Woods v. First National Bank of Lebanon Reply Brief for Appellant-Cross-Appellee

    IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT
Nos. 77-1383 

77-1384

ALTHEA WOODS,
Plaintiff-Appellant-Cross-Appellee 

v s .

FIRST NATIONAL BANK OF LEBANON,
Defendant-Appellee-Cross-Appellant

On Appeal from the United States District Court 
for the Middle District of Tennessee 

Nashville Division

REPLY BRIEF FOR APPELLANT-CROSS-APPELLEE

AVON N. WILLIAMS, JR.
MAURICE E. FRANKLIN 

1414 Parkway Towers 
Nashville, Tennessee 37219

JACK GREENBERG 
JAMES M. NABRIT, III
0. PETER SHERWOOD 
PATRICK O. PATTERSON 

10 Columbus Circle 
Suite 2030
New York, New York 10019

Attorneys for Plaintiff-Appellant- 
Cross -Appellee



TABLE OF CONTENTS

Page
Counter Statement of the Issues .........    1

Argument ..................   2

1. The Court's findings and conclusions 
that the plaintiff was discharged by 
the defendant Bank on the basis of 
plaintiff's race were not clearly
erroneous .................................  2

2. The District Court erred in applying 
the Tennessee one-year statute of 
limitations (T.C.A. § 28-304) to 
plaintiff's claim of discrimination
in promotion ....................    6

Conclusion ...........................................  11

--1-



TABLE OF AUTHORITIES

Page

Cases:

Anderson v. Methodist Evangelical 
Hospital, Inc., 406 F.2d 723
(6th Cir. 1972) ..................................  5

Caldwell v. Alabama Dry Dock & Shipbuilding
Co., 161 F . 2d 83 (5th Cir. 1947) ................  9

DeSylva v. Ballentine. 351 U.S. 570 (1956) ...... . . 8
Edgerton v. Puckett, 391 F.Supp. 463

(W.D„ Va. 1975) ..... ............................  9, 10
Erwin v. Neal, 494 F.2d 1351 (6th Cir.

1974) .............................................  6, 7
Hazelwood School District v. United

States, 97 S. Ct. 2736 (1977) ...................  5
Ingram v. Steven Robert Corp., 547 F.2d

(5th Cir. 1977) ..................................  9
Johnson v. Railway Express Agency, Inc.,

421 U.S. 454 (1975) .............................. 6, 7, 8
McDonald v. Santa Fe Trail Transportation

Co. 427 U.S. 273 (1976) ......................... 7

McKnett v. St. Louis & S.F. Ry. Co.,
292 U.S. 230 (1934) ...... .......................  8

Reconstruction Finance Corp. v. Beaver
County, 328 U.S. 204 (1946) .....................  8

Sola Electric Co. v. Jefferson Electric
Co., 317 U.S. 173 (1942) .................. ......  8

Swan v. Board of Higher Education, 319 F.2d
56 (2d Cir. 1963) ................................  9

Testa v. Katt, 330 U.S. 386 (1947) ............... = . 8
UAW v. Hoosier Cardinal Corp., 3S3

U.S. 696 (1966).... .............. ................ 8
United States v. Little Lake Miwere Land

Co., 412 U.S. 580 (1973) ......................... 8

-ii-



Page
Van Horn v. Lukhard, 392 F.Supp. 384

(E.D. Va . 1975) ....................  0 ... „.......  10, 11

CONSTITUTIONAL PROVISIONS, STATUTES 
AND RULES:
United States Constitution, Art. VI,

§ 2 (Supremacy Clause) ..........................  7, 9, 11
United States Constitution First Amendment .......  6
United States Constitution, Fourteenth

Amendment ........................    6

28 U.S.C. § 1343 ............... ...................... 6
42 U.S.C. § 1981 ...................................  5, 6, 7, 11
42 U.S.C. § 1983 ..................................  6, 9, 10, 11

42 U.S.C. § 1985 ...... „............................  6

Rule 52, Fed. R. Civ. P ..............................  5

Tennessee Code Annotated, § 28-304 ......... 6, 7, 9, 10, 11

Tennessee Code Annotated, § 28-309 ............... ». 11

Tennessee Code Annotated, § 28-310 .................  11

Code of Virginia, § 8-24 .......................... 9, 10,11

-iii-



IN THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Nos. 77-1383 
77-1384

ALTHEA WOODS,

Plaintiff-Appellant-Cross-Appellee 
vs .

FIRST NATIONAL BANK OF LEBANON,
Defendant-Appellee-Cross-Appellant

On Appeal from the United States District Court 
for the Middle District of Tennessee 

Nashville Division

REPLY BRIEF FOR APPELLANT-CROSS-APPELLEE

COUNTER STATEMENT OF THE ISSUES

1. Whether the lower Court's findings and conclusions 

that the plaintiff was discriminated against on the basis of her 
race in connection with her discharge were clearly erroneous.

2. Whether the lower Court erred in applying the 

Tennessee one-year statute of limitations (T.C.A. § 28-304) 
to plaintiff's claim of discrimination in promotion under 

42 U.S.C. § 1981.



STATEMENT OF THE CASE

Appellant-Cross-Appellee relies on the Statement Of The Case 

in the Brief For Appellant heretofore filed.

STATEMENT OF THE FACTS

Appellant-Cross-Appellee relies on the Statement Of The 
Facts in the Brief for Appellant heretofore filed.

ARGUMENT
I

THE COURT'S FINDINGS AND CONCLUSIONS THAT THE PLAINTIFF WAS
DISCHARGED BY THE DEFENDANT BANK ON THE BASIS OF THE PLAIN­

TIFF'S RACE WERE NOT CLEARLY ERRONEOUS
The Court below found that the plaintiff was discharged by the 

defendant Bank on the basis of her race. In this connection the Court 
stated:

"The Court, having observed the demeanor and 
judged the credibility of all the witnesses, 
carefully considered all the evidence, delibe­
rately weighed and balanced the conflicting 
testimony, and drawn what seem to be the most 
logical inferences from the established facts, 
concludes that there was in fact racial discrim­
ination involved in plaintiff's discharge."
Appendix, page 984.

The Court went on to state twelve of the primary considerations 
which led the Court to the conclusion that racial discrimination was 

the cause of the plaintiff's discharge. The Court cited the fact that 
the plaintiff was the only black clerical employee ever hired by the 
Bank and that upon her discharge she was replaced by a white employee, 
Appendix, page 985 and the fact that the plaintiff, a black employee 
of the Bank, was the only person made to suffer as a result of a con­
troversy between a white employee on one side and a white and black 
employee on the other side.

-2-



The events immediately leading up to the plaintiff's dis­

charge may be summarized as follows: shortly after her appointment
as Head Bookkeeper, the defendant Mitchell, was not able to complete 
her check filing duties, which duties were rotated between the defendant 
Mitchell, plaintiff and Steve Scott, a white person who also worked in 
the Bookkeeping Department. The plaintiff, because of other duties, 
was not able to complete the filing of the checks which had been left 

by the defendant Mitchell. On the following Monday, the defendant 
Waters, discovered that the checks had not been filed and inquired 

of the defendant Mitchell the reason why. Mitchell informed Waters 
that, pursuant to their rotational system, it had been her duty to 
file the checks but that because she had to leave she asked the plain­
tiff to file said checks. Waters informed Mitchell that she should 
not continue any check filing functions but rather that they should 
be left to the plaintiff and Steve Scott.

Thereupon, defendant Mitchell returned to the Bookkeeping 
Department and advised plaintiff and Steve Scott that Waters no longer 

wanted her to file checks. Both plaintiff and Steve Scott registered 
objections to this, and Steve Scott threatened to see the defendant 

Roberts about the matter, which threat was subsequently carried out.
The plaintiff made no such threat but apparently did make some comment 
to Mitchell about the matter.

Later that day, the plaintiff was called into defendant 

Roberts' office and advised by him that she was causing tension in the 

Bookkeeping Department. The plaintiff replied that she could work 

with anyone. Defendant Roberts then called Waters and Mitchell into 
his office and stated to Mitchell in the plaintiff's presence that 

the plaintiff expressed her belief that any tensions could be worked

-3-



out. At that point, defendant Mitchell walked out of defendant 
Roberts' office after making the remark "I knew you would say that." 
Shortly after that meeting, defendant Roberts discharged the plaintiff. 

Steve Scott, a white person who had also registered objection to 

Mitchell not filing checks and indeed who had gone over Mitchell's 

head to defendant Roberts was not discharged. Thus, while plaintiff, 
a black employee and Steve Scott, a white employee had had a disagree­
ment with Mitchell, their Supervisor, a white employee, the Bank saw 
fit to discharge the plaintiff, the black employee and not take any 
action against Steve Scott, a white employee.

The above facts alone were sufficient to prove a case of 
racial discrimination in connection with the plaintiff's discharge.
The District Court however did not rely on the above facts alone but 

rather on all the proof presented to it. The Court found that the 
reasons advanced by the defendants for discharging the plaintiff were 
without merit. The defendants argue, that "underlying the District 

Court's rationale was its conception that the Bank had acted unrea­

sonably in terminating the plaintiff. Reasonableness, however, is 

not the measure of lawfulness." Brief of Appellee at page 30 De­

fendants however misconceived the Court's rationale. The Court con­
cluded that there was a prima facie case of racial discrimination 
shown. The Court further concluded that in light of all the proof 
presented to it no reasonable basis was shown, other than race, for 

the plaintiff's discharge. The Court stated in this connection:
"In short, then, although there is some evidence 
to support the allegations that plaintiff was not 
an ideal employee, there is no credible evidence 
that her performance was so deficient or her 
attitude so uncooperative as to warrant her summary 
dismissal over a relatively minor controversy. The 
succession of inconsistent reasons given by defendants 
for plaintiff's discharge, some of which are totally

-4-



unsupported by any verifiable data, leaves this 
Court with the decided impression that the true 
reason lies elsewhere. The search for this rea­
son is inexorably guided by compelling circumstantial 
evidence to the race issue."
Appendix, page 986

It is clear, that if race is a criterion used by an employer 

in making the decision to discharge an employee, that employee has 

a remedy under 42 U.S.C., §1981. See Anderson vs. Methodist Evangelical 
Hospital, Inc., 406 F.2d 723 (6th Cir. 1972). And the District Court 
found that race was a factor in the discharge of the plaintiff. More­
over, Congress has made it clear that relevant job qualifications 
should be the controlling factor in employment decisions, see, Hazelwood 
School District vs. U.S., 97 S.Ct. 2736 (1977). The District

Court found that no relevant job qualifications or reasons were used 
in connection with the plaintiff's discharge.

Thus, it is respectfully submitted that the District Court 
in finding and concluding that the plaintiff's discharge was based on 

her race was not clearly erroneous. See Rule 52, Federal Rules of 
Civil Procedure.

-5-



II

THE DISTRICT COURT ERRED IN APPLYING 
THE TENNESSEE ONE-YEAR STATUTE OF 
LIMITATIONS (T.C.A. § 28-304) TO 
PLAINTIFF'S CLAIM OF DISCRIMINATION 

IN PROMOTION
Plaintiff has claimed that, in denying her a promotion 

to the position of head bookkeeper, defendants have engaged 
in racial discrimination in violation of 42 U.S.C. § 1981.
The district court held, inter alia, that this claim was 

barred by the one-year statute of limitations contained in 

T.CoA. § 28-304 (App. 978-980) .

Defendant has urged (Brief for Appellee, p. 20) that 
a reversal on this issue would require this court to over­

rule the decision in Erwin v, Neal, 494 F.2d 1351 (6th Cir. 

1974). Defendant is mistaken. The court in Erwin held 

that T„C.A. § 28-304 was properly applied to an action under 
42 U.S.C. §§ 1983 and 1985, 28 U.S.C. § 1343, and the First 
and Fourteenth Amendments to the Constitution, because such 
an action was "for injuries to the person" within the meaning 
of the Tennessee statute. 494 F.2d at 1352. As the court 
below recognized, the Erwin case did not involve any claims 
under 42 U.S.C. § 1981 and the Erwin decision therefore is

LVnot dispositive of the question presented here.
For purposes of determining the most appropriate period

of limitations provided by state law, as required by Johnson

v. Railway Express Agency, Inc., 421 U.S. 454, 462 (1975),

claims of employment discrimination under 42 U.S.C. § 1981

are substantially different from the claims in the Erwin

1/ Instead, the court below stated that the Erwin decision 
"lends support" to its holding, which the court characterized 
as an "inference" drawn from Erwin (App. 979).

-6-



case. The pertinent language of § 1981 is as follows: "All

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

• . As the Supreme Court has recognized, the statute "on

its face relates primarily to racial discrimination in the 

making and enforcement of contracts," and on this contractual 

basis the statute affords a federal remedy against racial 
discrimination in private employment. Johnson v. Railway 
Express Agency, Inc., supra, 421 U.S. at 459-60. The purpose 
of the statute, now as when it was originally enacted in 1866, 
is "to proscribe discrimination in the making or enforcement 
of contracts against, or in favor of, any race." McDonald 
v. Santa Fe Trail Transportation Co., 427 U.S. 273, 295 (1976). 
The contractual basis of plaintiff's claim under § 1981 in the 
instant case clearly distinguishes this claim from those in 
the Erwin case, and Erwin thus does not control the result 
here.

The Tennessee statute which the district court applied

to plaintiff's claim provides in part that "civil actions for

compensatory or punitive damages, or both, brought under the

federal civil rights statutes . . . shall be commenced within

one (1) year after cause of action accrued . . T.C.A.

§ 28-304. This portion of the statute contravenes the Supremacy
2_/

Clause of the Constitution. It is well settled that a state

2 / Article VI, § 2 of the Constitution provides that "this 
Constitution, and the laws of the United States which shall 
be made in pursuance thereof; . . . shall be the supreme law
of the land; and the judges in every state shall be bound 
thereby, anything in the constitution or laws of any state

-7-



cannot refuse to enforce federal claims. Testa v. Katt,

330 U.S, 386 (1947) ; McKnett v. St. Louis & S.F. Ry. Co.,
292 U.S. 230 (1934). It is equally clear that a state may 
not indirectly accomplish this end by adopting procedural 
rules which substantially impair or impede the enforcement 
of federal rights. Were the law otherwise, a state could 
easily frustrate the enforcement of rights guaranteed by 

the First Amendment, or by the Fourteenth Amendment, or 

by any number of vital federal statutes; all that would 

be necessary would be a state statute or rule requiring any 

plaintiff asserting such claims to post a large bond, or 

providing that a plaintiff may not obtain any injunctive 

relief on such claims, or imposing an unreasonably short 

period of limitations for such claims. Thus, the Supreme 
Court has long recognized that state statutes of limitations 

and other procedural rules should not be applied to federal 
claims where such statutes or rules are unreasonable, hostile, 
or otherwise inconsistent with the national policy underlying 

the substantive federal law. See, e.g. United States v. Little 
Lake Misere Land Co., 412 U.S. 580, 595-96 (1973); UAW v. Hoosier 
Cardinal Coro., 383 U.S. 696, 706 (1966); DeSylva v. Ballentine, 
351 U.S. 570, 581 (1956) ; Reconstruction Finance Corp. v. Beaver 
County, 328 U.S. 204, 210 (1946); Sola Electric Co. v. Jefferson 

Electric Co., 317 U.S. 173, 176-77 (1942) .

2_/ continued
to the contrary notwithstanding." This constitutional issue 
was not decided by this court, 489 F.2d at 531, or by the 
Supreme Court, 421 U.S. at 462 n. 7, in Johnson v. Railway 
Express Agency , Inc., supra.

-8-



The federal courts have specifically recognized that 

state statutes of limitations should not be applied where 

they "would substantially impair the federal right sought 

to be enforced." Swan v 0 Board of Higher Education. 319 

F.2d 56, 60 (2d Cir. 1963). In Caldwell v. Alabama Dry 

Dock & Shipbuilding Co., 161 F.2d 83 (5th Cir. 1947), for 

example, the court held unconstitutional a one-year Alabama 

statute of limitations which by its terms applied to claims 
under the federal Fair Labor Standards Act "and all other 
similar Acts" (of which there were none). The statute 
violated the Supremacy Clause because it was "manifestly 
hostile to the exercise of rights arising under the federal 

statute, and amounts to an unwarranted attempt on the part
of the Alabama Legislature to discriminate against and abridge

2_/those rights." 161 F.2d at 86.
In two recent district court decisions, a Virginia 

statute of limitations similar to T.C.A. § 28-304 has been 
rejected as constitutionally impermissible. The Virginia 

statute provided that " [n]otwithstanding any other provision 

of law to the contrary, every action brought pursuant to the 

Civil Rights Act of 1871, 42 U 0S.C. § 1983, shall be brought 

within one year . . .." § 8-24, Code of Virginia In

Edgerton v. Puckett, 391 F.Supp. 463 (W.D. Va. 1975), the 

court held that this statute impermissibly singled out claims

3 / The continued vitality of the declaration of unconstitu­
tionality in Caldwell has been, questioned because of a recent 
change in Alabama law. See Ingram v. Steven Robert Corp., 547 
F.2d 1260, 1262 (5th Cir. 1977) However, the principle of 
Caldwell remains unimpaired.

-9-



under § 1983 for unfavorable treatment and sought to limit 

all such claims "without regard to the federal statutory 

and constitutional values at stake." Ici. at 466. In re­
jecting the statute, the court elected instead to apply a 
two-year state statute of limitations and stated the constitu­
tional principle as follows: "A state limitation period
which evidences hostility or discrimination toward a federal 

cause of action will not be adopted by the federal courts."

Id. at 465.
Similarly, in Van Horn v. Lukhard, 392 F.Supp. 384 (E.D.

Va. 1975), another court undertncka careful analysis of the 

question and concluded that the Virginia statute was uncon­

stitutional because it "substantially burdens the assertion 

of paramount federal rights in a federal court and unreasonably 
discriminates against the maintenance of § 1983 'constitutional 
tort' actions . . JEd. at 388. The court held that either
a substantial burden on the assertion of federally created 

rights ^r a discrimination in favor of the assertion of ana­
logous state created rights would render the state statute 
unconstitutional. The court in Van Horn found that the statute
was invalid under either test. Id. at 389-91. In the instant

_  £_/case, it is unnecessary to go beyond the first test; T.C.A.

§ 28-304 explicitly imposes a one-year period of limitations 

on "civil actions . . . brought under the federal civil rights
statutes," and this is precisely the kind and length of limita­

tions period which the court in Van Horn found to be an imper­

missible burden on the assertioncf rights under the Reconstruction
4 / Plaintiff submits, however, that T.C.A. § 28-304 is uncon­
stitutional under either standard. See Brief for Appellant, 
pp. 28-29.

-10-



Era civil rights statutes:

Given the policies which underlie 
the Civil Rights Act of 1871, the Court 
concludes that Virginia's one year § 1983 
statute of limitations impermissibly "emas­
culates" and "shrivels" the broad comprehen­
sive and remedial protections envisioned by 
that Act. Requiring civil rights plaintiffs 
to assert their claims within oneyear, or 
else lose all prospect of vindication, de­
feats and vitiates the congressional purpose 
. . .. One must keep in mind that this 
statute protects . . paramount federal
rights . . ., and that Congress enacted 
§ 1983 because it felt that certain classes 
of people, racial minorities, the economically 
underprivileged, and the politically impotent 
were in dire need of the protection of federal 
law. Virginia's one year limitation period 
simply provides an irrational and constitu­
tionally inappropriate measure of the importance 
of the assertion of these rights and, therefore, 
must fall because in irreconcilable conflict 
with the supremacy clause . . . .  392 F.Supp.
at 390.

For the same reasons, T.C.A. § 28-304 is unconstitutional 

as applied to plaintiff's claim under 42 U.S.C. § 1981. As 

set forth in plaintiff's principal brief (Brief for Appellant, 

pp. 21-24), the most appropriate Tennessee statute of limitations 

should be determined to be the six-year statute applicable to 

contract actions (T.C.A. § 28-309) or, in the alternative, the 

ten-year residual statute of limitations (T.C.A. § 28-310).

CONCLUSION
With respect to all issues not addressed in this reply 

brief, plaintiff rests on the Brief for Appellant. For the 
reasons stated above and in the Brief for Appellant the 
judgment of the district court should be reversed insofar 

as it denies relief to the plaintiff with respect to the 
denial of the position of head bookkeeper on the basis of

-11-



plaintiff's race. Further, the case should be remanded 

with directions to award plaintiff proper compensatory 

damages, punitive damages, and attorneys' fees. In all 

other respects, the judgmental the district court should 

be affirmed.

Respectfully submitted,

AVON N. WILLIAMS, JR.
MAURICE E. FRANKLIN 

1414 Parkway Towers 
Nashville, Tennessee 37219

JACK GREENBERG 
JAMES M. NABRIT, III 
0. PETER SHERWOOD 
PATRICK 0. PATTERSON 

10 Columbus Circle 
Suite 2030
New York, New York 10019

Attorneys for Plaintiff-Appellant- 
Corss-Appellee

Dated: February 16.. 1978 
New York, New York

-12-



CERTIFICATE OF SERVICE

The undersigned certifies that copies of the foregoing

Reply Brief for Appellant-Cross-Appellee were mailed to:

Hon. Vaden Lackey 
Attorney at Law 
218 Third Avenue, North 
Nashville, Tennessee 37201
Hon. Joe Martin, Jr.
Attorney at Law
226 Third Avenue, North
Nashville, Tennessee 37201
Hon. Robert T. Rochelle 
Attorney at Law 
Lebanon, Tennessee,

Attorneys for the Defendants, this the 17th day of February, 

1978.

Patrick O. Patterson