct which does not involve an employee’s right to make
or enforce a contract. Such conduct, therefore, falls out
side the purview of § 1981. See Leong v. Hilton Hotels
Corp., supra; Copperidge v. Terminal Freight Handling
Co.,------F. S upp .------- 50 FEP Cases 812 (W.D. Tenn.
1989) ; Sofferin v. American Airlines, Inc., 717 F. Supp.
587 (N.D. 111. 1989) ; Hall v. County of Cook, State of
Illinois,------F. Supp .------- (N.D. 111.' 1989) [1989 West-
law 99802]; Greggs v. Hillman Distributing Co., ------
F. Supp. ------, 50 FEP Cases 1173 (S.D.N.Y. 1989).
But see Padilla v. United Air Lines, 716 F. Supp. 485
(D. Colo. 1989).13
Second, Petitioner’s discharge claim is, at bottom, noth
ing more than an assertion that he was punished more
severely for absenteeism than were similarly situated
white employees. See Pet. Br. at 8-12. This is pre
cisely the type of conduct the Patterson dissent argued
should be covered by § 1981. See 105 L. Ed. 2d at 170
(stating that § 1981 was intended to prohibit “the prac
tice of handing out severe and unequal punishment for
perceived transgressions” ). However, the Patterson ma
jority clearly rejected the dissent’s position that such
discriminatory rule application is sufficient to state a
claim under § 1981. 105 L. Ed. 2d at 155. While rec
ognizing that such post-formation discrimination might
be evidence that any divergence in explicit contract
terms is due to racial animus, the majority nevertheless
emphasized that the “critical . . . question under § 1981
remains whether the employer, at the time of the forma
tion of the contract, in fact intentionally refused to
T h is d i s t r i c t c o u r t d ec is io n u p h o ld in g d is c h a rg e c la im s u n d e r
§ 1981 d e m o n s tr a te s t h a t th e lo w e r c o u r t s h a v e n o t, in f a c t , h a d
" l i t t le d ifficu lty a p p ly in g th e s t r a ig h t f o r w a r d p r in c ip le s t h a t [ th e
C o u rt a n n o u n c e d in Patterson ] . ” Patterson, 105 L. E d . 2d a t 156
n. 6. T h is p ro v id e s a n a d d it io n a l re a s o n w h y th e C o u r t sh o u ld ta k e
th is o p p o r tu n i ty to r e i t e r a te th e re a c h o f § 1981 a n d th e Patterson
decision .
185
17
enter into a contract with the employee on racially neu
tral terms.” Id. (emphasis in original).
Finally, Petitioner does not and cannot contend that
his discharge was a race-based effort to obstruct his
access to the courts or other dispute resolution processes.
Indeed, his discharge had nothing to do with any effort
to enforce contract rights or claims.
In short, the Petitioner’s discharge claim in the instant
case involves post-formation conduct unrelated to his right
to make or enforce a contract, and hence it is not cog
nizable under § 1981.
Petitioner’s retaliation claim is even farther afield
from § 1981 coverage. First, like Petitioner’s discharge
claim, the retaliation claim involves only post-formation
conduct and therefore is not actionable under § 1981.
Overby v. Chevron U.S.A., Inc., supra; Williams v. Ncu-
tional Railroad Passenger Corp., 716 F. Supp. 49 (D.D.C.
1989) ; Danger field v. Mission Press, —— F. S upp.------,
50 FEP Cases 1171 (N.D. 111. 1989).
Second, the prohibition of retaliation against employees
for filing discrimination charges is purely a creature of
statute, having come into existence only by an express
prohibition in Section 704(a) of Title VII, 42 U.S.C.
§ 2000e-3(a). Indeed, the prohibition specifically relates
only to the exercise of rights conferred by Title VIL
Not only did the right to be free from such retaliation
not exist before the passage of Title VII, see Great Amer
ican Savings & Loan Association v. Novotny, 442 U.S.
366, 377-78 (1979), but it would be inappropriate to
inject rights created by one statute into another statute
passed approximately 100 years earlier. See Warren v.
Halstead Industries, ------ F. Supp. ------, 33 FEP Cases
1416 (M.D.N.C. 1983) (questioning whether a cause
of action created by Title VII is actionable under § 1981).
See also Saldivar v. Cadena, 622 F. Supp. 949 (W.D.
186
18
Wise. 1985) (retaliation for advocacy of equal protec
tion does not support a § 1981 claim).
Moreover, this conclusion is particularly appropriate
given the Patterson Court’s admonition against stretch
ing § 1981 to protect conduct already covered by Title
VIII, Patterson, 105 L. Ed. 2d at 153. The Court’s con
cern with frustrating Title VII’s conciliation goals, dis
cussed above, “is particularly apt where the very con
duct complained of centers around one of Title VII’s con
ciliatory procedures: the filing of an EEOC complaint.”
Overby v. Chevron U.S.A. Inc., 884 F.2d at ------, 50
FEP Cases a t 1213. Since § 704(a) of Title VII pro
scribes Respondent’s alleged retaliatory conduct, the Court
should “decline to twist the interpretation of another
statute (§ 1981) to cover the same conduct.” 105 L. Ed.
2d at 153.
Finally, and perhaps most importantly, retaliation for
filing Title VII charges is not even a race-based issue,
which is the sine qua non of § 1981 coverage. The anti
retaliation provisions of Title VII are designed to pro
tect channels of information, not freedom from race-
based' conduct, and they are equally available to em
ployees irrespective of their race, sex, national origin,
etc. See Eichman v. Indiana State University Board
of Trustees, 597 F.2d 1104, 1107 (7th Cir. 1979) (§704
of Title VII “extends protection to all who ‘assist’ or
‘participate’ regardless of their race or sex” ). Thus, put
quite simply, a claim of retaliation for filing Title VII
charges has nothing to do with an employee’s § 1981 right
to make and enforce contracts on the same basis as white
citizens. Indeed, even before this Court’s Patterson de
cision, many lower courts had held that discrimination
based on factors other than race, such as retaliation in
violation of § 704(a) of Title VII, does not violate § 1981.
See, e.g., Hudson v. IBM, ------ F. Supp. ------, 22 FEP
Cases 947 (S.D.N.Y. 1975) ; Takeall v. WERD, Inc.,
------F. Supp------- , 23 FEP Cases 947 (M.D. Fla. 1979) ;
187
19
Grant v. Bethlehem Steel Corp., ------ F. Supp. ------, 22
FEP Cases 680 (S.D.N.Y. 1978) ; Barfield v. A.R.C. Se
curity, Inc., ------ F. Supp. ------, 10 FEP Cases 789
(N.D. Ga. 1975).w The correctness of that conclusion
has only been confirmed by Patterson’s mandate that
§ 1981 be interpreted in accordance with the plain and
common sense meaning of its terms and that courts
should avoid “twist[ing] the interpretation of [§ 1981]
to cover the same conduct” covered by Title VII. 105
L. Ed. 2d at 153.
In sum, while both of Petitioner’s claims are cogniza
ble under Title VII, and indeed have been given full
consideration under that statute, neither is cognizable
under § 1981. Accordingly, this Court should either af
firm the Fourth Circuit’s judgment on the basis of
Patterson or dismiss the w rit of certiorari as improv-
idently granted.
II. THE SEVENTH AMENDMENT DOES NOT RE
QUIRE RETRIAL OF ISSUES ALREADY DECIDED
BY THE DISTRICT COURT
The preceding section demonstrates that the funda
mental predicate of Petitioner’s Seventh Amendment ar
gument no longer exists. Specifically, the collateral es
toppel and jury trial issues arose in the Fourth Cir
cuit only because the court assumed that the district
court had erroneously dismissed Petitioner’s § 1981
claims. If dismissal was proper—and the foregoing sec
tion shows it was—then no new trial is necessary and,
a fortiori, the question of whether collateral estoppel is
applicable does not arise. As a consequence, the Court
need not reach the collateral estoppel/Seventh Amend-
A lth o u g h th e r e a re c a se s to th e c o n tr a r y ( e.g., Goff v. Conti
nental Oil Co., 678 F .2 d 593 (5 th C ir . 1 9 8 2 ) ) , th e y a r e n o t in k e e p in g
w ith th e s t a tu to r y in te n t o f § 1981 to p r o h ib i t e m p lo y m e n t d ec i
s io n s b ased on race, r a t h e r th a n p o s t-d is c h a rg e a c tio n s a lleg ed ly
b ased on p a r t ic ip a t io n in s t a tu to r y p ro c e e d in g s u n d e r T it le VII.
188
20
ment issue in order to affirm the judgment of the court
of appeals. Nevertheless, we show below that the Fourth
Circuit’s application of collateral estoppel to Petitioner’s
§ 1981 claims is consistent with this Court’s decisions.
If the Court addresses the collateral estoppel issue, it
should uphold the decision of the court of appeals. The
Fourth Circuit held that the doctrine of collateral estop
pel precluded relitigation of the facts already decided by
the district court and, as a consequence, that Lytle had
no viable § 1981 claim since the elements of Title VII
and § 1981 are identical. This decision is consistent with
the purpose of collateral estoppel, which is to protect
litigants from the burden of relitigating an identical
issue with the same party or his privy and to promote
judicial economy by preventing needless litigation. See
University of Tennessee v. Elliott, 478 U.S. 788, 798
(1986) ; Allen v. McCurry, 449 U.S. 90, 96 (1980) ;
Blonder-Tongue Laboratories, Inc. v. University of Illi
nois Foundation, 402 U.S. 313, 328-29 (1971).
Contrary to Petitioner’s contention, the Court’s decision
in Beacon Theatres, Inc. v. Westover, 359 U.S. 500
(1959), does not require a different result. Beacon
Theatres holds that when legal and equitable claims are
joined in one proceeding, the legal claims should be tried
first before a jury if possible. Although derived from
the Seventh Amendment, this doctrine is nothing more
than a “general prudential rule” for courts to follow.
Parklane Hosiery Co. v. Shore, 439 U.S. 322, 335
(1979).15 Like most other rules of constitutional origin,
the Beacon Treatres doctrine cannot be woodenly applied
15 In Katchen v. Landy, 382 U .S . 323 (1 9 6 6 ) , th e C o u r t s ta te d
th a t th e Beacon Theatres r u le is a n e q u ita b le d o c tr in e w h ic h is
in a p p lic a b le w h e n C o n g re ss d evelops a s t a tu t o r y sch em e c o n te m p la t
in g th e p ro m p t t r i a l o f d is p u te d c la im s w ith o u t th e in te rv e n t io n of
a ju r y .
189
21
and must yield when outweighed by other important
principles.1®
Moreover, in Parklane Hosiery, this Court itself ad
dressed the conflict between the Beacon Theatres rule and
the principle of judicial economy underlying the doctrine
of collateral estoppel, and its decision fully supports the
Fourth Circuit’s analysis. In that case, the Court re
jected the argument that the Seventh Amendment pro
hibits application of collateral estoppel to preclude a jury
trial of facts previously decided by an equity court and
found that the Seventh Amendment does not establish
such a rigid barrier to the efficient operation of our legal
system. Instead, the Court adopted a more pragmatic
view of the Seventh Amendment, one which guarantees
the plaintiff a full and fa ir opportunity to litigate his
claims, but prohibits needless relitigation of facts already
decided. Using this realistic approach, the Court con
cluded that any harm caused by the denial of a jury trial
was clearly outweighed by the judicial interest in the
economical resolution of cases. Thus, the Court held that
application of collateral estoppel does not violate the
Seventh Amendment where “there is no further fact
finding function for the jury to perform, since the com
mon factual issues have been decided.” Id. at 336.
This is precisely the rationale the Fourth Circuit ap
plied in the instant case. In doing so, the court followed
its earlier decision in Ritter v. Mount Saint Mary’s Col
lege, 814 F.2d 986 (4th Cir.), cert, denied, 484 U.S. 913
(1987), in which the district court had dismissed the
plaintiff’s claims under the Age Discrimination and Equal
Pay Acts,16 17 and tried the Title VII claims without a jury.
16 Katchen v. Landy, 382 U .S . a t 339-40. Cf. Clark v. Community
fo r Creative Nonviolence, 468 U .S . 288 (1 9 8 4 ) ( F i r s t A m e n d m e n t
r i g h t s s u b je c t to re a s o n a b le r e s t r i c t i o n s ) .
17 29 U .S .C . § 6 2 1 et seq., a n d 29 U .S .C . § 2 0 6 ( d ) , re sp e c tiv e ly .
U n lik e T i t le V I I , b o th o f th e s e s t a tu t e s p ro v id e f o r t r i a l by ju r y .
190
22
After determining that the legal and equitable claims
shared common elements, the Ritter court held that the
factual determinations made by the district judge in dis
missing the Title VII suit collaterally estopped relitiga
tion of the same issues on the legal claims. The court
found this situation squarely within this Court’s holding
in Parklane Hosiery:
This court need not involve itself in the laborious
and inconclusive policy analysis suggested by the
parties on this issue, however, because the Supreme
Court has already undertaken this policy analysis
for us. Parklane decided that the judicial interest
in the economical resolution of cases, which interest
underlies the doctrine of collateral estoppel, does
override the interest of the plaintiff in re-trying be
fore a jury the facts of a case determined by a
court sitting in equity.
Ritter, 814 F.2d at 991.
The Fourth Circuit’s decision in this case promotes
the same policy considerations enunciated in Parklane
and Ritter. Petitioner received a full and fair oppor
tunity to try his Title VII claims before the district judge
and his efforts fell short. Schwitzer was awarded an in
voluntary dismissal on the termination claim after the
presentation of Lytle’s evidence and Petitioner’s retalia
tion claim was involuntarily dismissed at the end of all
the evidence (J.A. 60, 64). In these circumstances,
Lytle’s request for a new trial before a jury is out
weighed by the interests furthered by collateral estoppel.
Nor has Petitioner cited any persuasive argument or
authority requiring a contrary result. First, Petitioner is
plainly wrong in suggesting that collateral estoppel may
not be applied to prevent relitigation of issues in the
same suit. Indeed, the Parklane Hosiery decision specifi
cally recognized that the major premise underlying the
Beacon Theatres rule is that, unless legal claims are de
termined prior to equitable claims, a judge’s factual find
191
23
ings on the equitable claims would collaterally estop the
jury’s redetermination of those issues. Parklane Hosiery,
439 U.S. at 334.18
Second, Petitioner begs the question by arguing that
“ [t] his Court has never excused the Seventh Amendment
violation by holding that the judge’s intervening factual
findings pretermit presentation of a litigant’s case to a
jury.” Pet. Br. at 35 (emphasis in original). It is true
that, once a Seventh Amendment violation is found, the
proper course is to ro-try the case before the jury. How
ever, that does not answer the question of whether the
Seventh Amendment is violated by giving collateral
estoppel effect to a judge’s findings on equitable claims
that are properly determinable by the court in the ab
sence of then-pending legal claims raising the same
issues.
Nor do the cases cited by Petitioner answer this latter
question. See Pet. Br. at 35-40. Most of those cases in
volved straightforward situations in which the district
court had simply made an erroneous determination that
the claims or issues in dispute should be tried to the court
rather than to a jury. E.g., Granfinanciera v. Nordberg,
------U .S .------- , 106 L. Ed. 2d 26 (1989) ; Tull v. United
States, 481 U.S. 412 (1987); Pernell v. Southall Realty,
416 U.S. 363 (1974); Curtis v. Loether, 415 U.S. 189
(1974); Schoenthal v. Irving Trust Co., 287 U.S. 92
(1932).18 In such situations, the judge’s determination
18 I n a d d it io n , a s n o te d b y th e c o u r t in Ritter, t h e p r i o r s u i t
n o tio n m e re ly re f le c ts th e m a n n e r in w h ic h th e a p p lic a tio n o f col
la te r a l e s to p p e l ty p ic a lly a r is e s . Ritter, 814 F .2 d a t 991-92 . I f
c o lla te ra l e s to p p e l c a n be u se d to b in d p e rs o n s to ju d g m e n ts in
w h ich th e y w e re n o t p a r t ie s , i t w o u ld b e illo g ica l to re f u s e to a p p ly
th e p r in c ip le to th e sam e p a r t i e s t h a t l i t ig a te d th e is s u e s b e fo re th e
d i s t r i c t c o u rt .
10 F o r ex am p le , in th e Granfinanciera case , th e o n ly c la im p r e
s e n te d in vo lved a n a lleg ed f r a u d u le n t t r a n s f e r . T h e c o u r t d en ied
d e fe n d a n t’s j u r y t r i a l r e q u e s t an d e n te re d ju d g m e n t f o r p la in tif f .
T h is C o u r t re v e rse d a n d d ir e c te d a ju r y t r i a l on t h e f r a u d u le n t
192
24
of the claims is the essence of the Seventh Amendment
error, and is properly subject to being vacated on appeal.
Here, by contrast, the trial court’s alleged error did not
involve a direct violation of the Seventh Amendment, as
would have occurred if the district had simply determined
that § 1981 claims are triable to the court. Instead, the
court’s alleged error was the dismissal of the §1981
claims, since it is undisputed that courts, rather than
juries, appropriately determine Title VII - claims. See-
Great American Savings & Loan v. Novotny, 442 U.S.
366, 375 (1979).
The instant case, then, is distinguishable from the
cases cited by Petitioner in a critical respect: here, the
court’s findings were made at a time when there were
no pending legal claims which would require jury deter
mination.00 And in this respect, the instant case is iden
tical to the situation in Parklane Hosiery—factual issues
on which petitioners had a right to a jury trial were tried
and determined adversely by the courts under parallel
equitable claims which the courts had a right to decide
given the posture of the case.
t r a n s f e r c la im . S im ila r ly , in Tull th e C o u r t h e ld t h a t th e S e v e n th
A m e n d m e n t g u a r a n te e s a j u r y t r i a l f o r d e te r m in a t io n o f l ia b il i ty
u n d e r th e C lean W a te r A c t, 33 U .S .C . § 1 3 1 9 (b ) , ( d ) . T h e on ly
p o r t io n o f t h a t c a se n o t r e q u i r in g ju r y re s o lu tio n w a s th e amount
of th e c iv il p e n a lty . O f c o u rse , th e s ize o f th e p e n a lty can o n ly b e
d e te rm in e d a f t e r ju r y r e s o lu t io n o f l ia b i l i ty is su e s . T h u s , th e r e
w as no c la im p e r ta in in g to l ia b il i ty p ro p e r ly t r ie d b y th e c o u rt .
00 T h is f a c t a lso s e rv e s to d is t in g u is h Meeker v. Ambassador Oil
Corp., 375 U .S . 160 (1 9 6 3 ) , u p o n w h ic h P e t i t i o n e r p lace s h eav y
re lia n c e . See P e t . B r . a t 39-40. A s d e sc r ib e d by P e t i t io n e r , Meeker
invo lved n o th in g m o re th a n a s t r a ig h t f o r w a r d a p p lic a tio n o f th e
Beacon Theatres ru le — i.e ., th e t r i a l c o u r t h a d p e n d in g b e fo re i t
b o th le g a l a n d e q u ita b le c la im s w ith co m m o n fa c tu a l is su e s , a n d i t
v io la ted th e Beacon Theatres ru le b y c h o o s in g to d ec id e th e e q u i ta
ble c la im s f ir s t , th e r e b y fo re c lo s in g ju r y d e te r m in a t io n o f th e leg a l
issues.
193
25
Equally important, moreover, the interests of judicial
economy advocated in Parklane Hosiery apply whether
or not the dismissal of the legal claims was in error.
Under the teachings of Parklane, the critical issue is not
whether the trial court’s denial of the jury trial was
correct, but whether harm resulted from the denial. R it
ter, 814 F.2d at 991. As long as the district judge’s
factual findings were not erroneous, Lytle was not prej
udiced and the judicial interests underlying the doctrine
of collateral estoppel outweigh any nominal injury. Other
wise, the parties must conduct a full trial to the bench
with the risk that it may be for naught if any of the
legal claims are reversed and remanded to be tried by
a jury, a t a cost of substantial time and resources to the
court and to the litigants. Id. The parties’ motivation
in litigating such a provisional trial would be question
able. Fortunately, in Parklane Hosiery this Court bal
anced the interests involved and found that the scale
tipped in favor of applying collateral estoppel. Where,
as here, Petitioner has been provided a full and fair
opportunity to litigate his claims, “one trial of common
facts is enough.” Ritter, 814 F.2d a t 991.21
Finally, contrary to Petitioner’s assertion, the Fourth
Circuit’s decisions in Lytle and Ritter will not eliminate
the Beacon Theatres rule. The Lytle and Ritter reason
ing applies only where the court tries a parallel equit
able claim and there are no legal claims pending. See
Williams v. Cerberonics, Inc., 871 F.2d 452, 464-65 (4th
Cir. 1989) (Phillips dissenting); Dwyer v. Smith, 867
21 P e t i t i o n e r ’s c o n te n t io n t h a t th e r i g h t to j u r y t r i a l is p a r t i c u
la r ly im p o r ta n t in § 1981 c a se s is c o n tr a r y to Independent Federa
tion o f Flight Attendants v. Zipes, ------- U .S . ------- , 105 L . E d . 2d
639 (1 9 8 9 ) , w h e re th e C o u r t h e ld t h a t C o n g re s s d id n o t in te n d f o r
T it le V I I to o v e r r id e o th e r p ro c e d u ra l a n d ju d ic ia l in te r e s t s . C ol
la te r a l e s to p p e l is e q u a lly a p p lic a b le to c iv il r i g h t s c la im s a s i t i s to
o th e r m a t te r s . University o f Tennessee v. Elliot, 478 U .S . 788,
796-97 (1 9 8 6 ) (" C o n g re s s , in e n a c t in g c iv il r i g h t s s t a tu te s , d id n o t
in te n d to c re a te a n e x c e p tio n to g e n e ra l ru le s o f p re c lu s io n ” ) .
194
26
F.2d 184, 192 n. 4 (4th Cir, 1989). Thus, the vast ma
jority of cases will continue to be decided in accordance
with the prudential rule of Beacon Theatres, in which
pending legal claims are decided first whenever they are
joined in the same action with equitable claims.22 Indeed,
the Fourth Circuit has shown that it will conscientiously
follow this principle. See e.g., Grossos Music v. Mitken,
Inc., 753 F.2d 117 (4th Cir. 1981) (court relies on
Beacon Theatres and Dairy Queen in reversing denial of
jury trial),‘ Tights Inc. v. Stanley, 441 F.2d 336 (4th
Cir.), cert, denied, 404 U.S. 852 (1971) (Fourth Circuit
issues w rit of mandamus directing district court to va
cate order striking jury trial demands). In the rare
instance where the equitable issues are tried first, Park-
lane Hosiery teaches that the Seventh Amendment does
not compel the expensive, time-consuming relitigation of
factual issues already decided. The Fourth Circuit’s ap
plication of this rule in the Lytle-Ritter context comports
with this philosophy and should be affirmed.23
In sum, the Fourth Circuit in this case correctly fol
lowed Parklane in holding that the district court’s find
ings in the Title VII claim precluded relitigation of these
issues. The court’s reasoning will prevent needless re
litigation of judges’ sound findings and furthers the in
terest of judicial economy. Accordingly, the decision be
low should be affirmed.
22 P e t i t i o n e r ’s a s s e r t io n t h a t fe d e ra l t r i a l ju d g e s w ill be in d u ced
by th e F o u r th C i r c u i t ’s d ec is io n to t r y th e e q u ita b le c la im s b e fo re
th e j u r y c la im s in a jo in t s u i t m e re ly f o r th e i r ow n co n v e n ie n c e is
u n fo u n d ed . T h e a l le g a tio n t h a t fe d e ra l ju d g e s w ou ld w ill in g ly d is
r e g a rd th i s C o u r t’s d e c is io n s , a lo n g w ith P e t i t i o n e r ’s re p e a te d im
p lic a tio n s t h a t ju d g e s ’ f a c tu a l d e te r m in a tio n s a re in h e r e n tly su s
pect, is a n u n w a r r a n te d c e n su re o f th e fe d e r a l ju d ic ia r y .
23 D ue to th e in f r e q u e n t a p p lic a b il i ty o f th e Lytle-Ritter p r in c i
ple, P e t i t i o n e r ’s c la im t h a t i t w ill r e s u l t in in c re a se d l i t ig a t io n is
w ith o u t m e r i t .
195
27
III. DISMISSAL OF THE §1981 CLAIMS HAD NO
EFFECT ON THE OUTCOME OF THIS CASE
Even if the court of appeals erred in holding that re
litigation of Petitioner’s § 1981 claims was precluded by
collateral estoppel, such error was harmless under Fed.
R. Civ. P, 61 and does not w arrant a new trial.*4 This
Court has long recognized that when a plaintiff’s evidence
is insufficient as a matter of law to establish a prima
facie case, the Seventh Amendment is not violated by the
issuance of a directed verdict. See Galloway v. United
States, 319 U.S. 372, rehearing denied, 320 U.S. > 214
(1943). In Galloway, this Court pointed out that the
Seventh Amendment guarantees both a plaintiff’s right to
have legitimate claims heard by a jury and a defendant’s
right to attack the legal sufficiency of plaintiff’s evidence
without protracted litigation. Id. at 392-93. The Court
rejected the contention that the Seventh Amendment re
quires a new trial where, as here, plaintiff cannot estab
lish a critical element of his claim. Id. at 394,
Other courts of appeal addressing this issue agree with
the First Circuit that “there is no constitutional right
to have twelve men sit idle and functionless in a jury
box.” In re N-500L Cases, 691 F.2d 15, 25 (1st Cir.
1982). For example, in Laskaris v. Thornburg, 733 F.2d
260 (3d Cir.), cert, denied, 469 U.S. 886 (1984), the
Third Circuit affirmed the district court’s dismissal of
plaintiff’s § 1981 claims alleging politically motivated dis
charges. The court held that the dismissal of these
claims, and the affiliated right to a jury trial, constituted
harmless error since the evidence adduced at trial was 24
24 T h is p o in t w as a rg u e d b y R e sp o n d e n t b e fo r e th e c o u r t of
a p p ea ls , b u t th e c o u r t d id n o t re a c h th i s is su e . H o w ev e r, i t is w ell
e s ta b lish e d t h a t a R e sp o n d e n t ca n seek a ffirm an ce on a n y g ro u n d
d isc lo sed by th e re c o rd . United States v. New York Telephone Co.,
434 U .S . 159, 166 n. 8 (1 9 7 7 ) .
196
28
insufficient to avoid a directed verdict if a jury had been
impaneled.25
Indeed, the cases relied upon by Petitioner are not in
consistent with these principles. For example, in Hussein
v. Oshkosh Motor Truck Co., 816 F.2d 348 (7th Cir.
1987), the court stated that before addressing the col
lateral estoppel issue, there must be an inquiry into
whether the denial of a jury trial constitutes harmless
error. Hussein, 816 F.2d a t 354 n. 6.20 * 28
215 Accord, Bowles v. United States Army Corps o f Engineers, 841
F .2 d 112 (5 th C i r . ) , cert, denied, 109 S. C t. 33 ( 1 9 8 8 ) ; Keller v.
Prince George’s County, 827 F .2 d 962 (4 th C ir . 1987) ; Howard v.
Parisian, 807 F .2 d 1560 (1 1 th C ir . 1987) ; King v. University of
Minnesota, 774 F .2 d 224 (8 th C ir . 1 9 8 5 ) , cert, denied, 475 U .S .
1095 ( 1 9 8 6 ) ; In re Professional Air Traffic Controllers Organiza
tion o f America, 724 F .2 d 205 (D .C . C ir . 1984) ; Atwood v. Pacific
Maritime Association, 667 F .2 d 1056 ( 9 th C ir . 1 9 8 1 ) ; Hildebrand
v. Board o f Trustees o f Michigan State University, 607 F .2 d 705
(6 th C ir . 1 9 7 9 ) ; King v. United Benefit F ire Insurance Co., 377
F .2 d 728 (1 0 th C i r . ) , cert, denied, 389 U .S . 857 (1 9 6 7 ) .
28 M o reo v e r, L y tle m is se s th e m a r k in a tte m p tin g : to av o id th e
h a rm le s s e r r o r p r in c ip le by re ly in g on c a se s in v o lv in g is su e s su ch
as bn im p ro p e r fo r u m a n d th e f a i lu r e o f a ju d g e to re c u se h im se lf .
T h e in t e r e s t s a t is s u e in th e s e c a se s d if fe r d ra s t ic a l ly f ro m th e is su e
o f ^W hether th e d e n ia l o f a j u r y t r i a l w as h a rm le s s . In th e fo ru m
, Selection c o n te x t, th e r i g h t in f r in g e d is th e r i g h t n o t to be t r ie d a t
all b u ts id e a p a r t i c u l a r fo ru m . See Lauro Lines S.R.L. v. Chasser,
—:— U .S . —— , 104 L . E d . 2d 548 (1 9 8 9 ) (S c a lia , J . , c o n c u r r in g ) .
7 T h e c o r re c tn e s s o r e r r o r o f th e f a c tu a l f in d in g s in th e im p ro p e r
fo ru m is i r r e le v a n t to th i s in q u iry . S im ila r ly , t h e f a i lu r e o f a
ju d g e to re c u s e h im s e lf in f e c ts th e e n t i r e ju d ic ia l p ro c e ss . E v en
,th b a p p e a ra n c e o f p a r t i a l i t y r e q u i r e s re c u s a l, r e g a r d le s s o f a c tu a l
h a rm . Liljeberg v. Health Services Acquisition Corp., 486 U .S . 847
(1 9 8 8 ) . B y c o n tr a s t , th e d e n ia l o f a j u r y t r i a l c a n o n ly b e h a rm fu l
i f th e j u r y w o u ld h a v e b e e n g iv e n th e o p p o r tu n ity to d e c id e th e
case. Howard v. Parisian, 807 F .2 d 1560 (1 1 th C ir . 1 9 8 7 ).
O th e r ca se s c ite d b y L y tle f o r th i s p ro p o s itio n a r e s im ila r ly u n
p e rsu a s iv e . F o r e x a m p le , in Gomez v. United States, 104 L . E d . 2d
923 (1 9 8 9 ) , th e C o u r t n o te d t h a t h a rm le s s e r r o r a n a ly s is is n o t
ap p licab le to a fe lo n y case . H o w e v e r, in Rose v. Clark, 478 U .S . 570
(1 9 8 6 ) , a n o th e r c r im in a l c a se c ite d by L y tle , th e C o u r t p o in te d o u t
197
29
In short, it is clear that this Court need not address
the collateral estoppel issue if a directed verdict would
have been proper under Rule 50(a) of the Federal Rules
of Civil Procedure. Such a directed verdict is appropriate
when there is a complete absence of proof on an issue
material to the cause of action or when there are no con
troverted issues of fact upon which reasonable jurors
could differ. Brady v. Southern Railroad, 320 U.S. 476
(1943); 5A Moore’s Federal Practice at Paragraph 50.02.
The evidence presented by Petitioner in this case, even
when viewed in the most favorable light, is insufficient to
defeat a directed verdict.27 As the Fourth Circuit cor
rectly noted, "it is established beyond peradventure that
the elements of a prima facie case of employment dis
crimination alleging disparate treatment under Title VII
and § 1981 are identical.” Pet. App. 13a-14a. Facts that
preclude relief under Title VII also preclude a § 1981
claim. Garcia v. Gloor, 618 F.2d 264, 271 (5th Cir.,
1980), cert, denied, 449 U.S. 1113 (1981).
In McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973), the Court established the elements necessary to
make out a prima facie case of disparate treatment under
both statutes. The Fourth Circuit has refined the elements
applicable to suits, like this one, which allege discrimina
tory disciplinary action. Moore v. City of Charlotte, 754
F.2d 1100 (4th Cir.), cert, denied, 472 U.S. 1021 (1985).
Moore held that to establish a prima facie case of racial
th e s t r o n g p re s u m p tio n o f a p p lic a tio n o f h a rm le s s e r r o r a n a ly s is ,
ev en in th e c r im in a l c o n te x t. T h e C o u r t fo u n d th e e r r o r , a n im
p ro p e r j u r y in s t r u c t io n , w a s h a rm le ss .
27 C o n tra r y to P e t i t i o n e r ’s a s s e r t io n , th e d i s t r i c t c o u r t ’s d e n ia l
o f S c h w itz e r ’s m o tio n f o r s u m m a ry ju d g m e n t does n o t in d ic a te t h a t
P e t i t i o n e r ’s c la im s w o u ld h a v e b e e n s u b m it te d to th e j u r y a t t r ia l .
I t is w ell e s ta b lis h e d t h a t th e d e n ia l o f a m o tio n f o r s u m m a ry
ju d g m e n t d o es n o t p re c lu d e a d ir e c te d v e rd ic t a t t r ia l . Gross v.
Southern Ry. Co., 446 F .2 d 1057, 1060-61 (5 th C ir . 1 9 7 1 ) ; Armco
Steel Corp. v. Realty Investment Co., 273 F .2 d 483, 485 ( 8 th C ir.
1 9 6 0 ).
198
30
discrimination in a case involving a discharge for viola
tion of company rules or policies, the plaintiff must show:
(1) that he is black; (2) that he was discharged for vio
lation of a company rule; (3) that he engaged in pro
hibited conduct similar to that of a person of another
race; and (4) that disciplinary measures enforced against
him were more severe than those enforced against the
other person. Moore, 754 F.2d at 1106.
Application of these factors reveals, as the district
court found, that Lytle failed to establish a prima facie
case. Schwitzer’s absentee policy distinguishes between
excused and unexcused absences, with a stricter standard
for the latter based on the greater disruptive effect of
unexcused absence on the company’s operation. Excused
absences must also be agreed to in advance by the em
ployee’s supervisor (Tr. 17-19). Lytle’s testimony indi
cated that he asked for a vacation day on Friday, August
12, 1983. When his supervisor, Larry Miller, told him
that he would still have to work Saturady, August 13,
Lytle replied that he would be unable to work because
he was "physically unfit.” According to Lytle, Miller
denied the request and told him he would have to work
one of the two days. Lytle responded that he would use
two vacation days if required, but expected time and one-
half pay for the Saturday vacation day (Tr. 131-32).
He admits that Miller walked off without granting his
request. I t is undisputed that Lytle left 1.8 hours early
that day and did not report or call in on August 12 or 13
(Tr. 133, 172-73).
Lytle presented no evidence that Miller granted the
day off or excused him from reporting to work or calling
in.58 Lytle’s subjective understanding of Miller’s actions
is insignificant, since proof of discriminatory intent is
required to establish liability under § 1981, General Bldg.
Contractors Ass’n v. Pennsylvania, 458 U.S. 375 (1982),
58 In a d d it io n , th e r e is no e v id e n c e t h a t M ille r d is c r im in a to r i ly
den ied th e re q u e s te d t im e off.
199
31
and under Title VIPs disparate treatment theory. Mc
Daniel v. Temple Independent School District, 770 F.2d
1340 (5th Cir. 1985) (the issue is not whether the em
ployer made the correct decision, but whether it intended
to discriminate against the employee); VerdeU v, Wilson,
602 F. Supp. 1427, 1434 n. 4 (E.D.N.Y. 1985) (discrimi
nation cannot be founded on a difference of opinion).
Moreover, Lytle was unable to sustain his burden under
Moore by identifying a single non-black employee guilty
of a similar violation who was not discharged (J.A. 60).
This requirement was not met by evidence of white em
ployees with excessive excused absences and a white em
ployee with six minutes of excessive unexcused absence.
Schwitzer’s policies clearly distinguish between excused
and unexcused absences, and a six-minute violation (con
sisting of tardiness, not refusal to work) differs markedly
from Lytle’s 9.8-hour violation. Lytle’s inability to iden
tify an individual guilty of a similar offense who was
treated preferentially precludes him from establishing a
vital element of a prima facie case.
Significantly, after hearing only Lytle’s evidence, the
district court granted Schwitzer’s motion for involun
tary dismissal under Fed. R. Civ. P. 41(b) on the dis
criminatory discharge claim, finding, as a matter of law,
that Lytle had failed to establish a prima facie case. In
making this determination, the court recognized the dif
ference between excused and unexcused absences under
Schwitzer’s attendance policy (J.A. 59), and also recog
nized that the excused absence of white employees were
not as serious as Lytle’s unexcused absences. Not only
are the standards and purposes different, but the court
would have had to ignore common sense and basic prin
ciples of judicial notice to come to any other conclusion.
As a result, the court concluded as a matter of law that
Lytle had not established a prima facie case of race
200
82
discrimination.29 Although the standards vary under
Rules 41(b) and 50(a), the court’s decision did not rest
on credibility determinations. Rather, Petitioner’s in
ability to establish a critical element of a prima facie
case would have guaranteed a directed verdict as a mat
ter of law even if a jury had been impaneled. Since
Schwitzer would have received a directed verdict, the
denial of a jury was harmless error and remand of the
case is unnecessary.
Similarly, a directed verdict would have been proper
on Lytle’s § 1981 retaliaton claim.80 In order to establish
a prima facie case of retaliation, plaintiff must prove the
following three elements by a preponderance of the evi
dence: (1) the employee engaged in protected activity;
(2) the employer took adverse employment action against
the employee; and (3) a causal connection between the * I
20 A t th e close o f P e t i t i o n e r 's case , th e d i s t r i c t c o u r t m a d e th e
fo llo w in g sp ec ific d e te r m in a t io n s :
I w ill find by plaintiff’s own evidence p la in t i f f h a d ex cess u n e x
cu sed a b se n c e o f 9 .8 h o u rs , a n d th a t , w ith r e f e re n c e to th i s
u n e x c u se d a b sen ce , h e d id n o t fo llo w th e co m p an y p o licy o f
c a ll in g in ;
I w ill find t h a t th e c o n d u c t on th e p a r t o f th e w h ite em ployees
is h o t s u b s ta n t ia l ly s im i la r in s e r io u s n e s s to th e c o n d u c t f o r
w h ic h p la in t i f f w a s d is c h a rg e d .
B a se d o n th e s e f in d in g s , th e c o u r t c o n c lu d e d :
I w ill co n c lu d e as a m a t t e r o f law t h a t th e C o u r t h a s ju r i s d ic
t io n o f th i s m a t te r , a n d t h a t th e p la in t i f f h a s e s ta b lis h e d t h a t
h e is a m e m b e r o f a p ro te c te d c a te g o ry , a n d t h a t h e w a s d is
c h a rg e d f o r v io la tio n o f th e c o m p a n y ’s p o licy , b u t / will con
clude as a matter o f law that he has not established a prima
facie case, s in c e h e h a s n o t e s ta b lis h e d t h a t B lack s w e re t r e a te d
d if fe re n tly , a n d in f a c t c o m m itte d v io la t io n s o f th e c o m p a n y ’s
p o licy o f su ffic ien t s e r io u s n e s s ;
And I Will o r d e r t h a t th e c la im as to th e d is c h a rg e b e d ism isse d .
(J.A. 59 -6 0 ) (e m p h a s is a d d e d ) .
80 J u s t a s w i th th e d is c r im in a to r y d is c h a rg e c la im , th e e le m e n ts
fo r r e ta l ia t io n u n d e r § 1981, i f a llow ed , a r e th e sa m e a s th o se u n d e r
T itle VII. Irby v. Sullivan, 737 F .2 d 1418 ( 5 th C ir . 1 9 8 4 ) .
201
83
protected activity and the adverse action. Because Peti
tioner could only establish the first of the three manda
tory elements, his retaliation claim was properly dis
missed. Canino v. EEOC, 707 F.2d 468 (11th Cir. 1983)
(dismissal proper when plaintiff satisfied only two ele
ments of a prima facie case).
Petitioner alleged that Schwitzer treated him adversely
following the filing of his EEOC charge by providing a
neutral letter of reference to prospective employers which
contained only his dates of employment and former job
title. However, Schwitzer has a well-established com
pany policy of providing such limited references. In
deed, Schwitzer presented evidence of several other in
stances when employees who had not filed EEOC charges
received the same limited reference as that provided for
Lytle (Tr. 264-65, 267). Although it appears that in
one case a more detailed reference was supplied, this
incident was a single, unintentional aberration to an
otherwise uniform company policy, and there was no
contrary evidence (J.A. 62-63). As a consequence, a t the
end of all the evidence the district court held that Lytle’s
retaliation claim was without foundation as a matter of
law and entered judgment for Respondent under Rule
41(b) (J.A. 64). In these circumstances, even if § 1981
applies to retaliation claims, and even if attempts to
prove retaliation would not be collaterally estopped, Pe
titioner’s failure to establish a prima fade case would
have warranted a directed verdict. Accordingly, the de
nial of a jury trial was harmless error under Fed. R.
Civ. P. 61 and a new trial is unnecessary.81
81 I n th e e v e n t th e C o u r t does n o t a ffirm th e d e c is io n o f th e c o u rt
o f a p p e a ls on a n y o f th e g ro u n d s d is c u sse d ab o v e , th e p ro p e r
re m e d y w o u ld be a re m a n d f o r c o n s id e ra t io n o f th e § 1981 is su e and
a m o tio n u n d e r R u le 5 0 ( a ) f o r a d ir e c te d v e rd ic t . See Arlington
Heights v. Metropolitan Homing Corp., 429 U .S . 252 , 271 (1 9 7 7 ) ;
7 M o o re ’s F e d e ra l P ra c t ic e , P a r a g r a p h 61.06.
202
34
CONCLUSION
For the foregoing reasons, the Court should affirm
the judgment of the court of appeals.
Respectfully submitted,
H. L a n e D e n n a r d , J r .*
D e v i n M . E h r l i c h
O g l e t r e e , D e a k i n s , N a s h ,
S m o a k a n d S t e w a r t
3800 One A tlantic C enter
1201 W. Peachtree S treet, N.W.
A tlanta, Georgia 30309
(404) 881-1300
A. B r u c e C l a r k e
C. M a t t h e w K e e n
O g l e t r e e , D e a k i n s , N a s h ,
S m o a k a n d S t e w a r t
P ost Office Box 31608
Suite 100, 3724 N ational Drive
Raleigh, N orth Carolina 27622
(919) 787-9700
Attorneys for Respondent
* Counsel of Record
203
No. 88-334
In The
Supreme Court of tf)t ®ntteb States
October Term, 1989
J o h n S . L y t l e
v.
Petitioner,
H o u s e h o l d M a n u f a c t u r i n g , I n c .,
d / b / a S c h w i t z e r T u r b o c h a r g e r s ,
Respondent.
R E P L Y B R I E F F O R P E T I T I O N E R
J u l iu s L e V o n n e C h a m b e r s
C h a r l e s S t e p h e n R a l s t o n
R o n a l d L. E l l i s
E r ic S c h n a p p e r
J u d it h R e e d *
NAACP Legal Defense &
Educational Fund, Inc.
99 Hudson S treet 16th Floor
New York, New York 10013
(212) 219-1900
P e n d a D. H a ir
1275 K S treet, N.W.
Suite 301
W ashington, D.C. 20005
(202) 682-1300
P a m e l a S. K a r l a n
University of Virginia
School of Law
Charlottesville, VA 22901
(804) 924-7810
Attorneys for Petitioner
* Counsel of Record
205
CONTENTS
I. The Seventh Amendment Compels Reversal of
the Court of Appeals’ Judgment ...................... 1
II. Patterson v. McLean Credit Union Does Not
Preclude Petitioner From Maintaining This
Action ........................................10
206
TABLE OF AUTHORITIES
Cases Pape
Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1 9 8 6 ) ........................................................ 5, 6
Ashwander v. Tennessee Valley
Authority, 297 U.S. 288 (1936)........................................ 16
Bhandari v. First National Bank of
Commerce, 106 L. Ed. 2d 558 (1989) ........................... 15
Birdwhistle v. Kansas Power and
Light Co., 51 FEP Cases (D. Kan. 1 9 8 9 )................... 18
Booth v. Terminix International,
1989 U.S.Dist. LEXIS 10618
(D. Kan. 1989) .................................................................. 18
Brady v. Allstate Insurance Co.,
683 F.2d 86 (4th Cir.), cert, denied,
459 U.S. 1038 ( 1 9 8 2 ) ....................................................... 11
Cardinale v. Louisiana,
394 U.S. 437 (1969) ......... 14
Carella v. California,
105 L.Ed.2d 218 (1989) ............................................. 1
Chapman v. California, 386 U.S. 18 (1967) . . . . . . . . . . . 2
20?
Chevron Oil Co. v. Huson,
404 U.S. 97 (1 9 7 1 )............................................................. 30
Choudhury v. Polytechnic
Institute of New York,
735 F.2d 38 (2d Cir. 1984) ............................................. 13
Coates v. Johnson & Johnson,
756 F.2d 524 (7th Cir. 1 9 8 5 ) ........................................... 11
Conley v. Gibson, 355 U.S. 41 (1 9 5 7 ) ........................... 23, 28
Conner v. Fort Gordon Bus Co.,
761 F.2d 1495 (11th Cir. 1985) .................................... 11
Continental Casualty Co. v. DHL Services,
752 F.2d 353 (8th Cir. 1 9 8 5 ) ........................................... 4
Delaware State College v. Ricks,
449 U.S. 250 (1980) ............................................ 21
DeMatteis v. Eastman Kodak Co.,
511 F.2d 306 (2d Cir. 1975),
modified on other grounds,
520 F.2d 409 (2d Cir. 1975) ........................................... 13
Duncan v. Louisiana, 391 U.S. 145 (1 9 6 8 ).............................2
English v. General Development Corp.,
50 FEP Cases 825 (N.D.I11. 1989)........................... 14, 25
Cases Page
iii
208
Cases Page
Fong v. American Airlines, Inc.,
626 F.2d 759 (9th Cir. 1 9 8 0 ) ........................................... 11
Ford Motor Co. v. EEOC,
458 U.S. 219 (1982) ........................................................... 19
Gairola v. Commonwealth of Virginia
Dept, of General Services,
753 F.2d 1281 (4th Cir. 1 9 8 5 ) ......................................... 5
Galloway v. United States,
319 U.S. 372 (1 9 4 3 ) ........................................................ 2
Goff v. Continental Oil Co.,
678 F.2d 593 (5th Cir. 1 9 8 2 ) ......................................... 13
Goodman v. Lukens Steel Co.,
482 U.S. 656 (1 9 8 7 ) .............................................. 21, 29, 32
Granfinanciera S.A. v. Nordberg,
109 S.Ct. 2782 (1 9 8 9 ) ..............................................................1
Greenwood v. Ross, 778 F.2d 448
(8th Cir. 1985) ................................................................... 13
Gunning v. Cooley, 281 U.S. 90 (1 9 3 0 ) ................................ . 6
Hannah v. The Philadelphia
Coca-Cola Bottling Co.,
1989 U.S.Dist. LEXIS 7200 (E.D.Pa. 1989) ................ 14
iv
209
Cases
Harris v. Richards Mfg. Co.,
675 F.2d 811 (6th Cir. 1 9 8 2 )..................................... 13
Jackson v. University of Pittsburgh,
826 F.2d 230 (3d Cir. 1988) ........................................... 11
Johnson v. Yellow Freight System, Inc.,
734 F.2d 1304 (8th Cir.),
cert, denied, 469 U.S. 1041 (1 9 8 4 ) ................................ 11
Jones v. Pepsi-Cola General Bottlers,
1989 U.S.Dist. LEXIS 10307
(W.D.Mo. 1 9 8 9 ) ........................................................ 19, 20
Leroy v. G reat Western United Corp.,
443 U.S. 173 (1979) ........................................................... 16
London v. Coopers & Lybrand,
644 F.2d 811 (9th Cir. 1 9 8 1 ) ...........................................13
Long v. Laramie County
Community College Dist.,
840 F.2d 743 (10th Cir. 1 9 8 8 ) ........................................ 13
Lopez v. S.B. Thomas, Inc.,
831 F.2d 1184 (2d Cir. 1987) ................................ . . . 1 1
M alhotra v. Cotter & Co.,
50 FEP Cases 1474 (7th Cir. 1989)........................ 15, 25
v
210
Cases Page
Martin v. New York Life Ins. Co.,
148 N.Y. 117, 42 N.E. 416 (1895) ................................ 18
McDonald v. Santa Fe Trail
Transportation Co., 427 U.S. 273 (1 9 7 6 )...................... 21
McDonnell Douglas v. Green,
411 U.S. 792 (1978) ............................. .. .......... .. ............. 20
Meeker Oil v. Ambassador Oil Corp.,
375 U.S. 160 (1 9 6 3 ) ..............................................................1
Padilla v. United Air Lines,
716 F. Supp. 485 (D. Colo. 1989)................................... 20
Patterson v. McLean Credit Union,
105 L. Ed. 2d 132 (1989) ................................... .. passim
Pinkard v. Pullman-Standard,
678 F.2d 1211 (5 th Cir. 1982),
cert, denied,
459 U.S. 1105 ( 1 9 8 3 ) ........................................................ 13
Pope v. City of Hickory, N.C.,
679 F.2d 20 (4th Cir. 1982)................................................ 33
Prather v. Dayton Power &
Light Co., 1989 U.S. Dist.
LEXIS 10756 (S.D.Ohio 1989)........................................ 14
vi
211
Cases
Pullman Standard v. Swint,
58 U.S.L.W. 3288 (1989)............................................. .. . U
Ramsey v. United Mine Workers,
401 U.S. 302 (1 9 7 1 ) ........................................................... 12
Rowlett v. Anheuser-Busch, Inc.,
832 F.2d 194 (1st Cir. 1 9 8 7 ) ........................................... 11
Sanders v. Dobbs Houses, Inc.,
431 F.2d 1097 (5th Cir. 1970),
cert, denied, 401 U.S. 948 (1 9 7 1 )................................... 11
Setser v. Novack Investment Co.,
638 F.2d 1137 (8th Cir.),
modified, 657 F.2d 932, cert, denied,
102 S.Ct. 615 (1981) ........................................................ 13
Sisco v. J.S. Alberici Const. Co.,
655 F.2d 146 (8th Cir. 1981),
cert, denied, 455 U.S. 976 (1 9 8 2 )................................ .. 13
St. Francis College v. Al-Khazraji,
481 U.S. 604 ( 1 9 8 7 ) ........................................ 21, 31, 33
Stearns v. Beckman Instruments, Inc.,
737 F.2d 1565 (Fed.Cir. 1 9 8 4 ).......................................... 4
Strickland v. Washington,
466 U.S. 668 (1 9 8 4 ) ............................................................. 2|
vii
212
Cases
Swint v. Pullman Standard,
58 U.S.L.W. 3288 (1989)................................................... 15
Tacon v. Arizona, 410 U.S. 351 (1 9 7 3 ) ................................ 12
Thomas v. Beech Aircraft Corp.,
1989 U.S. Dist. LEXIS 11284 (D. Kan. 1989) ........... 32
Tull v. United States,
481 U.S. 412 (1 9 8 7 ) ................................................................ 1
United States v. Lane,
474 U.S. 438 (1 9 8 6 ) ................................................................ 2
Whiting v. Jackson State University,
616 F.2d 116 (5th Cir. 1 9 8 0 ) ........................................... 13
Wilson v. Garcia, 471 U.S. 261 (1985) ........ .................... .. . 31
Wilson v. United States,
645 F.2d 728 (9th Cir. 1 9 8 1 )...........................................5
Winston v. Lear-Siegler Inc.,
558 F.2d 1266 (6th Cir. 1 9 7 7 ) ........................................ 13
Page
viii
213
Constitutional Provisions.
Statutes, and Rules Page
42 U.S.C. § 1 9 8 1 ...................................................................passim
42 U.S.C. § 2 0 00e-5 (b )................................................................ 26
Rule 41(b), Fed. R. Civ. P................................................. 3-7, 10
Rule 50, Fed. R. Civ. P............................................................ 3,5
Rule 52(a), Fed. R. Civ. P ............................................ ' ..............4
Title VII of the Civil Rights Act
of 1964, as amended, 1972 ................... 12, 26-28, 33, 34
U.S. Const. Amend. V I I ...........................................1, 2, 10, 16
Other Authorities
Corbin on Contracts (1 9 5 2 )..................................................... 18
5 M oore’s Federal Practice (2d ed. 1 9 8 8 ) ............................. 5
9 Wright & Miller,
Federal Practice and Procedure (1971) ............................5
ix
214
I. The Seventh Am endm ent Compels Reversal
of the Court of Appeals’ Judgment
Respondent raises two analytically independent
reasons why the denial of a jury trial in this case does not
compel reversal of the dismissal of petitioner’s claims.
First, respondent claims that no denial of petitioner’s
Seventh Amendment rights ever occurred. Second,
respondent argues that this Court should sanction the
total disregard of the Seventh Amendm ent by lower
courts.1 Neither argument is supported by either this
1 This latter argument has two parts. The first concerns the
application of collateral estoppel to deny a jury trial. As we
explained in our opening brief, the Fourth Circuit’s approach - to
ignore Seventh Amendment violations as insignificant procedural
mishaps, and ask only whether the trial judge’s findings were clearly
erroneous - would effectively write the Seventh Amendment out of
the Constitution. Brief for Petitioner (Pet. Br. 47-50).
The second, that the denial of a jury in this case was
harmless error, also fails. This Court’s traditional practice when
confronted with Seventh Amendment violations is a rejection of that
approach. See Pet. Br. 35-38, discussing, e.g., Granfinanciera S.A. v.
Nordberg. 109 S.Ct. 2782 (1989); Tull v. United States. 481 U.S. 412
(1987); Meeker Oil v. Ambassador Oil Corn.. 375 U.S. 160 (1963).
Moreover, that approach ignores the fundamental nature of the right
to a jury trial. "The constitutional right to a jury trial embodies ’a
profound judgment about the way in which the law should be
(continued...)
215
Court’s prior decisions or by logic.
Respondent concedes, as it must, that the Court of
Appeals found that petitioner’s Seventh Amendment
rights had been denied. But it seeks to support the
Court of Appeals’ judgment by arguing that the result -
affirmance of the district court - was right even though 1
1 (...continued)
enforced and justice administered.’" Carella v. California, 105 L.Ed.
2d 218, 223 (1989) (Scalia, J. concurring in the judgment) (quoting
Duncan v. Louisiana. 391 U.S. 145, 155 (1968)). "It is a structural
guarantee that ’reflect[s] a fundamental decision about the exercise
of official power -- a reluctance to entrust plenary powers over the
life and liberty of the citizen to one judge or to a group of judges.’”
Id. (emphasis added). It is only after that constitutionally mandated
structure is in place that a court may even begin to conduct a
harmless-error analysis.
In any event, application of the appropriate harmless-error
standard (i.e., Chapman v. California. 386 U.S. 18, 24 (1967) and
United States v. Lane, 474 U.S. 438, 446 n. 8 (1986)), to the instant
case would require reversal, if this Court concludes that a properly
impaneled and instructed jury could have found for Lytle. Galloway
v. United States. 319 U.S. 372, 396 (1943). Given the evidence in
this case, it is clear beyond any doubt that a jury that believed
petitioner’s testimony could have found for him on both his
discharge and retaliation claims. Since there is a reasonable
possibility that the outcome would have been different had the error
not occurred - the standard used in constitutional harmless error
cases -- reversal is required. See, e.g., Strickland v. Washington, 466
U.S. 668, 694 (1984).
2
216
the entire analysis used to support that result was wrong.
Respondent’s argument, however, substantially distorts the
case law and Federal Rules of Civil Procedure on which
it relies.
Put simply, respondent claims that since the
evidence in this case would have compelled a directed
verdict, the district court should have taken the case from
the jury at some point, there was no error in never
empaneling a jury to begin with. That argument
bespeaks both a critical misunderstanding of the
relationship between Rule 41 dismissals in bench trials
and Rule 50 directed verdicts in jury trials and a critical
mischaracterization of the evidence at issue in this case.
The district court dismissed petitioner’s
discriminatory discharge claim at the close of his case,
pursuant to Fed. R. Civ. P. 41(b). Contrary to
respondent’s suggestion, that dismissal was not equivalent
3
217
to the ruling the district court would have been called
upon to make had it been faced with a motion for a
directed verdict in a jury case. Rule 41(b) applies by its
own terms only "in an action tried before the court
without a jury." It directs the judge to determ ine whether
"upon the facts and the law the plaintiff has shown no
right to relief' (emphasis added). It explicitly provides
that "the court as trier of the facts may determ ine 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.2
2 As recently explained by the Court of Appeals for the
Eighth Circuit: "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 evidence and to determine that the
plaintiff has not made out a case." Continental Casualty Co. v. DHL
Services. 752 F.2d 353, 355-56 (8th Cir. 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
(continued...)
4
218
In a case tried before a jury, of course, these
functions are the exclusive province of the jury, not the
judge. Thus, there are a number of fundamental
distinctions between dismissals pursuant to Rule 41(b)
and granting of directed verdicts pursuant to Rule 50(a).
First, in deciding a motion for a directed verdict,
the court may neither make credibility judgments adverse
to the nonmoving party nor weigh the evidence.2 3 Second,
in deciding whether to grant a directed verdict, the court
must view all the evidence and make all the factual
inferences in the light most favorable to the nonmoving
2(...continued)
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 5 Moore’s
Federal Practice i 41.13[4] at 41-175 to 41-179 (2d ed. 1988).
3 Anderson v. Liberty Lobby, Inc.. 477 U.S. 242, 255 (1986)
("[credibility determinations, the weighing of the evidence, and the
drawing of legitimate inferences from the facts are jury functions, not
those of a judge"). Gairola v. Commonwealth of Virginia Dept, of
General Services. 753 F.2d 1281, 1285 (4th Cir. 1985); 9 Wright &
Miller, Federal Practice and Procedure: Civil § 2524 at 541-42; §
2536 at 593-95 (1971).
5
219
party.4 Finally, a court may not weigh conflicting
evidence.5
By contrast, in deciding a Rule 41(b) motion, the
judge is not required to afford these burden-shifting and
burden-heightening rules. Thus, when a judge decides a
Rule 41(b) motion, he decides which side he believes, and
not w hether all reasonable people would be compelled to
favor that side. In short, the standard in a Rule 41(b)
case more nearly resembles the standard used in de novo
review (i.e., "which side should win?") rather than the
standard used in directed verdict determinations (i.e.,
"could any jury find for the other side?").
4 Anderson v. Liberty Lobby. Inc.. 477 U.S. at 255; see also.
cased cited Pet. Br. 31 n. 18.
5 Where there is any "uncertainty" as to the issue before the
jury which "arises from a conflict in testimony or because, the facts
being undisputed, fair-minded men will honestly draw different
conclusions from them, the question is not one of law but of fact to
be settled by the jury." Gunning v, Cooley. 281 U.S. 90, 94 (1930).
6
220
The district court’s approach in this case provides
a paradigmatic illustration of this general principle.
Three examples will suffice. First, the district court’s
finding that plaintiff had 9.8 hours of excessive unexcused
absence was crucial to its dismissal of the discharge claim.
That finding necessarily rejected petitioner’s testimony
that his absences were due to his doctor’s appointm ent
and his physical inability to work, and that respondent’s
policy treated absences due to these kinds of reasons as
excused absences granted as a m atter of course. It might
well be that a jury could disbelieve Lytle. But on a
directed verdict motion, the judge could not have made
that determination. Indeed, he would have been required
to assume that the jury would find for Lytle if any
reasonable jury could do so. And so the judge’s Rule
41(b) finding reflects an issue that would have had to go
to the jury in a jury case.
7
221
Second, the court declined to find that white
employees charged with lateness or absence were treated
more leniently that Lytle had been. Again, while a jury
might have been entitled to reject Lytle’s claim, that
rejection would have depended on an assessment of
Lytle’s credibility as well as that of any of respondent’s
supervisory personnel who might have testified that
Lytle’s situation was distinguishable. That rejection would
not have been within the judge’s province in a jury trial
case.
Finally, the district court expressly recognized that
it was making findings of fact about issues on which
reasonable individuals could differ. Lytle’s trial counsel
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
8
222
period. And the misunderstanding that Mr. Lytie 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. Ultimately, however, the district
judge rejected this "reasonable interpretation," presumably
in favor of one he found more "reasonable." But,
importantly, the court’s statem ent acknowledges that a
jury could have found for Lytle.6 In light of this
acknowledgement, it is simply wrong to contend that the
6 Similarly, with regard to Lytle’s claim of retaliation, a jury
might well have concluded that the letter of reference given a white
employee discharged during the same year was not inadvertent as the
district judge found, but that no such reference was given to Lytle
because he had taken action to redress an alleged violation of his
federally granted rights.
9
223
Rule 41(b) dismissal was equivalent to a directed verdict,
and thus that no Seventh Amendment violation occurred.7
II. Patterson v. McLean Credit Union
Does Not Preclude Petitioner From
Maintaining This Action
Respondent urges as an alternative ground for
affirmance that petitioner’s section 1981 claims are
precluded by this Court’s recent decision in Patterson v.
McLean Credit Union. 105 L. Ed. 2d 132 (1989). Brief
for Respondent (R. Br.) 1-18. We agree that, if this case
is remanded for a jury trial, respondent could seek to
invoke Patterson in any subsequent litigation regarding
the scope of section 1981. There is no denying that
7 Respondent’s reliance on the Miller and Lane affidavits
regarding petitioner’s discharge claim (presumably as a proxy for the
testimony they would have offered had they actually testified at trial
- which they did not) necessarily means that they are not claiming
that a directed verdict would have been appropriate at the end of
petitioner’s case in chief - since the evidence on which respondents
rely would not have been in the record at that time - but rather at
the end of respondent’s case.
10
224
Patterson raises a wide variety of complex and novel
issues about the interpretation of section 1981. But we
believe that this Court should not undertake to address
those issues in the context of the instant case.
Respondent asks this Court to hold that section
1981 does not apply to racially motivated discharges.8
But as respondent implicitly concedes (R. Br. 12),
respondent did not raise that issue in the district court or
the court of appeals.9 The respondent in Patterson itself
8 Respondent construes Patterson as overruling the dozens of
circuit decisions holding section 1981 applicable to discharge claims.
See, e.g., Rowlett v. Anheuser-Busch. Inc.. 832 F.2d 194 (1st Cir.
1987); Lopez v. S.B. Thomas. Inc.. 831 F.2d 1184 (2d Cir. 1987);
Jackson v. University of Pittsburgh, 826 F.2d 230 (3d Cir. 1988);
Brady v. Allstate Insurance Co.. 683 F.2d 86 (4th Cir.), cert, denied.
459 U.S. 1038 (1982); Sanders v. Dobbs Houses. Inc.. 431 F.2d 1097
(5th Cir.) cert, denied. 401 U.S. 948 (1971); Coates v. Johnson &
Johnson. 756 F.2d 524 (7th Cir. 1985); Johnson v. Yellow Freight
System. Inc.. 734 F.2d 1304 (8th Cir.), cert, denied. 469 U.S. 1041
(1984); Fong v. American Airlines. Inc.. 626 F.2d 759 (9th Cir.
1980); Conner v. Fort Gordon Bus Co.. 761 F.2d 1495 (11th Cir.
1985).
9 Respondent agreed in the Fourth Circuit that section 1981
generally "prohibits employment discrimination on the basis of race."
(Brief for Appellee, No. 86-1097, 4th Cir., p. 38). Respondent did
not argue that petitioner could not have maintained an action, based
(continued...)
11
225
had failed to raise below any argument that section 1981
precluded Patterson’s section 1981 promotion claim; for
that reason the Court declined to resolve the sufficiency
of that particular claim. 105 L. Ed. 2d at 156. Here, as
in Patterson, the .Court should adhere to its general
practice of not addressing in the first instance issues not
raised or resolved below. Tacon v. Arizona. 410 U.S.
351, 352-53 (1973); Ramsey v. United Mine Workers. 401
U.S. 302, 312 (1971). Respondent argued in the court of
appeals that section 1981 does not prohibit the particular
form of retaliation alleged by petitioner, but that
argument was based on a theory quite unrelated to the 9
9(...continued)
solely on section 1981, for a racially motivated discharge. Rather,
respondent’s sole contention in the lower courts was that petitioner
forfeited his right to enforce the section 1981 prohibition against
discriminatory discharge when petitioner ”combine[d]" that section
1981 claim with a Title VII claim in the same complaint. (Id. at 37).
Respondent denied that T itle VII and § 1981 claims may be brought
together on the same facts," (id. at 40), an argument that would have
been equally applicable to a section 1981 hiring claim. In this Court
respondent has abandoned this contention.
12
226
holding in Patterson.10 * The court of appeals, moreover,
did not resolve any question regarding the applicability of
section 1981 to acts of retaliation.11 H ere too it would
be prudent to permit the sufficiency of the retaliation
claim to be addressed in the first instance by the lower
courts on remand. "Questions not raised below are those
on which the record is very likely to be inadequate, since
10 Respondent urged below that the complaint failed to allege
with sufficient specificity that the retaliatory act was racially
motivated. (Brief for Appellee, No. 86-1097, 4th Cir., pp. 37-40).
Prior to Patterson, there was a consensus among the
circuits that section 1981 was indeed applicable to retaliation. See,
e.g., 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.
i975); Goff v. Continental Oil Co.. 678 F.2d 593. 598 (5th Cir.
1982); 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-Sieeler 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.
Alberiri Const. Co.. 655 F.2d 146, 150 (8th Cir. 1981), cert, denied.
455 U.S. 976 (1982); Setser v. Novack Investment Co.. 638 F.2d 1137,
1146 (8th Cir.), modified. 657 F.2d 932, cert, denied. 102 S.Ct. 615
(1981); London v. Coopers & Lvbrand. 644 F.2d 811 (9th Cir. 1981);
Long v. Laramie County Community College Dist.. 840 F,2d 743
(10th Cir. 1988).
13
227
it certainly was not compiled with those questions in
mind." Cardinale v. Louisiana. 394 U.S. 437, 439 (1969).
Respondent suggests that its prior failures to
object to the section 1981 claims should be excused
because the recent decision in Patterson was an
"intervening change in controlling law." R. Br. 12. But
the complaint whose sufficiency respondent now seeks to
challenge also predates Patterson. Neither the complaint
nor the answer in this case were or could have been
framed with Patterson "in mind."12 In the wake of
Patterson the lower courts have generally permitted
section 1981 plaintiffs to amend their complaints and
pursue necessary additional discovery,13 sensitive to Judge
12 The section 1981 claims themselves were never tried, having
been dismissed on a ground which the court of appeals held, and
which respondent does not deny, was erroneous. Pet. App. 7a n. 2.
13 English v. General Development Corp., 50 FEP Cas. 825
(N.D.I11. 1989); Hannah v. The Philadelphia Coca-Cola Bottling Co,
1989 U.S.Dist. LEXIS 7200 (E.D.Pa. 1989); Prather v. Davton Power
& Light Co.. 1989 U.S. Dist. LEXIS 10756 (S.D.Ohio 1989).
14
228
Posner’s admonition that judges should recognize that
such plaintiffs often face unusual difficulties when they
are compelled to "negotiate the treacherous and shifting
shoals of present-day federal employment discrimination
law." M alhotra v. Cotter & Co.. 50 FEP Cases 1474,
1480 (7th Cir. 1989). The resolution of any issues raised
by Patterson regarding the claims in this case should
await whatever clarification such amendm ent or discovery
might bring. Here, as in other cases,14 this Court should
direct that the sufficiency of section 1981 claims after
Patterson be assessed in the first instance by the lower
courts.
Resolution of the Patterson issues in this Court is
not required by the usual practice of deciding cases on
statutory rather than constitutional grounds. As the
14 Bhandari v. First National Bank of Commerce. 106 L. Ed.
2d .558 (1989); Pullman Standard v. Swint. 58 U.S.L.W. 3288 (1989);
Swint v. Pullman Standard. 58 U.S.L.W. 3288 (1989).
15
229
briefs of the parties make clear, the merits of the
question presented by the petition raise both a non
constitutional and a constitutional issue. We argue, first,
that ordinary principles of collateral estoppel simply do
not apply in this case, that reversal for a jury trial would
be required even if the right to jury trial at issue were
statutory rather than constitutional. (See P. Br. 41-45).
The determination whether collateral estoppel would be
inapplicable to a statutory right to trial by jury, of course,
would not be a constitutional question. We argue,
second, that if collateral estoppel would ordinarily apply
in the procedural posture of this case, its application in
this particular case would be inconsistent with the
Seventh Am endm ent.15 Although this second contention
15 This may well be one of the admittedly uncommon cases in
which it would be appropriate to address the constitutional issue.
The ordinary rule in favor of avoiding constitutional questions
concerns in particular cases presenting "novel" constitutional issues,
Leroy v. Great Western United Corn.. 443 U.S. 173, 181 (1979), or
those involving constitutional challenges to statutes. Ashwander v.
(continued,..)
16
230
is of constitutional dimension, it is an issue the Court
need not reach in order to resolve the jury trial question
in our favor.
(1) Discriminatory Discharge. Respondent urges
this Court to hold that a]l discriminatory discharges are
not actionable under section 1981. If the application of
section 1981 to claims of this sort necessarily gave rise to
a simple rule, either including or excluding all cases that
might be characterized as "discharges," this might be an
issue that could appropriately be resolved at this
juncture. But because of the widely differing events that
may occur when an employee loses his or her job, the 15 * *
15(...continued)
Tennessee Valiev Authority. 297 U.S. 288, 346-48 (1936)(Brandeis, J.,
dissenting). In the instant case the constitutional issue has already
been resolved, and repeatedly so, in petitioner’s favor (P. Br. 34-41),
and involves not a potential conflict with a co-equal branch of
government, but this Court’s special responsibility to supervise
compliance with the Seventh Amendment by the lower federal courts.
On the other hand, the complex statutory questions raised by
respondent regarding the meaning of Patterson are entirely novel,
having their origins in a decision less than six months old.
17
231
application of Patterson and section 1981 to discharges,
like their application to promotions, is complex and fact-
specific.
The mere announcement that an employee is fired
may by itself do no more than terminate a contractual
relationship; if that were all that occurred when a
particular employee was dismissed, such an event might
arguably constitute pure post-formation conduct.16 But
what actually occurs in a discharge case may in fact be
more complex. Having been formally dismissed, the 18
18 Several post-Patterson cases hold that all racially motivated
discharges are actionable under section 1981. See, e.g., Birdwhistle
v. Kansas Power and Light Co.. 51 FEP Cases 138 (D. Kan. 1989);
Booth v. Terminix International. 1989 U.S.Dist. LEXIS 10618 (D. Kan.
1989). At least where the discharged worker was an "at will"
employee, this conclusion seems consistent with Patterson, since at-
will employment is commonly regarded as "hiring at will". Corbin on
Contracts. § 70 (1952); Martin v. New York Life Ins. Co.. 148 N.Y.
117, 42 N.E. 416,417 (1895). An employer who fires an at-will
employee is not terminating an existing contract, but refusing to
make new additional unilateral contracts. Since, however, at least
some discharges of at-will or other employees are undeniably still
actionable after Patterson, and the instant complaint thus cannot be
dismissed at this juncture, it is not necessary to decide whether all
discharges are still actionable.
18
232
potential plaintiff, technically already an ex-employee, at
times seeks to get back his or her job, or, perhaps, some
other position at the firm.17 18 That a dismissed employee
might immediately seek that old job, or some other
position, is hardly surprising; "the victims of
discrimination want jobs, not lawsuits." Ford M otor Co.
v. EEOC. 458 U.S. 219, 231 (1982).18 Since the
announcement of the dismissal, as respondent itself
argues, ends the old contractual relationship, an ex
employee’s renewed efforts to work at the firm constitute
an attem pt to make a new contract. If an employer
spurns these overtures of a newly dismissed employee
because he or she is black, that discriminatory act would
17 See, e.g., Jones v. Pepsi-Cola General Bottlers. 1989
U.S.Dist. LEXIS 10307 (W.D.Mo. 1989)(discharge claim actionable
under section 1981 because the employee, after being told he was
fired, "requested a different job, offering to sweep floors if necessary,
to stay employed. Defendant refused.").
18 Indeed, petitioner sought reinstatement herein.- Joint
Appendix (JA) 13, par 3.
19
233
quite literally be a "refusal to enter into a contract"
within the very terms of Patterson.19 That would
obviously be so in the case of a dismissed worker who
applied a year later for employment, as occurred in
McDonnell Douglas v. Green. 411 U.S. 792 (1978).
There is no principled basis for treating differently a
dismissed employee who seeks reinstatement, or a new
position, a day, an hour, or a minute after his or her
dismissal. On four occasions prior to Patterson this
Court held actionable under section 1981 the discharge of
a former employee; in each case the employee, after
19 Padilla v. United Air Lines. 716 F. Supp. 485, 490 n. 4 (D.
Colo. 1989)("Defendant’s refusal to reconsider plaintiff for rehire due
to discriminatory practices is clearly prohibited by § 1981"); Jones
v. Pepsi-Cola General Bottlers. 1989 U.S.Dist. LEXIS 10307
(W.D.Mo. 1989)("in refusing on the basis of race to make a new
contract [with the dismissed worker], defendant violated section
1981").
20
234
having been told of the dismissal decision, had taken
steps to induce the employer to restore him to his job.20
Section 1981 would also be applicable to the
termination decision itself if the employer, for racial
reasons, fired a black employee for misconduct for which
white employees were or would have been disciplined in
a less harsh manner. Such discriminatory disciplinary
practices would violate the last clause of section 1981, a
provision not at issue in Patterson, which requires that
blacks "shall be subject to like punishment . . . and to no
other" as whites. The equal punishment clause, on the
other hand, would have no application to an employer
who, with no pretense of disciplinary motive, selected
employees for discharge on the basis of race.
20 McDonald v. Santa Fe Trail Transportation Co.. 427 U.S.
273, 275 (1976)(grievance); Delaware State College v. Ricks. 449
U.S. 250, 252 (1980)(appeal of termination decision); St. Francis
College v. Al-Khazraii. 481 U.S. 604, 606 (1987)(appeal of
termination decision); Goodman v. Lukens Steel Co.. 482 U.S. 656,
664 (1987)(grievance).
21
235
The complaint in this case, filed almost five years
before Patterson, understandably does not address
specifically all of the additional subsidiary facts that may
be relevant, or even critical, after Patterson. The
complaint does allege that respondent, prior to dismissing
petitioner for an alleged violation of company rules, had
chosen not to discharge whites "who have committed
more serious violations of the company’s rules" than had
petitioner. JA 8, par. 15. This claim clearly falls within
the equal punishment clause of section 1981. The
complaint does not indicate, on the other hand, what
petitioner may have said to company officials after the
initial notice to petitioner that he had been dismissed;
affidavits submitted by respondent indicate that there
were at least two subsequent meetings between those
officials and petitioner before petitioner finally left the
22
236
plant.21 U nder the Federal Rules of Civil Procedure,
petitioner was not required in his 1984 complaint "to set
forth specific facts to support [his] allegations of
discrimination," or to anticipate any additional
requirements that might follow from this Court’s 1989
decision in Patterson. Conley v. Gibson. 355 U.S. 41, 47-
48 (1957).
(2) Retaliation. Respondent urges this Court to
hold that no form of retaliation is ever prohibited by
section 1981, arguing that all retaliation constitutes post
formation conduct. (P. Br. 17-19). The application of
section 1981 to retaliation claims raises a large num ber
of different legal issues, because of the wide variety of
circumstances in which some form of race related
21 Petitioner testified that while he was operating his machine
Larry Miller told him of the termination. Tr. 143. Subsequently
petitioner apparently met both with A1 Duquenne, the production
superintendent, and then with the Employee Relations Department.
Affidavit of A1 Duquenne, p. 3.
23
237
retaliation might occur. We do not undertake to
speculate as to what all those circumstances might be, or
to analyze how section 1981, and Patterson, might be
applied in each. It is sufficient at this juncture to
observe that there are at least several types of retaliatory
actions that would undoubtedly still be actionable in the
wake of Patterson.
Section 1981 would certainly prevent an employer
from punishing employees because they insisted, in
compliance with section 1981 itself, on hiring in a racially
non-discriminatory manner, or because they objected to
discriminatory hiring practices forbidden by section 1981.
The section 1981 prohibition against discrimination in the
making of contracts includes within its penumbra
protection for those who comply with or protest
24
238
violations of that statutory command.22 Second, as this
Court noted in Patterson, the equal enforcem ent clause
of section 1981 "covers wholly private efforts to impede
access to the courts or obstruct nonjudicial methods of
adjudicating disputes about the force of binding
obligations." 105 L.Ed. 2d at 151 (emphasis added).
Thus the enforcement clause would be violated if a
racially motivated employer had a practice of retaliating
against any black employees who sought to enforce their
contract rights. Third, section 1981 would by its own
terms apply to racially motivated efforts of a third party
to interfere with efforts by a black to make a contract
with a new employer, including efforts triggered by a
racially based retaliatory motive. Fourth, racially
motivated retaliation against an individual for seeking to
22 Malhotra v. Cotter & Co.. 50 FEP Cases 1474 (7th Cir. 1989)
(Cudahy, J., concurring); English v. General Development Corn., 50
FEP Cas. 825, 826-28 (N.D. 111. 1989).
25
239
file suit or give evidence would violate the right
guaranteed by section 1981 "to sue, be parties, [or] give
evidence."
Racially motivated retaliation against individuals
who file Title VII charges violates, at the least, the
statutory rights to sue and give evidence. As this Court
stressed in Patterson, the filing of a Title VII charge is a
prerequisite to the commencement of a Title VII lawsuit;
section 1981’s protection of the right to bring that or any
other lawsuit necessarily encompasses protection of the
steps that are' legally required in order to maintain such
litigation. In addition, Title VII requires that any
individual filing a Title VII charge submit an allegation
"in writing under oath." 42 U.S.C. § 2Q00e-5(b). The
submission of such a sworn statement, setting forth the
26
240
details and basis of a claimant’s charge, is protected by
the section 1981 guarantee of an equal right to give
evidence.
Respondent urges that section 1981 does not apply
to any form of retaliation related to Title VII because
Title VII itself did not exist when section 1981 was first
enacted. (R. Br. 17-18). But the language of section
1981 is not limited to the right to sue under, or give
evidence in connection with, statutes that had been
adopted prior to 1866. The Congress which enacted
section 1981 certainly intended to give blacks a right to
sue under or give evidence relating to whatever new
statutory or common law rights might be established in
the future.
Respondent argues that petitioner failed to allege
that the asserted retaliation was racially motivated. The
supplemental complaint asserted that respondent
27
241
"retaliated against [petitioner] for filing a charge of
discrimination." (JA 40, par. 29). Respondent contends
that section 1981 would not be violated if an employer
had a practice of retaliating equally against all
individuals, white as well as black, who filed Title VII
charges. That is not a correct interpretation of section
1981, but it would be an extraordinarily strained reading
of the complaint in this case to construe it as asserting
the existence of such a uniform, race-neutral retaliation
policy on the part of respondent. The more plausible
reading of the complaint, which charges respondent with
favoring whites over blacks in a variety of different ways,
is as alleging respondent retaliated because a black had
filed a Title VII charge. If respondent had any doubt
about the precise nature of this claim, liberal pretrial
procedures were available to resolve the matter. Conley
v. Gibson. 355 U.S. at 47-48.
28
242
(3) Retroactivity. Respondent urges the Court to
adopt a per se rule that Patterson will be applied
retroactively to all cases pending on June 15, 1989.
Whether a civil case should be applied retroactively
depends on a number of different circumstances spelled
out in Chevron Oil Co. v. Huson. 404 U.S. 97, 106-08
(1971).
The criteria set forth in Chevron often do not
yield a single rule applicable to all cases and every
conceivable circumstance. Central to the Chevron
analysis is whether a new decision "overruled] clear past
precedent on which litigants may have relied." 404 U.S.
at 106. Thus the appropriateness of retroactivity in a
given case will often depend, at least in part, on the
precise nature of the claim, on the date when the case
was filed, and on the state of the law on that date in the
relevant circuit or district court. Compare Goodman v.
29
243
Lukens Steel Co., 482 U.S. 656, 663 (1987) (retroactive
application of Wilson v. Garcia. 471 U.S. 261 (1985),
appropriate because there was not a clear Third Circuit
rule to the contrary when the suit was filed in 1973) with
St. Francis College v. Al-Khazraii. 481 U.S. 604, 608-09
(1985)(retroactive application of Wilson not appropriate
because there was clear Third Circuit precedent to the
contrary when the suit was filed in 1980).
The appropriateness of retroactive application of
Patterson will thus depend, at least in part, on the
specific circumstances of each case. Defendants have
sought to rely on Patterson in a variety of different types
of cases, including claims alleging racially discriminatory
promotions, demotions, transfers, discharges, and
retaliation. The reigning law in each circuit with regard
to each of these types of claims, and the date on which
any controlling circuit decision was issued, vary widely, as
30
244
do the dates on which each of the still pending section
1981 actions was filed. The differences among the lower
courts regarding retroactive application of Patterson
reflects differences in the relevant circuit court law at the
times when those various suits were initiated. See, e.g..
Thomas v. Beech Aircraft Corp„ 1989 U.S. Dist. LEXIS
11284 (D. Kan. 1989)(denying retroactive application of
Patterson because application of section 1981 to
discharge cases was "universally recognized" by Tenth
Circuit precedent prior to Patterson).
Resolution of the retroactivity issue in this
particular case must begin, at least, with an assessment of
the relevant Fourth Circuit precedent as of Decem ber 6,
1984, the date on which the instant action was
commenced. By that point in time the Fourth Circuit
had held that racially motivated discharges were
31
245
actionable under section 1981;23 the status of precedent
in that circuit regarding section 1981 retaliation claims is
less clear. In any event, St. Francis College and
Goodman indicate that the evaluation of the state of
circuit court precedents on a given date should be made
in the first instance by the particular court of appeals
whose decisions are at issue.
A linchpin of the decision in Patterson was the
majority’s concern that section 1981 not be construed in
a m anner that would circumvent or deter resort to the
administrative machinery established by Title VII. But
the petitioner in this case djd file a timely Title VII
charge, and thereafter included a Title VII claim in his
complaint. On the other hand, the complaint alleges, the
respondent attem pted to prevent utilization of the Title
VII administrative process by retaliating against petitioner
23 Pope v. City of Hickory. N.C.. 679 F. 2d 20 (4th Cir. 1982).
32
246
for having invoked it. In the courts below respondent
repeatedly argued that a plaintiff could not pursue a
section 1981 claim unless he or she withdrew any related
Title VII claim; respondent actually prevailed on this
theory in the district court. In this Court, respondent
takes the opposite approach, arguing that petitioner’s
section 1981 claims should be dismissed lest a plaintiff
like petitioner voluntarily ignore the "well-crafted
procedures" of Title VII. (R. Br. 15.) But in the courts
below, and, allegedly, when the administrative charge was
filed, it was respondent who attem pted, unsuccessfully, to
force petitioner to forsake those very procedures. For
respondent to now prevail by invoking the sanctity of the
Title VII procedures which it previously sought to
33
247
eviscerate would be a perversion of the rationale of
Patterson.
Respectfully submitted,
JULIUS LEVONNE CHAM BERS
CHARLES STEPHEN RALSTON
RONALD L. ELLIS
ERIC SCHNAPPER
JU D ITH REED*
NAACP Legal Defense and
Educational Fund, Inc.
99 Hudson Street
16th Floor
New York, New York 10013
(212) 219-1900
PENDA D. HAIR
NAACP Legal Defense and
Educational Fund, Inc.
Suite 301
1275 K Street, N.W.
Washington, D.C. 20005
(202) 682 1300
PAM ELA S. KARLAN
University of Virginia
School of Law
Charlottesville, VA 22901
(804) 924-7810
Attorneys for Petitioner
* Counsel of Record
34
248
No. 88-334
I n T h e
g’ltprmr (Emtrt of % TUnltib l̂ tatea
O c t o b e r T e r m , 1989
J o h n S . L y t l e ,
Petitioner,
v .
S c h w i t z e r U .S . , I n c ., a s u b s i d i a r y o f S c h w i t z e r , I n c .,
Respondent.
On W rit of Certiorari to the
United S tates Court of Appeals
for the Fourth Circuit
BRIEF AMICUS CURIAE OF TH E
EQUAL EMPLOYMENT ADVISORY COUNCIL
IN SUPPORT OF TH E RESPONDENT
Robert E. Williams
Douglas S. McDowell
Garen E. Dodge *
McGuiness & W illiams
S u i t e 1 2 0 0
1 0 1 5 F i f t e e n t h S t r e e t , N .W .
W a s h in g to n , D .C . 2 0 0 0 5
( 2 0 2 ) 7 8 9 -8 6 0 0
A t t o r n e y s f o r A m ic u s C uriae ,
E q u a l E m p lo y m e n t
A d v i s o r y C ouncil
* C o u n s e l o f R e c o rd
249
TABLE OF CONTENTS
TABLE OF CONTENTS................. i
TABLE OF AUTH ORITIES................................................ iii
INTEREST OF THE AMICUS CURIAE...................... 1
STATEM ENT OF THE C A SE ............... 3
SUMMARY OF ARGUM ENT........................................... 5
A R G U M EN T............................................................................ 7
Page
I. W HERE A COURT HAS CORRECTLY
FOUND THAT A PLA IN TIFF FAILED TO
ESTABLISH A PRIMA FACIE CASE UN
DER TITLE VII, THE PLA IN T IFF IS NOT
ENTITLED TO A JURY TRIAL UNDER
SECTION 1981 INVOLVING THE SAME
FACTS AND LEGAL TH EO RIES.......:.............. 7
A. Because The Elements Of A Section 1981
Claim Are Identical To A Title VII Claim
Alleging Intentional Race Discrimination,
A Court May Properly Rule That “One Trial
Of Common Facts Is Enough,” And Thereby
Deny Relitigation Of The Dismissed Title
V II Claim By A Jury Under Section 1981.. 7
B. A Court’s Refusal To Perm it A Needless
Relitigation Of Common Facts Under Sec
tion 1981 Does Not Violate The Seventh
Amendment’s Guarantee Of A Jury Trial In
Suits A t Common L a w ...................................... 9
C. Strong Policy Reasons Support A Court’s
Denial Of A Second Trial Of Common Facts,
Particularly Where The Court Determines
T hat The Plaintiff Has Failed To Establish
Even A Prim a Facie C ase................................ 12
250
ii
II. P A T T E R S O N v. M c L E A N C R E D I T MAKES
CLEAR THAT SECTION 1981 DOES NOT
TABLE OF CONTENTS—Continued
Page
COVER CLAIMS OF DISCHARGE OR RE
TALIATION, SINCE SUCH ACTIONS DO
NOT INVOLVE THE “MAKING” OR “EN
FORCING” OF A CONTRACT ........................... 15
A. P a t t e r s o n And Its Reasoned Progeny Deny
Section 1981 Coverage To Discharge And
Retaliation C ases................................. 15
B. Strong Policy Reasons Support The Exclu
sion Of Discharge And Retaliation Claims
From The Scope Of Section 19 8 1 ................... 21
C. Courts Already In terp ret And Enforce Title
VII In A M anner That Protects The Rights
Of Charging Parties And Is Consistent With
Federal Antidiscrim ination P o lic y ................ 23
CONCLUSION......................................................................... 28
251
TABLE OF AUTHORITIES
C ases Page
A lb e m a r le P a p e r C o m p a n y v. M o o d y , 422 U.S. 405
(1 9 7 5 )............................................................................ 27
A l e x a n d e r v. N e w Y o r k M ed ica l College, No. 89
Civ. 1092, 1989 U.S. LEXIS 11433 (S.D.N.Y.
Sept. 29, 1989)............................................................ 18, 21
B e a co n T h e a tre s , Inc. v . W e s to v e r , 359 U.S. 500
(1959) ........................................................................... 10,11
B e e s le y v . H a r t f o r d F ire In su ra n ce Co., CA No.
89-AR-1062-S (N.D. Alabama) (decision pend
ing) ................... 3
B lo n d e r -T o n g u e L a b o ra to r ie s , Inc. v . U n i v e r s i t y
o f I l l ino is F o u n d a t io n , 402 U.S. 313 (1971)........ 13
B o s to n v. A T & T I n fo r m a t io n S y s t e m s , No. 88-
141-B (S.D. Iowa 1989)........................................... 19
B r a d y v. S o u th e r n R a i lro a d , 320 U.S. 476 (1943).. 14
C a rro l l v . G en era l M o to r s C orp ., CA No. 88-2532-
0, 1989 U.S. Dist. LEXIS 10481 (D. Kansas
1989) .............................................................................. 18
C a r te r v. A s e l to n , 50 F E P 251 (M.D. Fla. 1989).. 18
C h ance v. B o a r d o f E x a m in e r s , 534 F.2d 993 (2d
Cir. 1976), cer t , den ied , 431 U.S. 965 (1977)...... 24
C o p p e r id g e v. T e r m in a l F r e ig h t H a n d l in g , 50 F E P
Cases 812 (W.D. Tenn. 1989).............................. 18
C r a w f o r d v. B r o a d v ie w S a v in g s a n d L o a n Co.,
No. 88-3694, 1989 U.S. App. LEXIS 9921 (6th
Cir. 1 989)................................................................... 17
D a i r y Queen, Inc. v . W ood , 369 U.S. 469 (1962).. 10
D a n g e r f ie ld v . M is s io n P re s s , 50 F E P Cases 1171
(N.D. 111. 1989)........................................ 21
D w y e r v. S m i th , 867 F.2d 184 (4th Cir. 1989).... 13
E E O C v. A s s o c ia t e d D r y G oods C orp ., 449 U.S.
590 (1981)................................................................... 25
E E O C v. C o m m erc ia l Office P r o d u c t s Co., 108
S. Ct. 1666 (1988)...................................................... 25
E E O C v . S h e ll O il Co., 466 U.S. 54 (1984)............. 25
E n g l is h v. G en era l D ev . C orp ., 717 F. Supp. 628
(N.D. 111. 1989).......................................................... 21
F i d e l i t y & D e p o s i t Co. o f M d . v. U n i te d S ta te s , 187
U.S. 315 (1902) ......................................................... 10
iii
252
F u rn co C o n s tru c t io n Co. v . W a te r s , 438 U.S. 567
(1978)............................................................................. 3
G a iro la v. C o m m o n w e a l th o f V i r g in ia D e p a r t m e n t
o f G en era l S e rv ic e s , 753 F.2d 1281 (4th Cir,
1985)............................................................................... 7
G a l lo w a y v. United. S ta te s , 319 U.S. 372 (1943).... 9 ,10
G a rc ia v . G loor, 618 F.2d 264 (5th Cir. 1980),
cer t , d en ied , 449 U.S. 1113 (1981)........................ 7, 8
G en era l B u i ld in g C o n tr a c to r s A s s ’n. Inc. v . P e n n
sy lv a n ia , 458 U.S. 375 (1982)................................ 2, 24
G en era l T e lep h o n e Co. o f th e S o u th w e s t v. Falcon,
457 U.S. 147 (1982).................................................. 27
G en era l T e lep h o n e C o m p a n y o f th e N o r th w e s t ,
Inc. v . E E O C , 446 U.S. 318 (1980)...................... 27
G o o d m a n v . L u k e n s S te e l Co., 482 U.S. 656
(1987) ............................................................................ 2, 25
G ra n f in a n cier a S.A. v . N o r d b e r g , 109 S.Ct. 2782
(1989) ............................................................................ 11
G r e g g s v. H i l lm a n D i s t r ib u t in g Co., 50 F E P Cases
429 (S.D. Tex. 1 989)................................................ 18
H a ll v. C o u n ty o f Cook, S ta t e o f Il l ino is , No. 87 C
6918, 1989 U.S. Dist. LEXIS 9661 (N.D. 111.
1989) .............................................................................. 19
H u sse in v. O sh k o sh M o to r T ru c k Co., 816 F.2d
348 (7th Cir. 1987).................................................... 11
I n te r n a t io n a l B r o th e r h o o d o f T e a m s te r s v . U n i ted
S ta te s , 431 U.S. 324 (1977)..................................... 3
I r b y v. S u l l iva n , 737 F.2d 1418 (5th Cir. 1984).... 8, 9
J a ck s o n v. R K O B o t t le r s , 743 F.2d 370 (6th Cir.
1984) ............................................................................. 7
J e t t v. D a lla s v. In d e p e n d e n t S ch oo l D is t r i c t , 109
S. Ct. 2702 (1989).................................................... 20
J o n es v. A l l te c h A s so c ia te s , Inc., No. 85 C 10345,
1989 U.S. Dist. LEXIS 10422 (N.D. 111. 1989).. 18
J o r d a n v. U .S. W e s t D ir e c t Co., 50 F E P Cases 633
(D. Colo. 1989)........................................................... 21
K a tc h e n v. D andy , 382 U.S. 323 (1966).... ....5,10, 11,12
K e l le r v. P r in c e G e o rg e ’s C o u n ty , 827 F.2d 952
(4th Cir. 1987)........................................................... 13
iv
TABLE OF AUTHORITIES— Continued
Page
253
V
Kerotest Mfg Co. v. C-O-Two Co., 342 U.S. 180
(1 9 5 2 ).................................................................. 13
Kolb v. Ohio, No. 87 Civ. 1314 (N.D. Ohio 1989).. 18
Leong v. Hilton Hotels Corp., 50 F E P Cases 738
(D. Hawaii 1989)................................... 16,17
Lorillard v. Pons, 413 U.S. 575 (1978) .................. 3
Malhotra v. Cotter & Co., No. 88-2880 (7th Cir.
Sept. 12, 1989) ........................................................... 20
Malone v. U.S. Steel Corp., Civ. No. H 83-727
(N.D. Ind. July 19, 1989)........................................ 20
Mathis v. Boeing Military Airplane Co., No. 8 6 -
6002-K, 1989 U.S. Dist. LEXIS 8849 (D. Kan
sas 1989)...................................................................... 19
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973)............................................................................ 7
Moore V. City of Charlotte, 754 F.2d 1100 (4th
C ir.), cert, denied, 472 U.S. 1021 (1985) .......... 7
New York Gaslight Club, Inc. v. Carey, 447 U.S.
54 (1980).............................................................. ....... 25
Occidental Life Insurance Co. of California v.
EEOC, 432 U.S. 355 (1977)....................................... 23
Overby v. Chevron USA, 884 F.2d 470, 50 F E P
Cases 1211 (9th Cir. 1989)................................. 16,17, 22
Padilla v. United Air Lines, No. 88-A-400, 1989
U.S. Dist. LEXIS 8934 (D. Colo. 1989)................. 19
Parklane Hosiery Co. v. Shore, 439 U.S. 322
TABLE OF AUTHORITIES—Continued
Page
(1979)........ p a s s im
P a t t e r s o n v. M c L e a n C r e d i t Union, 109 S. Ct.
2363 (1989)..................................................................p a s s im
R ic k N o la n ’s A u to B o d y S hop , Inc. v . A l l s ta t e In
su ra n ce Co., No. 88 C 7147, 1989 U.S. Dist.
LEXIS 10357 (N.D. 111. 1989)............ 23
R i le y v . I l l ino is D e p t , o f M e n ta l H e a l th a n d D e v e l
o p m e n ta l D is a b i l i t ie s , No. 87 C 10436, 1989 U.S.
Dist. LEXIS 7686 (N.D. 111. 1989)......................... 19
R i t t e r v. M o u n t S a in t M a r y ’s College, 814 F.2d 986
(4th Cir.) cer t , den ied , 484 U.S. 913 (1987)......p a s s im
254
R i v e r a v . A T & T I n fo r m a t io n S y s t e m s , Inc., No,
89-B-109, U.S. Dist. LEXIS 10812 (D, Colo.
Sept. 13, 1989) ......................................................... 18
R o b in s o n v . P e p s i -C o la Co., Civ. No. H 87-375
(N.D. Ind. July 7, 1989) .............. ......................... 20
R u n y o n v. M c C r a r y , 427 U.S. 160 (1976).............. 2
S o ff r in v. A m e r ic a n A ir l in e s , 717 F. Supp. 587,
50 F E P Cases 1245 (N.D. 111. 1989).... :.............. 19
S t . F r a n c is C ollege v . A l - K h a z r a j i , 481 U.S. 604
(1987).................................................................................. 2
T a d ro s v . C o lem an , No. 8 8 Civ. 4431, 1989 U.S.
Dist. LEXIS 6895 (S.D.N.Y. 1989)...................... 19
T ex a s D e p t , o f C o m m u n i ty A f fa ir s v. B u rd in e ,
450 U.S. 248 (1981)....................................................... 3
T ull v . U n i te d S ta te s , 481 U.S. 412 (1987)............. 11
U n i te d S ta t e s P o s ta l S e r v ic e B o a r d o f G o ve rn o r s
v. Ailcens, 460 U.S. 711 (1983)...................................... 3
U n i te d S ta t e s v . E a s t T ex a s M o to r F r e ig h t S y s
t e m Inc., 564 F.2d 179 (5th Cir. 1977) ................. 24
U n i te d S t a t e s v . T ru c k in g M a n a g e m e n t , Inc., 662
F.2d 36 (D.C. Cir. 1981)......................................... 24
W a r d s C o ve P a c k in g Co. v. A to n io , 109 S.Ct. 2115
(1989)............................................................................. 3
W a s h in g to n v. D a v is , 426 U.S. 229 (1976)............... 24
W a te r s v . W is co n s in S te e l W o r k s o f I n te r n a t io n a l
H a r v e s t e r Co., 502 F.2d 1309 (7th Cir. 1974),
cer t , den ied , 425 U.S. 997 (1976).......................... 24
W a ts o n v . F o r t W o r th B a n k & T r u s t , 108 S. Ct.
2777 (1988)............................................ 3
W il l ia m s v . N a t io n a l Railroad. P a s s e n g e r C orp .,
716 F. Supp. 49, 50 F E P 721 (D.D.C. 1989)...... 18, 21
W ilm e r v . T en n essee E as tm .an Co., CA No. H-85-
6742 (S.D. Tex. 1989).............................................. 18
Z ip e s v . T ra n s W o r ld A ir l in e s , Inc., 455 U.S. 385
(1 9 8 2 )............................................................................ 25
C o n s t i tu t io n a l A m e n d m e n t
U.S. Const, amend. V I I .................................. 4
vi
TABLE OF AUTHORITIES—Continued
Page
255
TABLE OF AUTHORITIES— Continued
S t a t u t e s Page
Civil Rights Act of 1866, 42 U.S.C. § 1981 .............. p a s s im
Civil Rights Act of 1964, as a m e n d e d , Title VII, 42
U.S.C. §§ 2 0 0 0 e e t s e q ..................... ......................... p a s s im
R u le s a n d R e g u la t io n s
29 C.F.R. § 1601.16 (b) (1) and (2 ) .............. ............. 26
29 C.F.R. § 1601.19.......................................................... 26
Fed. R. Civ. P. 2 8 ...................................... ...................... 26, 27
Fed. R. Civ. P. 6 0 ( a ) ...................................................... 14
Fed. R. Civ. P. 61 ............................................................. 13
M isce l lan eou s
EEOC: Investigative Compliance Policy, 8 F a ir
Empl. Prac. (BNA) 401-2625-40:2626.............. 26
EEOC: Policy Statem ent on Remedies and Relief
for Individual Victims of Discrimination, 8 F a ir
Empl. Prac. (B N A ), 401:2616-401:2618.............. 26
D e v e lo p m e n ts in th e L a w — E m p lo y m e n t D i s c r im i
n a t io n a n d T it le V I I o f th e C iv i l R i g h t s A c t o f
1964, 84 Harv. L. Rev. 1109 (1971) ..................... 24
Sape & H art, T it le V I I R e c o n s id e r e d : T h e E q u a l
E m p lo y m e n t O p p o r tu n i t y A c t o f 1972, 40 Geo.
Wash. L. Rev. 824 (1972)....................................... 24
vii
256
I n T h e
Htprwtu? (ttmtrt itf tljp lltitttpft
O c t o b e r T e r m , 1 9 8 9
No. 88-334
J o h n S . L y t l e ,
v Petitioner,
S c h w i t z e r U .S . , I n c ., a s u b s i d i a r y o f S c h w i t z e r , I n c .,
_______ Respondent.
On Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
BRIEF AMICUS CURIAE OF THE
EQUAL EMPLOYMENT ADVISORY COUNCIL
IN SUPPORT OF THE RESPONDENT
The E qual Em ploym ent Advisory Council, w ith the
w ritten consent of the p arties, respectfully subm its th is
b rie f as am icus curiae in support of the Respondent. The
le tte rs of consent have been filed w ith the Clerk of this
Court.
INTEREST OF THE AMICUS CURIAE
The E qual Em ploym ent Advisory Council (E E A C or
Council) is a vo lun tary nonprofit association organized to
prom ote sound governm ent policies p e rta in in g to employ
m ent d iscrim ination. I ts m em bership com prises a broad
segm ent of the em ployer com m unity in the U nited S tates,
including both individual employers and trad e associa
tions. I ts governing body is a board of d irectors com
posed of experts in equal em ploym ent opportunity . T heir
combined experience gives the Council a unique depth
257
2
of understand ing of the p ractical, as well as legal as
pects of equal employment policies and requirem ents. The
m em bers of the Council a re com m itted to the principles
of nondiscrim ination and equal em ployment opportunity .
As employers, the Council’s m em bers a re subject to the
provisions of T itle V II of the Civil R ights A ct of 1964,
as amended, 42 U.S.C. § § 2000e et seq. (T itle V II ) , as
well as the Civil R ights A ct of 1866, 42 U.S.C. § 1981
(Section 1981). As such, they have a d irect in te re st in
the issue presented for th is C ourt’s consideration: th a t
is, w hether a p lain tiff is entitled to a ju ry tr ia l under
Section 1981 when a d is tric t court has properly found
th a t the p lain tiff failed to establish the prima facie ele
m ents of a cause of action under T itle V II a f te r a full
p resen ta tion of evidence a t a bench tria l, bu t when a
C ourt of Appeals la te r determ ines th a t the d is tric t court
had im properly dismissed a Section 1981 claim involving
the same fac ts and legal theories. In addition, E E A C ’s
m em bers have an in te re st in a related basis on which th is
C ourt could properly dispose of th is case w ithout even
reaching the ju ry tr ia l issue— th a t is, th a t Section 1981
does not cover race discrim ination involving discharge or
re ta lia tion , L ytle’s com plaints herein, p articu la rly a f te r
th is C ourt’s decision la s t term in Patterson v. McLean
Credit Union, 109 S. Ct. 2363 (1989).
Because of its in te re st in issues involving Section 1981,
E E A C filed b rie fs w ith th is C ourt in the Patterson case,
both as in itia lly argued and again upon reconsideration
of Runyon v. McCrary, 427 U.S. 160 (1976). The Coun
cil also addressed Section 1981 issues in Goodman v. Lu-
kens Steel Co., 482 U.S. 656 (1987) (personal in ju ry ,
not contract, s ta tu te of lim itations applies in a Section
1981 case), St. Francis College v. Al-Khazraji, 481 U.S.
604 (1987) (Section 1981 covers claim s of ancestry and
ethnicity discrim ination, as well as th a t of ra ce), and
General Building Contractors Ass’n. Inc. v. Pennsylvania,
458 U.S. 375 (1982) (s tan d a rd of proof under Section
1981 is one of in tentional d iscrim ination).
258
Indeed, because of E E A C ’s concern related to the
proof of em ploym ent d iscrim ination cases generally, the
Council has filed b riefs am icus curiae in th is C ourt in
W a r d s C o v e P a c k i n g Co. v . A t o n io , 109 S. Ct. 2115
(1989) ; W a t s o n v . F o r t W o r t h B a n k & T r u s t , 108 S. Ct.
2777 (1988) ; U n i t e d S t a t e s P o s t a l S e r v i c e B o a r d o f G o v
e r n o r s v . A i k e n s , 460 U.S. 711 (1 9 8 3 ); T e x a s D e p t , o f
C o m m u n i t y A f f a i r s v . B u r d i n e , 450 U.S. 248 (1981) ;
F u m c o C o n s t r u c t i o n Co. v . W a t e r s , 438 U.S. 567 (1978) ;
and I n t e r n a t i o n a l B r o t h e r h o o d o f T e a m s t e r s v . U n i t e d
S t a t e s , 431 U.S. 324 (1977), am ong others. E E AC also
addressed the issue of ju ry tr ia ls u nder T itle V II, B e e s -
l e y v . H a r t f o r d F i r e I n s u r a n c e Co., CA No. 89-AR-1062-S
(N.D. A labam a) (decision pend ing), and the Age D is
crim ination in Em ploym ent Act, L o r i l l a r d v. P o n s , 413
U.S. 575 (1978). Accordingly, because of its past ex
perience w ith these issues, the Council is well qualified
to b rie f the C ourt in this case.
STATEMENT OF THE CASE
Schw itzer dismissed John Lytle from his position as
m achinist on A ugust 15, 1983, fo r excessive, unexcused
absences. L ytle had asked his supervisor fo r perm is
sion to take a F rid ay off to v isit his doctor, which his
supervisor g ran ted on condition th a t Lytle w ork on the
following S atu rday . Lytle not only took F rid ay off, bu t
le ft w ork w ithout authorization nearly two hours early
on T hursday, and then failed to repo rt fo r eight hours
of w ork on S atu rday . Because company policy does not
perm it more th an eight hours of unexcused absences per
year, Lytle w as discharged.
A fte r h is discharge, Lytle began applying fo r jobs
w ith o ther companies. In accord w ith established policy,
Schw itzer provided Lytle’s dates of em ploym ent and
his job title to two prospective employers who asked for
a reference. The company provided no negative in fo r
m ation about Lytle, and both companies hired him.
Lytle, who is black, filed su it in federal d is tric t court
u nder both T itle V II and Section 1981, alleging th a t he
3
259
4
had been discharged because of h is race, and th a t the
company had re ta lia ted ag a in st him fo r filing his d is
crim ination charge when it failed to provide m ore favo r
able le tte rs of reference. H e relied on evidence th a t the
company had once provided a favorable reference le tte r
fo r a w hite w orker. Lytle based his T itle V II and Sec
tion 1981 allegations upon identical facts.
The U.S. D istric t C ourt fo r the W estern D istric t of
N orth C arolina, in an unreported decision, dismissed the
Section 1981 claims p rio r to tria l, holding th a t, in the
absence of an independent factual basis fo r the Section
1981 suit, T itle V II w as L ytle’s exclusive federal rem
edy. A t the close of Lytle’s presen tation of evidence a t
a T itle V II bench tria l, the court dismissed the allega
tions of d iscrim inatory discharge. The court held th a t
the evidence w as not sufficient to establish a p n m a f a c i e
case since Lytle failed to show th a t any w hite employees
received less severe discipline fo r unexcused absences.
The d is tric t court then entered a verd ic t fo r Schwitzer
on the re ta lia tion claim, finding th a t the g ra n tin g of one
“favorable” le tte r of reference to a w hite employee was
done through “ inadvertence.” Jo in t Appendix ( j .A .) a t
63.
The F ourth C ircu it held 2-1 th a t although T itle V II
provided an avenue of relief, the d is tric t court had e r
roneously dismissed the claim s under Section 1981, which
provided an independent source of re lie f on the sam e
claim. B u t the appellate court also declined to order a
“second” tr ia l— this one by ju ry u nder Section 1 9 8 1 -
reasoning th a t the d is tric t cou rt’s T itle V II findings were
entitled to collateral estoppel effect as to legal theories
a ris in g o u t of the sam e facts, as the sam e standards
apply under both statu tes. The F o u rth C ircu it then a f
firmed the d is tric t court’s findings th a t Lytle had failed
to establish a p n m a f a c i e case of d iscrim inato ry dis
charge and re ta lia tion . Judge W idener dissented, reason
ing th a t Lytle had been denied his r ig h t to a ju ry tr ia l
under the Seventh Am endm ent to the U.S. Constitution.
260
SUMMARY OF ARGUMENT
The elem ents of a Section 1981 em ploym ent d iscrim i
nation claim are identical to the elements of a T itle VII
d isp ara te trea tm e n t claim. Therefore, w here a tria l court
correctly concludes, a f te r a bench tria l on the m erits, th a t
a p lain tiff has failed to establish a prima facie case under
T itle V II, i t is en tire ly ap p ro p ria te to deny a plaintiff
the so-called " r ig h t” to re litig a te those sam e fac ts and
legal theories before a ju ry under Section 1981. This
Court, in Parklane Hosiery Co. v. Shore, 439 U.S. 322
(1979), indicated th a t a litig an t is no t alw ays entitled
to have a ju ry determ ine issues th a t have been ad jud i
cated by a tr ia l judge, and the F o u rth C ircu it below
properly applied th a t doctrine to the in s tan t case. Indeed,
as the F o u rth C ircu it noted in Ritter v. Mount Saint
Mary's College, 814 F.2d 896, 992, cert, denied, 484 U.S.
913 (1987), w here the p lain tiff has had a fu ll and fa ir
opportun ity to litig a te h is claims, “one tr ia l of common
fac ts is enough.”
Despite P e titio n er’s argum ents to the con trary , a cou rt’s
re fusal to sanction a needless re litigation of the same
fac ts u nder Section 1981 does not run afoul of the Sev
enth A m endm ent’s r ig h t to a ju ry tria l. As indicated
by th is C ourt in Katchen v. handy, 382 U.S. 323 (1966),
there a re situations in which courts m ay dispose of equi
table claim s in a bench tr ia l even though “ the resu lts
m igh t be dispositive of the issues involved in the legal
claim .” Thus, the Seventh A m endm ent is not to be ap
plied “in a rig id m an n er” ; w here the judge has already
assessed the re levan t facts, there sim ply “ is no fu r th e r
factfind ing function fo r the ju ry to perfo rm .” Parklane
Hosiery, 439 U.S. a t 336.
Indeed, s trong policy reasons support the denial of a
“second” tr ia l of common fac ts by a ju ry . F o r example,
a p lain tiff will alw ays be able to p resen t his evidence a t
the bench tria l. And although the issues a re not p re
sented before a ju ry , all p a rtie s have had a fu ll oppor
tu n ity to litig a te before an independent t r ie r of fact.
5
261
6
No other persons, except those parties, a re affected by
the tr ia l court’s dismissal. Giving preclusive effect to the
bench tr ia l decision aga inst those p artie s also prom otes
judicial economy by preventing needless litigation and a t
m ost resu lts in “e rro r” th a t is “harm less” to the litig an t
who lost— p articu la rly where, as here, there is insufficient
evidence of a p H m a f a c i e case— because the judge would
have taken the case from the ju ry and g ran ted a directed
verdict in any event. Given the foregoing, the decision
below prom otes much needed “finality” in the jud icial
process. This C ourt should adopt the ru le that, a t m ini
mum, a d is tric t court m ay deny re litigation by a ju ry
whenever evidence produced a t the bench tr ia l indicates
th a t the p lain tiff has failed to establish an elem ent of his
p r i m a f a c i e case, such th a t he would not be able to su r
vive a motion fo r directed verdict.
EEA C would also stress th a t th is C ourt need not even
r e a c h the ju ry issue since, under its decision la s t term in
P a t t e r s o n v . M c L e a n C r e d i t U n io n , 109 S.Ct. 2363
(1989), i t is now ap p aren t th a t claim s of discharge and
re ta lia tion a re not actionable under Section 1981. R ather,
th a t law only covers the “m aking” and “enforcing” of a
contract. P a t t e r s o n strongly implies, and its reasoned
progeny clearly hold, th a t d ischarges and instances of
re ta lia tion are neither.
Sound public policy supports th is construction, in th a t
T itle V II’s w ell-crafted conciliation and resolution proce
dures would be underm ined by an overbroad read ing of
Section 1981. Moreover, i t m akes no sense to tw is t the
m eaning of Section 1981 to reach discharge and re ta lia
tion claims, since T itle V II a lready covers such claim s
and is cu rren tly being in terp re ted and enforced in a
m anner th a t protects the rig h ts of charg ing p arties—
a m anner th a t is consistent w ith o u r national an tid is
crim ination laws and policies. As a result, th is C ourt
would be w arran ted in dism issing the petition fo r a w rit
of ce rtio rari as im providently gran ted , since the issues
a re now moot.
262
ARGUMENT
I. WHERE A COURT HAS CORRECTLY FOUND
THAT A PLAINTIFF FAILED TO ESTABLISH A
PRIMA FACIE CASE UNDER TITLE VII, THE
PLAINTIFF IS NOT ENTITLED TO A JURY
TRIAL UNDER SECTION 1981 INVOLVING THE
SAME FACTS AND LEGAL THEORIES
A. Because The Elements Of A Section 1981 Claim
Are Identical To A Title VII Claim Alleging Inten
tional Race Discrimination, A Court May Properly
Rule That “One Trial Of Common Facts Is Enough,”
And Thereby Deny Relitigation Of The Dismissed
Title VII Claim By A Jury Under Section 1981
As the F o u rth C ircu it below properly noted, “ it is be
yond peradven tu re th a t the elem ents of a prima facie
case of em ploym ent d iscrim ination alleging d ispara te
trea tm en t under T itle V II and § 1981 are identical.” Slip
Op. a t 7, citing Gairola v. Commonwealth of Virginia De
partment of General Services, 753 F .2d 1281, 1285 (4th
Cir. 1985), and the cases cited therein . See Patterson v.
McLean Credit Union, 109 S. Ct. a t 2378 (J . Kennedy)
and 109 S.Ct. a t 2390 (J . B rennan, concurring in p a r t ) . 1
The court below found th a t Lytle fa iled to establish a
prima facie case of d iscrim ination u nder T itle V II, both
fo r his discharge and his re ta lia tion claim s .1 2 Specifically
— as discussed m ore fu lly in R espondent’s b rief, and as
1 O th e r c irc u its a g re e . See Garcia v. Gloor, 618 F .2 d 264, 271
(5 th C ir. 1 9 8 0 ), cert, denied, 449 U .S . 1113 (1 9 8 1 ) ; Jackson v.
RKO Bottlers, 743 F .2 d 370, 378 (6 th C ir. 1984).
2 T h is C o u rt, in McDonnell Douglas Corp. v. Green, 411 U .S.
792 (1 9 7 3 ) , s e t o u t th e e lem en ts n e cessa ry to m ak e o u t a prima
facie case o f d is p a ra te t r e a tm e n t u n d e r b o th s ta tu te s . A s m odified
by th e F o u r th C irc u it in Moore v. City of Charlotte, 754 F .2d 1100
(4 th C ir .) , cert, denied, 472 U .S . 1021 (1 9 8 5 ) , to a d d re s s d is c r im
in a to ry d isc ip lin e cases in v o lv in g race , a p la in tif f m u s t e s ta b lish
th e se e le m e n ts : (1 ) th a t he is b lack ; (2 ) th a t he w as d isc h a rg e d
fo r v io la tio n o f a com pany ru le ; (3 ) th a t he en g ag ed in p ro h ib ite d
co n d u ct s im ila r to th a t o f a p e rso n o f a n o th e r ra c e ; and (4 ) th a t
d is c ip lin a ry m e a su re s en fo rced a g a in s t h im w ere m ore sev ere th an
th o se en fo rced a g a in s t th e o th e r perso n .
7
263
8
properly noted by the d is tric t and appellate courts below
— Lytle le ft w ork early on T hursday, and did no t rep o rt
o r call in on e ither F rid ay o r S atu rd ay . This behavior
am ounted to the unexcused use of over eigh t hours of
leave which, under Schw itzer’s policies, is a dischargeable
offense. F a ta l to h is case, Lytle could no t iden tify a
single, non-black employee gu ilty of a s im ila r violation
who was trea ted any differently. H e thus failed to estab
lish an essential elem ent of h is discharge case. J.A . a t
60.*
Because the elem ents of a Section 1981 and a T itle V II
d ispara te trea tm en t claim a re identical, the F o u rth C ir
cuit below correctly determ ined th a t “ [W Jhere the ele
m ents of two causes of action a re the same, the findings by
the court in one preclude the tr ia l of the other, and we so
hold.” Slip op. a t 8 . S e e G a r c i a v . G lo o r , 618 F .2d 264,
271 (5th Cir. 1980), c e r t , d e n ie d , 449 U.S. 1113 (1981)
(“The facts here th a t preclude re lie f under T itle V II also
precludes a Section 1981 claim ” ).
To deny re litigation of th e sam e fac ts and legal issues
by a ju ry is fu lly supported by the decisions of th is and
other courts. In P a r k l a n e H o s i e r y C o. v . S h o re , 439 U.S.
322 (1979), th is C ourt ruled th a t a litig an t is not always
entitled to have a ju ry determ ine issues th a t had been
adjudicated previously by a tr ia l judge. I t adopted the
view th a t re litigation of identical issues ru n s afoul of the
in te rests of jud icial economy, and does no t violate the
Seventh A m endm ent’s g u aran tee of a r ig h t to a ju ry .
This C ourt concluded th a t w here a judge has determ ined
facts to be adverse, “there is no fu r th e r fact-finding func-
* S im ila rly , w ith re g a rd to h is re ta l ia t io n claim , L y tle fa iled
to e s ta b lish t h a t S c h w itz e r took a d v e rse ac tio n a g a in s t h im , o r
th a t a causa l connection ex is ted be tw een h is filing o f a n E E O C
c h a rg e an d a n y ad v e rse ac tio n -—n ecessa ry e lem en ts in a re ta lia tio n
claim . See Irby v. SuUivan, 737 F .2 d 1418 (5 th C ir. 1 9 8 4 ). As
n o ted by th e d is t r ic t c o u r t below , w h ile S c h w itz e r p ro v id ed one
fav o rab le re fe re n c e to a w h ite w o rk e r, i t w as done th ro u g h in
ad v erten ce , and th e F o u r th C irc u it declined to find th a t th e d is tr ic t
c o u r t’s decis ion w as c lea rly e rro n eo u s . J .A . a t 63.
264
9
tiott fo r the ju ry to perform , since the common fac tua l
issues” have been decided. Id. a t 336. See also Galloway
v. United States, 319 U.S. 372 (1943).
Sim ilarly , in Ritter v. Mount St. Mary’s College, 814
F.2d 986, the F o u rth C ircu it ru led th a t a tr ia l cou rt’s
T itle VII findings prevent the re litigation of those find
ings before a ju ry under a legal theory involving the
sam e facts. In Ritter, a professor sued h er college under
T itle VII, the E qual P ay Act (E P A ), 29 U.S.C. § 2 0 6 (d ) ,
and the Age D iscrim ination in Em ploym ent A ct (A D E A ),
29 U.S.C. § 621 et seq. A fte r a bench tria l, the d is tric t
court correctly ru led th a t, under T itle VII, she w as not
qualified fo r tenure , b u t erred in dism issing h er claim s
under the E P A and ADEA . The F o u rth C ircu it applied
Parklane Hosiery to deny re litigation of the E P A and
A D EA claim s before a ju ry , ru ling th a t ‘‘ [o]ne tr ia l of
common fac ts is enough.” Ritter, 814 F.2d a t 991. Like
wise, the F o u rth C ircu it below correctly determ ined th a t
Lytle w as not en titled to re litig a te his Section 1981 claim.
As we now show, a court m ay deny needless re litig a
tion under such circum stances and not violate the Sev
enth Am endm ent.
B. A Court’s Refusal To Permit A Needless Relltiga-
tion Of Common Facts Under Section 1981 Does Not
Violate The Seventh Amendment’s Guarantee Of A
Jury Trial In Suits At Common Law
P etitioners argue th a t the F o u rth C ircu it’s ru ling er
roneously deprived Lytle of h is “r ig h t to a ju ry tr ia l ,”
in violation of the Seventh A m endm ent to the U.S. Con
stitu tion . Pet. Br. a t 25. P etitioners call th is r ig h t an
“en titlem ent,” the denial of which is subject to “reversal
per se.” Id. a t 41. I t is clear, however, th a t the Seventh
A m endm ent is no t so broad. I t sim ply provides th a t “ In
suite a t common law . . . the r ig h t to tr ia l by ju ry shall
be preserved. . . .” As explained fully by th is C ourt in
Parklane Hosiery Co., 439 U.S. a t 336, “ [t] he Seventh
A m endm ent has never been in terp re ted in [a] rig id m an
n e r,” and “m any procedural devices developed since 1791
265
10
. . . have dim inished the civil ju ry ’s h isto ric dom ain.”
F o r example, th is C ourt has held th a t neither the doc
trin es of directed verdict nor sum m ary ju d g m en t violate
the Seventh Amendment. See Galloway, 319 U.S. a t 388-
93, and Fidelity & Deposit Co. of Md. v. United States,
187 U.S. 315, 319-21 (1902).
Of more d irec t relevance to the case herein, in Katchen
v. handy, 382 U.S. 323 (1966), th is C ourt held th a t a
bankruptcy court, s ittin g as a s ta tu to ry cou rt of equity,
is empowered to decide equitable claim s before deciding
legal claim s— even though the fac tu a l issues could ju s t
as well have been decided by a ju ry under the Seventh
Am endm ent if the legal claim s had been adjudicated first.
See Parklane Hosiery, 439 U.S. a t 334-35. Indeed, th is
C ourt in Katchen stated th a t “ there m ight be situations
in which the C ourt could proceed to resolve the equitable
claim firs t even though the resu lts m ight be dispositive
of the issues involved in the legal claim .” 382 U.S. a t
339-40. Such a situation w as presented to the tr ia l judge
below. He resolved the T itle V II claims a t the bench tr ia l
a f te r dism issing the Section 1981 claims. T h a t he m ay
have erred in dism issing the Section 1981 claim s does not
convert h is T itle V II findings into a violation of the Sev
enth Amendment. As th is C ourt s ta ted in Parklane
Hosiery, there sim ply is “no fu r th e r factfind ing function
fo r the ju ry to perform ,” 439 U.S. a t 336.
C on trary to P e titio n er’s assertions, such a ru lin g will
not dim inish the effect of th is C ourt’s decision in Beacon
Theatres, Inc. v. Westover 359 U.S. 500 (1959), or Dairy
Queen, Inc. v. Wood, 369 U.S. 469 (1962). Both cases
stand fo r the proposition that, whenever possible, the rig h t
to a ju ry tr ia l should be ensured in a claim containing
both legal and equitable claim s in the sam e set of facts,
thus “precluding the p rio r determ ination of the factual
issues by a court s ittin g in equity.” Ritter, 814 F .2d a t
990. But, as th is C ourt m ade em inently clear in Katchen,
382 U.S. a t 339, “ [ i]n neither Beacon Theatres nor Dairy
Queen w as there involved a specific s ta tu to ry scheme con-
266
tem plating the p rom pt tr ia l of a disputed claim w ithout
the in tervention of a ju ry .”
Here, in s ta rk con trast, a specific s ta tu to ry scheme—
T itle V II— contem plates a p rom pt tr ia l of the same facts
and legal theories w ithou t the in tervention of a ju ry .4 5 * *
Indeed, th is C ourt in Parklane Hosiery, 439 U.S. a t 334-
35, explained th a t the prem ise of Beacon Theatres is “no
m ore th an a general p ru d en tia l ru le” th a t h as since been
in te rp re ted by Katchen to p erm it a cou rt s ittin g in equity
to ad judicate equitable claim s p rio r to legal claim s “even
though the fac tu a l issues decided in the equity action
would have been triab le by a ju ry under the Seventh
Am endm ent if the legal claim s had been adjudicated
firs t.” 8
P etitioner contends th a t Parklane Hosiery is inapposite
because it presented only the issue of w hether an adverse
equitable adjudication in one law su it collaterally estops
the re litigation of the sam e issues before a ju ry in a
subsequent legal action. Pet. B r. a t 46. See, e.g. Hussein
v. Oshkosh Motor Truck Co., 816 F.2d 348 (7th Cir.
1987). B u t it is clear th a t th is C ourt did not in tend its
ru lings to have such lim ited effect. As the F o u rth C ir
cu it in Ritter stated , i t is irre lev an t th a t Parklane Hos
iery involved a "separa te su it.” The e rro r is the sam e:
a court resolves issues th a t could have been resolved by
a ju ry . Ritter explained:
It would be absurd to say that the requirement of a
“prior suit” means that the facts found in a single
case cannot bind the parties in that same case. In-
4 P e ti t io n e rs call th is d o c tr in e th e " n a r ro w Katchen ex cep tio n ,”
ap p licab le to th e “ spec ia lized b a n k ru p tc y sch em e.” P e t. B r. a t 50,
n .29 . C learly th is C o u rt in Katchen an d Parklane Hosiery in
ten d ed th e d o c tr in e to h av e w id e r a p p lic a b ility th a n is su g g e s te d
by P e ti t io n e rs .
5 T h is C o u r t’s re c e n t d ecis ions in Granfinanciera S.A. v. Nord-
berg, 109 S .C t. 2782 (1 9 8 9 ) , an d Tull v. United States, 481 U .S.
412 (1987) a re n o t to th e c o n tra ry . T hose cases m ere ly r e i te r a te d
th is C o u r t’s a p p lica tio n o f th e “ le g a l-e q u ita b le ” d is tin c tio n in de-
te rm in g w h e th e r a r ig h t to ju r y t r ia l ex is ts .
11
267
12
deed, if the p arties were not bound by the facts
found in the very same case which they w ere liti
gating , then the judgm ents of courts issued during
tr ia l would become irrelevancies.
814 F .2d a t 992 (em phasis supplied), R i t t e r properly
denied re litigation , and so should this Court.
Indeed, as we now show, the policy ra tionales support
ing the ru le in P a r k l a n e H o s i e r y , K a t c h e n , and R i t t e r
apply w ith full force to the case presented herein.
C. Strong Policy Reasons Support A Court’s Denial
Of A Second Trial Of Common Facts, Particularly
Where The Court Determines That The Plaintiff
Has Failed To Establish Even A Prima Facie Case
The F o u rth C ircu it below recognized a num ber of
policy concerns th a t support a cou rt’s denial of a "second”
tr ia l under Section 1981 w here the court determ ines th a t
the facts common to both Section 1981 and T itle V II fa il
to support a case of d iscrim ination. These policy con
cerns apply regardless of w hether an appeals court la te r
determ ines th a t the tr ia l court erred in dism issing the
Section 1981 claim.
The firs t such policy consideration is th a t the p a r ty
seeking a second tr ia l alw ays will have had a fu ll oppor
tu n ity to presen t his evidence a t the bench tria l, as Lytle
did here. No one is suggesting th a t plaintiffs be denied
the ab ility fu lly and fa ir ly to present evidence of dis
crim ination. Indeed, Lytle attem pted bu t failed in his
show ing: he could not even prove a p r i m a f a c i e case th a t
a w hite person was trea ted any differently th an Lytle
fo r excessive, unexcused absences, or th a t the company
gave a favorable le tte r of recom m endation through any
th ing other than inadvertence. In th is connection, the
F o u rth C ircu it has properly recognized th a t the bench
tr ia l resu lts would be given preclusive affect only as
ag a in st p arties to the law suit. No one who was “not a
p a r ty to the fo rm er su it, or did not have th e ir in terests
substan tially protected there in” will be touched. R i t t e r ,
814 F.2d a t 992.
268
13
M oreover, as p roperly recognized by th is and other
courts, a co u rt’s re fu sa l to sanction a second tr ia l can
have the “dual purpose of pro tecting litig an ts from re
litig a tin g an identical issue. . . and of prom oting judicial
economy by preven ting needless litig a tio n .” Parklane
Hosiery, 439 U.S. a t 326. Indeed, in Blonder-Tongue
Laboratories, Inc. v. University of Illinois Foundation,
402 U.S. 313, 328-329 (1971), th is C ourt noted th a t
w here a defendan t is forced to p resen t a complete de
fense on the m erits in a claim th a t the p lain tiff has liti
gated and lost, there is an arguable “m isallocation of re
sources,” reflecting e ither the “a u ra of the gam ing table
or a ‘lack of discipline and of disinterestedness on the
p a r t of the lower courts.’ ” Id. a t 329, c iting Kerotest
Mfg. Co. v. C-O-Two Co., 342 U.S. 180 (1952).•
Moreover, a litig an t such as Lytle would experience
no “h arm ” under the decision below, o ther than the inabil
ity to p resen t the same facts to a ju ry . B ut, as th is Court
has determ ined in Parklane and o ther cases, the harm
in denying a ju ry tr ia l is insufficient to override the other
policy concerns, such as a speedy resolution of disputes.
See Ritter, 814 F.2d a t 991. Even w here the tr ia l judge
commits e r ro r in dism issing the Section 1981 claim , such
e rro r is harm less,” p a rticu la rly where, as here, the
p la in tiff’s evidence w as insufficient and the employer
could have obtained a directed verd ic t anyw ay. See
Keller v. Price George’s County, 827 F.2d 952, 954-55
(4th Cir. 1987) ; Divyer v. Smith, 867 F.2d 184 (4 th Cir.
1989). C ertain ly , Fed. R. Civ. P. 61, the ru le per
m ittin g “harm less e rro r,” would not require a new tria l.
6 In Ritter, th e F o u r th C irc u it n o ted t h a t "Parklane decided th a t
th e ju d ic ia l in te re s t in th e econom ical re so lu tio n o f cases . . . does
o v e rr id e th e in te re s t o f th e p la in tif f in r e t r y in g b e fo re a ju r y th e
fa c ts o f a case d e te rm in e d by a c o u r t s i t t in g in e q u ity .” 814 F .2d
a t 991.
269
14
Concom itant w ith the idea of jud icial economy is the
need fo r finality in discrim ination claim s in general. If
th is Court does not affirm the decision of the court below,
and adopt the rule denying relitigation ,
. . . then each time a legal claim is dismissed, [the
court of appeals] would hear an interlocutory appeal
that would in essence involve the merits of the claim,
even though a record had not been developed before a
fa c t finder. In the alternative, the litigants would
conduct a trial to the bench, with the full knowledge
that all could go for naught if any of the legal claims
were reversed and a jury were entitled to determine
the facts on a clean slate. In th is la tte r instance, the
incentives of the litigan ts to litiga te effectively would
be dim inished; moreover, needless tim e and expense
would be undertaken. Thus the b e tte r rule, as enun
ciated in Parklane, is fo r the judge-determ ined issues
to stand as the facts of the case. One tr ia l of com
mon fac ts is enough.
814 F.2d a t 991 (em phasis supplied).
Thus, a t m inim um , th is C ourt should adopt a ru le th a t
a d istric t court m ay deny re litigation by ju ry whenever
the evidence produced a t tr ia l does not make out a prima
facie case, and the p lain tiff could not avoid a directed
v e rd ic t U nder Fed. R. Civ. P. 50 ( a ) , a p a r ty m ay
move fo r a directed verdict a t the close of the opponent’s
presentation of evidence. A court m ust g ra n t the motion
whenever there is complete absence of proof on an issue
m ateria l to the cause of action, Brady v. Southern Rail
road, 320 U.S. 476 (1943). As noted below, and as fully
established in Respondent’s brief, Lytle failed to present
proof on essential elements of his claim. In these c ir
cum stances, to hold th a t the case m ust be re tr ied before
a ju ry would be p articu la rly ludicrous, because the court
would be obliged to d irect a verdict in defendant’s favor
in any event.
270
15
II. P A T T E R S O N v . M c L E A N C R E D I T MAKES CLEAR
THAT SECTION 1981 DOES NOT COVER CLAIMS
OF DISCHARGE OR RETALIATION, SINCE SUCH
ACTIONS DO NOT INVOLVE THE “MAKING” OR
“ENFORCING” OF A CONTRACT
A. P a t t e r s o n And Its Reasoned Progeny Deny Section
1981 Coverage To Discharge And Retaliation Cases
Section 1981 protects the r ig h t of all persons, re g a rd
less of race, “to m ake and enforce con tracts.” 42 U.S.C.
§ 1981.7 This C ourt in Patterson v. McLean Credit Union
recently clarified the scope of section 1981. The C ourt
confirmed th a t section 1981 is not “a general proscrip
tion of racia l d iscrim ination in all aspects of con tract re
lations.” 109 S.Ct. a t 2372. Instead, the law protects
only two r ig h ts : ( 1 ) the r ig h t to m ake contracts, and
( 2 ) the r ig h t to enforce contracts. Id. The C ourt w ent
on to c la rify w h a t the r ig h t to “m ake” a con tract means.
According to th is Court, the r ig h t to m ake contracts “ex
tends only to the formation of a contract, bu t not to prob
lems th a t m ay arise la te r from the conditions of contin
u ing employm ent.” Id. (em phasis supplied). As noted
in Patterson:
The s ta tu te prohibits, when based on race, the re
fusa l to en ter into a con tract w ith someone, as well
as the offer to m ake a con tract only on discrim ina
to ry term s. But the right to make contracts does not
extend, as a matter of either logic or semantics, to
conduct by the employer after the contract relation
has been established, including breach of the terms
of the contract or im position of d iscrim inato ry work-
T S ectio n 1981 o f 42 U .S .C . p ro v id es in fu l l :
All persons w ith in th e ju r is d ic t io n o f th e U n ite d S ta te s shall
have the same right in ev ery S ta te an d T e r r i to r y to make and
enforce contracts, to sue, b e p a r t ie s , g iv e evidence, and to th e
fu ll an d equal b en efits o f all law s an d p ro ceed in g s fo r th e
s e c u r ity o f p e rso n s an d p ro p e r ty as is enjoyed by white citi
zens, and shall be su b je c t to like p u n ish m e n t, p a in s , p en a ltie s ,
tax es , licenses, and ex ac tio n s o f ev ery k in d , an d to no o th e r .
(E m p h a s is su p p lie d ) .
271
16
ing conditions. Such postformation conduct does not
involve the right to make a contract, but rather im
plicates the performance of established contract ob
ligations and the conditions of continuing employ
ment, m atte rs more n a tu ra lly governed by s ta te con
tra c t law and T itle VII.
Id. a t 2372-73 (em phasis supp lied ).8
In th is case, Lytle alleges th a t Schw itzer U.S., Inc. vio
lated Section 1981 when the com pany term inated him fo r
excessive, unexcused absences, and re ta lia ted ag a in st
him by not providing detailed le tters of reference to po
ten tial employers. T rue, Patterson did not specifically
address term inations and re ta lia tions, b u t th is C ourt’s
rationale applies w ith fu ll force nonetheless.” Such ac
tions a re sim ply “postform ation conduct,” and thus re
m ain unprotected by Section 1981. Indeed, a discharge
is the an tithesis of “m aking” a contract— it is the te r
m ination of a contract.
This in te rp re ta tio n is consistent w ith o ther decisions
constru ing Patterson in discharge claims. A lthough few’
C ourts of Appeals have issued decisions so fa r , the N inth
C ircu it in Overby v. Chevron USA, 884 F.2d 470, 50
F E P Cases 1211 (9 th Cir. 1989), recently held th a t a
8 T h e C o u rt f u r th e r ex p la in ed in Patterson t h a t th e r ig h t to
en fo rce c o n tra c ts "em b races p ro te c tio n o f a legal p rocess, an d o f
a r i g h t of access to legal p rocess, t h a t w ill ad d re ss a n d reso lve
co n trac t- law c la im s w ith o u t re g a rd to race ." Id. a t 2373. S ection
1981 p ro te c ts a g a in s t "e f fo rts to im pede access to th e c o u rts o r
o b s tru c t n o n ju d ic ia l m e th o d s o f a d ju d ic a tin g d isp u te s a b o u t th e
fo rc e o f b in d in g o b lig a tio n s .” Id. P e ti t io n e rs do n o t, how ever,
a rg u e th a t th e R esp o n d en t im peded L y tle ’s e n fo rc e m e n t o f a con
tr a c t. E v en i f P e ti t io n e rs had m ad e th is a rg u m e n t, i t is c le a r th a t
S c h w itz e r U .S ., Inc ., in no w ay im peded L y tle ’s access to legal
p rocess. *
* In Leong v. Hilton Hotels Corp. 50 F E P C ases 738, 740 (D .
H a w a ii 1 9 8 9 ), th e c o u r t re je c te d th e p la in tif f ’s a rg u m e n t t h a t th e
re so lu tio n of d isc h a rg e cases re m a in u n affec ted by Patterson b e
cau se th e S u p re m e C o u rt d id n o t specifically c o n s id e r th e v a lid ity
of d isc h a rg e c la im s u n d e r S ec tio n 1981.
212
17
retaliatory discharge was not actionable under Section
1981. The Court in Overby stated:
Overby does not claim that Chevron prevented him
from entering into a contract. To the contrary,
Overby and Chevron formed a contract on February
21, 1978. Rather, he complains of postformation
conduct: retaliatory discharge. Overby’s right un
der section 1981 “to make” a contract is therefore
not implicated. . . .
Id, citing Patterson, 109 S. Ct. at 2372-73. Overby went
on to note that retaliatory discharge, the allegation levied
against Chevron, is specifically proscribed by Title VII,
and that it would “twist the interpretation” of Section
1981 to cover discharges. 50 FEP Cases at 1213.
Like the Ninth Circuit, the Sixth Circuit has come to
a similar conclusion regarding discharge cases. In a case
involving dismissal and demotion, the Sixth Circuit noted
that “section 1981 does not encompass conduct that fol
lows contract formation or that does not interfere with
one’s right to enforce established contractual duties.”
Crawford v. Broadview Savings and Loan Co., No. 88-
3694 at n .ll, 1989 U.S. App. LEXIS 9921 (6th Cir.
1989).
While the district court cases involving discharges are
split, most appear to agree with the Overby and Craw
ford rationales. For example, the court in Leong v. Hilton
Hotels Corp., 50 FEP Cases at 741, ruled that a racially
motivated constructive discharge is not actionable under
Section 1981. Significantly, the court noted that Kashiba,
the plaintiff in Leong, experienced a “more subtle” type
of harassment than did Brenda Patterson, and that
Kashiba received “favorable reviews and periodic raises,”
while Brenda Patterson’s income was affected by McLean
Credit’s actions. Id. at 740. Even so, the court in Leong,
50 FEP Cases at 741 ruled:
Clearly Brenda Patterson could have stated a con
structive discharge action, more easily than Kishaba
did, had she had not been fired outright. But re-
273
18
gardless of the label which a putative plaintiff places
on the end result of discriminatory working condi
tions, the central, and express, holding of Patterson
is that postformation conduct is not actionable under
§ 1981. I f postformation conduct is not actionable,
then the result of such conduct, constructive dis
charge or simply an extraordinarily stressed or de
pressed employee, is irrelevant to the Supreme
Court’s rationale. (Emphasis supplied).
In addition, the court in Copperidge v. Terminal
Freight Handling, 50 FEP Cases 812 (W.D. Tenn. 1989),
ruled that alleged discrimination in discharge was not
covered by Section 1981 in that the “defendant’s alleged
discrimination did not occur at the formation of the
contract, nor has it occurred when the plaintiff attempted
to enforce her contract.” Id. at 813. Similarly, in Alex
ander v. New York Medical College, No. 89 Civ. 1092,
1989 U.S. LEXIS 11433 (S.D.N.Y. Sept. 29, 1989), the
court dismissed a plaintiff’s discharge allegations, noting
that “courts uniformly have rejected attempts to redress
discriminatory discharges” after Patterson. Like other
courts, Alexander reasoned that the “language of § 1981
does not invite [the] construction” that a discharge
is a failure to make a contract.10
Significantly, courts have begun to grant motions to
dismiss discharge cases involving Section 1981 at the
summary judgment stage. For example, the court in
Rivera v. AT&T Information Systems, Inc., No. 89-B-
109, 1989 U.S. Dist. LEXIS 10812 (D. Col. Sept. 13,
1989), held that the company was entitled to judgment
10 See also Carroll v. General Motors Corp., CA N o. 88-2532-0,
1989 U .S . D is t . L E X IS 10481 (D . K an sas 1 9 8 9 ) ; Carter v. Aselton,
50 F E P 251 (M .D . F la . 1989) (sa m e ) ; Greggs v. Hillman Distrib
uting Co., 50 F E P 429 (S .D . T ex . 1 9 8 9 ) ; Jones v. Alltech Asso
ciates, Inc., N o. 85 C 10345, 1989 U .S . D is t. L E X IS 10422 (N .D .
111. 1 9 8 9 ) ; Kolb v. Ohio, No. 87 C iv. 1314 (N .D . O hio 1989) ; Wil
liams v. National Railroad Passenger Corp., 50 F E P 721 (D .D .C .
1 9 8 9 ); an d TFtlm er v. Tennessee Eastman Co., CA No. H -85-6742
(S .D . T ex . 1 9 8 9 ).
274
19
as a matter of law because, “under the plain language of
Section 1981, discriminatory discharge, like racial har
assment amounting to breach of contract, is post con
tract formation conduct.’’ See also Riley v. Illinois Dept,
of Mental Health and Development Disabilities, No. 87
C 10436, 1989 U.S. Dist. LEXIS 7686 (N.D. 111. 1989) ;
Mathis v. Boeing Military Airplane Co., No. 86-6002-K,
1989 U.S. Dist. LEXIS 8849 (D. Kansas 1989) ; Boston
v. AT&T Information Systems, No. 88-141-B (S.D. Iowa
1989) ; and Tadros v. Coleman, No. 88 Civ, 4431, 1989
U.S. Dist. LEXIS 6895 (S.D.N.Y. 1989). Some courts
have even begun to order dismissals of discharge cases
sua sponte. See Soffrin v. American Airlines, 50 FEP
1245 (N.D. 111. 1989)'.
Admittedly, some courts have ruled to the contrary—
that Section 1981 discharge suits should not be dismissed
in the same manner as harassment suits.11 In so holding,
11 See, e.g., Padilla v. United Air Lines, No. 88-A -400, 1989 U .S.
D is t. L E X IS 8934 (D . Colo. 1 9 8 9 ). A t le a s t one c o u r t h a s s tro n g ly
c ritic iz e d Padilla an d th e cases t h a t follow its lin e o f lo g ic :
A fter careful consideration of the Supreme Court's opinion
in Patterson, this Court has determined that it must respect
fully disagree with the Colorado court [ in Padilla], I f th e re
w ere a n y in d ic a tio n t h a t th e r i g h t to m ake a c o n tra c t u n d e r
§ 1981 shou ld b e c o n s tru e d b ro a d ly as th e r ig h t to en jo y th e
b en efits o f th a t c o n tra c t, th e C o lo rado c o u r t w ould no d o u b t
b e c o rre c t in i t s re a so n in g . B u t th e C o u rt in Patterson did
n o t in te r p r e t th e r i g h t to m ak e a c o n tra c t u n d e r § 1981 in
th is m a n n e r . J u s tic e K en n ed y ’s rep ea ted em p h as is on th e d is
tin c tio n b e tw een co n d u c t w h ich occurs b e fo re a c o n tr a c t is
fo rm e d an d co n d u c t w h ich occurs a f t e r i t is fo rm ed reflects
a n ex tre m e ly n a rro w in te rp re ta t io n of th e r ig h t to m ake a con
t r a c t g u a ra n te e d by § 1981, one w h ich encom passes on ly th e
r i g h t to e n te r in to a c o n tra c t. T h u s , under Patterson, once
an individual has secured employment, the statute’s protection
of the right to make a contract is at an end. W ith re sp e c t to
co n d u c t w h ich occurs a f t e r t h a t p o in t— in c lu d in g d isc h a rg e —
th e in d iv id u a l m u s t look to th e m o re ex p an siv e p ro v is io n s o f
T itle V II. (E m p h a s is su p p lie d ) .
Hall v. County of Cook, State of Illinois, No. 87 C 6918, 1989 U .S.
D is t . L E X IS 9661 (N .D . 111. 1989) (em p h a s is su p p lie d ) . See also
275
20
several of these courts—most notably two decisions of
the Northern District of Indiana—cite this Court’s dicta
in Jett v. Dallas v. Independent School District, 109 S. Ct.
2702 (1989).12 In Jett, a black school principal recom
mended that Jett, a white football coach, be removed
from his job and reassigned to a teaching position that
had no coaching responsibilities.
The Court in Jett noted that, unlike the employer in
Patterson, “at no stage in the proceedings has the school
district raised the contention that the substantive scope
of the ‘right . . . to make . . . contracts’ protected by
§ 1981 does not reach the injury suffered by [the plain
tiff] here.” 109 S. Ct. at 2709. Because the school dis
trict “never contested the judgment below on the ground
that § 1981 does not reach [plaintiff’s] injury, we as
sume for purposes of these cases, without deciding, that
petitioner’s rights under § 1981 have been violated by
his removal and reassignment.” Id. at 2710. Clearly,
this Court did not back away from its holding in Patter
son that postformation conduct (other than the creation
of a “new” contract) was not actionable under Section
1981. Second, it noted that the scope of § 1981 had not
even been raised in Jett. This Court only assumed in
Jett that Section 1981 covered the defendant’s conduct so
that the Court could reach the remaining issues in the
case.
While there is some debate among the district courts
with regard to discharge, there has been no debate with
regard to retaliation cases, particularly those that do
C o n c u rr in g o p in ion o f Ju d g e C udahy in Malhotra v. Cotter & Co.,
N o. 88-2880 (7 th C ir. S ep t. 12, 1989) ( r e ta l ia to r y d isc h a rg e
c la im s m ay b e a d ju d ic a te d u n d e r S ec tio n 1 9 8 1 ). I t is c lea r, how
ev er, t h a t th is c ase does n o t involve a lleg a tio n s o f r e ta l ia to ry
d isch a rg e .
15 See, e.g., Malone v. U.S. Steel Corp., Civ. N o. H 83-727 (N .D .
In d . Ju ly 19, 1 9 8 9 ) ; Robinson v. Pepsi-Cola Co., C iv. N o. H 87-375
(N .D . In d . Ju ly 7 ,1 9 8 9 ) .
276
21
not involve retaliatory firings.13 Section 1981 is simply
not applicable to retaliation claims since they involve
postformation conduct. For example, in Alexander v.
New York Medical College, supra, the court cited a num
ber of other jurisdictions that have dismissed Section
1981 claims alleging a variety of postformation wrongs,
and thus dismissed a plaintiff’s allegation that her em
ployer retaliated against her for filing a discrimination
claim.14
B. S trong Policy Reasons Support The Exclusion Of
Discharge And Retaliation Claims From The Scope
Of Section 1981
Not only is the exclusion of discharge and retaliation
claims supported by Patterson and its reasoned progeny,
but it is supported by strong policy reasons as well. First,
and foremost, it would debase the procedures established
under Lytle’s alternative remedial statute, Title VII. As
this Court in Patterson stated:
Interpreting § 1981 to cover postformation conduct
. . . would also undermine the detailed and well-
crafted procedures for conciliation and resolution of
Title VII claims. In Title VII, Congress set up an
elaborate administrative procedure, implemented
through the EEOC, that is designed to assist in the
investigation of claims of racial discrimination in
18 T h e c o u r ts in Jordan v. U.S. West Direct Co., 50 F E P 683 (D .
Colo. 1 9 8 9 ), an d English v. General Dev. Corp., 717 F .S u p p . 628
(N .D . 111. 1989) w ould p ro te c t r e ta l ia to ry d is c h a rg e s u n d e r S ection
1981. T h e c o u r t in Alexander, how ev er, “ re sp e c tfu lly d is a g re e s ”
w ith th e i r h o ld in g s, L E X IS Op. a t 2, n o tin g th a t a r e ta l ia to ry d is
c h a rg e “ in no w ay o b s tru c ts access to ju d ic ia l re d re ss , a s is ev i
denced by M s. A lex an d e r’s p re sen ce b e fo re th is C o u rt.” Id. a t n.6.
14 S im ila rly , th e d is t r i c t c o u r t in Dangerfield v. Mission Press,
50 F E P C ases 1171 (N .D . 111. 1 9 8 9 ), ru le d t h a t p la in tif fs could n o t
m a in ta in a c la im th a t th e i r em p lo y er re ta l ia te d a g a in s t th e m fo r
filin g an E E O C c h a rg e since th e d e fe n d a n t in no w ay in te r fe re d
w ith th e i r access to leg a l e n fo rc e m e n t o f th e i r cla im s. L ik ew ise , in
Williams v. National Railroad Passenger Corp., 50 F E P C ases 721
(D .D .C . 1 9 8 9 ), th e c o u r t re fu se d to san c tio n a c la im in v o lv ing
r e ta l ia to ry d o w n g ra d e f o r filing a S ec tio n 1981 claim .
277
22
the workplace and to work towards the resolution of
these claims through conciliation rather than litiga
tion. . . Only after these procedures have been ex
hausted, and the plaintiff has obtained a "right to
sue” letter from the EEOC, may she bring a Title
VII action in court. . . Section 1981, by contrast,
provides no administrative review or opportunity for
conciliation.
109 S. C t at 2374-75 (emphasis supplied and citations
omitted). As this Court noted, “Where conduct is cov
ered by both §1981 and Title VII, the detailed proce
dures of Title VII are rendered a dead letter, as the
plaintiff is free to pursue a claim by bringing suit under
§ 1981 without resort to those statutory prerequisites.”
While there must be some overlap between Title VII and
§ 1981, courts “should be reluctant, however, to read an
earlier statute broadly where the result is to circumvent
the detailed remedial scheme constructed in a later stat
ute.” Id. at 2375.15
15 In th is re g a rd , th e N in th C irc u it in Overby re cen tly s ta te d :
T h o u g h an a rg u m e n t could be concocted th a t such conduct
im pedes, in som e b ro ad sense, O v erb y ’s access to th e E E O C ,
th e C o u rt in Patterson counseled a g a in s t s t re tc h in g th e m e a n
in g o f sec tion 1981 to p ro te c t co n d u ct a lre a d y covered by T it le
V II. . . . T h e C o u r t reaso n ed th a t T it le V II co n ta in s a com
p re h e n s iv e an d d e ta iled schem e, in c lu d in g w e ll-c ra fte d con
c il ia to ry p ro ced u re s , f o r re so lv in g d isp u te s re g a rd in g em ploy
m e n t d is c r im in a tio n . . . . R ea d in g section 1981 too b ro ad ly
w ould p e rm it p la in tif fs to c irc u m v e n t T it le V I I ’s d e ta ile d s t a t
u to ry p re re q u is i te s to b r in g in g an a c tio n in fe d e ra l co u rt,
th e re b y f r u s t r a t in g T it le V I I ’s co n c ilia to ry g o als an d d is
ru p t in g th e d e lica te ba lan ce s tru c k b etw een em ployers and
em ployees’ r ig h ts . . . . T h is concern Is p a r t ic u la r ly a p t w h ere ,
a s h e re , th e v e ry co n d u c t com pla ined o f c e n te rs a ro u n d one o f
T it le V I I ’s co n c ilia to ry p ro c e d u re s : th e filing of a n E E O C
co m p la in t. B ecau se sec tio n 7 0 4 (a ) o f T it le V II p ro sc r ib e s
C h ev ro n ’s a lleged conduct, w e th e r e fo re dec line " to tw is t th e
in te rp re ta t io n o f a n o th e r s ta tu te (§ 1981) to cover th e sam e
co n d u c t.” . . . W e hold th a t th e d is t r ic t c o u r t p ro p e r ly g ra n te d
su m m a ry ju d g m e n t in fa v o r o f C hevron on O v erb y ’s S ection
1981 claim .
60 F E P a t 1213.
278
23
In denying Section 1981 coverage to the instant claim,
other policy rationales are evident. As this Court stated
in Patterson:
That egregious racial harassment of employees is
forbidden by a clearly applicable law (Title VII),
moreover, should lessen the temptation for this
Court to twist the interpretation of another statute
(§ 1981) to cover the same conduct. . . the avail
ability of the latter statute should deter us from a
tortuous construction of the former statute to cover
this type of claim.
109 S.Ct. at 2375. This Court should not construe Sec
tion 1981’s language to include terminations or retalia
tions that in no way impair a plaintiff’s access to the
courts.16
Indeed, by reading § 1981 not as a “general proscrip
tion of racial discrimination” covering discharges and
retaliation, but as “limited to the enumerated rights
within its express protection, specifically the right to
make and enforce contracts,” this Court will go a long
way to “preserve the integrity of Title VII’s procedures
without sacrificing any significant coverage of the civil
rights laws.” 109 S. Ct. at 2375.
C. Courts A lready In terp ret And Enforce T itle VII
In A M anner T hat Protects The Rights Of Charg
ing Parties And Is Consistent With Federal Anti-
discrim inatory Policy
As this Court has recognized repeatedly, Title VII’s
legislative history demonstrates that its detailed admin
istrative and judicial enforcement machinery was care
fully designed to balance the competing interests involved
in an employment discrimination complaint. See, e.g.,
Occidental Life Insurance Co. of California v. EEOC, 19
19 U n fo r tu n a te ly th e r e is a lre a d y ev idence th a t p la in tif fs have
b e g u n to " a r tfu l ly p lead ’’ th e i r d is c h a rg e cases to look lik e "m a k
in g o f a c o n tr a c t” cases. See, e.g., Rick Nolan’s Auto Body Shop,
Inc. v. Allstate Insurance Co., No. 88 C 7147, 1989 U .S. D ist. L E X IS
10357 (N .D . 111. 1 9 8 9 ).
279
24
432 U.S. 355, 359, 372-73 (1977). Delegation of enforce
ment authority to the Commission shifts the burden of
prosecution from the individual complainant, assures em
ployees that the agency issuing discrimination guidelines
will also be the agency enforcing compliance, and encour
ages the settlement of disputes through informal concilia
tion rather than formal judicial proceedings.'7
In addition, potential substantive conflicts between Ti
tle VII and § 1981 have been resolved in favor of those
standards adopted by Congress in Title VII—even when
specific exempting language of Title VII has not been
found in § 1981.18 Thus, it cannot be said that § 1981
provides more protection than Title VII in defining what
discriminatory conduct is prohibited under federal law.
Indeed, it is Title VII that provides more protections,
because, unlike § 1981, the EEOC and Title VII plain
tiffs may proceed under the adverse impact theory and
are not limited to the disparate treatment model. General
Building Contractors Ass’n. Inc. v. Pennsylvania, 458
U.S. 375 (1982) ; Washington v. Davis, 426 U.S. 229
(1976).
17 See N o te , Developments in the Laiv—Employment Discrimina
tion and Title VII o f the Civil Rights Act o f 196i, 84 H arv . L. Rev.
1109, 1200, 1270 (1 9 7 1 ) . U ltim a te r e s o r t to th e fe d e ra l c o u rts also
d e leg a te s th e ta s k s o f in v e s tig a tio n an d fac t-f in d in g to th e ag en cy
th a t h a s th e sp ecia lized know ledge an d re so u rces to do so, w h ile
in s u r in g th a t th e p r iv a te c la im a n t w ill rece iv e th e m o s t com plete
re l ie f possib le . S ape & H a r t , Title VII Reconsidered: The Equal
Employment Opportunity Act of 1972, 40 Geo. W ash . L . Rev. 824,
881 (1 9 7 2 ) ,
18 See, e.g., Waters v. Wisconsin Steel Works o f International
Harvester Co., 502 F .2 d 1309, 1316, 1320 (7 th C ir . 1 9 7 4 ), cert,
denied, 425 U .S. 997 (1 9 7 6 ) (s e n io r i ty sy s tem th a t is va lid u n d e r
T itle V I I can n o t be a tta c k e d u n d e r § 1 9 8 1 ); United States v. Truck
ing Management, Inc., 662 F .2 d 36 (D .C . C ir. 1 9 8 1 ) ; Chance v.
Board o f Examiners, 534 F .2 d 993 (2d C ir. 1 9 7 6 ), cert, denied, 431
U .S . 965 (1977) ; an d United States v. East Texas Motor Freight
System Inc., 564 F .2 d 179, 185 (5 th C ir. 1977) (sam e re E x ecu tiv e
O rd e r 11246).
280
25
Charging parties, moreover, have little cause to com
plain about the way in which Title VII’s procedural re
quirements have been interpreted since the Act was
amended in 1972, at which time the EEOC’s authority
was expanded. Indeed, many of the concerns that Title
VII’s technical requirements would adversely affect in
dividual rights have proven to be unfounded. For ex
ample, Title VII’s charge-filing requirement is not a juris
dictional prerequisite and, like § 1981’s period, is subject
to waiver, estoppel and equitable tolling.10 Also, the limi
tations period gap between the two statutes has been
narrowed substantially.* 20 Moreover, charging parties may
receive an award of attorney’s fees under Title VII for
work done in connection with administrative proceedings
following reference to a state agency.21
EEOC investigations, of course, can be an extremely
effective enforcement method. To illustrate, the EEOC’s
investigatory and subpoena enforcement authority has
been applied much more broadly than would be available
to the individual § 1981 plaintiff.22 And should the EEOC
decide not to sue, for whatever reason, the information
developed in its investigation is available to the charging
party and his attorneys once a private Title VII court
suit is filed. EEOC v. Associated Drxj Goods Corp., 449
U.S. 590 (1981). This information can thus be used as
the basis for the plaintiff’s private lawsuit.
10 Zipes v. Trans World Airlines, Inc., 455 U .S . 385 (1 9 8 2 ) .
20 EEOC v. Commercial Office Products Co., 108 C. C t. 1666
(1 9 8 8 ) , v ir tu a l ly e lim in a te d th e 180-day filing- p erio d f o r T itle
V II . T h e C o u rt held t h a t th e ex ten d ed 300-day p e rio d ap p lies in
a d e fe r ra l s t a te even th o u g h a n in d iv id u a l h a s n o t filed a tim ely
180-day c h a rg e w ith th e s ta te ag en cy as re q u ire d u n d e r s ta te law .
B y c o n tra s t , Goodman v. Lukens Steel Co., 107 S. C t. 2617 (1 9 8 7 ) ,
re q u ire s th a t § 1981 su its a r e g o v ern ed by th e s ta te p e rso n a l in
ju r y s t a tu te o f lim ita t io n s p e rio d , w h ich ty p ica lly is m uch s h o r te r
th a n th e c o n tra c t s u i t lim ita t io n s p e rio d so u g h t by § 1981 p la in tiffs .
21 New York Gaslight Club, Inc. v. Carey, 447 U .S . 54 (1 9 8 0 ) .
22 EEOC v. Shell Oil Co., 466 U .S . 54 (1 9 8 4 ) .
281
26
This Court also should be aware of several relatively
recent initiatives adopted by the EEOC to increase sub
stantially the advantages to charging parties of proceed
ing under Title VII. First, effective August 1, 1987, the
EEOC implemented a final rule permitting charging par
ties to appeal “no-cause” determinations issued by the
agency’s district directors. See 29 C.F.R. Part 1601.19.
This procedure was adopted to assure that agency in
vestigations were impartial, thorough, legally sound, pro
fessional, and conducted in a manner that would minimize
the need for charging parties to sue without EEOC as
sistance.
Also, on February 5, 1985, the EEOC adopted a Policy
Statement on Remedies and Relief for Individual Victims
of Discrimination, 8 Fair Empl. Prac. (BNA), 401:2615-
401:2618. This policy was adopted in response to con
cerns that cases may be settled with less than full relief
for discrimination victims. The policy provides for the
following: full (not partial) back pay; enhanced rein
statement or placement rights; new notice posting re
quirements to inform other employees of discrimination
problems; and potential direct disciplinary action against
offending supervisory personnel.23
Moreover, when the EEOC decides to sue an employer,
it may do so unencumbered by the class action limitations
of Rule 23 of the Federal Rules of Civil Procedure. Gen-
23 In c o n ju n c tio n w ith i ts enhanced rem ed ia l policy , th e E E O C
also h a s ad o p ted to u g h e r polic ies and p ro ced u re s f o r d ea lin g w ith
r e c a lc i t ra n t em ployers an d in seek in g subpoenas . See 29 C .F .R .
1 6 0 1 .1 6 (b ) (1 ) and (2 ) [ s u b p o e n a s ] ; and E E O C ; In v e s tig a tiv e
C om pliance P olicy , 8 F a i r E m pl. P ra c . (B N A ) 40 :2626-40 :2626 .
U n d e r th e se po lic ies , w hen an em ployer fa i ls to com ply w ith r e
q u ests fo r in fo rm a tio n in a tim ely o r com plete m a n n e r , E E O C d is
t r i c t d ire c to rs a re in s tru c te d to tak e one o r m ore ac tio n s in c lu d in g :
im m ed ia te is su an ce o f a su b p o en a ; p ro ceed in g m ore d ire c tly to
l i t ig a t io n ; and d ra w in g an ad v e rse in fe ren ce a g a in s t a re sp o n d en t
a s to th e ev idence so u g h t w h en reco rd s a re d e s tro y ed o r n o t
m a in ta in e d .
282
27
eral Telephone Company of the Northwest, Inc. v. EEOC,
446 U.S. 318 (1980). As this Court noted in General
Telephone, by expanding the EEOC’s enforcement powers
in 1972, “Congress sought to implement the public inter
est as well as to bring about more effective enforcement
of private rights. . . . The EEOC was to bear the pri
mary burden of litigation, but the private action previ
ously available under § 706 [of Title VII] was not super
seded.” Id. at 325-36.
Further, “EEOC enforcement actions are not limited
to the claims presented by the charging parties. Any
violations that the EEOC ascertains in the course of a
reasonable investigation of the charging party’s complaint
are actionable.” Id. at 331. EEOC also may proceed
unencumbered by Rule 23’s requirement that an indi
vidual’s claim be typical of other class members.24 And
when the district court finds that discrimination has oc
curred, it “has not merely the power but the duty to
render a decree which will so far as possible eliminate
the discriminatory effects of the past as well as bar like
discrimination in the future.” Albemarle Paper Com
pany v. Moody, 422 U.S. 405, 418 (1975) (emphasis
supplied).
Accordingly, EEOC-brought Title VII actions benefit
the public interest, in addition to purely private concerns,
in many ways that § 1981 suits do not. Individual plain
tiffs, quite frankly, often are motivated primarily by an
attempt to extract the maximum possible monetary
award or settlement, unencumbered by administrative
requirements intended to eliminate discrimination on a
broader scale by the involvement of an expert agency
designed to give assistance to all victims of discrimina
tion.
™Id.; Compare, General Telephone Co. of the Southwest v.
Falcon, 457 U .S . 147 (1 9 8 2 ) (a p p lic a n t can n o t be class re p re s e n ta
tiv e f o r in c u m b e n t em p lo y ees).
283
28
CONCLUSION
For the foregoing reasons, this Court should dismiss
the petition for a writ of certiorari as improvidently
granted in lieu of Section 1981’s inapplicability to dis
charge and retaliation claims or, in the alternative, this
Court should affirm the decision of the Court of Appeals
below.
Respectfully submitted,
Robert E. W illiams
Douglas S. McDowell
Garen E. Dodge *
McGuiness & W illiams
Suite 1200
1015 Fifteenth Street, N.W.
Washington, D.C. 20005
(202) 789-8600
Attorneys for Amicus Curiae,
Equal Employment
Advisory Council
October 19,1989 * Counsel of Record
284
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5442 30th St., NW
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