Lytle v. Household Manufacturing Inc. Petitions for Rehearing and Suggestion of Rehearing En Banc

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

No. 86-1097

JOHN S. LYTLE,
Plaintiff-Appellant,
v.

HOUSEHOLD MANUFACTURING, INC. 
d/b/a SCHWITZER TURBOCHARGERS

Defendant-Appellee.

On Appeal from the United States District 
Court for the Western District of North 

Carolina, Asheville, Division

PETITION FOR REHEARING AND SUGGESTION OF 
REHEARING EN BANC

JULIUS LeVONNE CHAMBERS 
RONALD L. ELLIS 
PENDA D. HAIR 
CHARLES STEPHEN RALSTON 

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

Attorneys for Plaintiff-Appellant



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

No. 86-1097

JOHN S. LYTLE,
»• Plaintiff-Appellant,

v.
HOUSEHOLD MANUFACTURING, INC. 
d/b/a SCHWITZER TURBOCHARGERS

Defendant-Appellee.

On Appeal from the United States District 
Court for the Western District of North 

Carolina, Asheville, Division

PETITION FOR REHEARING AND SUGGESTION OF 
REHEARING EN BANC

STATEMENT OF COUNSEL
Plaintiff-appellant petitions the Court for a rehearing of 

the decision entered on October 20, 1987 and suggests that 
rehearing en banc would be appropriate. Undersigned counsel 
states that in his judgment the decision in this case conflicts 
with the decision of the Court in Keller v. Prince George's
County. _____ F.2d _____, 44 F.E.P. Cases 1065 (No. 86-3876, Aug.
26, 1987), which decision is not addressed in the opinion here.

STATEMENT

The issue raised in the present case is whether, if a 
district court erroneously dismisses a cause of action under 42 
U.S.C. § 1981 on the ground that such a claim is preempted by 
Title VII of the Civil Rights Act of 1964, and that court



subsequently rules against plaintiff on his Title VII claim, that 
ruling collaterally estops plaintiff from obtaining a jury trial 
on his § 1981 claim.

The panel here acknowledged that the district court had 
erred in its holding that Title VII preempted § 1981. However, 
it affirmed the dismissal of the case on the ground that since 

, the district court's findings on the Title VII claim were not
clearly erroneous, they collaterally estopped a retrial of the 
same facts under § 1981. Judge Widener dissented on the ground 
that the holding effectively deprived plaintiff of his right to a 
jury trial under the Seventh Amendment to the Constitution of the 
United States. Judge Widener expressed the view that the 
majority's holding was not required by this Court's decision in 
Ritter v. Mount St. Mary's College. 814 F.2d 986 (4th Cir. 1987), 
and pointed out that the majority's decision was squarely in 
conflict with the decision of the Seventh Circuit in Hussein v. 
Oshkosh Motor Truck Co.. 816 F.2d 348 (7th Cir. 1987).

REHEARING SHOULD BE GRANTED TO RESOLVE A 
CONFLICT BETWEEN PANELS OF THIS COURT

On August 26, 1987, another panel of this Court issued a
decision that is squarely in conflict with the majority's view in 

s the present case. In Keller v. Prince George's County. No. 86-
3876, August 26, 1987, the plaintiff brought an employment 
discrimination action under Title VII and under 42 U.S.C. § 1983, 
a companion provision to 42 U.S.C. § 1981. The district court in 
Keller, like the district court here, held that Title VII 
provides the exclusive remedy for employment discrimination 
claims and, therefore, preempted claims arising under the old

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civil rights acts. 616 F. Supp. 540 (D. Md. , 1985). In Keller.
as here, the plaintiff had sought a jury trial on her non-Title 
claim.

Following the dismissal of the § 1983 claim the district
court in Keller ruled against the plaintiff on her Title VII 
claim. Plaintiff appealed solely on the issue of the grant of 
summary judgment on her § 1983 claim. This Court in Keller held 
that persons seeking monetary damages under § 1983 have a right 
to a jury trial under the Seventh Amendment. Therefore, the
denial of plaintiff's right to a jury on her § 1983 cause of
action violated the Seventh Amendment and the judgement of the 
district court was void unless there was no § 1983 cause of
action as a matter of law. The Court went on to hold that the 
standard of review was not whether the district court's findings 
were clearly erroneous, but whether there was sufficient evidence 
to allow the case to go to the jury if there had been one.

This Court held that the district court erred in its holding 
that Title VII preempted claims under § 1983. In its discussion, 
this Court noted decisions of the Supreme Court that established 
that claims under § 1981 were also not preempted by Title VII, a 
conclusion that the majority here apparently would agree with. 
Therefore, the Court in Keller held, since the district court 
erred in dismissing the § 1983 claim, the plaintiff was deprived 
of her right to a jury trial and the findings against her were 
void. The decision below was reversed and the case remanded for 
a trial on the § 1983 claim.

The present case held that since the findings of the

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district court were not clearly erroneous they served to 
collaterally estop plaintiff from having a jury trial on his § 
1981 claims. This conclusion is directly in conflict with the 
decision in Keller. We believe, for the reasons set out at 
length in our briefs in this case, that the decision of the panel 
in Keller is correct. Since there is a direct conflict between 
the two decisions, rehearing should be granted and the case is an 
appropriate one for a resolution by the Court sitting en banc.

Respectfully submitted,,

JULIUS LeVONNE CHAMBERS 
RONALD L. ELLIS 
PENDA D. HAIR 
CHARLES STEPHEN RALSTON 

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

Attorneys for Plaintiff-Appellant

*

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Certificate of Service
I hereby certify that I have served copies of the foregoing

Petition for Rehearing and Suggestion of Rehearing En Banc on
defendant-appellee by depositing the same in the United States
mail, first class postage pre-paid, addressed as follows:

H. Lane Dennard, Jr., Esq.
Ogletree, Deakins, Nash,

Smoak and Stewart 
First Atlanta Tower 
Two Peachtree Street, N.W.Atlanta, GA 30383
A. Bruce Clarke, Esq.
Ogletree, Deakins, Nash,

Smoak and Stewart 
Post Office Box 31608 
Raleigh, N. C. 27622

Attorneys for Plaintiff-Appellant 
Dated this 13th day of November, 1987.

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