Correspondence from Pamela Karlan to Leslie Winner, Esq. Re Alexander v. Martin

    No. 87-107

In The

Supreme Court of the United States
October Term, 1987

----------------o---------------
- ; '\ i  \ y

BRENDA PATTERSON,

vs.
Petitioner,

McLEAN CREDIT UNION,
Respondent.

--------------- o---------------

ON WRIT OF CERTIORARI TO 
THE UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT

BRIEF FOR RESPONDENT

H. L ee Davis, J r.*
George E. Dough ton , J r. 
H utchins, T yndall, 

Doughton & Moore 
115 West Third Street 
Winston Salem, NC 27101 
(919) 725-8385
Attorneys for Respondent

‘ Counsel of Record

COCKLE LAW BRIEF PRINTING CO.. (800) 225-6964 
or call collect (402) 342-2831



1

1. Whether a separate claim for racial harassment is 
cognizable or must be submitted to the jury under 42 
U.S.O. § 1981, independent of a parallel Title YII or 
§ 1981 claim for discriminatory promotion and discharge !

2. Whether the Plaintiff in a claim under 42 U.S.C. 
§ 1981 has the burden of proof of showing that she 
was better qualified than another employee who was pro­
moted, after the employer has offered evidence that su­
perior qualifications were the basis of such promotion and 
the claimant has shown no “ other unlawful criteria!”

QUESTIONS PRESENTED



11

QUESTIONS PRESENTED.........................................  i
TABLE OF CONTENTS.. ..............................   ii
TABLE OF AUTHORITIES.......................................   iii
STATEMENT OF THE CASE .................................... 1
SUMMARY OF ARGUMENT .....................................  8
ARGUMENT ....................................................................  13

I. THE PETITIONER WAS NOT ENTITLED 
TO THE SUBMISSION OF A SEPARATE IS­
SUE OF RACIAL HARASSMENT UNDER 
SECTION 1981 ......................................................  13
A. A Separate Discrete Claim for Racial Har­

assment is Not Cognizable Under § 1981 .......  13
B. A Separate Discrete Action for Racial Har­

assment Under § 1981 Cannot Stand Alone ... 28
C. Petitioner Has Failed to Sustain a Prima

Facie Case of Racial Harassment............    32
II. PETITIONER HAS NOT SUSTAINED A 

CLAIM FOR PROMOTION DISCRIMINA­
TION UNDER § 1981 ......................   36
A. Petitioner Has Failed To Present Sufficient

Evidence To Support A Prima Facie Claim of 
Promotion Discrimination Under § 1981.........  36

B. Under the Facts of This Case, The Jury In­
struction Was Correct .....................................  41

CONCLUSION .....................................     46

TABLE OF CONTENTS
Page



Ill

Cases :

Adams v. McDougal, 695 F.2d 104 (5th Cir. 1983) .......  24
Anderson v. City of Bessemer, 717 F.2d 149 (4th 

Cir. 1983) rev’d on other grounds, 470 U.S. 564 
(1985)  .......................................................................13,44

Beaty Shopping Center, Inc. v. Monarch Insur­
ance Company, 315 F.2d 467 (4th Cir. 1963) ........... 37

Bloch v. R.H. Macy and Co., 712 F.2d 1241 (8th 
Cir. 1983) ............................................ .........................  28

Blum v. Gulf Oil Corp., 597 F.2d 936 (5th Cir. 1979) ...  29
Boeing Company v. Shipman, 411 F.2d 365 (5th

Cir. 1969) ...................   37
Brady v. Southern Railroad Company, 320 U.S.

476 (1943) ................................................................ ....... 37
Broadnax v. Burlington Industries, Inc., 7 FEP

cases, 252 (M.D.N.C. 1972) .........................................  33
Caldwell v. National Brewing Co., 443 F.2d 1044

(5th Cir. 1972) .................................................. ..... . 26
Cariddi v. Kansas City Chiefs Football Club,

Inc., 568 F.2d 87 (8th Cir. 1977) .................................. 15
Cooh v. Advertiser Co., 458 F.2d 1119 (5th Cir.

1972) ..........     24
EEOC v. Federal Reserve Bank of Richmond, 698 

F.2d 633 (4th Cir. 1983) rev’d on other grounds 
sub nom Cooper v. Federal Reserve Bank of 
Richmond, 467 U.S. 867 (1984) .. .......... ...............13,39,44

EEOC v. Murphy Motor Freight, 488 F.Supp.
381, 384-86 (D.Minn. 1980) ......................................... 14

Erebia v. Chrysler Plastic Products Corp., 772 
F.2d 1250 (6th Cir. 1985), cert, denied, — U.S.
—, 106 S.Ct. 1197 (1986) ............................................... .............15, 29

TABLE OF AUTHORITIES
Page



IV

Faraca v. Clements, 506 F.2d 956 (5th Cir. 1975) .......  25
Furnco Construction Corp. v. Waters, 438 U.S. 467,

477 (1978) ...................................................................... 38
Garcia v. Gloor, 609 F.2d 156 (5th Cir. 1980) ...... .... ...  29
General Building Contractors A ss’n., Inc. v. Penn­

sylvania, 458 U.S. 375 (1982) ................... 10,20,21,36,44
Goodman v. Lukens Steel Co., 482 U.S.-—, 107 S.Ct.

2617 (1987) ...............  9,22,23,28
Hamilton v. Rogers, 791 F.2d 439 (5th Cir. 1986) .....29, 30
Henson v. City of Dundee, 682 F.2d 897 (11th 

Cir. 1982) ......................................................................11, 35
Howard v. Lockheed-Georgia Co., 372 F.Supp. 854

(X.I).Ga. 1974) ............................................. 9,15,16,25,27
Howard Security Services, Inc. v. Johns Hop­

kins Hospital, 516 F.Supp. 508 (D.Md. 1981) ........... 25
Irving v. Dubuque Packing Co., 689 F.2d 170 (10th 

Cir. 1982) .....................................................................  31
Johnson v. Alexander, 572 F.2d 1219 (8th Cir.

1978) cert, denied. 439 U.S. 99 (1978) .......................  29
Johnson v. Bunny Bread Co., 646 F.2d 1250 (8th

Cir. 1981) .... 1........................................................ 10,31,32
Johnson v. Railway Express Agency, Inc., 421

U.S. 454 (1975) '.......................‘...... .'......8,17,21,26,28,33
Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)

...................................... .........................................8,17,18, 21
Lattimore v. Lowes Theatres, Inc., 410 F.Supp.

1397 (M.D.N.C. 1975) .............   33
Long v. Ford Motor Co., 496 F.2d 500 (6th Cir. 1974)... 31
Lovelace v. Sherwyn Williams Company, 681 F.2d 

230 (4th Cir. 1982) ......................1.............................39, 41

TABLE OP AUTHORITIES— Continued
Page



V

Lucero v. Beth Israel Hospital Geriatric, 479 F.
Supp. 452 (D.C.Col. 1979) ............ ...............................  28

MacTclin v. Spector Freight Systems, 478 F.2d 979
(D.O.Cir. 1973) ..................-........................................  25

Martin v. Citibank, N.A., 762 F.2d 212 (7th Cir.
1985) .............. ..............................................................10,31

McDonnell-Douglas v. Green, 411 U.S. 792 (1973) ...passim
Meritor Savings Bank v. Vinson, No. 84-1979

(U.S. June 19, 1986), Slip Op. 9 ...... .........................  10
Mitchell v. Baldridge, 759 F.2d 80 (D.C. Cir. 1985) .. . 46
Minority Police Officers Ass’n. of South Bend 

v. City of South Bend, Indiana, 617 F.Supp. 1330 
(M.D.Ind. 1985), a ff ’d 801 F.2d 764 (7th Cir.
1986) ....................................................................9,15,16,27

Muller v. United States Steel Corp., 509 F.2d 923
(10th Cir.), cert, denied, 423 U.S. 825 (1975) ...10, 31, 32

Patterson v. McLean, 805 F.2d 1143 (4th Cir. 1986) ...27, 29
Pinehurst, Inc. v. Schlamowitz, 351 F.2d 509 (4th 

Cir. 1965) ............................... -................. ...................  37
Pogue v. Retail Credit Company, 453 F.2d 336 (4tli

Cir. 1972), cert, denied, 409 U.S. 1109 (1973) ........ ...  37
Rogers v. Equal Employment Opportunity 

Comm’n., 454 F.2d 234 (5th Cir. 1971) cert, de­
nied, 406 U.S. 957 (1972) ..........................8,14, 27, 35, 36

Runyon v. McCrary, 427 U.S. 160 (1976) ...........9,17,19, 25
Saunders v. General Services Corp., Slip Op. No.

86- 0229-R (E.D.Va. 1987), appeal pending, No.
87- 2175 (4th Cir.) ....................... -.............................  20

Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) ... 18
Texas Department of Community Affairs v. Bur- 

dine, 450 U.S. 248 (1981) ................... 12,13, 40, 42, 44, 45

TABLE OF AUTHORITIES— Continued
Page



VI

TABLE OF AUTHORITIES— Continued

Tillman v. Wheaton-Haven Rec. Assoc 410 U S 
431 (1973) ......................................................

United States v. Buffalo, 457 F.Supp. 612 
(W.D.N.Y. 1978), modified on other grounds, 
633 F.2d 643 (2d Cir. 1980) ................................ _

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

Vaughn v. Pool Offshore Co., Etc., 683 F.2d 922 
(5th Cir. 1982) ..................................

Page 

.9, 23, 24

___  14

... 46

.....  15
Whiting v. Jackson State TJniv., 616 F.2d 116 (5th 

Cir. 1980) ......................................................... 29
Williams v. Atchison, Topeka and Santa Fe By 

627 F.Supp. 752 (W.D.Mo. 1986) ........ ...............9,15, 27
Young v. Lehman, 748 F.2d 194 (4th Cir. 1984) .....7,12,44

Othee A uthobities:

42 U.S.C. % 1981 (1982) ...............
42 U.S.C. § 2000(e) (2) (a) (1982) 
Civil Rights Act of 1866 ................

...passim

...passim

..passim
5A Moore’s Federal Practice (2d Ed. 1971), § 50.02 [1] 37



No. 87-107
--------------- o---------------

In The

Supreme Court of the United States
October Term, 1987

--------------- o---------------
BRENDA PATTERSON,

Petitioner,
vs.

McLEAN CREDIT UNION,
Respondent.

--------------- o----------------
ON WRIT OF CERTIORARI TO 

THE UNITED STATES COURT OF APPEALS 
FOR THE FOURTH CIRCUIT

--------------- o---------------
BRIEF FOR RESPONDENT

------ --------- o---------------
STATEMENT OF THE CASE

Petitioner’s Brief has inaccurately represented the 
facts and omitted pertinent matters to such a degree that 
the Respondent is compelled to address the Statement of 
the Case prior to presenting its argument.

The Respondent, McLean Credit Union, is a financial 
institution chartered by the State of North Carolina mak­
ing loans and accepting deposits solely from a defined 
field of members. At all times relevant to this cause of 
action, the field of membership for McLean Credit Union 
was limited to the employees of McLean Trucking Com­
pany. However, other than this relationship, McLean Cred­
it Union and McLean Trucking Company were separate 
corporate entities and McLean Trucking Company had no 
direct responsibilities with regard to the operation or 
policies of the Credit Union. TR1 3-79 to 3-80.

Consistent with Petitioner's Brief, references are to the 
Transcript of Trial, November 12,13,14,15,18,1985.

1



2
The Petitioner, Brenda Patterson, was employed by 

the Respondent, McLean Credit Union, in 1972 as a “ File 
Co-Ordinator.”  TR 1-20; TR 1-99. As the result of a 
decline in business in 1981 and 1982, the Petitioner and two 
other general clerical employees (both white) were laid 
off. TR 3-83 to 3-93. Notwithstanding Petitioner’s con­
tentions to the contrary, seniority was neither the com­
pany policy nor a criteria used in determining these lay­
offs and no competent evidence was tendered showing 
otherwise. TR 3-96. In accordance with the layoff pro­
cedure adopted, the Respondent terminated these employ­
ees, including Petitioner, after six months without recall. 
TR 3-91 to 3-92.

Susan Williamson, a white, was hired by the Respon­
dent in 1974 as an “ Accounting Clerk” . TR 3-105. Mrs. 
Williamson had completed two years of college and was a 
Dean’s List student. She had completed courses in college 
in Accounting I and II, Economics I and II, College Math, 
Calculus I, II and III and Business Finance and expressed 
an aptitude and enjoyment in working with figures. Def. 
Ex. 6, TR 2 33, 4-106.

Brenda Patterson admittedly was hired as a File Co­
ordinator or filing clerk. However, because McLean Truck­
ing Company performed the payroll functions for the 
Credit Union as an accommodation to Respondent, Mrs. 
Patterson’s job classification was listed as “ Accounting 
Clerk”  on her original rating classification card in order 
to be consistently reflected under the McLean Trucking 
Company job classifications. TR 3-82, 3-105 to 3-107; (PI. 
Ex. 3, TR 1-60,1-65). Between 1972 and 1982 the maximum 
number of general office hourly employees (such as Pe­
titioner and Williamson) employed by the Respondent was 
nine, including at all times the Petitioner. TR 3-82 to 3-83.

Petitioner contends in her brief that she told Respon­
dent’s President, Stevenson that she was interested in 
bookkeeping or secretarial jobs.2 However, the record 
clearly shows that this statement was made to Mr. Steer

2Brief for Petitioner at pp. 9-10.



3

at McLean Trucking Company, a separate corporate en­
tity in a prior separate interview. TR 1-22 to 1-23; 3-80. 
There is no evidence that any such request was made to 
Mr. Stevenson or to any of Petitioner’s supervisors at the 
Credit Union. To the contrary, Petitioner admits that dur­
ing her employment, she never asked or made any inquiry 
for any promotion to or training for an accounting position 
or any other position. TR 2-61 to 2-62. During William­
son’s employment at McLean, she worked solely in the 
accounting area, TR 2-53, except for a brief transfer to 
data processing from October 1, 1979 to February 18, 1980. 
TR 2-159 to 2-160.

In 1982, in recognition of her satisfactory job per­
formance3, Williamson received a title change from “ Ac­
count Junior”  to “ Account Intermediate.”  However, there 
were no changes in Williamson’s job responsibilities, func­
tions or supervisor subsequent to this change. Contrary to 
Petitioner’s contentions, there was no job vacancy before 
or after Williamson’s title change. The Respondent hired 
no other employees after Williamson’s title change. Wil­
liamson received a pay increase but continued her same 
duties. TR 4-26 to 4-28.

Contrary to her contentions, Petitioner was not quali­
fied for nor did she have the experience, aptitude or quali­
fications to perform the accounting job. Evidence further 
showed that 'Williamson was more qualified than Petitioner 
to do each job function required for the accounting posi­
tion. TR 4-28 to 4-32. Additionally, each year from 1980 
through 1982, Williamson’s annual evaluations exceeded 
Petitioner’s. TR 4-33 to 4-35; (Pl.Ex. 5, TR 1-62, 1-65; 
Def.Ex. 4, TR 2-30, 4-106; Def.Ex. 8, TR 2-105, 4-106;

Petitioner puts great emphasis on the alleged testimony of 
Warren Behling that Williamson did not grasp accounting func­
tions (Brief for Petitioner at pp. 11-12). In fact, Behling testified 
that what Mrs. Williamson did not grasp was data processing and 
computer programming TR 2-190 to 2-191. Further, the signifi­
cance of Behling's testimony is irrelevant or severely limited be­
cause of his termination from the company for poor job per­
formance and employer relationships prior to the onset of the 
period of limitations applicable to this case. TR 3-114 to 3-115.



4

Def.Ex. 16, TR 4-31, 4-106; Def.Ex. 17, TR 4-31, 4-106; 
Def.Ex. 20, 4-31, 4-106).

Further, Petitioner’s application test showed that Pe­
titioner attempted to answer only four of the fifteen math­
ematics questions. Of the four questions attempted, only 
one was answered correctly. TR 4-95 to 4-97; (Def.Ex. 21, 
TR 4-93, 4-106).

Finally, when the Petitioner worked part-time as a 
teller, she indicated to the President of the Credit Union 
that such work was too much pressure. There was evidence 
that Petitioner was poor at “ balancing”  and made nu­
merous errors. Petitioner indicated that she did not want 
to do teller work. TR 3-103 to 3-104.

Petitioner alleges that she was discriminated against 
because she was not considered for the job of Account In­
termediate which was the “ promotion”  received by Wil­
liamson. TR 1-46 to 1-48. However, the accounting posi­
tions required more numerical aptitude and bookkeeping 
skills than the teller position which Petitioner could not 
adequately perform. TR 4-37 to 4-38.

Petitioner’s assertions that “ throughout the time she 
worked at McLean Credit Union, [she] was subjected to 
abusive and demeaning terms and conditions of employ­
ment”  and that she was “ constantly scrutinized and criti­
cized ’ ’4 are simply not supported by the record. The record 
reflects only two incidents of alleged racial remarks made 
to Patterson during her ten year employment. At the time 
of Petitioner’s initial interview in 1972, Respondent’s 
President allegedly informed her that she would be work­
ing only with white women.5 TR 3-96 to 3-97. The only

“Brief for Petitioners at pp. 5-6.
5Although this alleged instance occurred in 1972 at an anxi­

ous time for many businesses as they integrated their work force 
and is far outside the applicable three year statute of limitations, 
the District Court allowed the testimony as background and to 
support the element of "intent" required in a Section 1981 case. 
Mr. Stevenson denied this comment; but admitted talking with 
the employees about hiring a minority for the first time: " . . . 
I wanted them to be comfortable with it and I wanted the 

(Continued on following page)



5

other statement which Petitioner testified was a racial re­
mark was a statement allegedly attributed to Respondent’s 
President in 1976 that—“ blacks were slower than whites 
by nature.6 TR 1-88. Respondent’s President denied the 
remark. TR 3-109. Although Petitioner complains that she 
received personal criticism during staff meetings, the 
record is clear that such criticisms were business related, 
were made without personal comment and reflected errors 
which she admittedly had made prior to the date of the 
meeting. Tr 1-89; TR 2-72 to 2-78. She further admits 
that whites were also criticized at staff meetings. TR 2-72. 
Further, she could not recall the time periods such criti­
cisms occurred and whether they were within the period of 
limitations. TR 2-73 to 2-76.

Although throughout the trial of this matter Petitioner 
consistently complained of an inordinate amount of work 
being placed upon her and that she allegedly did the work 
of three people, TR 1-25, the evidence is clear that she 
was placed on probation and was continually counselled 
and assisted because of slow work,7 TR 2-91; 3-111 to 3-114;

(Continued from previous page)
minority to be comfortable with it . . . I wanted to make sure 
that these people, the white people as well as the black person 
was comfortable in working in that environment." TR 3-126, 
3-124.

likew ise, this alleged comment was outside the period of 
limitations.

7Exhibits introduced at Trial were indicative of Petitioner's 
history of slow work and poor job performance. In 1977 she 
was placed on probation for "slow work and poor job perform­
ance." (Def.Ex.6, TR 2-102, 4-106) Her 1979 performance evalu­
ation noted "Brenda's speed of work is somewhat slow . . . 
Brenda's teller activity produces too many errors . . . [Brenda] 
does not possess the knowledge to work in other areas of the 
office . . . Brenda's performance is less than . . . hope[d] [for]." 
(Def.Ex.3, TR 2-29, 4-106) The 1978 evaluation commented 
"Brenda's work speed is slow . . . Brenda's work is slower than 
desired . . . Her work on the teller line is not satisfactory as 
she continues to make teller errors in balancing . . ." (Def.Ex.7, 
TR 2-102, 4-106) The 1981 evaluation and the 1982 evaluation, 
both by a different supervisor than the 1978 and 1979 evalua­
tions also noted that she could increase her speed. (Def.Ex.5, 
TR 2-30, 4-106; Def.Ex.16, TR 4-31, 4-106).



6
and that subsequent to her termination, the job functions 
which she had been previously performing were absorbed 
by other members of the staff without the necessity of hir­
ing additional personnel. TR 4-45.

Petitioner further contends that she was racially har­
assed because Respondent’s President “ stared”  at her. 
TR 1-38 to 1-39. Mr. Stevenson contends that he neces­
sarily observed the employees at their work. TR 3-109 to 
3-110. Petitioner concedes that this observation was from 
as much as forty feet away, TR 2-86; and that to observe 
her work in the vault, it was necessary to stand at or near 
the vault door. TR 1-101.

There was no formal training avilable to any clerical 
employee and no employee including Williamson received 
any job training that was not available to all employees.8 
In fact, Petitioner received additional help and training. 
TR 2-33; TR 2-38; TR 3-111.

Petitioner misleads the Court by asserting that she 
was ‘ ‘ never able to find out about promotion opportunities 
until after the decisions had been made”  and that “ several 
white workers with less education, less seniority and less 
experience than Patterson were hired or promoted”  while 
she was not.9 In fact Petitioner offered evidence at trial 
of only one “ promotion”  for which she contended she was 
the object of racial discrimination—that of Williamson to 
the position of Account Intermediate. TR 1-46 to 1-47. 
Petitioner’s contention that white workers with less edu­
cation., less seniority and less experience than she had were 
hired or promoted to secretarial or bookkeeping positions 
while she was not, is not only a misstatement of the evi­

8The only evidence offered by the Petitioner of discrim­
inatory training opportunities was her own direct testimony con­
sisting of a single unsubstantiated allegation that Williamson 
"was given special training for this position." TR 1-49. Peti­
tioner offered no evidence describing what this "special train­
ing" consisted of. In contradiction, the Respondent showed 
that Williamson did not receive any special training, TR 4-110 
to 4-112 and that the employer had no formal training programs. 
TR 4-38.

9Brief for Petitioner at p.10.



7

dence, but such allegations concern matters clearly outside 
the statute of limitations. Further, Petitioner offered no 
evidence that either education or seniority were criteria 
used by Respondent in making promotions.10

Finally, Petitioner is incorrect in her allegation that 
she was denied a “ merit”  increase in salary that was given 
to white employees.11 To the contrary, other black em­
ployees were given a “ merit”  increase in 1982 while 
“ merit”  increases were denied to other white employees. 
Merit raises were given on the basis of performance and 
were not automatic raises. TR 3-108.

Likewise, Petitioner’s contentions that “ when secre­
tarial or bookkeeping positions opened, white workers were 
hired or promoted into the positions, while the black work­
ers remained in the file room,” 12 is a gross misstatement 
of the testimony. The uncontradicted evidence was that 
no blacks ever applied for a secretarial position. TR 4-11 
to 4-12. Further, Patterson testified that she requested to 
move her desk from behind the teller line to the vault where 
the filing took place. TR 1-100 to 1-101. Lastly, Carrie 
Worsley, a black, who was at all times employed as a teller, 
worked on the teller line and not in the vault or file room. 
TR 1-42.

Following her termination, the Petitioner pursued and 
exhausted her administrative remedies under Title YII 
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1982) 
and received on June 30, 1983 a “ Notice of Right to 
Sue.”  JA p.18. The Petitioner chose not to file an action 
under Title YII for racial harrassment or disparate treat­
ment and instead filed this action under 42 U.S.C. § 1981 
on January 25,1984. JA pp. 5-16.

--------------- o---------------

^Nevertheless, greater education and seniority do not out­
weigh more direct experience. Young v. Lehman, 748 F.2d 194, 
198 (4th Cir. 1984), cert, denied, 471 U.S. 1061 (1985).

"Brief for Petitioner at p.12.
12Brief for Petitioner at p.9.



8

SUMMARY OF ARGUMENT
I. A separate discrete claim for racial harrassment 

is not cognizable under § 1981. Title 42 U.S.C. § 1981 pro­
vides, in pertinent part, that “ [a]ll persons within the 
jurisdiction of the United States shall have the same 
right in every State and Territory to make and enforce 
contracts * * # as is enjoyed by white citizens * * #
It is well established that § 1981 may provide a cause 
of action parallel to Title VII, 42 U.S.C. § 2000(e) in 
cases of racial discriminatory practices in hiring, fii’ing 
and promotion. The Civil Rights Act of 1964, Title VII, 
42 U.S.C. § 2000(e), et seq. makes employment practices 
unlawful that “ discriminate against any individual with 
respect to his compensation, terms, conditions, or priv­
ileges of employment, because of such individual’s race, 
color, religion, sex or national origin.”  It has further 
been established that the remedies under § 1981 and Title 
VII are separate and distinct. Johnson v. Railway Express 
Agency, Inc., 421 U.S. 454 (1975).

In addition to actions for discrimination in hiring, fir­
ing or promotions, Title VII also makes actionable a racial­
ly discriminatory work environment. Rogers v. Equal Em­
ployment Opportunity Comm’n., 454 F.2d 234 (5th Cir. 
1971) cert, denied, 406 U.S. 957 (1972). However, a sepa­
rate discrete cause of action for racial harassment is not 
cognizable under Section 1981.

The legislative history and plain and ordinary con­
struction of the language of § 1981 support the con­
tention that a separate discrete claim for relief for racial 
discrimination will not stand when isolated from a claim 
for racially discriminatory hiring, firing or promotion.

Section 1981 prohibits discrimination in the “ making 
and enforcing of contracts.”  Beginning with the decision 
of Jones v. Alfred II. Mayer Co., 392 U.S. 409 (1968) this 
Court has consistently interpreted the legislative history 
of §1981 as granting the “ competence and capacity”  to 
contract. Further, the cases in this Court addressing the 
legislative history and interpretation of § 1981 have con­



9
sistently interpreted the statute as one affecting economic 
rights. See, e.g., Runyon v. McCrary, 427 U.S. 160 (1976); 
Goodman v. Lukens Steel Co., 482 U.S. — ; 107 S.Ct. 2617 
(1987); see also, Tillman v. Wheaton-Haven Rec. Asso., 
410 U.S. 431 (1973) (construing the economic impact of 
the parallel provisions of 42 U.S.C. § 1982.)

Eacial harassment in the work place that does not 
impact on hiring, discharge or promotion decisions has no 
effect on the economic rights of a minority employee and 
does not affect such an employee’s basic fundamental rights 
to “ make and enforce contracts.”

Although this Court has not yet addressed the issue 
of whether a separate independent claim of racial har­
assment is cognizable under § 1981, several other lower 
federal courts in addition to the Fourth Circuit have de­
termined that such a claim is not cognizable. See, e.g., 
Williams v. Atchison, Topeka and Santa Fe Ry., 627 F. 
Supp. 752 (W.D.Mo. 1986); Minority Police Officers Ass’n. 
of South Bend v. City of South Bend, Indiana, 617 F.Supp. 
1330 (M.D.Ind. 1985); Howard v. Lockheed-Georqia Co., 
372 F.Supp. 854 (N.D.Ga. 1974).

The basic fundamental rights granted to all persons, 
the same as white citizens, are the rights to enter into a 
contract and bind the other party to it and the right to 
enforce such contracts in court. Neither in 1866 nor in 
1870 did “ white citizens”  have the right to bring an action 
strictly for harassment. It was not the intent of the 
Thirty-ninth Congress to grant such a substantive tort 
claim for relief. Other laws may grant remedies for har­
assment, such as Title VII, breach of contract actions, 
malicious interference with contracts, intentional inflic­
tion of emotional distress or other actions and '§ 1981 
grants access to the courts and the rights of all persons to 
maintain such independent causes of action. However, 
§ 1981 establishes no separate cause of action for racial 
harassment.

Although there is some confusion in the courts as to a 
differentiation of the various rights and remedies avail­
able under Title VII and § 1981, such decisions generally



10

have not supported an independent claim for racial har­
assment or hostile working environment separate and 
apart from claims under Title YII or collateral claims 
of racially discriminatory promotion and discharge prac­
tices. It is not disputed that the statutes have many sim­
ilarities and that the proof scheme established in Mc- 
Donnell-Douglas v. Green, 411 U.S. 792 (1973) is appli­
cable to both statutes. Further, it is well established that 
intentional racial discrimination is necessary to support 
a claim under § 1981. General Building Contractors v. 
Pennsylvania, 458 U.S. 375 (1982). However, even under 
Title YII “ not all work place conduct that may he de­
scribed as ‘harassment’ affects a ‘ term, condition or 
privilege’ of employment * * * .”  Meritor Savings Bank 
v. Vinson, No. 84-1979 (U.S. June 19, 1986), slip op. 9. In 
many cases, the courts have found that the alleged racial 
practices were not so opprobrious or working conditions 
so intolerable as to enforce a constructive discharge claim 
or trigger a claim under Title VII. Johnson v. Bunny Bread 
Co., 646 F.2d 1250 (8th Cir. 1981); Martin v. Citibank, N.A., 
762 F.2d 212 (7th Cir. 1985); Muller v. United States Steel 
Corp., 509 F.2d 923 (10th Cir.) cert, denied, 423 U.S. 825 
(1975). If such alleged adverse and hostile working con­
ditions were not so opprobrious as to force the resignation 
of the Petitioner or support a claim of constructive dis­
charge, then it is illogical to assume that such actions 
could stand alone under Title VII, much less  ̂1981.

Ultimately, the facts of this case fall far short of the 
prima facie showing necessary to support a claim of racial 
harassment. Assuming arguendo that such a claim is cog­
nizable under § 1981, it is reasonable to assume that the 
McDonnell-Douglas proof scheme is also applicable to 
such claims. First of all, the applicable North Carolina 
three year statute of limitations bars any allegations or 
claims prior to January 25, 1981. The remaining allega­
tions by the Petitioner (which are unsubstantiated as to 
date) are that the Eespondent’s President stared at her,



11

gave her an inordinate amount of work, criticized her in 
staff meetings and requested that she dust and sweep. 
Even taking all of the Petitioner’s allegations as factually 
correct and undisputed, they still fall far short of con­
ditions “ sufficiently pervasive so as to alter the condi­
tions of employment and create an abusive working en­
vironment.”  See Henson v. City of Dundee, 682 F.2d 897 
(11th Cir. 1982). After Respondent’s evidence offering 
non-discriminatory explanations in response to such al­
legations, Petitioner offered no rebuttal to show pretext. 
Petitioner’s allegations are insufficient to support a claim 
of racial harassment even under Title VII.

II. Likewise, Petitioner’s evidence with regard to 
her allegation of promotion discrimination was insuffi­
cient to support a prima facie case. To establish such a 
prima facie case, the Petitioner must meet the elements 
required by McDonnell-Douglas v. Green, 411 U.S. 792, 
802 (1973).'

The evidence regarding the promotion incident was 
that Susan Williamson had been working for 7% of the 
prior 8 years as an Account Junior and because of her 
satisfactory job performance, she received an upgrade in 
title and pay. Mrs. Williamson received no additional or 
different job responsibilities. No job vacancy was open, 
filled or created by the so-called promotion. Mrs. Wil­
liamson had completed college courses in calculus, account­
ing and business finance. The Petitioner who was at all 
times employed as a filing clerk had experienced difficulty 
in balancing her books when she worked as a part time 
teller, disliked the pressure of working as a teller, had no 
experience in the accounting functions, had received nu­
merous evaluation notes for slow work and lacked the 
necessary education, skills or aptitude to perform the ac­
counting position. However, the Petitioner claims that 
she was entitled to the position of Account Intermediate 
and that the Respondent unlawfully discriminated against



12

her by advancing Mrs. Williamson rather than providing 
this position to the Petitioner. The only reasonable in­
ference which any reasonable person could draw from these 
facts is that there was no “ promotion”  for which there 
was a vacancy and that Petitioner produced no evidence 
that she was qualified to perform the accountant functions. 
However, the Court allowed the claim to go to the jury, 
obviously with the opportunity in the event of a verdict 
adverse to the Respondent, to reconsider Petitioner’s prima 
facie case at Respondent’s Motion for a judgment not­
withstanding the verdict pursuant to Rule 50 of the Fed­
eral Rules of Civil Procedure.

Once the court had determined to allow the issue of 
promotion discrimination to be resolved by the jury, the 
Respondent was compelled under a strict application of 
the McDonnell-Douglas proof scheme to offer a non- 
discriminatory reason for its decision. Within the con­
text of established case law, the simple explanation for the 
“ decision”  was Mrs. Williamson’s superior qualifications. 
Once this evidence was proffered, the burden was on the 
Petitioner to show pretext or that Respondent’s explana­
tion was unworthy of credence. Texas Department of Com­
munity Affairs v. Burdine, 450 U.S. 248, 259 (1981). Pe­
titioner contends that such pretext could have been shown 
not only by showing superior qualifications but (1) by 
showing equal qualifications; (2) by showing that the 
employer did not rely on qualifications; or, (3) by show­
ing that the employer’s explanation was not credible. Be­
cause Petitioner offered no rebuttal evidence and the 
record was void of any evidence that Petitioner’s qualifi­
cations were equal to Mrs. Williamson’s or that the em­
ployer did not rely on qualifications in making its decision 
or that the reason given by the employer was not credible, 
the court correctly charged the jury in accordance with 
established precedents that the Petitioner must show her 
superior qualifications. Young v. Lehman, 748 F.2d 194



13
(4th Cir. 1984); Anderson v. City of Bessemer, 717 F.2d 
149 (4th Cir. 1983), rev’d on other grounds, 470 U.S. 564 
(1985); EEOC v. Federal Reserve Bank of Richmond, 698 
F.2d 633 (4th Cir. 1983) rev’d on other grounds sub nom; 
Cooper v. Federal Reserve Bank of Richmond, 467 U.S. 
867 (1984). “ The employer has discretion to choose among 
equally qualified candidates, provided the decision is not 
based upon unlawful criteria.”  Texas Department of Com­
munity Affairs v. Burdine, 450 U.S. 248, 259 (1981). There­
fore, where there is no evidence of an unlawful criteria and 
Respondent has profferred a non-discriminatory reason for 
its decision, it is encumbent upon the Petitioner to show 
her superior qualifications.

---------------o---------------
ARGUMENT

I.
THE PETITIONER W AS NOT ENTITLED TO THE 
SUBMISSION OF A SEPARATE ISSUE OF RACIAL 
HARASSMENT UNDER § 1981

A. A Separate Discrete Claim for Racial Harassment Is 
Not Cognizable Under § 1981
The issue to be determined in this matter is whether 

racial harassment is cognizable under 42 U.S.C. § 1981 
(1982) separate and apart from an actionable claim of 
racially discriminatory hiring, firing, or promotion. The 
statute, 42 U.S.C. § 1981, provides:

All persons within the jurisdiction of the United 
States shall have the same right in every state and 
territory to make and enforce contracts, to sue, be 
parties, give evidence and to the full and equal bene­
fit of all laws and proceedings for the security of 
persons and property as is enjoyed by white citizens, 
and shall be subject to like punishment, pains, penal­
ties, taxes, licenses and exactions of every kind, and 
to no other.

(emphasis added).



14

Obviously racial harassment may be relevant as 
evidence of discriminatory intent supporting a cognizable 
claim of employment discrimination under '§ 1981, and may 
give rise to a discreet claim under Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. § 2000(e). See, e.g., EEOC 
v. Murphy Motor Freight, 488 F.Stipp. 381, 384-86 (D. 
Minn. 1980); and, United States v. Buffalo, 457 F.Supp. 
612, 631 (W.D.N.Y. 1978), modified on other grounds, 
633 F.2d 643 (2d Cir. 1980). However, the pertinent lan­
guage of Title VII which makes unlawful “ discrimin- 
at[ion] against any individual with respect to his compen­
sation, terms, conditions or privileges of employment be­
cause of such individual’s race,”  42 TT.S.C. § 2000(e) 
(a) (1982) (emphasis added) is in sharp contrast to § 1981 ’s 
prohibition of discrimination in making and enforcing 
contracts. Although a cause of action for racial harass­
ment is cognizable under Title VII and the Petitioner 
in this action requested and received a Notice of Right to 
Sue from the EEOC, she elected to file her action solely 
under <j> 1981.13

Various courts have undertaken to define racial har­
assment. In a Title VII case, the Fifth Circuit held that 
Title VII was “ aimed at the eradication of such noxious 
practices . . .  [as] . . .  working environments so heavily 
polluted with discrimination as to destroy completely the 
emotional and psychological stability of minority [ ] 
workers.”  Rogers v. Equal Employment Opportunity 
Comm’n., 454 F.2d 234, 238 (5th Cir. 1971), cert, denied, 
406 U.S. 957 (1972). The court went on to say that the 
“ mere utterance of an ethnic or racial epithet which en­
genders offensive feelings in an employee”  does not nec­
essarily fall within Title VII id. at 238. Another court rec­

135ee, JA p.18. Petitioner received a notice of right to sue 
on or about July 5, 1983; however, this action was not instituted 
until January 25, 1984 and any cause of action stated under Title 
VII would have at that time been barred by the applicable stat­
ute of limitations.



15

ognized that derogatory remarks would constitute a Title 
VII violation “ upon attaining an excessive or opprobrious 
level,”  or that “ a malicious or inordinate racial slur us­
age would result in defendant’s liability.”  Vaughn v. 
Pool Offshore Co., Etc., 683 F.2d 922, 925 (5th Cir. 1982). 
Likewise, the Court in Cariddi v. Kansas City Chiefs Foot­
ball Club, Inc., 568 F.2d 87, 88 (8th Cir. 1977) “ recognized 
that derogatory comments could be so excessive and op­
probrious as to constitute an unlawful employment prac­
tice under Title VII. ’ ’

Respondent has conceded that intentional racial ani­
mus is an element of and therefore relevant to Petitioner’s 
claims of racially discriminatory discharge and promotion 
practices. However, several lower federal court cases have 
commented that separate claims for racial harassment are 
not cognizable under § 1981. See, e.g., Williams v. Atchison, 
Topeka and Santa Fe Ry., 627 F.Supp. 752 (W.D.Mo. 
1986); Minority Police Officers Assn, of South Bend v. 
City of South Bend, Indiana, 617 F.Supp. 1330 (N.D.Ind. 
1985) aff’d 801 F.2d 764 (7th Cir. 1986); and Howard v. 
Lockheed-Georgia Co., 372 F.Supp. 854 (N.D.Ga. 1974).

In Williams v. Atchison, Topeka and Santa Fe Ry., 
627 F.Supp. 752 (W.D.Mo. 1986), the court stated:

“ I believe the working conditions issue is a Title VII 
issue and not an independent issue under 42 U.S.C. 
§ 1981. See Minority Police Officers v. City of South 
Bend, 617 F.Supp. 1330, 1352 n.52 (N.D.Ind. 1985). It 
seems to be assumed in some cases, however, that the 
statutes run parallel, except for the more liberal dam­
age potential of § 1981. Erebia v. Chrysler Plastic 
Products Corp., 772 F.2d 1250 (6th Cir. 1985) cert, 
denied, — U.S. —, 106 S.Ct. 1197 (1986). But Title 
VII by its terms is more comprehensive than § 1981, 
and, except as to damages and to time limits, cuts 
deeper.”

Id. at 757 n.5 (emphasis added).



16

Further, in Minority Police Officers Assn, of South 
Bend v. City of South Bend, Indiana, 617 F.Supp. 1330 
(N.D.Ind. 1985), the court stated:

The relationship between the employee and his work­
ing environment is encompassed within the ‘ terms, 
conditions or privileges of employment’ language of 
Title VII. Section 1981 of Title 42 United States Code 
is not specifically addressed to employment discrim­
ination and this court has found no cases to indicate 
a plaintiff can state a claim under § 1981 based on 
working conditions alone. However, conditions in the 
work place, including racially derogatory slurs and 
incidents may he used to show discriminatory intent. 
Nor has the Court found any cases indicating that 
such a claim can be stated under the Fourteenth 
Amendment.

Id. at 1352 at n.52 (emphasis added).
In Howard v. Lockheed-Georgia Co., 372 F.Supp. 854 

(N.D.Ga. 1974), an attempt to use §1981 for the purpose 
of seeking emotional distress damages was rejected. The 
Court stated that:

[T]o judicially legislate a con-current and broader 
remedy under Section 1981 would invite every plain­
tiff asserting a claim for racially discriminatory em­
ployment practices to ignore the remedy which Con­
gress so carefully constructed in Title VII. Why 
should a claimant genuinely participate in the concilia­
tion procedures of Title VII, or his attorney advise 
him to do so, when larger awards await if he refuses 
and proceeds to suit? Such a holding would frustrate 
the clear intent of Congress that racial bias problems 
be resolved by conciliation. This the Court declines 
to do.

Id. at 857-858.
The pivotal issue in a determination of this case is 

an interpretation of the meaning of “ to make and enforce 
contracts.”  To make such a determination, a closer look 
at the Legislative History of the statute and an interpre­



17

tation of the clear ordinary language of the statute is 
helpful.

The Legislative History of § 1981 has been discussed 
and analyzed on several occasions by this Court. See, e.g. 
Jones v. Alfred H. Meyer Co., 392 U.S. 409 (1968); Runyon 
v. McCrary, 427 U.S. 160 (1976). This Court has deter­
mined that 42 U.S.C. § 1981 was drawn from both § 16 of 
the Voting Rights Act of 1870 and from § 1 of the Civil 
Rights Act of 1866. Runyon v. McCrary, 427 U.S. 160, 
168 n.8 (1976).14

During Reconstruction and the passage of these stat­
utes, slaves for the first time were declared to be “ citi­
zens” , to possess the rights to sue, to give evidence and 
to hold real and personal property, and to have full ac­
cess to all the laws and be subject to all the responsibilities 
of citizenship. The grant of these rights to “ all people”  
by §1981 is primarily a grant of “ capacity”  rather than 
the substantive rights that flow from capacity. For the 
first time, slaves were given access to the courts and ac­
cess to equal legal rights. It was not the intent of Con­
gress to create a substantive tort of action for racial har­
assment by the passage of these statutes.15

In discussing the authority of Congress to enact the 
Civil Rights Act of 1866 under the Thirteenth Amendment, 
this Court wrote that:

14However, in a dissenting opinion addressing the legislative 
history of 42 U.S.C. § 1981, two Justices of the Court concluded 
that this Section was derived solely from §16 of the Voting 
Rights Act of 1870 which was passed under Congress' Four­
teenth Amendment powers rather than § 1 of the Civil Rights Act 
of 1866 which was passed under Congress' Thirteenth Amend­
ment powers, Runyon v. McCrary, 427 U.S. at 202 (1976); (White, 
)., joined by Rehnquist, J., dissenting.)

15However it is now established that § 1981 does create 
substantive rights to contract. See Johnson v. Railway Express 

(Continued on following page)



18

Surely Congress has the power under the Thirteenth 
Amendment rationally to determine what are the 
badges and incidents of slavery, and the authority to 
translate that determination into effective legislation. 
Nor can we say the determination Congress has made 
is an irrational one. For this Court recognized long 
ago that, whatever else they may have encompassed, 
the badges and incidents of slavery—its “ burdens and 
disabilities” —include restraints upon “ those funda­
mental rights which are the essence of civil freedom, 
namely, the same right . . .  to inherit, purchase, lease, 
sale and convey property, as is enjoyed by white citi­
zens.”

Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440-441 (1968) 
(footnote omitted) (quoting Civil Eights Cases, 109 U.S. 
3, 22 (1883) (emphasis added).

Further, the Court wrote:
Of course, Senator Trumbull’s bill would, as he point­
ed out, ‘ destroy all [the] discriminations’ embodied 
in the Black Codes, but it would do more: it would 
affirmatively secure for all men, whatever their race 
or color, what the Senator called the ‘ great fundamen­
tal rights’ : the right to acquire property, the right 
to go and come at pleasure, the right to enforce rights 
in the courts, to make contracts, and to inherit and dis­
pose of property. As to those basic civil rights, the 
Senator said, the bill would ‘ break down all discrim­
ination between black men and white men.’

Id. at 432 (emphasis in original).
It is logical to assume that Congress meant fundamen­

tal legal capacities. Additionally, Senator Trumbull’s re­
marks chiefly address economic rights. There is a great 
contrast between bestowing the capacity to contract or the 
right or capacity to enforce legal rights in the courts and

(Continued from previous page)
Agency, 421 U.S. 454, 457-461, 44 L.Ed.2d 295, 95 S.Ct. 1716 
(1975). See also Sullivan v. Little Hunting Park, 396 U.S. 229 
237-238, 24 L.Ed.2d 386, 90 S.Ct. 400 (1969).



19
the grant of substantive rights and causes of action sound­
ing in tort which necessarily regulate interpersonal rela­
tionships. Such an interpretation goes far beyond “ those 
basic civil rights,”  protected by the statute.

In his concurring opinion in Runyon v. McCrary, 427 
U.S. 160 (1976), Justice Stevens clearly and succinctly de­
clared :

There is no doubt in my mind that the construction of 
the statute would have amazed the legislators who 
voted for it. Both its language and the historical set­
ting in which it was enacted convince me that Congress 
intended only to guarantee all citizens the same legal 
capacity to make and enforce contracts, to obtain, own, 
and convey property and to litigate and give evidence. 

Id. at 189 (emphasis added).
Further, the dissent by Justice White with whom Jus­

tice Rehnquist joined states:
What is conferred by 42 U.S.C. § 1981 is the right— 
which was enjoined by whites—‘ to make contracts’ 
with other willing parties and to ‘ enforce’ those con­
tracts in court. Section 1981 would thus invalidate 
any state statute or court made rule of law which would 
have the effect of disabling Negroes or any other 
class of persons from making contracts or enforcing 
contractual obligations or otherwise giving less weight 
to their obligations than is given to contractual obli­
gations running to whites. . . .

. . . The legislative history of 42 U.S.C. § 1981 con­
firms that the statute means what it says and no more, 
i.e., that it outlaws any legal rule establishing any 
person from making or enforcing a contract . . .”

Id. at 194-195 (footnote omitted) (emphasis added).
Even the explanation of the “ classic violation of 

§ 1981”  in the majority opinion in Runyon resounds with 
concepts and phrases associated with traditional contrac­
tual relationships.

[A] Negro’s [§ 1981] right to ‘ make and enforce con­
tracts’ is violated if a private offeror refuses to ex­



20
tend to a Negro, solely because be is a Negro, the 
same opportunity to enter into contracts as he extends 
to white offerees.

. . . The parents . . . sought to enter into a contractual 
relationship with [the schools]. Under those contrac- 
ual relationships, the schools would have received pay­
ments for services rendered, and the prospective stu­
dents would have received instruction in return for 
those payments. The educational services of [the 
schools] were advertised and offered to members of 
the general public. But neither school offered services 
on an equal basis to white and non-white students.

Id. at 170-173 (footnotes omitted) (emphasis added).
While Plaintiff cites Runyon to support their claim, 

in fact Runyon involved the defendants’ direct refusal to 
enter into a contract with black applicants. The plaintiff 
was effectively denied the right to contract for education­
al services. Such a case presents a far different issue than 
where racial harassment is directed toward a student 
enrolled. While admittedly such conduct would be dis­
criminatory, it would not deny the plaintiff the right to 
enter or enforce a contract. See e.g. Saunders v. General 
Services Corp., Slip Op. No. 86-0229-R (E.D.Va. 1987), ap­
peal pending, No. 87-2175 (4th Cir.).

In General Building Contractors Ass’n., Inc. v. Penn­
sylvania, 458 U.S. 375 (1982), this Court addressed the 
duties under § 1981.

The question is what duty does § 1981 impose. More 
precisely, does § 1981 impose a duty to refrain from 
intentionally denying blacks the right to contract on 
the same basis as whites or does it impose an affirma­
tive obligation to insure that blacks enjoy such a 
right? The language of the statute does not speak 
in terms of duties. It merely declares specific rights 
held by ‘ [a,] 11 persons within the jurisdiction of the 
United States.’ We are confident that the Thirty- 
ninth Congress meant to do no more than prohibit the 
employers and associations in these cases from inten­
tionally depriving black workers of the rights enu-



21
merated in the statute, including the equal right to
contract....”

Icl. at 396 (original emphasis).
In Johnson v. Railway Express Agency, Inc., 421 U.S. 

454 (1975), the Court determined that under § 1981 the 
running of the statute of limitations is not suspended dur ­
ing the pendency of a timely filed administrative complaint 
with the EEOC under Title VII. Although the employer 
conduct alleged to have occurred was discrimination with 
respect to seniority rules, job assignments and discharge, 
each of these are unique to the economic factors generally 
relevant to a contractual relationship. This is not incon­
sistent with the idea that § 1981 was passed to protect prop­
erty and economic rights and does not address interper­
sonal relationships.

Further, the Court’s language in Jones, 392 U.S. 409 
(1968) supports the interpretation that § 1981 only con­
fers the right to enter into a contract and bind the other 
party to it. In that decision, the Court stated simply that 
“ the right to contract for employment [is] a right se­
cured by 42 U.S.C. §1981.”  Jones, 392 U.S. at 441 n.78 
(emphasis added).

In Jones, the specific issue before the Court involved 
whether § 1982 applied to private, and not only state ac­
tion in the sale or rental of property and, if so, whether 
such scope was constitutional. In its examination of 
§ 1982, the Court compared § 1982 to the Fair Housing 
Act. Unlike the Fair Housing Act, the Court explained, 
§ 1982 “ is not a comprehensive open housing law.”  Id. 
392 U.S. at 413 (1968). A like analysis should distinguish 
§ 1981 from Title VII, for § 1981 is not a comprehensive 
employment law. In summary of the comparison between 
the two statutes, the Court noted the “ vast differences 
between, on the one hand, a general statute applicable 
only to racial discrimination in the rental and sale of 
property [] and, on the other hand, a detailed housing 
law, applicable to a broad range of discriminatory prac­
tices and enforceable by a complete arsenal of authority.”  
Id. at 417.



22
The above language supports the view that § 1981 was 

intended only to procure the opportunity, whether it is 
to contract for work or contract for education. After the 
contract is in effect, whatever conduct may violate an in­
dividual’s rights, breach the contract or affect the terms 
or conditions of the contract, whether express or implied, 
is remedied by other laws. For example, an action under 
Title YIT, an action for intentional infliction of emotional 
distress, breach of contract actions, malicious interfer­
ence with contract or other actions may be instituted.16

Furthermore, this Court has recently very generally 
held in Goodman v. Lukens Steel Co., 482 U.S. —, 107 S.Ct. 
2617 (1987) that the Defendant company had violated 
both Title YII and § 1981 with regard to the discharge of 
employees during their probationary period, the tolera­
tion of racial harassment, initial job assignments, promo­
tions and decisions on incentive pay. Such general lan­
guage is used with regard to a case which includes activ­
ities, which is racially motivated, are obviously included 
in the protections offered by § 1981, i.e. promotion and dis­
charge. Notwithstanding this general language, this Court 
also clearly stated that § 1981 grants competence and ca­
pacity to contract:

Insofar as it deals with contracts, [§ 1981] declares 
the personal right to make and enforce contracts, a 
right, as the section has been construed, that may not 
be interefered with on racial grounds. The provision 
asserts in effect, that competence and capacity to con­
tract shall not depend upon race.

Id. at —, 107 S.Ct. at 2621 (emphasis added).

16The fallacy of the argument propounded by the govern­
ment in the Amicus Brief filed by the Solicitor General is that 
there exists causes of actions for breach of contract or malicious 
interference with contract which are directly applicable to a 
"breach of the covenant of good faith and fair dealing." There 
is no reason to expand §1981 far beyond any intent of the 
Thirty-ninth Congress in order to create a substantive right or 
remedy for such a cause of action under § 1981. Indeed § 1981 
grants the capacity or competence of all persons to institute any 
such claims and does not necessarily create such a substantive 
cause of action.



23
In a separate opinion, Justice Brennan joined by Jus­

tice Marshall and Justice Blackmun, expressed the opinion 
that “ Congress clearly believed that freedom would be 
empty for black men and women if they were not also as­
sured an equal opportunity to engage in business, to work, 
and to bargain for sale of their labor.”  Id. at —, 107 S.Ct. 
at 2628. Justice Brennan further quoted from the legisla­
tive history:

[Section 1981’s] object is to secure to a poor, weak 
class of laborers the right to malce contracts for their 
labor, the power to enforce the payment of their wages, 
and the means of holding and enjoying the proceeds 
of their toil. Cong. Globe, 39th Cong., 1st Sess. 1159 
(1866) (Rep. Windom).

Id. at —, 107 S.Ct. at 2628 (emphasis added). Such lan­
guage translates directly to prohibitions against racially 
discriminatory hiring and discharge practices and access 
to the courts. It is well established that § 1981 covers these 
matters. Again a dominant concern in the interpretation 
of § 1981 is the effect on economic rights. Justice Brennan 
further concluded that:

[T]he historical origins of § 1981 therefore demon­
strate its dominant concern with economic rights. The 
preeminence of this concern is even clearer if one 
looks at § 1981 in conjunction with 42 U.S.C.S. § 1982. 
[42 U.S.C. § 1982] which was simultaneously enacted. 
The plain language of § 1982 speaks squarely and ex­
clusively to economic rights and relations.

. . .  [I] t is apparent that the primary thrust of the 1866 
Congress was the provision of equal rights and treat­
ment in the matrix of contractual and quasi contrac- 
ual relationships that form the economic sphere.

Id. at —, 107 S.Ct. at 2629 (emphasis added) (Brennan, 
J., joined by Marshall and Blackmun, J.J., concurring in 
part and dissenting in part).

In Tillman v. Wheaton-Haven Bee. Asso., 410 U.S. 
431 (1973), it was held that an association which operated 
a community swimming pool was not a private club and



24
that denial of membership to a Negro couple violated 42 
U.S.C. § 1982. The Court noted that the operative lan­
guage of both §§ 1981 and 1982 was tracable to the act of 
April 9, 1866 and saw no reason to construe those sections 
differently when applied to these facts. Id. at 410-411. In 
reaching its conclusions, this Court looked closely at the 
economic impact and quoted from the dissent in the lower 
court:

Several years from now it may well be that a white 
neighbor can sell his home at a considerably higher 
price than Dr. and Mrs. Press because the white owner 
will be able to assure his purchaser of an option for 
membership in Wheaton-Haven. Dr. and Mrs. Press, 
however are denied this advantage. 451 F.2d at 1223̂  

Id. at 437.
This Court further noted that “ the automatic wait­

ing-list preference given to residents of the favored area 
may have affected the price paid by the Presses when 
they bought their home. Thus the purchase price to them 
. . . may well reflect benefits dependent on residency in 
the preference area.”  Id. at 437. The emphasis on pur­
chase price reflects that the economic factors were those 
being protected in these statutes, not the right to bring 
an action solely based on racially motivated slurs and 
incidents in the workplace.

Lower federal courts have also made it clear that 
§ 1981 was intended to protect economic contractual re­
lationships. Whereas, Title VTI was intended by Con­
gress to prohibit a discriminatory and offensive work en­
vironment. For example, the Fifth Circuit in Adams v. 
McDougal, 695 F.2d 104 (5th Cir. 1983) discussed the ap­
plicability of § 1981 to contracting for employment:

The term contract, as used in § 1981, refers to ‘ a right 
in the promissee against the promissor, with a cor­
relative special duty in the promissor to the promissee 
of rendering the performance promised.’ Cook v. 
Advertiser Co., 458 F.2d 1119, 1123 (5th Cir. 1972) 
(Wisdom, J., concurring).
In this case, despite the indefinite tenure of the job 
of the deputy sheriff, the sheriff and his deputies had



25

expectations arising from the deputy’s employment. 
The Sheriff promised to pay his deputies a stated 
salary. In return, the deputies promised to perform 
their jobs. We hold that the employment relationship 
represented in this case was sufficient to bring Adams 
under the protective umbrella of § 1981.

Id., at 108 (emphasis added). The explanation of the Court 
clearly invokes concepts traditionally associated with the 
right to make and enforce contracts.

In Howard Security Services, Inc. v. Johns Hopkins 
Hospital, 516 F.Supp. 508 (D.Md. 1981), the District Court 
upheld the Plaintiff corporation’s §1981 cause of action 
based upon the hospital’s alleged refusal to award a con­
tract to the corporation because the president was black. 
Again, as Howard indicates, § 1981 addresses the right 
to make contracts and the legal right to enforce contracts. 
Other cases likewise support the view that § 1981 protects 
merely the right to make and enforce contracts.17

That § 1981 is addressed solely to the legal capacity 
to contract is discussed in detail in the dissenting opinion 
by Justice White, joined by Justice Rhenquist in Runyon. 
The opinion states:

Thus the legislative history of § 1981 unequivocal­
ly confirms that Congress’ purpose in enacting that 
statute was solely to grant to all persons equal ca­
pacity to contract as is enjoyed by whites. . . . ”

Ru/nyon, 427 U.S. at 205. The opinion continued with a 
close look at such legislative history:

The fact that one of the leaders of the efforts to pass 
the Thirteenth Amendment statutes—Senator Stew­
art—included the right to ‘make contracts’ but not 
the right to ‘ purchase, etc., real and personal pro­
perty’ in the Fourteenth Amendment statute provid­
ing for equal rights under law which he sponsored

11 See e.g. Faraca v. Clements, 506 F.2d 956 (5th Cir. 1975) 
(the Court recognized the Plaintiff's cause of action under 
§1981 against an employer for refusing to hire the Plaintiff be­
cause his wife was black): Macklin v. Spector Freight Systems, 
478 F.2d 979 (D.C.Cir. 1973) (Court of Appeals upholding Plain­
tiff's § 1981 claim alleging a practice of refusing to hire blacks).



26
four years later is strong evidence of the fact that 
Congress always viewed the right to ‘ make contracts’
as simply granting equal legal capacity to contract___
Indeed, Senator Stewart specifically drew a distinc­
tion between the rights enumerated in the Fourteenth 
Amendment statute including the right to ‘ make con­
tracts’ and the real and personal property rights 
not so included. In connection with the Fourteenth 
Amendment statute he was asked:

‘ MR. POMEROY. I have not examined this Bill, 
and I desire to ask the Senator from Nevada a 
question. I understood him to say that this Bill 
gave the same civil rights to all persons in the 
United States which are enjoyed by citizens of 
the United States. Is that it? ’

He replied:
‘ MR. STEWART. No; it gives all the protection 
of the laws. If the Senator will examine this Bill 
in connection with the original civil rights bill, he 
will see that it has no reference to inheriting or 
holding real estate.’

Id. at 209-210 (White, Rhenquist, J.J. dissenting) (original 
emphasis).

Justice White proved to be prophetic when he stated 
that “ imaginative judicial construction of the word ‘ con­
tract’ is foreseeable.”  Id. at 212.18

No court has yet attempted to analyze and clarify the 
full extent of the distinctions between § 1981 and Title 
VII. Obviously, in the case of racially discriminatory pro­
motion and discharge, there is an overlap of rights. See 
Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 460- 
462 (1975) (promotion); Caldwell v. National Brewing 
Co., 443 F.2d 1044 (1972) (discharge). Title VII clearly

18Although the dissent opposed the extension and "reach of 
42 U.S.C. §1981 so as to establish a general prohibition against 
a private individual's or institution's refusing to enter into a con­
tract with another person because of that person's race," Id. 
427 U.S. at 192, the discussion of the legislative history and the 
plain meaning of the "right to make and enforce contracts," 
is equally applicable to this case.



27
covers a racially hostile work environment, Rogers v. 
EEOC 454 F.2d 234 (5th Cir. 1972); and at least some 
courts, including the Fourth Circuit in the case sub judice, 
have determined that such a claim is not actionable under 
§ 1981. Patterson v. McLean, 805 F.2d 1143, 1145 (4th Cir. 
1986). Other courts have recognized the danger in ex­
panding  ̂1981 to cover all employment discrimination 
“ against any individual with respect to his compensation, 
terms, conditions or privileges of employment because 
of such individual’s race.”  42 U.S.C. § 2000(e) (2) (a ) ; 
See, Williams v. Atchison, Topeka and Santa Fe Ry., 627 
F.Supp. 752 (W.D.Mo. 1986); Minority Police Officers 
A ss’n of South Bend v. City of South Bend, Indiana, 617 
F.Supp. 1330 (N.D.Ind. 1985); Howard v. Lockheed- 
Georgia Co., 372 F.Supp. 854 (N.D.Ga. 1974).

If this Court determines that § 1981 broadly covers all 
incidents of the contractual relationship as is suggested 
by the Petitioner, then such a holding would grant broader 
and greater remedies in cases of racial discrimination 
than in cases of sexual discrimination, discrimination 
based upon age, religious discrimination, or discrimination 
based upon national origin. The ultimate effect and re­
sult is that Title VII and the concilatory procedures so 
carefully constructed therein will become both unnecessary, 
useless and unadvisable because of the potential for 
greater monetary awards for racial harassment under 
$ 1981. Surely this was not the intent of Congress.

The obvious distinction between Title VII and § 1981 
in cases of racial discrimination is that § 1981 grants the 
capacity and competence to make and enter legal and 
binding contracts; while Title VII regulates the conditions 
of the work environment. As pointed out by the Fourth 
Circuit, “ racially discriminatory hiring, firing and pro­
motion go to the very existence and nature of the em­
ployment contract and thus fall easily within § 1981 ’s 
protection.”  Patterson v. McLean, 805 F.2d at 1145.

The plain simple language of § 1981 grants no more 
than the right of all persons to enter into and enforce 
promissory agreements that create a legal relation to do



28
or not to do a particular thing. A  common sense reading 
of § 1981 supports the contention that the Thirty-Ninth 
Congress did not intend that the statute broadly cover 
racial harassment in the work place. On the other hand, 
racial animus that results in discriminatory hiring, pro­
motion or discharge decisions is under the umbrella of 
§ 1981 rights. Certainly, Respondent is aware of no case 
authority or legislative history indicating that in the 
Nineteenth Century whites were entitled to maintain 
actions against their employer for racial harassment. The 
statute grants only to ‘ ‘ all persons . . . the same right . . . 
to make and enforce contracts . . .  as is enjoyed by white 
citizens. . . . ”  In contrast, rights to institute actions for 
all harassment were conferred by Title VII.
B. A  Separate Discrete Action For Racial Harassment

Under Section 1981 Cannot Stand Alone.
Many cases in the lower federal courts and even de­

cisions by this Court have added to the difficulty in dif­
ferentiating the “ separate, distinct and independent”  
remedies available under Title VII and under § 1981.19 
Johnson v. Railway Express Agency, Inc., 421 U.S. 454 
(1975).

Obviously, many cases are prosecuted where claims 
are made under both Title VII and § 1981; and, many 
cases are prosecuted under both Title VII and § 1981 
jointly where there are not only claims of racial harass­
ment but racially discriminatory practices of hiring, fir­
ing and discharge. Because the statutes do overlap and 
the offer of proof is similar, there is seldom a need for the

195ee, e.g. Goodman v. Lukens Steel Co., 42 U.S. — , 107 
S.Ct. 2617 (1987) (generally holding the Union was in violation 
of both Title VII and § 1981 for the toleration and tacit encour­
agement of racial harassment among other things.); Lucero v 
Beth Israel Hospital Geriatric, 479 F.Supp. 452 (D.C.Col. 1979) (re­
covery allowed to Plaintiff for compensatory damage for mental 
pain and suffering under § 1981 where Plaintiff brought claims 
under both Title VII and §1981); Block v. R.H. Macy and Co., 
712 F.2d 1241 (8th Cir. 1983) (recovery permitted under §1981 
for emotional distress in conjunction with her claim under Title 
VII and § 1981 for racially discriminatory discharge).



courts to differentiate under which statute a particular 
claim is sustained.

Generally, however, the cases have not supported an 
independent claim for racial harassment or hostile work­
ing environment under § 1981 separate and apart from 
claims under Title VII or collateral claims of racially dis­
criminatory promotion and discharge practices under 
§ 1981.20 This is the basis of the Fourth Circuit’s decision 
that a separate independent claim for racial harassment, 
standing alone, is not cognizable under § 1981. Patterson, 
805 F.2d at 1145-1146. In response to the cases submitted 
by the Petitioner, the Fourth Circuit observed: “ None di­
rectly holds that racial harassment gives rise to a discrete 
claim under § 1981, as distinguished from recognizing that 
racial harassment may be relevant as evidence of dis­
criminatory intent supporting a cognizable claim of em­
ployment discrimination under § 1981 and that it may give 
rise to a discrete Title VII claim.”  Id. at 1146.

In Whiting v. Jackson State Univ., 616 F.2d 116 (5th 
Cir. 1980), the court observed:

[w]hen § 1981 is used as a parallel basis for relief 
with Section 706 of Title YII against disparate treat­
ment in employment, its elements appear to be iden­
tical to those of Section 706. Garcia [v. Gloor], 609 
F.2d [156] at 164; Blum v. Gulf Oil Corp., 597 F.2d 
936, 938 (5th Cir. 1979); see also, Johnson v. Alex­
ander, 572 F.2d 1219, 1223 n.3 (and cases cited there­
in) (8th Cir. 1978), cert, denied, 439 U.S. 99 [] (1978). 

Id. 616 F.2d at 121. (emphasis added).
In Hamilton v. Rogers, 791 F.2d 439 (5th Cir. 1986), 

the claimant brought claims under §§ 1981, 1983 and Title 
YII for alleged racial harassment and retaliation. The 
Court (on rehearing) held that the employer was liable 
only under Title VII. Id. at 445. A reading of the ap­

20Cf. Erebia v. Chrysler Plastic Products Corp., 772 F.2d 
1250 (6th Cir. 1985), cert, denied, —  U.S. — , 106 S.Ct. 1197 
(1986) (submission of an issue to the jury under § 1981 by Mexi­
can American for a claim of a hostile working environment al­
lowed by the Sixth Circuit).

29



30

propriate part of the opinion shows that the court, in 
restating the familiar McDonnell-Douglass proof scheme 
completes its analysis by concluding that “ successfully 
meeting these requirements [the McDonnell-Douglass proof 
scheme] would also establish a successful case under 42 
U.S.C. §§ 1981 and 1983; when these statutes are used as 
parallel causes of action with Title VII, they require the 
same proof to show liability. Id. at 442.

Petitioner contends that the lower federal courts have 
“ unanimously concluded that discrimination in the terms 
and conditions of employment is actionable under § 1981.21 
However, these cases involve parallel Title VII claims or 
claims involving promotion or discharge where harassment 
is an element of the claim rather than a separate distinct 
claim.22

Even assuming arguendo that a separate discrete claim 
for racial harassment may be cognizable under § 1981, 
there is no ruling that such an issue must be submitted to 
a jury separate and apart from issues of promotion or 
discharge discrimination. In fact, most of the cases cited 
by the Petitioner involve cases where the claimant has 
brought claims under various federal statutes including 
§§ 1981, 1983 and Title YII for racial harassment, pro­
motion discrimination, hiring discrimination, discharge dis- 
criminaton and other claims which may be cognizable under 
these various federal statutes. Part of the problem in 
determining what causes of action, as opposed to what 
remedies, may be cognizable under each of these statutes, 
is the failure of the various courts to distinguish precisely 
what separate substantive claims might be enforced under 
the various and potentially applicable statutes.

The many constructive discharge cases which have 
been determined in the lower courts are helpful because 
they demonstrate that racial harassment generally is an 
element necessary in such cases rather than a separate

215ee Brief for Petitioner at p. 35, n.12.
225ee Respondents' Brief in Opposition to Writ of Certiorari 

pp. 5-10 where these cases have previously been distinguished.



31
claim for relief. In Long v. Ford Motor Co., 496 F.2d 500 
(6th Cir. 1974), the court indicated that where intentional 
racial prejudice impacted a minority employee’s oppor­
tunities for 'promotion, § 1981 may be violated.

In Irving v. Dubuque Packing Co., 689 F.2d 170 (10th 
Cir. 1982), the court affirmed a jury finding of unlawful 
failure to promote and remanded a constructive discharge 
claim for a new trial. The Court stated:

The constructive discharge is only actionable under 
42 U.S.C. §1981 if it is motivated by [] race []. 
In other words, an employee must be subjected to 
employment practices which are discriminatory and 
which make the working conditions intolerable, thus 
forcing the employee to quit. Further, the employer’s 
action must be intended by the employer as an effort 
to force the employee to quit. Muller v. United States 
Steel Corp., [509 F.2d 923 (10th Cir. 1975)]; Johnson 
v. Bunny Bread Co., 646 F.2d 1250 (8th Cir. 1981).

Id. at 172. The rationale is that racially discriminatory 
treatment which impacts on hiring, discharge or promotion 
decisions is actionable under § 1981 with regard to claims 
for racially discriminatory hiring, discharge or promotion 
decisions.

In Martin v. Citibank, N.A., 762 F.2d 212 (7th Cir. 
1985) the Court held that “  [a] finding of constructive dis­
charge in violation of § 1981 or Title VII requires 
that the trier of fact ‘ be satisfied that the * * * working 
conditions would have been so difficult or unpleasant that 
a reasonable person in the employee’s shoes would have 
felt compelled to resign’ ”  (Citations omitted) id. at 221. 
In that case, “ the evidence was insufficient as a matter 
of law to establish constructive discharge.”  The plaintiff 
testified that “ her supervisor loudly mentioned her being 
polygraphed; complaints concerning her attitude to co­
workers were unfounded; her supervisor had once given 
her the wrong combination to the night deposit box and 
that someone using his card once interfered with her de­
posit; and that she had been required to process deposit 
records while serving customers.”  Id. at 221.



32

In Johnson v. Bunny Bread Co., 646 F.2d 1250 (8th 
Cir. 1981), the court found no discrimination under § 1981 
on plaintiffs’ claims of disparate treatment and construc­
tive discharge where plaintiffs alleged “ close monitoring 
and harsh treatment . . . made his working conditions in­
tolerable.”  “ A constructive discharge exists when an em­
ployer deliberately renders the employee’s working con­
ditions intolerable and thus forces him to quit his job.”  
(Citations omitted). Id. at 1256. The court further stated 
that “ a constructive discharge arises only when a reason­
able person can find conditions intolerable.”  Id. at 1256. 
The court concluded by finding “ no steady barrage of op­
probrious racial comment”  as would trigger a claim under 
Title VII. Id. at 1257.

Likewise, in Muller v. United States Steel Corp., 
509 F.2d 923 (10th Cir.) cert, denied, 423 U.S. 825 (1975), 
the court found that unfavorable job assignments and dis­
criminatory failure to promote do not constitute construc­
tive discharge. Id. at 929.

There is no controversy that racial harassment is 
an element of and a necessary part of the proof required 
in claims for racially discriminatory hiring, firing and 
promotion practices under § 1981. The significance of these 
cases is the degree of harassment necessary to support 
such claims. If the alleged practices are not so “ oppro­
brious”  as to support a claim of constructive discharge, 
then it is logical that such conduct cannot stand alone 
to support a claim for relief for racially discriminatory 
harassment or hostile working environment under § 1981. 
It is noteworthy that the Petitioner’s claims alleging con­
structive discharge were dismissed by the trial judge upon 
Respondent’s motion for summary judgment and are not 
before this Court.
C. Petitioner Has Failed To Sustain A Prima Facie Case

Of Racial Harassment
Notwithstanding a determination that racial harass­

ment or disparate treatment claims are cognizable under 
§ 1981 absent a claim for racially discriminatory firing, 
hiring or promotion, this Petitioner has failed to present



evidence sufficient to support a claim of racial harassment 
even under Title VII.

It is established that the applicable statute of limita­
tions for a claim for relief under 42 U.S.C. § 1981 is con­
trolled by state law. Jolmson v. Railway Express Agency, 
Inc., 421 U.S. 454 (1975). Section 1981 actions arising in 
North Carolina come under the provisions of North Caro­
lina General Statute § 1-52 which sets forth a three year 
statute of limitations. Lattimore v. Lowes Theatres, Inc., 
410 F.Supp. 1397 (M.D.N.C. 1975); Broadnax v. Burlington 
Industries, Inc., 7 FEP cases, 252 (M.D.N.C. 1972). There­
fore, the only claims which are actionable under § 1981 
are those claims which fall within the three years pre- 
ceeding the filing of the complaint on January 25, 1984.

The record reflects only two allegations of racial re­
marks. At the time of Petitioner’s initial interview in 
1972, Respondent’s President allegedly informed her that 
she would be working only with white women. The only 
other statement which Petitioner testified was a racial 
remark was the statement allegedly attributed to Respon­
dent’s President that—“ blacks were slower than whites 
by nature.”  Likewise, by her own admission, this alleged 
racial comment was made in 1976, well outside the applic­
able period of limitations.23 Petitioner also testified that 
she received personal criticism during staff meetings, that 
she was given an excessive work load, that she was re­
quired to dust and sweep, and that the Respondent’s Presi­
dent stared at her. This was the substance of her evidence 
in support of her claim for racial harassment.

Following this evidence, the trial court heard oral 
argument with regard to whether or not the Petitioner

23TR 1-19, TR 1-88 (Although these alleged instances are far 
outside the applicable three year statute of limitations, the dis­
trict court allowed the testimony as background and to sup­
port the element of intent required in a §1981 case. However, 
they are not independently cognizable under Title VII or § 1981 
because of the statute of limitations bar. See, e.g., Lattimore v. 
Lowes Theatres, Inc., 410 F.Supp. 1397 (M.D.N.C. 1975); Broad­
nax v. Burlington Industries, Inc., 7 FEP cases, 252 (M.D.N.C. 
1972).

33



34
had established a prima facie case of racial harassment 
occurring within the three year period of limitations.24 The 
trial court expressed the opinion that the Petitioner had 
not yet made a prima facie case of harassment25 but al­
lowed the Petitioner to continue her presentation of evi­
dence to facilitate an out of state witness, with the warn­
ing that “ when all the evidence is in, I ’ll just have to 
make a ruling and straighten it out with the jury if it is 
allowed to go to the jury.’ ’26 Petitioner produced no fur­
ther evidence of personal racial harassment and the 
court’s opinion at this point was tantamount to the dis­
missal of her claim on the basis of insufficient evidence. 
The formal ruling of dismissal followed Respondent’s Mo­
tion under Rule 50 at the end of the Petitioner’s evidence.

In later oral argument, the trial court expressed its 
opinion to counsel for the Petitioner that “ [y jou ’re very 
weak on your question of harassment other than charac­
terization of counsel and the witnesses.’ ’27 The court 
stated that at this point in the trial, the Petitioner’s evi­
dence supported only two hostile, discrete acts, one failure 
to promote and the termination.28 Finally, at the Respon­
dent’s motion for a directed verdict pursuant to Rule 50 
of the Federal Rules of Civil Procedure at the end of the 
Petitioner’s evidence, the trial court ruled:29

. . .  [ i]f  the jury finds a history of racial harassment 
which culminated in failure to promote and discharge 
of the Plaintiff, they can take that into consideration. 
But it is not a separate claim under Title—under 
Section 1981, in my opinion, in the context of this case.
It is clear from the judge’s ruling that even if a claim 

for racial harassment or racial mistreatment were cogniz­
able under §1981 that “ in the context of this case,”  the

^TR 1-66 to 1-80
25TR 1-77
26TR 1-79
27TR 2-152
28TR 2-153
29TR 3-75



35
Petitioner had failed to present a prima facie case of 
harassment.

The Eleventh Circuit in Henson v. City of Dundee, 682 
F.2d 897 (11th Cir. 1982) has recognized that:

[T]he ‘mere utterance of an ethnic or racial epithet 
which engenders offensive feelings in an employee’ 
does not affect the terms, conditions, or privileges 
of employment to a sufficiently significant degree to 
violate Title VII. For [] harassment to state a claim 
under Title VII, it must be sufficiently pervasive so 
as to alter the conditions of employment and create 
an abusive working environment.

682 F.2d at 904 (citing Rogers v. Equal Employment Op­
portunity Comm’n., 454 F.2d 234, 238 (5th Cir. 1971) cert, 
denied, 406 U.S. 957, (1972)).

All of the alleged racial slurs clearly occurred outside 
the statute of limitations applicable to a § 1981 claim and 
Petitioner’s remaining allegations that Respondent’s 
president stared at her, criticized her in meetings and 
gave her an inordinate amount of work fall far short of 
conditions “ sufficiently pervasive so as to alter the con­
ditions of employment and create an abusive working en­
vironment. ’ ’

Even if these alleged incidents of harassment were 
sufficient to support a prima facie case, Respondent’s prof­
fered explanations of justifiable employee supervision 
and observation,30 Petitioner’s long history of slow work 
performance31, and legitimate review and critique of em­
ployee performance at staff meetings32 more than over­
came Petitioner’s initial burden. Petitioner offered no 
rebuttal to Respondent’s proffered explanations nor did 
she offer any evidence that such explanations were merely 
pretextual. See, McDonnell-Douglass Corp. v. Green, 411 
U.S. 792 (1973).

Lastly, there is no evidence that Petitioner ever com­
plained about any of the circumstances she now contends

30TR 3-109 to 3-110
31See, n.7, supra.
32TR 3-110 to 3-111.



36
embrace racial harassment. Neither did Petitioner pursue 
her claim of constructive discharge. Certainly, a working 
environment heavily charged with discrimination may con­
stitute an unlawful practice under Title VII. Rogers v. 
Equal Employment Opportunity Comm’n., 454 F.2d 234 
(5th Cir. 1971), cert, denied, 406 U.S. 957 (1972). How­
ever, Petitioner’s allegations are insufficient to support 
such a claim under Title VII or under § 1981 if this Court 
finds such a claim is cognizable.

II.
PETITIONER HAS NOT SUSTAINED A CLAIM FOR 
PROMOTION DISCRIMINATION UNDER § 1981
A. Petitioner Has Failed To Present Sufficient Evidence 

To Support A  Prima Facie Claim Of Promotion Dis­
crimination Under § 1981
The Petitioner contends that because of racial discrim­

ination, she was denied a job advancement received by 
Susan Williamson from Account Junior to Account Inter­
mediate.33 At the time of this advancement by Mrs. Wil­
liamson within the accounting section, Petitioner was a file 
clerk.34

To make a prima facie case, the Plaintiff must estab­
lish the four familiar elements required by McDonnell- 
Douglas:

(i) that he belongs to a racial minority; (ii) that he 
applied and was qualified for a job for which the em­
ployer was seeking applicants; (iii) that, despite his 
qualifications, he was rejected; (v) that, after his re­
jection, the positon remaneid open and the employer 
continued to seek applicants from persons of complain­
ant’s qualifications.

Id. at 802.
Additionally, a claim under § 1981 can be sustained 

only with the proof of intentional purposeful discrimina­
tion. General Building Contractors Ass’n., Inc. v. Penn­
sylvania, 458 U.S. 375, 391 (1982).

33TR 1-46 to 1-48
34TR 1-99



37

Petitioner’s proof does not establish a prima facie 
claim and therefore should have been dismissed without 
submission of the issue to the jury.35 Petitioner could not 
prove that the employer was seeking applicants for the 
position of Account Intermediate nor that she applied for 
or was qualified for such a position. In fact, the only ele­
ment under the McDonnell-Douglas proof scheme which 
Petitioner could prove in support of her prima facie case 
was that she was a member of a racial minority.

The facts of this case do not present a traditional or 
classic promotion discrimination claim. There was no job 
opening for which notices were posted or application so­
licited. There were no new jobs on the nine person cleri­
cal staff. Here, the evidence was clear and uncontradicted 
that there were no job vacancies, that Ms. Williamson re­
ceived only a title change and raise, and that Ms. William­
son did not change job functions or responsibilities or even 
the place where she worked. Further, she continued to be 
supervised by the same supervisor, and the “ promotion”  
was merely a reflection of her satisfactory performance 
in order to allow her to move to a higher job title.36 Dur­
ing this period of time, the Petitioner worked as a filing 
clerk and was not performing any accounting functions.

35The test on directing a verdict under Rule 50 is not wheth­
er there is any evidence, but whether "there are no controverted 
issues of fact upon which reasonable men could differ." 5A 
Moore's Federal Practice (2d Ed. 1971), § 50.02 [1]; Brady v. 
Southern Railroad Company, 320 U.S. 476, 479-480 (1943); Pine- 
hurst, Inc. v. Schlamowitz, 351 F.2d 509, 513 (4th Cir. 1965); 
Pogue v. Retail Credit Company, 453 F.2d 336 (4th Cir. 1972) 
cert, denied, 409 U.S. 1109 (1973).

"The Federal Courts are generally committed to a rejection 
of the so-called 'scintilla rule,' by which a Court might not 
direct a verdict so long as there is any evidence in support of 
the proposition tendered by the part against whom the motion 
is direct." 5A Moore's Federal Practice (2d Ed. 1971), § 50.02[1]; 
Boeing Company v. Shipman, 411 F.2d 365, 372, 373 (5th Cir. 
1969); Beaty Shopping Center, Inc. v. Monarch Insurance Com­
pany, 315 F.2d 467 (4th Cir. 1963).

36TR 4-26 to 4-28



38
Under no imaginative argument could this advancement or 
“ promotion”  of Mrs. Williamson be described as a “ job 
opening for which the employer was seeking applicants” . 
However, once the plaintiff had made a claim that she was 
entitle to this position (for the first time some three years 
following the promotion); the Respondent, is forced by a 
strict application of the McDonnell-Douglas proof scheme 
to articulate some non-discriminatory reason for its actions.

In this situation, an employer should not be forced to 
explain every promotion or advancement decision simply 
because a disgruntled employee has retrospectively made 
a self-serving determination and allegation that she was 
entitled to such advancement. The method of proof was 
“ never intended to be rigid, mechanized, or ritualistic.”  
Furnco Construction Corp. v. Waters, 438 U.S. 467, 477 
(1978). “ The facts necessarily will vary in Title VII 
cases, and the specification . . .  of the prima facie proof 
required from [the Plaintiff] is not necessarily applicable 
in every respect to differing factual situations.”  McDon- 
nell-Douglass Corp. v. Green, 411 U.S. 792, 802, n.13 (1973). 
To have considered or given the advancement received by 
Mrs. Williamson to the Petitioner would have forced the 
employer to supplant Mrs. Williamson from the job that 
she had been performing in an exceptional manner.

The Petitioner has submitted no evidence that would 
support the necessary determination that the decision to 
advance Mrs. Patterson was based upon an intent to racial­
ly discriminate against the Petitioner and that race was a 
motivating factor in denying such an advancement to the 
Petitioner.

It is obvious from the record that Ms. Williamson was 
qualified for the position for she continued the same job 
responsibilities she had been previously performing satis­
factorily. (Williamson had college level calculus, account­
ing and business finance and eight years experience in the- 
accounting area.) Likewise, it is blatantly obvious from 
the record that the Petitioner was absolutely unqualified 
for the position. (Petitioner was able to correctly answer



39
only one of fifteen arimetie questions on her application. 
She made numerous errors on the teller line. She lacked 
the knowledge to work in other areas of the office. Peti­
tioner disliked teller work which required less mathematic 
skill and aptitute than the accounting job).

The employer has the right to fix the qualifications 
that are “ necessary or preferred”  in selecting the em­
ployee for promotion, and, in order to make out a prima 
facie case, a plaintiff must establish that she meets these 
qualifications. EEOC v. Federal Reserve Bank of Rich­
mond, 698 F.2d 633, 671 (4th Cir. 1983) rev’d on other 
grounds sub nom Cooper v. Federal Reserve Bank of Rich­
mond, 467 U.S. 867 (1984). The cold, hard reality of the 
facts presented and the only reasonable inference which 
any reasonable person could draw is that there was no 
“ promotion”  for which there was a vacancy and the Pe­
titioner produced not even a scintilla of evidence that she 
qualified for the position of Account Intermediate. There­
fore, this claim should have been dismissed prior to sub­
mission to the jury.

However, as is often the case, the court submitted the 
issue to the jury for its consideration. Obviously, in the 
event of a verdict adverse to the employer, the trial judge 
would have had the opportunity to re-consider the prima 
facie proof at the Respondent’s motion for a judgment 
notwithstanding the verdict pursuant to Rule 50 of the 
Federal Rules of Civil Procedure. Once the jury returned 
a verdict in favor of the Respondent, this was not neces­
sary.37

^The Fourth Circuit has recognized the propriety of grant­
ing a directed verdict or judgment n.o.v. for the Employer-De­
fendant in a discrimination-jury case. Lovelace v. Sherwin Wil­
liams Company, 681 F.2d 230 (4th Cir. 1982).

The court outlined a general procedural doctrine to deter­
mine the sufficiency of the evidence required in a jury trial to 
survive defendant's challenge by motion for a directed verdict: 

"(a) The first question is whether Plaintiff's evidence may 
have carried the original production burden without need 

(Continued on following page)



40

(Continued from previous page) 
to invoke the McDonnell Douglass presumption . . .  If 
. . . the plaintiff's evidence fails even to support the unad­
mitted predicates of the presumption so that it may not 
be invoked to carry this original burden, inquiries similarly 
end and the motion can be granted, (b) If the plaintiff's 
evidence supports the predicates of the presumption with­
out regard to any additional probative force the evidence 
may have, inquiry must then proceed to whether the de­
fendant has carried the production burden of rebutting the 
presumption by 'admissible evidence' that is 'legally suf­
ficient' as justification. See, Burdine, 450 U.S. at 255, 258, 
101 S.Ct. at 1094, 1096; Loeb, 600 F.2d at 1016 & n.16 (c) 
If the defendant's evidence fails to carry this burden, in­
quiry ceases . . .  if on the other hand, the Defendant's evi­
dence carries this burden so that the presumption's force 
is dispelled, inquiry must proceed to the plaintiff's re-ac­
quired production burden, (d) This burden relates against 
to the motivational issue but now as re-cast by the defen­
dant's proffered explanation into the more specific form 
whether as between the plaintiff's [race] and the defen­
dant's proffered reason, [race] is the 'more likely.' In as­
sessing whether this re-cast burden of production has been 
carried, the Court may properly consider plaintiff's evi­
dence offered to establish the dispelled presumption along 
with any design to show defendant's proffered explanation 
to be a pretextual one. If the burden is carried, the case is 
for the jury under proper instructions defining the moti­
vational issue as ultimately framed at the 'new level of spe­
cificity' created by the defendant's rebutting evidence. If 
this ultimate burden is not carried, the defendant's motion 
should, of course, be granted, even though the plaintiff's 
original burden of production was carried by force of the 
presumption."

Id. at 240-41 (1982). The Court acknowledged that it was "a 
very close question" as to whether or not the plaintiff had met 
his initial burden of proof and established a prima facie case. 
However, for the purpose of the appeal, the court assumed that 
the plaintiff had met its burden and directed its attention to 
whether the defendant-employer carried its burden to dispel 
the mandatory presumption:

"The question here is simply whether the defendant has 
'introduced . . . admissible evidence' of a 'legitimate non- 
discriminatory reason' that is 'legally sufficient to justify a 
judgment for the defendant.' Burdine, 450 U.S. at 254-55, 
256-56, 101 S.Ct. at 1095-1096. There is no doubt that this 
relatively modest burden was carried. . . .  At this point, 

(Continued on following page)



41
The promotion of Susan Williamson from Account 

Junior to Account Intermediate is comparable to the pro­
motion of an associate lawyer in a law firm to partnership. 
The Petitioner’s claim that she was entitled to the position 
of Account Intermediate is equivalent to the claim of a 
minority paralegal in such a firm that she should be grant­
ed the position of partner, rather than the associate attor­
ney. Both claims are significantly absurd in that they es­
tablish no prima facie cause of action for discriminatory 
employment practices, whether or not the decision maker 
may have exhibited prior racial bias.
B. Under The Facts Of This Case, The Jury Instruction

Was Correct.
The Defendant Court instructed the jury that in order 

for the Petitioner to prevail upon the issue of promotion 
discrimination, it was necessary that she prove that she 
was more qualified to receive the promotion than the per­
son receiving such promotion and that under § 1981 she 
must show intentional discrimination.38 Petitioner incor­
rectly contends that the district court erred by looking at 
the wrong question.39 But in fact, the district court suc­
cinctly charged the jury as follows:

(Continued from previous page) 
in the assessment, the probative force of the [plaintiff's] 
presumption had been completely dispelled.

Id. at 244. The court looked further at the plaintiff's new pro­
duction burden as whether the circumstantial evidence supports 
as a reasonable probability the inference that but for claimant's 
[age] he would not have been demoted." Lovelace, at 244.

The court concluded that:
"When, as is proper, the unrefuted basic facts underlying 
the employer's proffered explanation of the [failure to pro­
mote or layoff] are taken into account in assessing the 
reasonableness of the necessary inference, . . . the district 
court [may] properly [grant a directed verdict] or judgment 
n.o.v."

Lovelace at 246.
38JA 40-42
39Brief for Petitioner at p.64.



42
“ You should consider all the evidence, direct and cir­
cumstantial, to determine whether Plaintiff was not 
promoted because of her race or because of the rea­
sons given by the Defendant. In making this deter­
mination, you should keep in mind that the ultimate 
factual question for you to answer is whether the 
Plaintiff was the victim of an unfavorable employ­
ment decision because of the Defendant’s intentional 
discrimination against her because of her race.”

JA p. 42 (emphasis added).
Learned counsel for the Petitioner has submitted a 

well reasoned and compelling legal argument with regard 
to the various ways in which a plaintiff might prevail: 

Where the employer articulates the selectee’s alleged 
superior qualifications as the reason for its decision, 
the Plaintiff may still prevail without proving that 
her own qualifications are superior. In that situation, 
the plaintiff may prevail either by showing that her 
own qualifications are superior or by convincing the 
fact finder that the employer did not actually rely on 
a comparison of the candidates qualifications in mak­
ing its decision.

Brief for Petitioner at p.65. This Court has determined 
that an “ employer has discretion to choose among equally 
qualified candidates provided that the decision is not based 
upon unlawful criteria.”  Texas Department of Community 
Affairs v. Burdine, 450 II.S. 248, 259 (1981). Stated an­
other way, if the employer has the discretion to choose 
between equally qualified candidates, and there is no evi­
dence of unlawful criteria, then surely it is encumbent 
upon a Plaintiff to show that she is “ more qualified”  in 
order to prevail, where she has offered no other evidence 
of pretext.

Because of the unique factual situation represented in 
this case where there were no job openings or vacancies 
and the alleged incident of promotion discrimination in­
volved merely a title change rather than a change in job 
functions or responsibilities, Respondent could articulate



43
no more obvious reason for its decision than the qualifi­
cations of Mrs. Williamson.

With regard to this specific employment decision, the 
Petitioner was unable to present any evidence which would 
support a finding that the employer did not actually rely 
on a comparison of the candidates qualifications in mak­
ing its decision. Therefore, by Petitioner’s own reason­
ing, she can prevail only by showing that her qualifica­
tions are superior. This is precisely the result which the 
trial court reached and the obvious basis upon which the 
trial court charged the jury.

The Petitioner was granted every opportunity to pre­
sent evidence to support her contention that this employ­
ment decision was based upon “ unlawful criteria.”  How­
ever, with regard to this employment decision, no com­
petent evidence was submitted. Certainly, discriminatory 
intent may be proved in a variety of methods as Petitioner 
contends. However, under the unique facts of this case, 
the Fourth Circuit properly upheld the lower court’s 
charge regarding “ superior qualifications.”  In effect, the 
trial court found no “ unlawful criteria”  as a matter of 
law and submitted, the case to the jury for a factual deter­
mination of relative qualifications. Petitioner consistently 
maintained at trial that any deficiency in qualifications 
were the result of discriminatory training opportunities 
and the judge charged the jury accordingly allowing the 
jury to factually determine the issue of inadequate train­
ing and its impact on qualifications. JA 41.

The familiar proof scheme applicable to cases of racial 
discrimination was first articulated in McDonnell-Douglas 
Corp. v. Green, 411 U.S. 792 (1973). The initial burden 
of proof to establish a prima facie ease or racial discrim­
ination is on the Plaintiff. Once the claimant has estab­
lished a prima facie case, the burden of production is on 
the defendant to articulate a non-discriminatory motive 
for the employment decisions. The burden of proof is then 
on the plaintiff to show that the reasons proffered by the 
defendant were in fact pretextual.



44
Once the trial court allowed this case to go beyond 

the prima facie stage, the employer was compelled to ar­
ticulate a non-discriminatory reason for advancing Mrs. 
Williamson to Account Intermediate. The very simple ex­
planation for such a decision was Mrs. Williamson’s qual­
ity of performance in undertaking her job responsibilities. 
Within the context of established case law, this proffered 
explanation most closely translated as a decision based on 
superior qualifications.

The trial court then relied on established Fourth Cir­
cuit cases which state:

The rule in this Circuit is that where relative quali­
fications are advanced as the non-discriminatory rea­
son for an employment decision, the plaintiff has the 
burden of establishing that she was better qualified 
than the successful applicant. Anderson v. City of 
Bessemer, 717 F.2d 149, 153 (4th Cir. 1983), [rev’d on 
other grounds, 470 U.8. 564 (1985)]; EEOC v. Fed­
eral Reserve Bank of Richmond, 698 F.2d 633, 672 (4th 
Cir. 1983) [rev’d on other grounds sub nom. Cooper 
v. Federal Reserve Bank of Richmond, 467 TJ.S. 867 
(1984).]

Young v. Lehman, 748 F.2d 194 (4th Cir. 1984). This 
Fourth Circuit rule is not inconsistent with the decision of 
this Court that “ the employer has discretion to choose 
among equally qualified candidates, provided the decision 
is not based upon unlawful criteria.’ ’ Texas Dep’t of Com­
munity Affairs v. Burdine, 450 U.S. 248, 259 (1981).

Petitioner has confused the various elements neces­
sary to support her claim of promotion discrimination. To 
carry her burden and sustain a claim under § 1981, a Plain­
tiff must always show intentional discrimination. General 
Building Contractors v. Pennsylvania, 458 U.S. 375, 391 
(1982). However, in addition to a showing of intent, under 
the three stage method of proof established in McDonnell- 
Douglas, once the employer has shown that its decision was 
based on a “ legitimate non-discriminatory reason,”  Bur­
dine, 450 U.S. at 254, the “ factual inquiry proceeds to a



new level of specificity.”  Bur dine, 450 U.S. at 255. Where, 
as in this case, the employer has proffered superior quali­
fications as the non-discriminatory reason for its employ­
ment decision, Petitioner’s burden is to demonstrate “ pre­
text.”  Petitioner’s burden is to show that the “ proffered 
explanation is unworthy of credence.”  Bur dine, 450 U.S. 
at 256. Petitioner states that “ there are at least three 
ways through which the Petitioner can meet her burden of 
discrediting the proffered explanation”  other than proof 
of her superior qualifications: (1) by showing her quali­
fications are equal; (2) by showing that the employer did 
not rely on qualifications in making its decision; and (3) 
by showing that the reason given by the employer is not 
credible.40

Assuming arguendo that Petitioner’s analysis is cor­
rect, it is logical that where a Plaintiff has not shown that 
her qualifications are equal or, has not shown that the em­
ployer did not rely on qualifications or has not shown that 
the employer’s proferred reason lacks credibility, then 
the only alternative remaining way to show pretext is that 
of superior qualifications. Petitioner offered no evidence 
in rebuttal to the simple non-discriminatory explanation 
for the advancement of Mrs. Williamson to Account Inter­
mediate. Therefore, where the Petitioner has offered no 
legally sufficient evidence to sustain a finding of one of 
the “ other ways”  to show pretext, the court was correct 
in instructing the jury that she must show superior quali­
fications in order to establish pretext. Even under Peti­
tioner’s own analysis this was a proper instruction.

The Petitioner implies that the district court judge 
instructed the jury that the Plaintiff must show that she 
was better qualified than the person who received the pro­
motion in order to make a prima facie case.41 In fact, the 
trial judge outside the hearing of the jury, stated to coun­
sel that “ the law in the Fourth Circuit seems to be that

45

40Brief for Petitioner at p. 82.
41Brief for Petitioner at pp. 88-91.



46

in order to make out a prima facie case, you must show 
that you are better qualified than the person who received 
the promotion.42

Although Petitioner has seized on this statement by 
the court as an apparent misstatement of the law, such 
comments by the court are not pertinent because they were 
made outside the hearing of the jury and because once 
such a case has been fully tried on the merits, the ques­
tion of whether the plaintiff has established a prima facie 
case is no longer relevant. United States Postal Service 
Board of Governors v. Aikens, 460 U.S. 711, 714-715 (1983); 
Mitchell v. Baldridge, 759 F.2d 80 (D.C.Cir. 1985).

Respondent contends that Petitioner need establish 
only that she was qualified, not that she was more qualified 
than Mrs. Williamson, in addition to the other elements 
necessary, to prove her prima facie case. However, under 
the facts of this case, Petitioner must show superior quali­
fications after a showing by the employer that qualifica­
tions were the basis for its decision.

With regard to Petitioner’s claim of promotion dis­
crimination, she has offered no competent evidence 
of unlawful criteria legally sufficient to rebut the prof­
fered explanation that Mrs. Williamson received a title ad­
vancement based upon her qualifications and performance.

--------------- o---------------

42TR 5-29 to 5-31



CONCLUSION
For the reasons stated, the decision of the Fourth 

Circuit Court of Appeals should be affirmed as to all 
issues.

Respectfully submitted,
#H. Lee Davis, J e.
George E. Doughton, Je. 
H utchins, T yndall,

D oughton & Moore 
115 West Third Street 
Winston Salem, NC 27101 
(919) 725-8385 
Attorneys for Respondent

Dated: January, 1988.
*Counsel of Record

47