Moore v. City of Charlotte Petitioner's Reply Brief

    No. 84-1660

Ik t h e

fttp r a tt?  GJmtrt uf tltp States
O c t o b e r  T e r m , 1984

J a c k  K. M o o r e ,
Petitioner,

v.

C i t y  o p  C h a r l o t t e , etc., et al.

OK PETITI0K  POR W RIT OP CERTIORARI TO TH E UKITED STATES 
COURT OP APPEALS POR THE FOURTH CIRCUIT

PETITIONER’S REPLY BRIEF

Louis L. L e s e s k e , Jr.
Gillespie & Lesesne 
Suite 980
United Carolina Bank Building 
212 South Tryon Street 
Charlotte, North Carolina 28281 
(704) 372-5700

J .  L e V o h h e  C h a m b e r s  
R o h a l d  L .  E l l i s  
E r i c  Schs a p p e r *

NAACP Legal Defense & 
Educational Fund, Inc.

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

Counsel for Petitioner 

* Counsel of Record



No. 8 4 - 1 6 6 0

IN THE
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1984

JACK K. MOORE,
Petitioner, 
v .

CITY OF CHARLOTTE, etc., et al.

On Petition For Writ Of Certiorari To 
The United States Court Of Appeals 

For The Fourth Circuit

PETITIONER'S REPLY BRIEF 
The question presented by this case 

is not, as respondent suggests, whether a 
Court of Appeals, applying the standard 
announced in Anderson v. City of Bessemer 
City, might have ruled for respondent.
The Court of Appeals, writing in January



2

1 985 prior to the decision in Anderson, 
did not and could not have applied the 
Anderson standard, but was necessarily 
utilizing the Fourth Circuit approach 
criticized in Anderson itself. The issue 
here is whether, by vacating and remanding 
its pre-Anderson decision, this Court will 
afford petitioner an opportunity to have 
his claim decided by an appellate court 
clearly applying the correct legal 
standard.

Simple fairness dictates that peti­
tioner be afforded such a hearing. In 
Memphis Firefighters v. Stotts, 81 L.E.2d 
483 ( 1 984 ), the mere possibility that a 
few white firefighters might some day be 
temporarily laid off due to lost seniority 
led this Court to entertain and decide 
Title VII issues of considerable diffi­
culty. In the instant case the injury to 
petitioner is not a matter of speculation;



3

he was suspended for longer than any of 
the whites in Stotts, and has in fact, 
been permanently demoted. If petitioner's 
Title VII claims are to be rejected, that 
should be only after those claims have 
been weighed by the correct legal stan­
dards, not because petitioner had the ill 
fortune to have his case decided 50 days 
prior to, rather than, 50 days after the 
decision in Anderson.

A remand is particularly appropriate 
because respondent quite deliberately 
declined to defend or even refer to the 
mistaken factual theory on which the 
Fourth Circuit decision was based. As we 
noted in our petition the Court of Appeals 
grounded its analysis on a factual theory 
neither advanced by respondent nor 
presented to the trial court —  that the 
gravity of an alleged infraction was to be 
measured by the section of the City



4

regulation invoked, not by the actual 
substance of the purported misconduct. 
Since no witness ever articulated at trial 
any such explanation for the suspension 
and demotion of petitioner, respondents 
properly declines to argue that the 
treatment of petitioner could be upheld on 
the Court of Appeals' theory. The factual 
contentions pressed in this Court by 
respondent clearly warrant consideration 
on remand, but they simply are not the 
basis on which the Court of Appeals acted.

Respondent insists that even under 
the standards announced in Anderson the 
district court committed clear error. We 
do not ask this Court to resolve that 
question, or to reject on the merits the 
respondent's contentions. We ask only 
that this Court remand this case to the 
Fourth Circuit and thus afford to both 
petitioner and respondent an opportunity



5

to present their arguments regarding the 
applicability of Anderson to the particu­
lar circumstances of this case.

CONCLUSION
For the above reason the Court should 

grant the petition, vacate the decision 
of the court of appeals, and remand the 
case for further consideration in light of 
Anderson v. City of Bessemer City.

Respectfully submitted,

LOUIS L. LESESNE, JR. 
Gillespie & Lesesne 
Suite 980
United Carolina Bank 

Building
212 South Tryon Street 
Charlotte, North Carolina 

28281
(704) 372-5700

J. LeVONNE CHAMBERS 
RONALD L. ELLIS 
ERIC SCHNAPPER*

NAACP Legal Defense & 
Educational Fund, Inc. 
16th Floor



6

99 Hudson Street
New York, New York 10013
(212) 219-1900
Counsel for Petitioner
♦Counsel of Record



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