Lytle v. Household Manufacturing Inc. Reply Brief for Petitioner

    No. 88-334

In The

Supreme Court of tf)e 3Umteti s ta tes
October Term, 1989

J ohn S. Lytle

v.
Petitioner,

Household Manufacturing, Inc., 
d/b/a Schwitzer Turbochargers,

Respondent.

REPLY BRIEF FOR PETITIONER

Julius LeVonne Chambers 
Charles Stephen Ralston 
Ronald L. E llis 
E ric Schnapper 
J udith Reed*

NAACP Legal Defense & 
Educational Fund, Inc.

99 Hudson Street 16th Floor 
New York, New York 10013 
(212) 219-1900

P enda D. Hair 
1275 K Street, N.W.
Suite 301
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

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



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



TABLE OF AUTHORITIES

Cases Page

Anderson v. Liberty Lobby, Inc.,
477 U.S. 242 (1986)...................... ........................ .. . 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. 1989) . ............. .. 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 (1 9 6 7 ).........................2

ii



Chevron Oil Co. v. Huson,
404 U.S. 97 (1971)......................................................... 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. 1985).......................................  11

Conley v. Gibson, 355 U.S. 41 (1957) .........................  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. 1985).......................................... 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 (1968)........................... 2

Cases Page

English v. General Development Corp., 
50 FEP Cases 825 (N.D.I11. 1989) . 14, 25



Cases Page

Fong v. American Airlines, Inc.,
626 F.2d 759 (9th Cir. 1980) ......................... .............. 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 (1943) . ...................................................... 2

Goff v. Continental Oil Co.,
678 F.2d 593 (5th Cir. 1982)........................................  13

Goodman v. Lukens Steel Co.,
482 U.S. 656 (1987) ........................................... 21, 29, 32

Granfinanciera S.A. v. Nordberg,
109 S.Ct. 2782 (1989) ....................................................... 1

Greenwood v. Ross, 778 F.2d 448
(8th Cir. 1985) . . . . . . . ....................................... 13

Gunning v. Cooley, 281 U.S. 90 (1930)................................ 6

Hannah v. The Philadelphia 
Coca-Cola Bottling Co.,
1989 U.S.Dist. LEXIS 7200 (E.D.Pa. 1989) ...............  14

IV



Cases Page

Harris v. Richards Mfg. Co.,
675 F.2d 811 (6th Cir. 1982)........................................  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 (1984)..............................  11

Jones v. Pepsi-Cola General Bottlers,
1989 U.S.Dist. LEXIS 10307
(W.D.Mo. 1989)................................ ...................  19, 20

Leroy v. Great Western United Corp.,
443 U.S. 173 (1979) ....................................................... 16

London v. Coopers & Lybrand,
644 F.2d 811 (9th Cir. 1981) . ......................................13

Long v. Laramie County
Community College Disk,
840 F.2d 743 (10th Cir. 1 9 8 8 )................................ .. . 13

Lopez v. S.B. Thomas, Inc.,
831 F.2d 1184 (2d Cir. 1987) .....................................  11

Malhotra v. Cotter & Co.,
50 FEP Cases 1474 (7th Cir. 1989)......................  15, 25

v



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 (1976) . . . . . . . . .  21

McDonnell Douglas v. Green,
411 U.S. 792 (1978) . ..................................................... 20

Meeker Oil v. Ambassador Oil Corp.,
375 U.S. 160 (1963) .................................................. . . . 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 (5th 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



Cases Page

Pullman Standard v. Swint,
58 U.S.L.W. 3288 (1989)...............................................  15

Ramsey v. United Mine Workers,
401 U.S. 302 (1971)....................................................... 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 (1971)................................  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 (1982).......... .....................  13

St. Francis College v. Al-Khazraji,
481 U.S. 604 (1987) . ...................................  21, 31, 33

Stearns v. Beckman Instruments, Inc.,
737 F.2d 1565 (Fed.Cir. 1984).........................................4

Strickland v. Washington,
466 U.S. 668 (1984)........................................................... 2

vii



Swint v. Pullman Standard,
58 U.S.L.W. 3288 (1989)............... ..................... .. 15

Tacon v. Arizona, 410 U.S. 351 (1973) . . . . . . . . . . . . .  12

Thomas v. Beech Aircraft Corp.,
1989 U.S. Dist. LEXIS 11284 (D. Kan. 1989) . . . . .  32

Tull v. United States,
481 U.S. 412 (1987)............................................................1

United States v. Lane,
474 U.S. 438 (1 986 )..............     2

Whiting v. Jackson State University,
616 F.2d 116 (5th Cir. 1980).............................   13

Wilson v. Garcia, 471 U.S. 261 (1985) ................................31

Wilson v. United States,
645 F.2d 728 (9th Cir. 1981) .................... ................... 5

Winston v. Lear-Siegler Inc.,
558 F.2d 1266 (6th Cir. 1977) . . . . . . . . . . . . ____13

Cases Page

viii



Constitutional Provisions.
Statutes, and Rules Page

42 U.S.C. § 1981 ........................................................... passim

42 U.S.C. § 2000e-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 (1952).................................................. 18

5 Moore’s Federal Practice (2d ed. 1 9 8 8 )........................... 5

9 Wright & Miller,
Federal Practice and Procedure (1971) .........................5

ix



I. The Seventh Amendment 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 Amendment 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 Corp.. 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...)



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



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



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 determine 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 determine 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



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 1 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



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 whether 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



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 appointment 

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 matter of course. It might 

well be that a jury could disbelieve Lytle. But on a 

directed verdict motion, the judge could not have made 

that determination. Indeed, he would have been required 

to assume that the jury would find for Lytle if any 

reasonable jury could do so. And so the judge’s Rule 

41(b) finding reflects an issue that would have had to go 

to the jury in a jury case.

7



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



period. And the misunderstanding that Mr. Lytle 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 statement acknowledges that a 

jury could have found for Lytle.6 In light of this 

acknowledgement, it is simply wrong to contend that the

6 Similarly, with regard to Lytle’s claim of retaliation, a jury 
might well have concluded that the letter of reference given a white 
employee discharged during the same year was not inadvertent as the 
district judge found, but that no such reference was given to Lytle 
because he had taken action to redress an alleged violation of his 
federally granted rights.

9



Rule 41(b) dismissal was equivalent to a directed verdict, 

and thus that no Seventh Amendment violation occurred.7

II. Patterson v. McLean Credit Union
Does Not Preclude Petitioner From 
Maintaining This Action

Respondent urges as an alternative ground for 

affirmance that petitioner’s section 1981 claims are 

precluded by this Court’s recent decision in Patterson v. 

McLean Credit Union. 105 L. Ed. 2d 132 (1989). Brief 

for Respondent (R. Br.) 1-18. We agree that, if this case 

is remanded for a jury trial, respondent could seek to 

invoke Patterson in any subsequent litigation regarding 

the scope of section 1981. There is no denying that

7 Respondent’s reliance on the Miller and Lane affidavits 
regarding petitioner’s discharge claim (presumably as a proxy for the 
testimony they would have offered had they actually testified at trial 
-  which they did not) necessarily means that they are not claiming 
that a directed verdict would have been appropriate at the end of 
petitioner’s case in chief -  since the evidence on which respondents 
rely would not have been in the record at that time ~ but rather at 
the end of respondent’s case.

10



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



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 "Title VII and § 1981 claims may be brought 
together on the same facts," (id. at 40), an argument that would have 
been equally applicable to a section 1981 hiring claim. In this Court 
respondent has abandoned this contention.

12



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 Here 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).

11 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. 
1975); 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-Siegler 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. 
Alberici 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, ceru 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



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. Dayton Power 
& Light Co.. 1989 U.S. Dist. LEXIS 10756 (S.D.Ohio 1989).

14



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." Malhotra 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 amendment 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



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 Amendment.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 Corp., 443 U.S. 173, 181 (1979), or 
those involving constitutional challenges to statutes. Ashwander v.

(continued...)
16



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 all 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 Valley 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



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

16 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



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 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 Motor 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 attempt 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



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



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-Khazraji, 481 U.S. 604, 606 (1987)(appeal of 
termination decision); Goodman v. Lukens Steel Co., 482 U.S. 656, 
664 (1987)(grievance).

21



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



plant.21 Under 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 number 

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



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



violations of that statutory command.22 Second, as this 

Court noted in Patterson, the equal enforcement 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 Corp., 50 
FEP Cas. 825, 826-28 (N.D. 111. 1989).

25



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. § 2000e-5(b). The 

submission of such a sworn statement, setting forth the

26



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



"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



(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 "overrul[ed] 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



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



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 December 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



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 manner that would circumvent or deter resort to the 

administrative machinery established by Title VII. But 

the petitioner in this case did 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 attempted 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



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 attempted, 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



eviscerate would be a perversion of the rationale of 

Patterson.

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
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

34



Charlottesville, VA 22901 
(804) 924-7810

Attorneys for Petitioner 
* Counsel of Record

November 1989

35