Patterson v. McLean Credit Union Petition for a Writ of Certiorari

    /

No. 87- M>7
I n  the

&uprmp (Emtrt of %  Ilmteii States
October Term, 1987

Brenda Patterson,

vs.
Petitioner,

M cL ean Credit U nion,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

Julius L eV onne Chambers 
Penda D. H air 
Charles Stephen R alston* 
Gail J. W right

99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900

H arold L. K ennedy, III  
H arvey L. K ennedy 

Kennedy, Kennedy, 
Kennedy and Kennedy 

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

Attorneys for Petitioners

*Counsel o f  Record



QUESTIONS PRESENTED
1. Does 42 U.S.C. § 1981 encompass 

a claim of racial discrimination in the 
terms and conditions of employment, 
including a claim that petitioner was 
harassed because of her race?

2. Did the district court err in 
instructing the jury that in order for 
petitioner to prevail on her claim of 
discrimination in promotion that she must 
prove that she was more qualified than 
the white who received the promotion?

l



PARTIES IN THE COURT BELOW 
All parties in this matter are set 

forth in the caption.

ii



TABLE OF CONTENTS
Page

iQUESTIONS PRESENTED
PARTIES IN THE COURT BELOW........  ii
TABLE OF CONTENTS................. iii
TABLE OF AUTHORITIES..............  V

CITATIONS TO OPINIONS BELOW ........  1
JURISDICTION ....................... 2
STATUTE INVOLVED ................... 3
STATEMENT OF THE C A S E .............. 3

1. Proceedings Below ........  3
2. Statement of Facts........ 7

REASONS FOR GRANTING THE WRIT . . . .  11
I. CERTIORARI SHOULD BE GRANTED 

TO RESOLVE A CONFLICT BETWEEN 
THE CIRCUITS AS TO WHETHER 42 
U.S.C. § 1981 ENCOMPASSES
CLAIMS OF RACIAL HARASSMENT . . 13

II. THE DECISION BELOW IS INCON­
SISTENT WITH DECISIONS OF THIS 
COURT, INCLUDING GOODMAN V.
LUKENS STEEL CO. AND SHAARE 
TEFILA CONGREGATION V. COBB . . 17

III. THE DECISION BELOW RELATING 
TO BURDEN OF PROOF CONFLICTS 
WITH DECISIONS OF THIS COURT
AND OTHER CIRCUITS............ 2 5
A. The Decision Below Con­

flicts With Texas Dent, of 
Corrections v. Burdine . . 25

iii



B. The Decision Below Is 
In Conflict With 
Decisions of Other 
Circuits................ 29

CONCLUSION.........................34

iv



TABLE OF AUTHORITIES

Cases:
Anderson v. City of Bessemer City,

717 F.2d 149 (4th Cir. 1983), 
rev'd on other grounds. 470 U.S. 
564 (1985) ...................

Block v. R. H. Macy & Co., Inc., 712 
F.2d 1241 (8th Cir. 1983) . 12,

Carter v. Duncan-Huggins, Ltd., 727
F.2d 1225 (D.C. Cir. 1984) . . .

Christensen v. Equitable Life 
Assurance, 767 F.2d 340 
(7th Cir. 1985) ..............

Foster v. Areata Associates, Inc.,
772 F.2d 1453 (9th Cir. 1985) .

Goodman v. Lukens Steel Co., 777 
F.2d 113 (3rd Cir. 1985)
aff'd ___ U.S. ____, 55 U.S.L.
Week 4881 (1987) . . . .  16, 17,

Grano v. Department of Development 
of the City of Columbus,
637 F.2d 1073 (6th Cir. 1980) .

Hamilton v. Rodgers, 791 F.2d 439
( 5th Cir. 1986) ............

Hawkins v. Anheuser-Busch, 697 F.2d
810 (8th Cir. 1983) . . 30, 31,

Hishon v. King & Spaulding, 467
U.S. 69 (1984) ..............

Johnson v. Railway Express Agency,
421 U.S. 454 (1975)............

Page

26

15

14

30 

.30

25

31 

14

32 

19 

21
• V



Jones v. Alfred H. Mayer Co., 392
U. S. 409 (1968).......  22, 23, 24

Joshi v. Florida State University 
Health Center, 763 F.2d 1227 
(11th Cir. 1985)............  32

Mitchell v. Baldrige, 759 F.2d 80
(D.C. Cir. 1985)............... 30

Ramsey v. American Air Filter 
Company, 772 F.2d 1303 
(7th Cir. 1985)............... 15

Shaare Tefila Congregation
V. Cobb, 481 U.S. ___, 95 L.Ed.
2d 594 (1987)............  17, 25

Texas Dept, of Community
Affairs v. Burdine, 450 U.S.
248 (1981)................. 26, 27

United States Postal Service
Board of Governors v. Aikens,
460 U.S. 711 (1983) . . . .  31, 33

Wilmington v. J. I. Case Company,
793 F.2d 909 (8th Cir. 1986) 15, 16

Young v. Lehman, 748 F.2d 194
(4th Cir. 1984)..............  26

Statutes:
Civil Rights Act of 1866 . . . .  22, 24
28 U.S.C. § 1254(1).................3
42 U.S.C. § 1 9 8 1 ................ passim
42 U.S.C. § 1982 ............ 18, 22, 23

vi



42 U.S.C. § 1983 ................... 14
Other Authorities:
Cong. Globe, 39th Cong.,

1st Sess. 474 ................  24

vii



NO. 87-

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1987

BRENDA PATTERSON,
Petitioner.
vs.

MCLEAN CREDIT UNION, 
Respondent.

PETITION FOR A WRIT OF CERTIORARI 
TO THE UNITED STATES COURT OF 
APPEALS FOR THE FOURTH CIRCUIT

The petitioner, Brenda Patterson, 
respectfully prays that a writ of 
certiorari issue to review the judgment 
and opinion of the United States Court of 
Appeals for the Fourth Circuit entered in 
this proceeding on November 25, 1986.

CITATIONS TO OPINIONS BELOW 
The opinion of the court of appeals 

is reported at 805 F.2d 1143 and is set



2
out in the appendix to this petition at 
pages la-20a. The order of the court of 
appeals denying rehearing is set out in 
the appendix hereto at pages 21a-22a. 
The oral ruling of the district court 
granting in part respondent's motion to 
dismiss is unreported and is set out in 
the appendix at pages 23a-25a. The 
judgment of the district court dismissing 
the case based on the jury's verdict is 
set out in the appendix at pages 26a-28a.

JURISDICTION
The judgment of the court of appeals 

affirming the Court's dismissal of the 
case was entered on November 25, 1986. 
App. la. The court of appeals entered an 
order denying a timely petition for 
rehearing en banc on March 19, 1987. 
App. 22a. On June 5, 1987, Chief Justice 
Rehnquist entered an order extending the 
time for filing a petition for writ of 
certiorari to and including July 17,



3
1987. The jurisdiction of this Court is 
invoked under 28 U.S.C. § 1254(1).

STATUTE INVOLVED
This case involves 42 U.S.C. § 1981, 

which 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.

(R. S. § 1977.)
STATEMENT OF THE CASE

1. Proceedings Below
The petitioner, Brenda Patterson,

brought this action on January 25, 1984,
in the United States District Court for
the Middle District of North Carolina
against her former employer, McLean
Credit Union. The action was brought



4
under 42 U.S.C. § 1981 and alleged that 
petitioner was discriminated against with 
respect to promotions, layoffs, and in 
the terms and conditions of employment, 
including racial harassment. In 
addition, the state tort claim of 
intentional infliction of mental and 
emotional distress was brought pursuant 
to pendent jurisdiction.

The case was tried before a jury 
from November 12 to November 18, 1985.
The trial court dismissed the claim of 
racial harassment on the ground that 42 
U.S.C. § 1981 did not provide a remedy 
for racial harassment during the term of 
employment.1 App. 23a-25a. With regard 
to petitioner's claim that she was 
discriminatorily denied promotional 
opportunities, the district court

1The district court also did not 
submit the state tort claim to the jury. 
The correctness of that ruling is not 
raised in this petition.



5
instructed the jury, over the objection 
of the petitioner, that she had to prove 
that she was more qualified for the 
position than the person who received the 
job.2 The jury returned a verdict in 
favor of the defendant employer and the 
district court dismissed the case in its 
entirety. App. 26a-28a.

Petitioner appealed to the United 
States Court of Appeals for the Fourth 
Circuit, which affirmed the district 
court. The court of appeals held that 
Section 1981 covered only racial

2Transcript of Trial, Nov. 18, 1985:
THE COURT: . . . the law in the
Fourth Circuit seems to be that in 
order to make out a prima facie 
case, you must show that you are 
better qualified than the person who 
received [the promotion], and I have 
so instructed the jury.
MR. KENNEDY: I would like, for the
purposes of the record, to make an 
exception to that point.
THE COURT: Yes, sir.

Id. at 5-30 - 5-31.



6
discrimination in hiring, firing and 
promotion since those matters went to the 
"very existence and nature of the 
employment contract." App. 8a. The 
court ruled that racial harassment 
related to the terms and conditions of 
employment and, therefore, did not, 
standing alone, abridge the right to make 
and enforce contracts that was conferred 
by Section 1981. App. 9a.

With regard to the charge to the 
jury, the court relied on prior Fourth 
Circuit precedents requiring that a 
plaintiff must prove that she was more 
qualified than the person to whom the 
promotion was given in order for her to 
establish a prima facie case of 
discrimination. Therefore, the instruc­
tion was correct. App. 19a-20a.

A timely petition for rehearing and 
suggestion for rehearing en banc was 
denied. App. 21a-22a.



7
2. Statement of Facts

At trial, petitioner introduced 
substantial evidence to support her claim 
that she had been a victim of racial 
harassment and had been treated 
differently from similarly situated 
whites in the terms and conditions of 
employment. At the very beginning of her 
employment she was told by the 
defendant's president, Robert Stevenson, 
that she would be working only with white 
women and that those women would probably 
not like her because they were not used 
to working with blacks. Plaintiff was 
never promoted; instead, after her 
immediate supervisor spoke to the 
president about petitioner's having too 
heavy a work load, she was given more 
work by Stevenson.^ Throughout her
employment she was given more work than 
her white co-workers, and was then 3

3Tr. of Trial, pp. 1-86 - 1-87.



8
criticized for her alleged "slowness". 
When she spoke to the president about her 
work, she testified that he replied, 
"Well, blacks are known to work slower 
than whites by nature." He then added on 
even more work.4 At staff meetings Mr. 
Stevenson singled out plaintiff and the 
other black worker by name and criticized 
them for errors; white workers were not 
subjected to this treatment.5 Finally, 
Mr. Stevenson would stop by her desk and 
stare at her four or five times a week, 
making her nervous and unable to 
concentrate on her work. Again, white 
workers were not subjected to this

Id.. at 1-88 A white former 
employee of defendant testified that Mr. 
S t e v e n s o n  had berated him for 
recommending a black man for a computer 
position. Mr. Stevenson told him that he 
would not hire a Black because: "We
don't need any more problems around 
here." Transcript of Trial, at p. 2-162.

5Id. at 1-89 - 1-90.



9
treatment.6

Plaintiff never was able to find out 
about promotions that were available.7 
White workers were trained for higher 
level positions, while she was not.8 A 
number of white employees were promoted 
over her who had less education and 
seniority, but who were given training.9 
On July 19, 1982, plaintiff was laid off
and subsequently terminated; white 
employees with less experience than her 
were not.

A f t e r  the p r e s e n t a t i o n  of 
plaintiff's evidence, the court dismissed 
the claims of racial harassment and 
intentional infliction of mental and 
emotional distress. At the end of the 
submission of all the evidence the trial

6Id. at 1-90 - 1-91.
7Id. at 1-91 - 1-92.
8Id. at 1-93.
9Id. at 1-93 - 1-97.



10
court instructed the jury that for 
plaintiff to prevail on the promotion 
claim she had to prove that she was more 
qualified for the position of accountant 
intermediate than was the white person 
who was promoted.10 Plaintiff objected

10The district court charged, in 
addition to instructing that plaintiff 
had to have shown an interest in being 
promoted and that a white person, Susan 
Howard Williamson, was promoted instead, that:

In order to carry her burden [that 
defendant denied her a promotion 
because of her race], the plaintiff 
must establish . . . (3) that
plaintiff was better qualified for 
the position received by Susan 
Howard Williamson than was Susan 
Howard Williamson; and (4) that 
plaintiff was denied the promotion 
because of her race. (emphasis added).
With regard to the fourth 
requirement, plaintiff offered 
evidence tending to show that she 
had not been trained for the job of 
accountant intermediate because of 
her race and was thus denied the 
promotion because of her race.

Transcript of Trial, p. 5-12 -5-13.
The court later instructed that:

[I]t is necessary that [plaintiff]



11
to this part of the charge.11 The jury- 
returned a verdict for the defendant 
company.

REASONS FOR GRANTING THE WRIT 
This case presents an important 

issue relating to the enforcement of the 
civil rights statutes concerning which 
the circuits are in conflict. The 
availability of 42 U.S.C. § 1981 as a 
remedy for harassment that is motivated 
by racial animus is particularly 
important because it is only under that 
section that damages for such harassment 
may be obtained. Title VII provides

satisfy you by a preponderance of 
the evidence that she was more 
qualified to receive the promotion 
to the accountant intermediate 
position than was Susan Howard 
Williamson and that McLean's 
intentional discrimination against 
her because of her race was the real 
reason that she did not receive the promotion.

Id. at 5-13 - 5-14.
11See n . 2, supra.



12
monetary relief only in the form of back
pay when, e.a. . a promotion has been
denied. Thus , in many cases of
harassment the only relief available
under Title VII will be an injunction
that simply reiterates the command of the 
statute. Often, that relief will not be 
a sufficient deterrent to harassment.

As the discussion that follows 
demonstrates, the problem of racial 
harassment and other discrimination in 
the terms and conditions of employment is 
persistent and recurring. Only the 
threat of actual and punitive damages 
under 42 U.S.C. § 1981 can provide an 
effective deterrent and help to rid the 
work place of this most pernicious form 
of discrimination.12

12See,_e.cf. . Block v. R. H. Macv &
Co. , Inc., 712 F. 2d 1241, 1243, 1245-48 
(8th Cir. 1983) (Title VII and § 1981 
claims for discharge and racial 
harassment; $20,000 in actual and $60,000 
in punitive damages awarded of which only 
$7,598 was back pay under Title VII).



13

CERTIORARI SHOULD BE GRANTED TO RESOLVE A 
CONFLICT BETWEEN THE CIRCUITS AS TO 
WHETHER 42 U.S.C. § 1981 ENCOMPASSES 
CLAIMS OF RACIAL HARASSMENT.

The court of appeals here held that 
Section 1981 does not encompass racial 
harassment on the reasoning that the 
statute does not cover discrimination in 
compensation, terms, conditions, or 
privileges of employment. Rather it held 
that § 1981 covers only matters that go 
to the very existence and nature of the 
employment contract, such as hiring, 
firing and promotion. Four other courts 
of appeals have ruled to the contrary and 
have held that discrimination in the 
terms and conditions of employment, 
including racial harassment, violates 
Section 1981.

The Fifth Circuit has ruled that an 
offensive work environment caused by 
racial harassment "would . . . establish 
a successful case under 42 U.S.C. §§ 1981

I.



14
and 1983." Hamilton v. Rodgers, 791 F.2d 
439, 442 (1986). Similarly, the District 
of Columbia Circuit has concluded that 
Section 1981 encompasses a claim that a 
black plaintiff suffered "conduct and 
conditions that were worse than those 
imposed upon white employees." Carter v. 
Duncan-Huggins. Ltd.. 727 F.2d 1225, 1233 
(D.C. Cir. 1984) . The court explicitly 
held that a pattern of differences in the 
condition of employment, including the 
telling of a racially derogatory joke, 
can give rise to liability under Section 
1981. Ibid. Therefore, it upheld
compensatory damages for humiliation and 
other emotional harm resulting from "the 
atmosphere of harassment." Id. at 1236, 
1238-39.

Both the Seventh and Eighth Circuits 
have also permitted recovery under 
Section 1981 for emotional distress 
caused by racial harassment in employment



15
where a defendant subjected a black 
employee to different terms and 
conditions of employment because of race. 
These cases involved discriminatory job 
assignments, discipline, and other forms 
of racial harassment. Ramsev v. American 
Air Filter Company. 772 F.2d 1303 (7th 
Cir. 1985) ; Block v. R. H. Macv & Co. . 
712 F.2d 1241 (8th Cir. 1983).13 See 
also Wilmington v. J. I, Case Company. 
793 F.2d 909 (8th Cir. 1986).14 And see.

13Although Block involved claims 
under both Title VII and § 1981, racial 
harassment was treated as an independent 
cause of action under § 1981. The court 
upheld the jury's damage award for 
" m e n t a l  anguish, h u m i l i a t i o n ,  
embarrassment and stress," caused by such 
harassment. 712 F.2d at 1245. Damages 
for emotional distress are not 
recoverable under Title VII.

14 The court in W i l m i n a t o n  
specifically upheld an award of damages 
for "emotional distress resulting from 
the conditions under which folaintiffl 
worked." 793 F.2d at 922. Although the
Court did not use the label "racial 
harassment," the type of discrimination 
at issue was the same as that involved in 
the instant case. The plaintiff in 
Wilmington was assigned to undesirable



16
Goodman v. Lukens Steel Co., 777 F.2d 113
(3rd Cir. 1985), aff'd ___U.S. ___, 55
U.S.L. Week 4881 (1987) (affirming
finding of liability under § 1981 and 
Title VII based in part on harassment of 
black employees).

jobs so that he would not earn incentive 
pay, 793 F. 2d at 915; plaintiff in the 
instant case was given the undesirable 
job of sweeping and dusting not required 
of white clerical workers and was 
assigned an exorbitant amount of work in 
an attempt to force her to resign. 
Plaintiff in Wilmington was repeatedly 
verbally reprimanded, id. ; plaintiff in 
this case was criticized in staff 
meetings and subjected to racially 
derogatory remarks. The defendant in 
Wilmington moved the plaintiff's work 
station closer to the foreman's office to 
keep a close watch on him, id. ; in this 
case, defendant's president stared at 
plaintiff for several minutes several 
times a week.



17

THE DECISION BELOW IS INCONSISTENT WITH 
DECISIONS OF THIS COURT, INCLUDING 
GOODMAN V. LUKENS STEEL CO. AND SHAARE 
TEFILA CONGREGATION V. C O B B _______

Since the decision of the court 
below this Court has indicated that 
liability under both §§ 1981 and 1982,
parallel provisions of the Civil Rights 
Act of 1866, can be based on harassment 
based on race. In Goodman v. Lukens
Steel Co. . _____ U.S. ____, 55 U.S.L.Week
4881 (1987) the Court affirmed findings
that § 1981 had been violated by, inter 
alia. toleration by both an employer and 
a union of racial harassment of black 
employees. 55 U.S.L. Week at 4883. In 
Shaare Tefila Congregation v. Cobb. 481

II.

U.S. , 95 L.Ed.2d 594 (1987) , the
Court reversed the Fourth Circuit and
held that claims by Jews that they had
been subject to harassment and vandalism 
because of their ancestry stated a cause



18
of action under § 1982. Plaintiff urges 
that these decisions directly support 
their contention that discrimination in 
the terms and conditions of employment is 
prohibited by § 1981.

The conclusion that § 1981 prohibits 
racial harassment in employment is 
consistent with the language and purpose 
of the statute. Section 1981 guarantees 
to blacks "the same right . . .  to make 
and enforce contracts . . as is enjoyed 
by white citizens," (emphasis added). A 
contract is a combination of many "terms 
and conditions." For example, a contract 
to sell goods generally specifies the 
nature and guantity of the goods, the 
price, the method of payment, the method 
of delivery and possibly other "terms and 
conditions." A contract for employment 
either explicitly or implicitly covers at 
least the nature of the job, the salary, 
the working hours, work rules, and



19
penalties for violations thereof, and the 
location of the job. As this Court noted 
in Hishon v. King & Spaulding. 467 U.S. 
69, 74 (1984):

Because the underlying employment 
relationship is contractual, it 
follows that the "terms, conditions, 
or privileges of employment" clearly 
include benefits that are part of an 
employment contract.
Despite these considerations, the

court below concluded that the only
element of the right to contract
protected by § 1981 is the right to
obtain employment under an unequal set of 
conditions. Under the reasoning of the 
court below, an employer that offered to 
employ black individuals at a lower 
salary than white individuals would not 
violate § 1981, since black individuals 
would not be totally deprived of the 
right to contract for a job. This 
analysis ignores § 1981's protection of 
an equal right to contract.

The lower court's opinion does not



20
distinguish, and there is no basis for a 
distinction, between explicit and 
implicit conditions of a contract. Under 
the court's decision, an employer could 
say to black applicants: "I will hire
you if you agree that I may constantly 
abuse you, give you the worse job 
assignments and subject you to racially 
derogatory remarks." Such a condition, 
were it known at the outset of the 
contractual relationship, would surely 
discourage black individuals from 
entering into an employment contract and 
thus deprive them of an equal right to 
make such contracts. The fact that these 
terms and conditions of employment are 
not stated at the outset and are not put 
into a written document does not lead to 
a different result. The employer's 
actions establish that these are implicit 
conditions of the contract which are 
different for black employees than for



21
white employees, thus depriving black 
employees of an equal right to make an 
acceptable employment contract.

Section 1981's prohibition of 
discrimination in all of the terms and 
conditions of the employment contract was 
made clear by this Court in Johnson v. 
Railway Express Aaencv. 421 U.S. 454 
(1975). The Court in Johnson found that 
one of the purposes of § 1981 is to 
"affor[d] a federal remedy against 
discrimination in private employment on 
the basis of race." Id. at 459-60. The 
Court did not distinguish between hiring, 
firing and promotion and other terms and 
c o n d i t i o n s  of the e m p l o y m e n t  
relationship. In fact, the plaintiff's 
claim in Johnson v. Railway Express 
Agency, was not about hiring, firing or 
promotion, but rather discrimination in 
other terms and conditions of his 
employment —  seniority rules and job



22
assignments. Id. at 455.

The legislative history of § 1981 
also supports coverage of terms and 
conditions of the employment contract, 
including work environment and racial 
harassment. Section 1981 was first 
enacted as part of § 1 of the Civil 
Rights Act of 1866. The legislative 
history and purpose of § 1 was analyzed 
in detail by this Court in Jones v. 
Alfred H, Maver Co. . 392 U.S. 409 
(1968).15 The Court in Jones v. Maver 
repeatedly emphasized that the 1866 Act 
was "cast in sweeping terms" in order "to 
prohibit all racially motivated 
deprivations of the rights enumerated in

15The provision of the 1866 Act at 
issue in Jones v. Alfred H. Maver Co. has 
been codified as 42 U.S.C. § 1982. In 
language parallel to that of § 1981, 
§ 1982 guarantees "the same right . . . 
as is enjoyed by white citizens . . .  to 
inherit, purchase, lease, sell, hold, and 
convey real and personal property." See 392 U.S. at 441, n. 78.



23
the statute." Id. at 422, 426.16 This 
Court relied on legislative history that 
Congress "believed that it was approving 
a comprehensive statute forbidding all 
racial discrimination affecting the basic 
civil rights enumerated in the Act." Id. 
at 435 (emphasis added). See also id. at 
436.

In addressing the meaning of § 1982, 
the parallel provision to § 1981 that 
guarantees equal rights to sell and lease 
property, the Court held that the 1866 
Act conferred "'the right . . .  to 
purchase . . . real estate . . . without 
any qualification and without any 
restriction whatever . . .  . '" Id. at 
43 5 (emphasis added) (quoting Cong. 
Globe, 39th Cong., 1st Sess. at 1781 
(Senator Cowan)). Thus, the Court ruled 
that § 1982 prohibited all racial

16See also 392 U.S. at 431 ("sweeping 
and e f f i c i e n t " )  ; i d . at 4 3 3 
("sweeping . . . effect").



24
discrimination in the sale and rental of
property. Id. at 436-437 •

The Court also stressed that the
1866 Act was intended to give "real
content" and "practical" meaning to the
guarantees of the Thirteenth Amendment. 
Id. at 427, 431 (quoting Cong. Globe, 
39th Cong., 1st Sess. 474 (Senator 
Trumbull))17 Thus, the Act was intended 
to eliminate the "'private outrage and 
atrocity'" that were "'daily inflicted on 
freedmen.'" Id. at 427.

The panel decision's restrictive 
construction of § 1981 is inconsistent 
with this legislative history. Congress' 
desire to prohibit "all racial 
discrimination affecting" the ability to 
make and enforce contracts clearly 
encompasses racial harassment which 
interferes with enjoyment of the benefits 
of the contract. Congress' desire to

17See also 392 U.S. at 434.



25
provide "practical" freedom of contract 
and to prevent oppression of black 
citizens would be rendered meaningless if 
an employer could, through harassment, 
deprive black employees of a work 
experience equal to that of white 
employees.

In light of these considerations it 
would be appropriate to vacate the 
decision of the Fourth Circuit and to 
remand for further consideration in light 
of this Court's recent decisions in 
Goodman v. Lukens Steel Co. and Shaare 
Tefila Congregation v. Cobb.

III.
THE DECISION BELOW RELATING TO BURDEN OF 
PROOF CONFLICTS WITH DECISIONS OF THIS 
COURT AND OTHER CIRCUITS.
A. The Decision Below Conflicts With

Texas Dept. of Corrections v.
Burdine.
As described above, the district 

court, over plaintiff's objection, 
instructed the jury that in order for the



26
plaintiff to prevail on her dis­
crimination in promotion claim she must 
prove that she was better qualified for 
the position than was the white employee 
who received it. Indeed, the district 
court further instructed the jury that 
plaintiff must prove both that she was 
more qualified and that the employer's 
intentional discrimination against her 
because of her race was "the real reason" 
that she was not promoted.

These instructions, and the line of 
cases in the Fourth Circuit upon which 
they were based,18 are in conflict with 
the holdings of this Court and with other 
circuits. The Fourth Circuit's rule 
squarely conflicts with this Court's 
decision in Texas Dept. of Community 
Affairs v. Burdine. 450 U.S. 248, 259

18Younq v. Lehman 748 F.2d 194 (4th 
Cir. 1984); Anderson v. City of Bessemer 
City. 717 F.2d 149 (4th Cir. 1983), rev'd 
on other grounds. 470 U.S. 564 (1985).



27
(1981) . There, it was held that an 
"employer has discretion to chose among 
equally qualified candidates "provided 
that the decision is not based upon 
unlawful criteria." (Emphasis added.) 
Admittedly, the mere fact that an 
employer has chosen a white when there 
were two equally qualified candidates 
does not by itself establish dis­
crimination. However, Burdine makes it 
clear that discrimination can be 
established absent proof that the Black 
was better qualified.

To give an example, assume that the 
selecting official testified that the 
white and black candidates were equally 
qualified and therefore he picked the 
white person because he thought a white 
would fit in better with an all-white 
work force. Such testimony would 
establish beyond question a violation of 
§ 1981. Nevertheless, under the district



28
court's instruction, the jury here would 
have been required to find for the 
employer.

The import of the instruction is to 
focus the jurors' inquiry entirely on the 
question of relative qualifications to 
the exclusion of other evidence from 
which a finding of discrimination could 
be inferred. Petitioner introduced 
substantial evidence that she had been 
subjected to racially derogatory remarks, 
had been discriminatorily denied 
training, and had been harassed because 
of her race. This evidence would amply 
support an inference that petitioner had 
been discriminated against and was denied 
the promotion irrespective of her 
qualifications or those of her white co­
worker. However, once the jurors had 
decided that petitioner had not 
demonstrated superior qualifications, the 
court's instructions would necessarily



29
lead them to ignore the other evidence 
that petitioner had been subjected to 
disparate treatment.
B. The Decision Below Is In Conflict

With Decisions Of Other Circuits.
In explaining the instruction given 

to the jury the district court stated: 
"The law in the Fourth Circuit seems to 
be that in order to make out a prima 
facie case you must show that you are 
better qualified than the person who 
received the promotion.1,19 The court of 
appeals upheld this instruction on the 
ground that where the reason given in 
rebuttal to justify an action by the 
employer was the relative qualifications 
of the blacks and white applicants, then 
the plaintiff has the burden of proving 
that her qualifications are superior.

Both holdings are in conflict with 
decisions of other circuits. First.

19See n. 2, supra.



30
there is substantial agreement among the 
other courts of appeals that a plaintiff 
need only establish that she was 
qualified for the position in order to 
make out a prima facie case, and not that 
she had superior qualifications. In 
Mitchell v. Baldriqe. 759 F.2d 80 (D.C.
Cir. 1985), the court vacated the 
dismissal of the plaintiff's case when a 
district court required that the 
plaintiff demonstrate that she was at 
least as qualified as the person chosen. 
The Seventh, Eighth, and Ninth Circuits 
have similarly held that an employee need 
only show that he or she was qualified 
for the position at issue in order to 
establish a prima facie case. See.
Christensen v. Equitable Life Assurance 
Soc. . 767 F. 2d 340, 342-343 (7th Cir.
1985) ; Hawkins v. Anheuser-Busch. Inc. . 
697 F. 2d 810 (8th Cir. 1983) ; Foster v.
Areata Associates. Inc.. 772 F.2d 1453,



31
1460 (9th Cir. 1985). See also Grano v. 
Department of Development of the City of 
Columbus. 637 F.2d 1073, 1079 (6th Cir. 
1980).

Second, although in the present case 
the trial went beyond the stage of 
proving a prima facie case (see, United 
States Postal Service Board of Governors 
v. Aikens. 460 U.S. 711 (1983)), the 
approval by the Fourth Circuit of the 
instruction is in conflict with the law 
of two other circuits. Thus, in Hawkins 
v. Anheuser-Busch. Inc.. 697 F.2d at 813- 
15, the Eighth Circuit held that although 
the defendant had rebutted the prima 
facie case by articulating the selectees' 
superior qualifications, the explanation 
was shown to be a pretext because the 
plaintiff proved that she was at least as 
qualified for the position. Thus, under 
Hawkins. in the appropriate circumstances 
a showing of equal qualifications would



32
be sufficient to prove the Title VII 
claim because it would demonstrate the 
pretextual nature of the proffered 
explanation.

Similarly, in Joshi v. Florida State 
University Health Center. 763 F.2d 1227, 
1235 (11th Cir. 1985), the Eleventh
Circuit held that the relative 
qualifications of the persons hired could 
not be the reason for the defendant's 
failure to hire the plaintiff since she 
was not actively considered for the 
position. Here also there was ample 
evidence from which a properly instructed 
jury could have found that plaintiff had 
never been seriously considered for the 
promotion and had been prevented from 
being so because of a discriminatory 
denial of training. Such a conclusion 
was foreclosed by the district court's 
instruction that the plaintiff could not 
win unless she proved that she was more



33
qualified than the selectee.

In summary, the district court's 
instruction that proof of superior 
qualifications was an absolute 
requirement for the plaintiff's case 
conflicts with the law in five other 
circuits. The issue of the question of 
relative qualifications is a recurring 
one in the lower courts. See United 
States Postal Service v. Aikens. 460 U.S. 
at 713. Given both the conflict in 
circuits and the recurrence and 
importance of the issue, certiorari 
should be granted to resolve it in the
present case.



34

CONCLUSION
For the foregoing reasons certiorari

should be granted and the decision of the
court below reversed.

JULIUS LeVONNE CHAMBERS
PENDA D. HAIR
CHARLES STEPHEN RALSTON*
GAIL J. WRIGHT

99 Hudson Street 
New York, N.Y. 10013 
(212) 219-1900

HAROLD L. KENNEDY, III 
HARVEY L. KENNEDY

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

Attorneys for Petitioners
♦Counsel of Record



A P P E N D I X



la
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

NO. 85-2394

Brenda Patterson,
Appellant,

versus
McLean Credit Union,

Appellee.

Appeal from the United States District 
Court for the Middle District of North 
Carolina, at Winston-Salem. Hiram H. 
Ward, Chief District Judge. (84-0073)

Argued October 9, 1986. Decided November
25, 1986

Before WIDENER and PHILLIPS, Circuit 
Judges, and HAYNSWORTH, Senior Circuit 
Judge.



2a
Harold L. Kennedy, III; Harvey L. Kennedy 
(Kennedy, Kennedy, Kennedy and Kennedy on 
brief) for Appellant; H. Lee Davis, Jr. 
(George E. Doughton, Jr.; Hutchins 
Tyndall, Doughton and Moore on brief for 
Appellee.

PHILLIPS, Circuit Judge:
In this action the plaintiff, Brenda 

Patterson, sued her employer, McLean 
Credit Union (McLean), on claims, under 
42 U.S.C. § 1981, of racial harassment,
and failure to promote and discharge, 
together with a pendent state claim for 
intentional infliction of mental and 
emotional distress.* The district court 
submitted the § 1981 discharge and pro­
motion claims to the jury which returned 
a verdict in favor of McLean, and granted

* Presumably for statute of limitations 
reasons, Patterson did not assert a claim 
under Title VII of the Civil Rights Act 
of 1964, 42 U.S.C. § 2000(e), et seq.



3a
directed verdicts to McLean on the § 1981 
racial harassment claim and on the pen­
dent state claim for intentional inflic­
tion of mental and emotional distress. 
We hold that the claim for racial harass­
ment was not cognizable under 1981; that 
the evidence was insufficient to support 
the pendent state claim; and that the 
court did not err in its jury instruc­
tions nor in its evidentiary rulings on 
the submitted claims under 1981. We 
therefore affirm.

I.
Brenda Patterson, a black woman, was 

an employee of McLean Credit Union from 
May 5, 1972 to July 19, 1982, when she 
was laid off. Robert Stevenson, McLean's 
president, hired Patterson to be a teller 
and file coordinator. According to Pat­
terson's testimony, when he hired her,



4a
Stevenson told Patterson that the other 
women in the office, who were white, 
probably would not like her because she 
was black. During her ten years of em­
ployment with McLean, Patterson expe­
rienced treatment that she considered to 
be racially motivated harassment by 
Stevenson. She testified that he 
periodically stared at her for several 
minutes at a time; that he gave her too 
many tasks, causing her to complain that 
she was under too much pressure; that 
among the tasks given her were sweeping 
and dusting, jobs not given to white 
employees. On one occasion, she testi­
fied, Stevenson told Patterson that 
blacks are known to work slower than 
whites. According to Patterson, 
Stevenson also criticized her in staff 
meetings while not similarly criticizing



5a
white employees.

Patterson never was promoted from 
her position as teller and file coor­
dinator throughout her tenure at McLean. 
Susan Williamson, a white employee who 
was hired by McLean in 1974 as an ac­
counting clerk, received a title change 
from "Account Junior" to "Account Inter­
mediate" in 1982. This title change 
entailed no change of responsibility. 
Patterson asserted that Williamson's 
title change was a promotion that Patter­
son herself should have received, based 
primarily on her seniority over William­
son. Patterson also claimed that her 
1982 layoff was discriminatory because 
white employees with less experience kept 
their jobs.

Patterson based her § 1981 claims
and her state claim of intentional



6a
infliction of mental and emotional 
distress on the evidence above summar­
ized. The district court held that a 
claim for racial harassment is not cog­
nizable under § 1981, and refused to 
submit that claim to the jury. Examining 
North Carolina case law applicable to 
Patterson's pendent state claim, the 
district court concluded that Stevenson's 
treatment of Patterson did not rise to 
the level of outrageousness reguired 
under state law for recovery for inten­
tional infliction of emotional distress 
and directed a verdict against Patterson 
on that claim. The court submitted the 
1981 claims for discriminatory failure to 
promote and discharge to the jury, which 
returned a verdict for McLean. This 
appeal followed.



7a

Patterson first challenges the 
court's refusal to submit her related 
claims for racial harassment and inten­
tional infliction of mental and emotional 
distress to the jury.

A.
We hold, in agreement with the dis­

trict court, that Patterson's claim for 
racial harassment is not cognizable under 
§ 1981, which provides in relevant part
that "[a]11 persons within the jurisdic­
tion of the United States shall have the 
same right . . . to make and enforce con­
tracts ... as is enjoyed by white citi­
zens." That racial harassment claims are 
cognizable under Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. § 2000(e),
does not persuade us otherwise. The 
broader language of Title VII, which

II.



8a
makes unlawful "discriminat[ion] against 
any individual with respect to his com­
pensation, terms, conditions f or privi­
leges of employment because of such 
individual's race," 42 U.S.C. § 2000
(e)(2)(a) (emphasis added), stands in 
critical contrast to § 1981's more narrow 
prohibition of discrimination in the 
making and enforcing of contracts. cf. 
United— States v. Buffalo, 457 F. Supp. 
612, 631 (W.D.N.Y. 1 9 7 8 ) (the
intentionally broad provisions of Title 
V I I  accommodate claims based on having to 
work in a racially discriminatory 
environment), modified on other grounds. 
633 F.2d 643 (2d Cir. 1980). Claims of
racially discriminatory hiring, firing, 
and promotion go to the very existence 
and nature of the employment contract and 
thus fall easily within § 1981's protec­



9a
tion. Instances of racial harassment, on 
the other hand, may implicate the terms 
and conditions of employment under Title 
VII, see e.q. . EEOC v. Murphy Motor 
Freight, 488 F. Supp. 381, 384-86 (D. 
Minn. 1980), and of course may be proba­
tive of the discriminatory intent re­
quired to be shown in a § 1981 action, 
see e.g., Carter v. Duncan-Huggins, Ltd.. 
727 F. 2d 1225, 1233 (D.C. Cir. 1984), 
but, standing alone, racial harassment 
does not abridge the "right to make" and 
"enforce" contracts - including personal 
service contracts - conferred by § 1981.

The cases relied on by Patterson are 
not to the contrary. None directly holds 
that racial harassment gives rise to a 
discrete claim under § 1981, as distin­
guished from recognizing that racial 
harassment may be relevant as evidence of



- ioa
discriminatory intent supporting a cog­
nizable claim of employment discrimina­
tion under § 1981 and that it may give
rise to a discrete Title VII claim. See 
Murohv Motor Freight. 488 F. Supp. at 
384 (Title VII claim for racial harass­
ment) ; Buffalo. 457 F. Supp. at 632-35,
636-37 (discriminatory work environment 
claim under Title VII; 1981 claims of 
discriminatory assignment and termina­
tion) . But cf. Goodman v Lukens Steel 
Co. . 580 F. Supp. 1114, 1164 (E.D. Pa.
1984)(very generally citing § 1981, along 
with Title VII, as a basis for a claim of 
racial harassment) Croker v. Boeing Co. . 
437 F. Supp. 1138, 1191-92, 1193-94,
1195, 1198 (E.D. Pa. 1977)(discussing
racial harassment claim only under Title 
VII, but indicating liability based upon 
both Title VII and § 1981 in order) ,



12a
of McLean's conduct did not rise to the 
level of outrageousness and extremity- 
required by the North Carolina courts to 
allow recovery under this cause of 
action. We agree with this assessment. 
The standard of "outrageousness" estab­
lished in the relatively few state court 
decisions is understandably a stringent 
one. Recovery under that standard has 
been permitted only for conduct far more 
egregious than any charged to McLean in 
Patterson's evidence.

For example, in Woodruff v. Miller. 
307 S . Ed. 2d 187, 178 (N.C. App. 1983), 
recovery was permitted where a defendant 
had employed what the court characterized 
as "truculent, vindictive methods" 
inspired by a "consuming animus against 
plaintiff" to circulate a thirty year old 
record of plaintiff's" nolo contendere



11a
modified on other grounds. 662 F.2d 975
(3d Cir. 1981) .

We therefore affirm the district 
court's grant of directed verdict in 
Patterson's claim of racial harassment 
under § 1981.

B.
We also agree with the district 

court that Patterson's evidence was not 
sufficient to support submission of her 
pendent state claim of intentional in­
fliction of mental and emotional dis­
tress. The essential elements of such a 
claim under North Carolina law are (1) 
extreme, outrageous conduct, (2) intended 
to cause and causing (3) severe emotional 
distress. E.g.. Dickens v. Purvear. 276 
S .Ed. 2d 325, 335 (N.C. 1981). The dis­
trict court ruled that given its most 
favorable reading, Patterson's evidence



13a
plea to a criminal charge, had compared 
plaintiff to dangerous fugitives, and had 
taken open delight in plaintiff's 
resulting mental disturbance.

In Dickens, recovery was permitted 
against a defendant who had assaulted 
plaintiff and threatened to kill him 
unless he left the state.

Of particular relevance is Hogan v. 
Forsyth Country Club Co.. 340 S.E.2d 116 
(N.C. App. 1986), in which one of three 
female plaintiffs recovered for inten­
tional infliction of emotional distress 
when a fellow employee of her employer- 
defendant screamed and shouted at her, 
engaged in non-consensual and intimate 
sexual touching, made sexual remarks, and 
threatened her with a knife. Signifi­
cantly, the two other plaintiffs were 
denied recovery though the same fellow



14a
employee had screamed, shouted, and 
thrown a menu at one of them and had 
given strenuous work to and denied the 
request of another, who was pregnant, to 
leave work when she thought she was in 
labor.

Evaluated in light of the stringent 
standard established by these decisions, 
the conduct of McLean through its presi­
dent, Stevenson, was not "extreme and 
outrageous." That Stevenson stared at 
Patterson often, gave her too much work, 
required her to sweep and dust, and com­
mented that blacks are slower than whites 
are facts that, though patently unworthy 
if true, fall far short of those in any 
North Carolina decision finding "extreme 
and outrageous" conduct under this state 
tort cause of action.



15a
We therefore affirm the district 

courts grant of directed verdict on this 
claim.

III.
Patterson next challenges the ex­

clusion of proffered testimony by two 
witnesses in support of her submitted 
claims of employment discrimination under 
§ 1981 and a jury instruction respecting 
claimant's burden of proof on her promo­
tion claim.

Marie Roseboro was tendered as an 
expert in personnel administration and 
would have given an opinion that Patter­
son was better qualified than Susan 
Williamson for the "promotion" given the 
latter. The district court refused to 
admit this proffered testimony on the 
basis that it did not meet the require­
ment of Fed. R. Evid. 702 that expert



16a
testimony be helpful to the trier of 
fact.

The court also excluded the lay 
testimony of another black women formerly 
employed by McLean, Anita Reid Stovall, 
to the effect that she had experienced 
harassment by Stevenson during her em­
ployment in 1972. The court ruled this 
testimony inadmissible under Fed. R. 
Evid. 403, finding its probative value on 
the issue of discriminatory intent out­
weighed by its remoteness in time and its 
potential to confuse and mislead the 
jury.

There was no abuse of discretion in 
the trial court's decision to exclude the 
testimony of these two tendered wit­
nesses. Because of the remoteness in 
time of the events to which Stovall would 
have testified, the probative value of



17a
that evidence would have been slight and 
the court could properly conclude that 
its slight value was outweighed by the 
likelihood of confusion it might create 
on the issue on which it was tendered. 
See Fed. R. Evid. 403.

The district court also could prop­
erly conclude that Roseboro's proffered 
testimony regarding the relative qualifi­
cations of Patterson and other McLean 
employees would not be helpful to the 
jury so as to justify its admission as 
expert opinion under Red. R. Evid. 702. 
The trial court's conclusion that the 
jury needed no aid in making a finding on 
the relative qualifications of clerical 
employees at a credit union, a comparison 
that is not a highly technical or compli­
cated one, was not an abuse of its dis­
cretion.



18a

Finally, Patterson complains that 
the trial court erroneously instructed 
the jury that in order for her to prevail 
on her promotion discrimination claim, 
she had to show that she was more quali­
fied than Susan Williamson. There was no 
error in the instruction given.

An employee claiming race discrimi­
nation in employment decision sunder § 
1981 must prove intentional discrimina­
tion. Such a claim is therefore compara­
ble to the individual disparate treatment 
claim under Title VII. The disparate 
treatment proof scheme developed for 
Title VII actions in McDonnell Douglas 
Coro, v. Green. 411 U.S. 792 (1973) and 
its progeny, may properly be transposed, 
as here, to the jury trial of a § 1981

IV

claim. See Carter. 727 F.2d at 1232.



19a
Under that scheme, once an employer had 
advanced superior qualification as a 
legitimate nondiscriminatory reason for 
favoring another employee over the 
claimant, the burden of persuasion is 
upon the claimant to satisfy the trier of 
fact that the employer's proffered reason 
is pretextual, that race discrimination 
is the real reason.

That was the situation here, and the 
district court therefore properly in­
structed the jury that the burden was 
upon the claimant to prove her superior 
qualifications by way of proving race 
discrimination as the effective cause of 
the denial to her of "promotion." See 
Young v. Lehman. 748 F.2d 194, 197-98 
(4th Cir. 1984) ; see also Loeb v. Text­
ron. Inc.. 600 F.2d 1003, 1010, 1016 (1st 
Cir. 1979)(effect on jury instructions of



20a
transposing McDonnell Douglas proof 
scheme to jury trial of ADEA claim) . 
This simply reflects the principle 
established in Title VII cases that an 
employer may, without illegally discrimi­
nating, choose among equally qualified 
employees notwithstanding some may be 
members of a protected minority. See 
Anderson v. City of Bessemer Citv. 717 
F. 2d 149, 154 (4th Cir. 1983), rev'd on
other grounds. 470 U.S. 564 (1985).

The court's instructions here were 
therefore proper.

AFFIRMED



21a

UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

No. 85-2394

BRENDA PATTERSON,
Plaintiff-Appellant,

versus
MCLEAN CREDIT UNION,

Defendant-Appellee.

O R D E R

There having been no request for a 
poll of the court on the petition for 
rehearing en banc, it is accordingly 
ADJUDGED and ORDERED that the petition 
for rehearing en banc shall be, and it 
hereby is, denied.

The panel has considered the



22a
petition for rehearing and the response 
thereto and is of opinion the petition is 
without merit.

It is accordingly ADJUDGED and 
ORDERED that the petition for rehearing 
shall be, and it hereby is, denied.

With the concurrences of Judge 
Phillips and Judge Haynsworth.

/s/ H. E. Widener, Jr.

For the Court
Filed: March 19, 1987.



23a
ORAL RULING OF DISTRICT COURT

IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 

WINSTON-SALEM DIVISION

BRENDA PATTERSON, ) CIVIL ACTION NO.
Plaintiff ) C-84-73-WS

)vs. )
)MCLEAN CREDIT UNION, )

Defendant )
.......................)

TRANSCRIPT OF TRIAL
BEFORE THE HONORABLE HIRAM H. WARD, and a

jury
Vol. 3 of 5 

* * *
MR. KENNEDY: Your Honor, I'd like

to address, if I could, that one claim 
that —  it was assumed in the other two 
claims —  but really, under the law,
racial harassment or failure to have a
working environment free of racial
prejudice is a separate thing.



24a
THE COURT: Yes, I understand

that, and this is a 1981 case —  and if 
the jury finds a history of racial 
harassment which culminated in failure to 
promote and discharge of the plaintiff, 
they can take that into consideration. 
But it is not a separate claim under 
Title —  under Section 1981, in my 
opinion, in the context of this case.

MR. KENNEDY: We cited some cases
similar to the case at bar here in our 
brief —

THE COURT: Yes, sir, they are all
Title VII cases, aren't they?

MR. KENNEDY: But, Your Honor, that,
to me, when I look at —

THE COURT: Well, it isn't to me,
and I've already ruled on it, so that's 
the way its going to go. I'm going to 
let the promotional claim go to the jury,



25a
and I'm going to let the layoff and 
subsequent termination claim go to the 
jury, and I'm dismissing the rest of the 
claims.
(Pages 3-75-3-76.)



26a

IN THE UNITED STATES DISTRICT COURT 
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA 

WINSTON-SALEM DIVISION

BRENDA PATTERSON,
Plaintiff

v.
MCLEAN CREDIT UNION, 

Defendant

C—84-73—WS

J U D G M E N T
This case came on for trial before

the Court and a jury on November 12-18,
/■1985, and the issues having been duly 

tried and answered by the jury as 
follows:

1. Did defendant unlawfully 
discriminate against plaintiff because of 
her race, in violation of 42 U.S.C. §
1981:



27a
a. by denying plaintiff a 

promotion received by 
Susan Howard Williamson?

Answer: ________No___________
(Yes or No)

b. by laying off plaintiff on 
July 19, 1982 and subse­
quently discharging plain­
tiff?

Answer: _______ No______________
(Yes or No)

2. If defendant did unlawfully
discriminate against plaintiff, what
amount of compensatory damages, if any, 
is plaintiff entitled to recover:

a. for defendant's denying 
plaintiff a promotion 
received by Susan Howard 
Williamson?

Answer: ______________________(Amount)
b. for defendant's laying off



28a
plaintiff on July 19, 1982 
and subsequently dischar­
ging plaintiff?

Answer: _______________________
(Amount)

3. If plaintiff was discriminated 
against in her employment because of her 
race, and the defendant's actions in so 
doing were malicious, wanton, or oppres­
sive, what amount of punitive damages, if 
any, is plaintiff entitled to recover 
from defendant?

Answer: _______________________(Amount)
IT IS, THEREFORE, ORDERED, ADJUDGED 

AND DECREED that the plaintiff have and 
recover nothing on her claims against the 
defendant and that this action be, and 
the same hereby is, DISMISSED.

s/------------------------------United States District Judge
November 20, 1985.



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