Lytle v. Household Manufacturing Inc. Petitions and Briefs

    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.

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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

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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).

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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.

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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

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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.

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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

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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

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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.

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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.

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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).

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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).

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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.

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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

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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).

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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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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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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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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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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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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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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

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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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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.

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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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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

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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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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

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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

44

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

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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).

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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 .

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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

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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

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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 .’ ” ) .

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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.

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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

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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

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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

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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.

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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

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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.

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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.

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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

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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.

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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

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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

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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

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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

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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

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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

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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.

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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.

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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.

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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 ) .

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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.

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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-

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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 ).

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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 .

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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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