Lytle v. Household Manufacturing Inc. Joint Appendix

    No. 88-334

In Th e

Supreme Court of tfjc Umtefc States;
October  T e r m , 1989

J ohn S. Lytle 

v.
Petitioner,

H ousehold Manufacturing, Inc., 
d/b/a Schwitzer Turbochargers,

Respondent.

JOINT APPENDIX

J ulius Le Vonne Chambers 
Charles Stephen Ralston 
Ronald L. E llis 
E ric Schnapper 
Judith Reed*

NAACP Legal Defense & 
Educational Fund, Inc.

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

Penda 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

H. Lane Dennard, J r.* 
Ogletree, Deakins, Nash, 

Smoak and Stewart 
3800 One Atlantic Center 
1201 W. Peachtree Street 
Atlanta, Georgia 30309 
(404) 881-1300

A. Bruce Clarke
C. Matthew Keen 

Ogletree, Deakins, Nash, 
Smoak and Stewart 

Post Office Box 31608 
Raleigh, North Carolina 27622 
(919) 787-9700

Attorneys for Respondent

PETITION FOR CERTIORARI FILED AUGUST 23, 1988 
CERTIORARI GRANTED JULY 3, 1989



The following opinions, decisions, judgments and 
orders have been omitted in printing in this joint 
appendix because they appear on the following pages in 
the appendix to the printed Petition for Certiorari:

Page

Order of the United States 
District Court for the 
Western District of North 
Carolina, Asheville Divison 
dismissing all claims
(March 12, 1986).................................................... 34a

Judgment of the United States
District Court for the 
Western District of North 
Carolina, Ashville Division
(March 12, 1986).................................................... 32a

Opinion of the United States 
Court of Appeals for the 
Fourth Circuit, decided
October 20, 1987 ...................................................  la

Order of the United States 
Court of Appeals for the 
Fourth Circuit, denying 
petition for rehearing and 
suggestion for rehearing 
en banc, April 27, 1988 . . 22a



TABLE OF CONTENTS

Relevant Docket E ntries.............................  1

Complaint, 12-6-84......................................  4

Amendment to Complaint, 12-26-84 . . . . . . . .  16

Answer, 1-4-85.............................................  18

Amended Answer, 1-9-85............................ 25

Second Amended Answer, 2-8-85............. .........  32

Supplemental Complaint, 11-27-85 ............................ 40

Answer to Supplemental Complaint, 11-27-85 . . .  43

Excerpts from Trial Transcript..................................  46

ii



RELEVANT DOCKET ENTRIES

DATE NR. PROCEEDINGS

12-6-84 1

12-26 2 

1-4-85 3

1-9 5

1-30 7

4-19 11

4-19 12

4-19 13

4- 19 14

5- 9 17

Complaint; summons issued and returned to 
plaintiffs’ attorney for service.

Amendment to Complaint. C/S

Answer of Deft. C/S

Deft.’s Amended Answer. C/S

Defendant’s Second Amended Answer. C/S

Deft. Household Manufacturing, Inc.’s Motion 
for Summary Judgment w/supporting 
memorandum of law. C/S.

Affidavit of A1 T. Duquenne.

Affidavit of Larry E. Miller.

Affidavit of Judith R. Boone.

Pltf.’s Memorandum in Opposition to Deft.’s 
Motion for Summary Judgment w/supporting 
affidavits of John S. Lytle, Donald E. 
Rancourt, Charles R. Farnham, III, William 
E. Ferry and Marianne Daw. C/S.



5-17 19 Order that the Defendant’s motion for
summary judgment be and the same is hereby 
denied.
Copies mailed to attorneys of record.

11-27 24 Pltf.’s Supplemental Complaint. C/S.

11-27 25 Deft.’s Answer to Supplemental Complaint.
C/S.

2-26 Case called for trial before the Court.
Hearing on deft.’s motion to dismiss pltf.’s 
Sec. 1981 claim - motion allowed; Court 
ordered that pltf.’s claim pursuant to Title 
VII will proceed and will be without the 
presence of a jury. Opening statements to 
the Court by counsel. Pltf.’s evidence (see 
exhibit and witness lists in file.) Court 
recessed until 9:00 AM, 2-27-86.

2-27 Case recalled for trial before the Court.
Pltf.’s motion for reconsideration of order 
dismissing Sec. 1981 claim - motion denied. 
Continued pltf.’s evidence. Testimony of Dr. 
Ronald Caldwell - found to be an expert in 
the field of medicine w/a specialty in internal 
medicine. Pltf. rests. Deft.’s motion to 
dismiss as to the wrongful discharge - motion 
allowed; as to retaliation charge motion 
denied. Deft.’s evidence (see exhibit and 
witness lists in file). Deft, rests. Pltf.’s 
rebuttal evidence. Pltf. rests. Deft, renews 
motion to dismiss as the close of all evidence

2



as to the retaliation claim - motion allowed. 
Court finds there was no discriminatory 
practices on the part of the deft, and 
dismisses this action.

3-12-86 30 Order that all claims against the deft, in this 
case are dismissed. Copies mailed to 
attorneys of record.

3- 12 31 Judgment that the pltf. take nothing by
reason of this action. Each party to bear 
their own costs. Copies mailed to attorneys 
of record. JS-6 issued.

ORDER AND JUDGMENT DOCKET 
XXXV, NO. 189.

4- 11 .32 Pltf.’s Notice of Appeal.

3



IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF 

NORTH CAROLINA

ASHEVILLE DIVISION

[Caption Omitted]

COMPLAINT 
Jury Trial Demanded

Filed Dec. 6, 1984

Plaintiff, John S. Lytle, complaining of the 

Defendant alleges as follows:

PARTIES. CAPACITY. JURISDICTION AND VENUE

1. Plaintiff, John S. Lytle, is an adult citizen of 

North Carolina and resides in Asheville, Buncombe 

County, North Carolina.

2. Defendant, Household Manufacturing, Inc. 

(hereinafter "Household") is a Delaware corporation 

having a principal place of business in Prospect Heights,

4



Illinois, domesticated in North Carolina and doing 

business in Asheville, North Carolina under the name of 

Schwitzer Turbochargers.

3. Jurisdiction of this Court is invoked pursuant 

to the provisions of Title 28 U.S.C. §1331 and 1343 and 

Title 42 U.S.C. §1981 and §2000e-5(f)(3).

4. This action seeks to redress the deprivation 

of civil rights and employment discrimination which 

resulted from acts which are prohibited under Title 42 

U.S.C. §1981(3) and §2000e-2(a).

FACTS

5. Plaintiff, who is a black male, was hired by 

Defendant Household on January 5, 1981 as a machinist 

for Household’s Schwitzer Turbochargers plant in 

Asheville, North Carolina.

6. In this capacity, the Plaintiff through his 

experience and skill was assigned to operate one of the

5



most complicated and physically demanding machines 

used in the manufacturing process of Schwitzer 

Turbochargers.

7. From January 5, 1981, the date of his hire, to 

August 11, 1983, Plaintiff was a dependable and 

productive employee for Household and had not 

committed any serious or repeated violations of any 

company rule or regulation.

8. In March, 1983, Plaintiff began taking courses 

at Asheville-Buncombe Technical College in an effort to 

obtain a degree in mechanical engineering which would 

enhance his job skills and his opportunity for promotion 

within Household. The class for these courses met 

during the evening hours after the normal work hours of 

the Plaintiff.

9. Throughout his employment by the

Defendant Household, Plaintiff was aware that

6



Household hired and promoted white employees on a 

continuing basis into job positions for which Plaintiff was 

qualified but was never considered.

10. On Thursday, August 11, 1983, Plaintiff told 

his immediate supervisor, Lawrence Miller, that Plaintiff 

desired to be absent from work on Friday, August 12, 

1983 so that he could see a doctor.

11. Lawrence Miller responded by telling the 

Plaintiff that he could take Friday as a vacation day, but 

that Plaintiff would have to work overtime hours which 

were scheduled on Saturday, August 13, 1983.

12. Plaintiff informed Lawrence Miller that he 

would be unable to work on Saturday, August 13, 1983, 

because he was physically exhausted and unfit to work 

any more that week.

13. Plaintiff completed his production 

requirement for August 11, 1983 and left Defendant

7



Household’s facility believing that he had informed 

Lawrence Miller of his situation and had been granted an 

excused absence for the next few days.

14. On Monday, August 15, 1983, Plaintiff 

returned to work and had nearly completed his shift 

when he was called into the office of A1 Duquenne, 

Employee Relations Manager and was informed that he 

was being discharged for failing to come to work on 

Friday, August 12, 1983 and Saturday, August 13, 1983.

15. Upon information and belief, there are white 

persons employed by Defendant Household in the 

Schwitzer Turbochargers plant in Asheville, North 

Carolina who have as many or more instances of 

unexcused absences as does the Plaintiff or who have 

committed more serious violations of the company’s rules 

and regulations and who have not been discharged upon 

the initial offense as was the Plaintiff.

8



16. Upon information and belief, Lawrence 

Miller, A1 Duquenne, and Lane Simpson, Defendant’s 

Personnel Managers, met, conferred and agreed to 

terminate the employment of Plaintiff because of his 

race.

17. On August 23, 1983, Plaintiff filed a charge 

of discrimination with the Equal Employment 

Opportunity Commission in which he alleged that the 

Defendant had terminated his employment because of his 

race and has discriminated against Plaintiff and other 

blacks with respect to hiring, promotion, discharge, 

references, seniority, and terms and conditions of 

employment. A copy of this charge no. 045831543 is 

attached hereto as Exhibit A and is incorporated herein 

by reference.

18. On September 28, 1984, the Equal

Employment Opportunity Commission issued a "Notice of

9



Right to Sue" at the request of Plaintiff. A copy of this 

Notice of Right to Sue is attached hereto as Exhibit B 

and is incorporated herein by reference. All procedural 

prerequisites for filing this law suit pursuant to Title VII 

of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seep, 

have been met.

19. After his termination on August 15, 1983,

Plaintiff sought comparable employment with other 

companies. Prospective employers who sought

information pertaining to the job performance of Plaintiff 

from Defendant were denied this information.

Defendant’s officials and managers refused to provide 

this information in retaliation against Plaintiff for having 

filed a charge of discrimination with the Equal 

Employment Opportunity Commission.

20. As the result of the refusal of Defendant to 

provide information to prospective employers with

10



respect to his employment by Defendant, Plaintiff has 

been unable to obtain full time employment.

FIRST CLAIM FOR RELIEF

21. The acts of the Defendant have had and 

continue to have the effect of depriving Plaintiff of rights, 

privileges and immunities guaranteed to him by the 

Constitution and laws of the United States, and 

particularly his right to seek and obtain gainful 

employment, his right to be free from race discrimination 

with respect to the terms and conditions of his 

employment, including promotion and termination, and 

his right to petition the government to redress acts 

declared unlawful by Title VII of the Civil Rights Act of 

1964.

22. The acts of Defendant have deprived Plaintiff 

from obtaining compensation which he would have 

earned but for the discriminatory acts of Defendant in an

11



amount which will be proven at trial to be at least 

$30,000.

23. The acts of Defendant were done wrongfully 

and maliciously, with bad motive and ill will toward 

Plaintiff, and with reckless disregard to the rights of 

Plaintiff. Plaintiff is therefore entitled to punitive 

damages in an amount in excess of $10,000.00.

SECOND CLAIM FOR RELIEF

24. The acts of Defendant, as alleged in the 

foregoing paragraphs, are in violation of the Equal 

Employment Opportunity Act, also known as Title VII of 

the Civil Rights Act of 1964, 42 U.S.C. §2000e, et seq.

25. Said acts have deprived the Plaintiff of the 

opportunity to obtain compensation which he would have

12



earned but for the discriminatory acts of Defendant in an 

amount which will be proven at trial.

WHEREFORE, Plaintiff prays that:

1. He recover judgment for all damages suffered 

by him as a result of the acts of Defendant described 

herein;

2. He recover punitive damages in an amount in 

excess of $10,000.00;

3. An order be issued immediately reinstating 

Plaintiff to his former job or to a job position which 

Plaintiff would have held but for the discriminatory acts 

of Defendant;

4. An order be issued enjoining Defendant, its 

agents, successors, employees, attorneys and those acting 

in concert with them and at their direction from 

continuing or maintaining any policy or practice which 

discriminates against Plaintiff because of his race or

13



retaliates against Plaintiff for having opposed practices 

declared unlawful by Title VII of the Civil Rights Act of 

1964;

5. Plaintiff recover his reasonable attorneys’

6. Plaintiff recover his costs in this action; and

7. Plaintiff recover such further relief as the 

Court deems appropriate.

PLAINTIFF REQUESTS A JURY TRIAL OF 

ALL ISSUES TRIABLE HEREIN BY A JURY.

This the 6th day of December, 1984.

JAMES, McELROY & DIEHL, P.A.

(sgd.) Regan A. Miller
By:___________________

Regan A. Miller 
700 Home Federal Building 
139 South Tryon Street 
Charlotte, North Carolina 28202 
Telephone: 704/372-9870 
Attorneys for Plaintiff

14



VERIFICATION

[Omitted in printing]

15



ASHEVILLE DIVISION 

[Caption Omitted]

AMENDMENT TO COMPLAINT 
Filed Dec. 26, 1984

Pursuant to Rule 15 of the Federal Rules of Civil 

Procedure, Plaintiff, John S. Lytle, amends as a matter of 

right the Complaint filed in this action on December 6, 

1984. Plaintiff amends the Complaint by adding a Third 

Claim for Relief which reads as follows:

THIRD CLAIM FOR RELIEF

26. Plaintiff repeats and realleges Paragraphs 1 

through 25 of the Complaint as if more fully set forth 

herein.

27. As the result of the acts of Defendant as set 

forth herein, Plaintiff has suffered embarrassment,

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

16



damage to his reputation, emotional distress and mental 

suffering.

28. As the result of the foregoing, Plaintiff has 

sustained damages of at least $50,000.

Plaintiff also amends the Complaint by adding a 

paragraph 8 to the Prayer For Relief which reads as 

follows:

WHEREFORE, Plaintiff prays that:

8. He recover damages for emotional and 

mental suffering in the sum of at least $50,000.

Submitted this 26th day of December, 1984.

JAMES, McELROY & DIEHL, P.A.

(sgd.) Regan A. Miller
B y :_ ____ _ ____ ____

Regan A. Miller 
700 Home Federal Building 
139 South Tryon Street 
Charlotte, North Carolina 28202 
Telephone: 704/372-9870 
Attorneys for Plaintiff

17



ASHEVILLE DIVISION 

[Caption omitted]

ANSWER 
Filed Jan. 4, 1985

Defendant Household Manufacturing, Inc., 

answers as follows:

FOR A FIRST DEFENSE

1. The complaint fails to state a claim upon 

which relief can be granted.

FOR A SECOND DEFENSE

2. Defendant admits paragraph 1 of the

complaint.

3. Defendant admits paragraph 2 of the

complaint.

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

18



4. Defendant admits paragraph 3 of the

complaint.

5. Defendant denies paragraph 4 of the

complaint.

6. Defendant admits paragraph 5 of the

complaint.

7. Defendant admits paragraph 6 of the

complaint.

8. Defendant denies paragraph 7 of the

complaint.

9. Defendant lacks sufficient information to 

admit or deny paragraph 8 of the complaint.

10. Defendant denies paragraph 9 of the

complaint.

11. Defendant denies paragraph 10 of the

complaint.

19



12. Defendant denies paragraph 11 of the

complaint.

13. Defendant denies paragraph 12 of the

complaint.

14. Defendant denies paragraph 13 of the

complaint.

15. Defendant denies paragraph 14 of the

complaint.

16. Defendant denies paragraph 15 of the

complaint.

17. Defendant denies paragraph 16 of the

complaint.

18. Defendant admits so much of paragraph 17 

of the complaint as alleges that plaintiff filed a charge of 

discrimination with the Equal Employment Opportunity 

Commission on August 23, 1983, Charge No. 045831543, 

and that said charge is attached to the complaint as

20



Exhibit A. Defendant denies the remainder of paragraph 

17.

19. Defendant admits so much of paragraph 18 

of the complaint as alleges that a Notice of Right to Sue 

was issued by the Equal Employment Opportunity 

Commission on September 28, 1984, and that a copy of 

this Notice of Right to Sue is attached to the complaint. 

Defendant denies that all procedural prerequisites for 

filing this lawsuit have been met.

20. Defendant denies paragraph 19 of the

complaint.

21. Defendant denies paragraph 20 of the

complaint.

22. Defendant denies paragraph 21 of the

complaint.

23. Defendant denies paragraph 22 of the

complaint.

21



24. Defendant denies paragraph 23 of the

complaint.

25. Defendant denies paragraph 24 of the

complaint.

26. Defendant denies paragraph 25 of the

complaint.

27. Defendant denies that plaintiff is entitled to 

the relief requested in paragraphs 1-7 of the prayer for 

relief or to any relief whatever in this case.

FOR A THIRD DEFENSE

28. Insofar as the plaintiff seeks to state a cause 

of action for retaliation in violation of Section 704 of the 

Civil Rights Act of 1964, the procedural prerequisites for 

bringing such an action have not been met.

FOR A FOURTH DEFENSE

29. Plaintiff has unsuccessfully litigated the issue 

of race discrimination in his discharge before the

22



Superior Court of North Carolina in Lytle v. Schwitzer 

Turbochargers and the Employment Security Commission 

of North Carolina, 84-CVS-1602 (September 10, 1984) 

and is, by virtue of that decision, precluded by the 

doctrines of collateral estoppel and/or res judicata from 

relitigating that issue in this case.

Dated this 2nd day of January, 1985.

Respectfully submitted,

OGLETREE, DEAKINS, NASH,
SMOAK AND STEWART

(sgd.) A. Bruce Clarke
B y:________________

A. Bruce Clarke 
3724 National Drive, Suite 100 
Post Office Box 31608 
Raleigh, North Carolina 27622 

‘ (919) 787-9700

By:________________
H. Lane Dennard, Jr.
Jonathan P. Pearson 
One Thousand East North

23



Post Office Box 2757 
Greenville, South Carolina 29602 
(803) 242-1410

24



IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF 

NORTH CAROLINA 
ASHEVILLE DIVISION

[Caption omitted]

AMENDED ANSWER 
Filed Jan. 9, 1985

Defendant Household Manufacturing, Inc., 

answers as follows:

FOR A FIRST DEFENSE

1. The complaint fails to state a claim upon 

which relief can be granted.

FOR A SECOND DEFENSE

2. Defendant admits paragraph 1 of the

complaint.

3. Defendant admits paragraph 2 of the

complaint.

4. Defendant admits paragraph 3 of the

complaint.

25



5. Defendant denies paragraph 4 of the

complaint.

6. Defendant admits paragraph 5 of the

complaint.

7. Defendant admits paragraph 6 of the

complaint.

8. Defendant denies paragraph 7 of the

complaint.

9. Defendant lacks sufficient information to 

admit or deny paragraph 8 of the complaint.

10. Defendant denies paragraph 9 of the

complaint.

11. Defendant denies paragraph 10 of the

complaint.

12. Defendant denies paragraph 11 of the

complaint.

26



13. Defendant denies paragraph 12 of the

complaint.

14. Defendant denies paragraph 13 of the

complaint.

15. Defendant denies paragraph 14 of the

complaint.

16. Defendant denies paragraph 15 of the

complaint.

17. Defendant denies paragraph 16 of the

complaint.

18. Defendant admits so much of paragraph 17 

of the complaint as alleges that plaintiff filed a charge of 

discrimination with the Equal Employment Opportunity 

Commission on August 23, 1983, Charge No. 045831543, 

and that said charge is attached to the complaint as 

Exhibit A. Defendant denies the remainder of para­

graph 17.

27



19. Defendant admits so much of paragraph 18 

of the complaint as alleges that a Notice of Right to Sue 

was issued by the Equal Employment Opportunity 

Commission on September 28, 1984, and that a copy of 

this Notice of Right to Sue is attached to the complaint. 

Defendant denies that all procedural prerequisites for 

filing this lawsuit have been met.

20. Defendant denies paragraph 19 of the

complaint.

21. Defendant denies paragraph 20 of the

complaint.

22. Defendant denies paragraph 21 of the

complaint.

23. Defendant denies paragraph 22 of the 

complaint.

24. Defendant denies paragraph 23 of the

complaint.

28



25. Defendant denies paragraph 24 of the

complaint.

26. Defendant denies paragraph 25 of the

complaint.

27. Defendant denies paragraph 26 of the

complaint.

28. Defendant denies paragraph 27 of the

complaint.

29. Defendant denies paragraph 28 of the

complaint.

30. Defendant denies that plaintiff is entitled to 

the relief requested in paragraphs 1-8 of the prayer for 

relief or to any relief whatever in this case.

FOR A THIRD DEFENSE

31. Insofar as the plaintiff seeks to state a cause 

of action for retaliation in violation of Section 704 of the

29



Civil Rights Act of 1964, the procedural prerequisites for 

bringing such an action have not been met.

FOR A FOURTH DEFENSE

32. Plaintiff has unsuccessfully litigated the issue 

of race discrimination in his discharge before the 

Superior Court of North Carolina in Lytle v. Schwitzer 

Turbochargers and the Employment Security Commission 

of North Carolina, 84-CVS-1602 (September 10, 1984) 

and is, by virtue of that decision, precluded by the 

doctrines of collateral estoppel and/or res judicata from 

relitigating that issue in this case.

Dated this 7th day of January, 1985.

Respectfully submitted,

OGLETREE, DEAKINS, NASH,
SMOAK AND STEWART

(sgd.) A. Bruce Clarke
B y:-------------------------

A. Bruce Clarke
3724 National Drive, Suite 100

30



Post Office Box 31608 
Raleigh, North Carolina 27622 
(919) 787-9700

B y:________________
H. Lane Dennard 
Jonathan P. Pearson 
One Thousand East North 
Post Office Box 2757 
Greenville, South Carolina 29602 
(803) 242-1410

31



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

ASHEVILLE DIVISION 

[Caption omitted]

SECOND AMENDED ANSWER 
Filed Jan. 30, 1985

Defendant Household Manufacturing, Inc., 

answers as follows:

FOR A FIRST DEFENSE

1. The complaint fails to state a claim upon 

which relief can be granted.

FOR A SECOND DEFENSE

2. Defendant admits paragraph 1 of the

complaint.

3. Defendant admits paragraph 2 of the

complaint.

32



4. Defendant admits paragraph 3 of the

complaint.

5. Defendant denies paragraph 4 of the

complaint.

6. Defendant admits paragraph 5 of the

complaint.

7. Defendant admits paragraph 6 of the

complaint.

8. Defendant denies paragraph 7 of the

complaint.

9. Defendant lacks sufficient information to 

admit or deny paragraph 8 of the complaint.

10. Defendant denies paragraph 9 of the

complaint.

11. Defendant denies paragraph 10 of the

complaint.

33



12. Defendant denies paragraph 11 of the

complaint.

13. Defendant denies paragraph 12 of the

complaint.

14. Defendant denies paragraph 13 of the

complaint.

15. Defendant denies paragraph 14 of the

complaint.

16. Defendant denies paragraph 15 of the

complaint.

17. Defendant denies paragraph 16 of the

complaint.

18. Defendant admits so much of paragraph 17 

of the complaint as alleges that plaintiff filed a charge of 

discrimination with the Equal Employment Opportunity 

Commission on August 23, 1983, Charge No. 045831543, 

and that said charge is attached to the complaint as

34



Exhibit A. Defendant denies the remainder of paragraph 

17.

19. Defendant admits so much of paragraph 18 

of the complaint as alleges that a Notice of Right to Sue 

was issued by the Equal Employment Opportunity 

Commission on September 28, 1984, and that a copy of 

this Notice of Right to Sue is attached to the complaint. 

Defendant denies that all procedural prerequisites for 

filing this lawsuit have been met.

20. Defendant denies paragraph 19 of the

complaint.

21. Defendant denies paragraph 20 of the

complaint.

22. Defendant denies paragraph 21 of the

complaint.

23. Defendant denies paragraph 22 of the

complaint.

35



24. Defendant denies paragraph 23 of the

complaint.

25. Defendant denies paragraph 24 of the

complaint.

26. Defendant denies paragraph 25 of the

complaint.

27. Defendant denies paragraph of 26 of the 

complaint.

28. Defendant denies paragraph 27 of the

complaint.

29. Defendant denies paragraph 28 of the

complaint.

30. Defendant denies that plaintiff is entitled to

36



the relief requested in paragraphs 1-8 of the prayer for 

relief or to any relief whatever in this case.

FOR A THIRD DEFENSE

31. Insofar as the plaintiff seeks to state a cause 

of action of retaliation in violation of Section 704 of the 

Civil Rights Act of 1964, the procedural prerequisites for 

bringing such an action have not been met.

FOR A FOURTH DEFENSE

32. Plaintiff has unsuccessfully litigated the issue 

of race discrimination in his discharge before the 

Superior Court of North Carolina in Lytle v. Schwitzer 

Turbochargers and the Employment Security Commission 

of North Carolina. 84-CVS-1602 (September 10, 1984) 

and is, by virtue of that decision, precluded by the

37



doctrines of collateral estoppel and/or res judicata from 

relitigating that issue in this case.

FOR A FIFTH DEFENSE

33. Insofar as plaintiff seeks to state a pendent 

claim for intentional infliction of emotional distress result­

ing from his termination, plaintiffs sole and exclusive 

remedy lies under the North Carolina Workers’ 

Compensation Act.

Dated this 28th day of January, 1985.

Respectfully submitted,

OGLETREE, DEAKINS, NASH,
SMOAK AND STEWART

By: fsgdd A. Bruce Clarke 
A. Bruce Clarke 
3724 National Drive 
Suite 100
Post Office Box 31608 
Raleigh, NC 27622 
(919) 787-9700

38



By: fsgd.) Jonathan P. Pearson 
H. Lane Dennard, Jr. 
Jonathan P. Pearson 
One Thousand East North 
Post Office Box 2757 
Greenville, SC 29602 
(803) 242-1410

39



UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF NORTH CAROLINA 

ASHEVILLE DIVISION

[Caption omitted]

SUPPLEMENTAL COMPLAINT 
Filed Nov. 27, 1984

Plaintiff supplements the Complaint in this action 

by adding a Fourth Claim for Relief which reads as 

follows:

FOURTH CLAIM FOR RELIEF

29. On December 4, 1984, Plaintiff filed a charge 

of discrimination with the Equal Employment 

Opportunity Commission in which he alleged that 

Defendant retaliated against him for filing a charge of 

discrimination by failing to provide prospective employers 

with information concerning his work history as an 

employee of Schwitzer Turbocharger. A copy of this

40



charge of discrimination is attached hereto as Exhibit C 

and is incorporated herein by reference.

30. On July 22, 1985, the Equal Employment 

Opportunity Commission issued a Notice of Right to Sue 

which was received by Plaintiff on or about July 26, 1985. 

A copy of this Notice of Right to Sue is attached hereto 

as Exhibit D and is incorporated herein by reference.

31. The Plaintiff has met all of the procedural 

prerequisites for bringing an action for retaliation 

pursuant to Title VII of the Civil Rights Act of 1964, as 

amended.

32. The acts of Defendant, as alleged in 

paragraph 19 and 20 of the Complaint, violated § 704(a), 

42 U.S.C. §2000(e)-3(a), of the Civil Rights Act of 1964. 

These acts deprived plaintiff of the opportunity of

41



obtaining employment with prospective employers and 

earning corresponding wages and benefits.

This the 30th day of September, 1985.

(sgd.) Regan A. Miller 
Regan A. Miller
JAMES, McELROY & DIEHL, P.A. 
139 South Tryon Street 
700 Home Federal Building 
Charlotte, North Carolina 28202 
Telephone: 372-9870

42



UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF NORTH CAROLINA 

ASHEVILLE DIVISION

[Caption omitted]

ANSWER TO
SUPPLEMENTAL COMPLAINT 

Filed Nov. 27, 1985

Defendant hereby answers the plaintiffs 

supplemental complaint as follows:

34. The responses submitted in defendant’s 

answer, amended answer and second amended answer 

are incorporated by reference as if fully set forth herein.

35. Defendant admits so much of paragraph 29 

of the supplemental complaint as alleges that plaintiff 

filed a charge of discrimination with the Equal 

Employment Opportunity Commission on December 4, 

1984, Charge No. 045850225, and that said charge is 

attached to the supplemental complaint as Exhibit C. 

Defendant denies the remainder of paragraph 29.

43



36. Defendant admits so much of paragraph 30 

of the supplemental complaint as alleges that a Notice of 

Right to Sue was issued by the Equal Employment 

Opportunity Commission, but is without information or 

belief as to the date such Notice was received by 

plaintiff. Defendant admits that a copy of the Notice is 

attached to the supplemental complaint as Exhibit D.

36. Defendant denies the allegations in paragraph

31 of the supplemental complaint.

37. Defendant denies the allegations in paragraph

32 of the supplemental complaint.

38. To the extent that plaintiff seeks to state a 

claim under 42 U.S.C. §1981 for alleged discriminatory 

acts which are subject to Title VII, said claims must be 

dismissed unless there is an independent factual basis for 

the §1981 allegation(s).

44



39. Defendant denies all allegations in the 

complaint, amendment to the complaint and 

supplemental complaint not specifically admitted in 

defendant’s answer, amended answer, second amended 

answer or the answer to the supplemental complaint. 

Dated this 26th day of November,
1985.

Respectfully submitted, 
OGLETREE, DEAKINS, NASH, 

SMOAK AND STEWART

By: fsgd.l A. Bruce Clarke 
A. Bruce Clarke 
Post Office Box 31608 
Raleigh, NC 27622 
(919)^787-9700

By: fsgd.l H. Lane Dennard/ABC 
H. Lane Dennard 
Post Office Box 1757 
Greenville, SC 29602 
(803) 242-1410 
Attorneys for Defendant

45



DISTRICT COURT DECISION FROM THE BENCH 
EXCERPTS FROM TRIAL TRANSCRIPT OF
FEBRUARY 26-27. 1986

[Tr. 2-10:]

* * * *

THE COURT: This is the case of John S. Lytle 

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

Turbochargers. The first question the Court has is is this 

a jury case or a nonjury case?

MR. MILLER: Your Honor, this is a jury case. 

As we stated in our brief, both the retaliation issue and 

the discharge issue are cognizable under Section 1981, 

and we have cited cases in our brief, the Goff case, 

specifically with respect to the issue of retaliation, and 

the Johnson v. Railway Express case with respect to the 

Supreme Court decision saying that the remedies offered 

by Section 1981 simply augment the remedies offered by

46



Title VII and do not preclude bringing a case under 1981 

and having a jury trial on those issues.

THE COURT: I see authority from some other 

circuits that says when you assert that one of the 

underlying facts are precisely the same as Title VII, 1981 

claim, but the Title VII claim, which encompasses the 

1981 claim, and that, therefore, it’s the only remedy, and 

it’s decided by the court without a jury. Do you have 

some Fourth Circuit authority on that subject?

MR. MILLER: Your Honor, I read that case. 

That’s the Tafoya case I think you’re talking about, when 

the judge out -- an honorable judge out in Colorado. I 

read that decision and, Your Honor, quite frankly, it goes 

against the Supreme Court’s decision in Johnson v. 

Railway Express. That decision says that an individual 

has a cause of action for an employment discrimination 

under Section 1981 and can recover for that

47



discrimination damages, including compensatory damages, 

and punitive damages. You can’t state a new claim for 

relief if it’s employment discrimination, and clearly the 

Supreme Court was recognizing that employment 

discrimination claims are recognizable under 1981, as well 

as under Title VII, had said nothing about one 

precluding the other, and that’s what essentially the 

Tafoya decision does. It says that if you allege that you 

lost your job because of race discrimination and that’s it, 

and you file a Title VII claim, then Title VII preempts 

your remedies for an employment discrimination. Clearly 

the Supreme Court has said it does not. And, you know, 

I don’t see how you can state a new grounds if it’s 

employment discrimination. There’s only one grounds: 

employment discrimination, race discrimination.

And I read that decision with interest, and it was 

pointed out to the judge that he was overturning some of

48



his prior decisions on the same issue in other cases 

where he had allowed a jury trial in a 1981 action which 

was appended to a Title VII action, and he simply says 

that, oh, I wasn’t deciding the issues of whether one 

preempts the other. And he stated language from the 

Congressional Record which says that the relief and 

remedies offered by the Civil Rights statutes that were 

already on the books are not overturned or preempted 

by the new Title VII remedies and the procedure allowed 

under that.

In this particular case, you have that concern of 

whether or not Title VII, you should go through those 

administrative procedures and give the employer a 

chance to conciliate. Well, we did that, and we still 

brought both actions after the conciliation process ended. 

I don’t think that there’s any concern in this case as to

49



whether or not those administrative prerequisites have 

been followed.

So all I can say, Judge, is I can’t figure out how 

you can allege a new cause of action or a new ground or 

separate grounds for employment discrimination when 

that’s clearly the operative fact and distinguish that from 

the Title VII action. It’s just not possible to do that. 

Additionally, what he seems to be saying is don’t bring a 

Title VII action, just bring it under 1981, and then you 

don’t have that problem. And if that’s the case, then 

let’s dismiss the Title VII action and go to the jury on 

the 1981 action.

THE COURT: As I recall the, at least, the

popular reports of the legislative history at the time of 

this action, Title VII, it’s the proponents of Title VII who 

would be opponents of jury trials in these cases, and the 

management forces are those who are saying it ought be

50



retained as a jury trial. You seem to have come full 

circle in this case.

MR. MILLER: We sure have, Your Honor.

And I think the reason for that, Judge, is that there is a 

desire to provide -- by the Supreme Court to provide an 

employment discrimination victim with the remedies that 

are offered by the Civil Rights Statute of 1866 and to 

preserve those remedies.

There is clear indication in the Congressional 

Record that they didn’t intend to overturn those remedies 

or make them obsolete.

THE COURT: What says the defense to this

particular point?

MR. DENNARD: Your Honor, we, of course, 

raised this issue in our initial brief of issues in our trial 

brief. We would at this time move to dismiss the Section 

1981 claim from the case. Because it alleges an alleged

51



violation of Section 1981, it can’t be combined with a 

factually identical claim drawn under Title VII. This was, 

of course, the decision that was remedied by Tafoya. 

That Tafoya decision cited the Fifth Circuit decision as 

well as the Sixth Circuit decision and five separate district 

court decisions.

In addition, we placed two additional cases in 

your bench book that deal with the same questions, the 

Ramirez decision that’s out of the Southern District of 

Texas, and this is what that court in this case says: 

Remedies for employment discrimination under 1981 are 

considered only if the plaintiff asserts claims on grounds 

different from those underlying the Title VII claims. And 

they — he’s -  the district court cites the Parson case, 

which is a Fifth Circuit case, and apparently the 

proposition so well settled in the Fifth Circuit, that in the 

Parson case they handled it in a footnote, and this is

52



what the footnote says: Remedies for employment

discrimination under 42 U.S.C. 1981 are considered only 

if the plaintiffs assert claims on grounds different from 

those underlying the Title VII claims. And in this case, 

we have there’s no separate claim. We have simply the 

same claims involved and simply two statutes set out in 

the Complaint.

THE COURT: What do you say to the Johnson 

decision?

MR. DENNARD: Well, the Johnson — the way 

Tafoya handled that is that the Johnson does not negate 

that requirement. Johnson says there’s a remedy for 

employment discrimination, specifically race 

discrimination, and in that case, in that situation, you 

would have a right to a jury trial. But it doesn’t negate 

this requirement that the plaintiff establish an 

independent basis for the claim. That’s what Tafoya says

53



in those four. And, of course, you know, they cited 

pretty good authority. I don’t think we’ve been cited any 

authority at all contrary to that, other than just going 

back and seeing what Johnson itself says. Mr. Miller 

dealt with this in his supplemental brief, and I don’t think 

he cited any authorities that were contrary to that.

THE COURT: Where in the Tafoya decision is 

Johnson dealt with?

MR. DENNARD: In footnote 4 it says, the

quote that I have down is that Johnson does not negate 

the requirement that plaintiff establish an independent

basis for his claim.

* * * *

MR. DENNARD: I don’t think Johnson has

anything to do with combining them both in one action 

and deciding that it’s proper to do that even if there’s no 

independent basis for the 1981 claim.

54



MR. MILLER: Well, Your Honor, if my

recollection of the Johnson case is correct, that was 

exactly what was going on in that case. The individual 

had sued under 1981, and as I remember it, had failed to 

comply with the administrative prerequisites for a Title 

VII action. And the decision was whether or not he had 

to comply with the Title VII prerequisites before he 

could go into federal court under 1981, or whether he 

had to comply with Title VII, and that was it, and if he 

didn’t, his action was dismissed. And the court said no, 

it’s not dismissed. 1981 is a separate remedy, and if he 

files under 1981 for employment discrimination he has a 

cause of action.

MR. DENNARD: If that is true, Your Honor, 

we’ve got a lot -- two circuits and a lot of district court 

cases that are just plain out wrong.

55



cursory reading of Johnson that the Title VII action was 

never filed as a lawsuit in that case, though he did make 

his commission approach, and more than two years later 

filed a lawsuit under 1981.

MR. MILLER: Right. And he couldn’t file

under Title VII because of the statutory filing limitations 

law.

THE COURT: I will find from the pleadings in 

this cause that there is no independent basis alleged in 

the 1981 action. I will conclude, based upon the 

reasoning of the Tafoya case, that Title VII provides 

exclusive remedy, and this case will be tried by the Court

THE COURT: It would appear from a very

56



without a jury, and the 1981 claim is dismissed. Your

exception is noted for the record.

*  *  *  *

MR. MILLER: Can I just ask a question?

THE COURT: Yes, sir.

MR. MILLER: Are you saying that an

employment descrimination [sic] victim has no right to 

compensatory and punitive damages?

THE COURT: I am saying that in this case the 

Title VII remedy is exclusive remedy, since there is no 

independent basis for the 1981 action.

MR. MILLER: And let me ask the Court, how 

would you go about alleging a independent basis of his 

employment discrimination and that’s it?

THE COURT: Well, counsel -

MR. MILLER: Additionally, Your Honor —

57



THE COURT: -  I have ruled that the 1981 case

is dismissed.

*  *  *  *

MR. MILLER: Was that both issues? That’s all 

I wanted to know. Retaliation and -

THE COURT: Retaliation is also a claim

remedial -- remedied under Title VII, so I think it would

apply to both issues.

* * * *

[Tr. 258-259:] [THE COURT:] As to the discharge 

claim, I will make the following findings:

That the defendant is an employer who employed 

-  I don’t recall the exact number of people, but I will 

make a finding that they employed a number of people 

for a number of hours in excess of the threshold set out 

with reference to Title VII cases;

58



I will further find that John S. Lytle was an 

employee of the defendant during the relevant period;

I will find that he is Black;

I will find that the company did have the 

attendance policy as set out in Exhibit 22, in the 

paragraphs headed "Excessive Absence" with the 

subheading "Excused Absence, Tardy, or Leaving Early," 

and "Unexcused Absence, Tardy, or Leaving Early;"

I will find that plaintiff has shown evidence of 

four white employees who violated the excused absence 

policy and were given warnings, and of one white 

employee who had six minutes, approximately six minutes 

of excessive unexcused absence, tardiness, or leaving 

early, and that he was given a warning;

I will find by plaintiff s own evidence plaintiff had 

excess unexcused absence of 9.8 hours, and that, with

59



reference to this unexcused absence, he did not follow 

the company policy of calling in;

I will find that the conduct on the part of the 

white employees is not substantially similar in seriousness 

to the conduct for which plaintiff was discharged.

I will conclude as a matter of law that the Court 

has jurisdiction of this matter, and that the plaintiff has 

established that he is a member of a protected category, 

and that he was discharged for violation of the company’s 

policy, but I will conclude as a matter of law that he has 

not established a prima facie case, since he has not 

established that Blacks were treated differently, and in 

fact committed violations of the company’s policy of 

sufficient seriousness;

And I will order that the claim as to the 

discharge be dismissed.

60



Again, I will deny the motion as to the claim of

retaliation.

*  *  *  *

[Tr. 299-301] THE COURT: Let me ask you this,

counsel.

If the policy ~ if the usual practice is to give 

letters, rather than just give the bare bones information, 

and he is being discriminated against because of 

retaliation, wouldn’t it be the rule, rather than you just 

having one letter, that letters would have been issued in 

the past?

MR. MILLER: Well, Your Honor, I think that’s 

evidence -  this is evidence that that’s not the rule.

THE COURT: It would seem to me that the 

evidence here is not that Mr. Lytle was treated 

disparately, but rather that Joe Carpenter was treated 

disparately favorably.

61



MR. MILLER: Well, if you believe what they - 

THE COURT: I don’t -  

MR. MILLER: ~ say, Your Honor. If you

believe that’s what they say, Your Honor, then -  then - 

- then that’s what it is, but, Your Honor —

THE COURT: Well, the only -  

MR. MILLER: -- they state what the policy is, 

and then we’ve got a letter here which doesn’t comply 

with the policy, which we say that wasn’t the policy. The 

policy — it’s not written anywhere, Your Honor.

THE COURT: The only evidence to the

contrary, or the evidence that that’s the policy is one 

letter. And that doesn’t make Mr. Lytle’s treatment 

disparate; it makes Mr. Carpenter’s treatment disparate, 

and I will at the close of all the evidence reaffirm my 

prior findings of fact, add the additional finding of fact 

that Mr. John S. Lytle did file the charge of

62



discrimination against Schwitzer Turbochargers with the 

EEOC on or about August 23, 1983;

The further finding of fact that when asked for 

references from prospective employes [sic], the defendant 

provided only the dates of employment and job title and, 

if requested, a description;

Further find as fact that that was the policy of 

the defendant;

Further find as fact that that was based upon the 

defendant’s corporate understanding of it’s legal right and 

to protect it from obligations that might be incurred by 

the release of negative information;

Further find as fact that defendant corporation, 

acting through Lane Simpson, did on one occasion grant 

a favorable reference letter to one terminated employee;

Further find as fact that the granting of that one 

favorable reference letter was done through inadvertence;

63



Further find as fact that there is no evidence of

discrimination against John S. Lytle based upon his 

having made complaint to EEOC.

Conclude as a matter of law that there is no 

foundation in law for the retaliation claim. Add the 

conclusion of law that I made in the first conclusion, that 

I have jurisdiction of this action, and I will enter a

judgment in favor of the defendant on all claims.

*  *  *  *

64