Lacey v. The Dow Company Petitioners Response to Brief in Opposition and Supplemental Brief in Support of Petition for Writ of Certiorari

    No. 92-1923

In The

S u p re m e  C o u r t  o f tije U n tte b  States?
October Term, 1993

Bertram E. Lacey,
Petitioner,

v.

The Dow Company,
Respondent.

On Petition for Writ of Certiorari 
To the United States Court of Appeals 

For the Fifth Circuit

PETITIONER’S RESPONSE TO BRIEF IN 
OPPOSITION AND SUPPLEMENTAL BRIEF 

IN SUPPORT OF PETITION FOR 
WRIT OF CERTIORARI

Elaine R. Jones 
Charles Stephen Ralston 
(Counsel of Record)

99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

Attorneys for Petitioner



1

TABLE OF CONTENTS

I The Applicability of the Civil Rights
Act of 1991___ . _________ . . . . . . . . . . . .  1

II. The Issue of Constructive Discharge . . .  2

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  4



11

TABLE OF AUTHORITIES

Cases: Pages:

Landgraf v, USI Film Products, No. 92-757 . . . . . . . .  2, 4

McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  2

Milligan-Jensen v. Michigan Technological University, No. 
92-1214 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3, 4

Milligan-Jensen v. Michigan Technological University,
975 F.2d 302 (6th Cir. 1992) . . . . . . . . . . . . . . .  3

Patterson v. McLean Credit Union,
491 U.S. 164 (1989) . . . . . . . . . . . . . . . . . . . . . .  1

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) . . . .  3

Rivers v. Roadway Express, Inc., No. 92-938 . . . . . . .  2, 4

Trans World Airlines v. Thurston,
469 U.S. I l l  (1984) . . . . . . . . . . . . . . . . . . . .  2, 3

Wallace v, Dunn Construction Co., 968 F.2d 1174 (11th
Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  3

Statutes: Pages:

42 U.S.G § 1981 . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  1

Civil Rights Act of 1991 ................................................ .. 1, 2

Title VII of the Civil Rights Act of 1964 . . . . . . . . . .  2, 3



No. 92-1923

In The

Suprem e C o u rt of tfje iHmteb
October Term , 1993

Bertram E. Lacey,
Petitioner,

v.

The Dow Company,
Respondent

On Petition for Writ of Certiorari 
To the United States Court of Appeals 

For the Fifth Circuit

PETITIONER’S RESPONSE TO BRIEF IN 
OPPOSITION AND SUPPLEMENTAL BRIEF 

IN SUPPORT OF PETITION FOR 
WRIT OF CERTIORARI

I.

The Applicability of the Civil Rights Act of 1991

Respondent argues that even if the Civil Rights Act 
of 1991 applies to this case, petitioner has no claim under 42 
U.S.C. § 1981 since the complaint was filed outside of the 
applicable state statue of limitations. However, petitioner’s 
section 1981 claim was not dismissed by the district court on 
that ground, but rather on the basis of this Court’s decision 
in Patterson v. McLean Credit Union, 491 U.S. 164 (1989).



2

Appendix to Petition for a Writ of Certiorarir (hereinafter 
"App” ), pp. la-2a. Therefore, if this Court holds that 
section 101 of the Civil Rights Act of 1991 applies to cases 
pending as of the date of its enactment in Rivers v. Roadway 
Express, Inc., No. 92-938, then the appropriate course would 
be to vacate the decision below and remand to the court 
below for consideration in the first instance of the 
applicability of that decision to the present case.

Similarly, respondent argues that there were no 
employment decisions adverse to petitioner within the 
applicable time periods under Title VII of the Civil Rights 
Act of 1964. However, this was manifestly not the basis of 
the decisions of the courts below denying plaintiff relief 
under Title VII. The magistrate judge held that petitioner 
had been discriminated against because of his race in being 
given a low performance evaluation in 1987 and that 
petitioner’s decision to question that evaluation "began a 
chain of events which ultimately led to the plaintiffs 
resignation." App. 37a-38a. Thus, again, if the Court holds, 
in Landgraf v. USI Film Products, No. 92-757, that section 
102 of the Civil Rights Act of 1991 applies to cases pending 
at the time of its enactment, the appropriate action would be 
to vacate the decision below and remand for consideration 
of the applicability of that decision to this case.

II.

The Issue of Constructive Discharge

Respondent argues that petitioner does not take issue 
with the legal standard applied by the courts below in 
deciding the question of constructive discharge. This is 
manifestly not the case. In the petition for a writ of 
certiorari, petitioner argues that the courts below were 
incorrect in deciding the case by using the analysis set out in 
McDonnell Douglas Corporation v. Green, 411 U.S. 792 
(1973). Petition for a Writ of Certiorari at pp. 11-12.



3

Instead, since here the magistrate judge found direct 
evidence of intentional discrimination, the proper standard 
was that set out in Trans World Airlines v, Thurston, 469 U.S. 
111 (1984). That is, since there was a finding that there was 
discrimination, there necessarily was a violation of Title VII, 
and the question was what relief was proper unless the 
respondent was able to meet the burden of proof required 
by Thurston. See also, Price Waterhouse v. Hopkins, 490 U.S. 
228 (1989).

This case, therefore, involves an issue closely related 
to that raised in Milligan-Jensen v. Michigan Technological 
University, No. 92-1214, in which certiorari was granted on 
June 21, 1993, after the petition for certiorari was filed 
herein. In both constructive discharge cases such as the 
present case, and in after-acquired evidence cases such as 
Milligan-Jensen, the lower courts have confused the issue of 
whether there is liablity under Title VII with what relief 
should be granted.

Thus, in the present case the court of appeals held 
that even though petitioner had been discriminated against 
in his working conditions, there had been no violation of 
Title VII because those conditions were not sufficiently 
intolerable so as to force him to resign. App, p. 3a-4a. In 
Milligan-Jensen, the court of appeals held that since the 
petitioner would have been terminated if the employer had 
known about her falsification of her application, it was 
"irrelevant whether or not she was discriminated against." 
975 F.2d 302, 305 (6th Cir. 1992). Other courts of appeals 
have rejected this rule, holding that in an after-evidence 
case, the employer should be held liable for violating Title 
VII, but that the relief the employee may obtain may be 
limited. See, e.g., Wallace v. Dunn Construction Co., 968 
F.2d 1174 (11th Cir. 1992).

Similarly, in a constructive discharge case, the 
question of whether an employee was justified in leaving 
because of unlawful discrimination does not even arise



4

unless there is a finding that such discrimination existed. 
Thus, the issue raised is properly not whether there has been 
a violation of Title VII, as the court below erroneously held, 
but whether the relief the employee may recover is limited 
because conditions were not so severe as to force a 
reasonable person to resign rather than stay and fight the 
unlawful discrimination.

Because of the relevance of the resolution of 
Milligan-Jensen to the issue of constructive discharge 
presented here, it would be appropriate for the Court to 
dispose of the petition for writ of certiorari based on its 
decision in Milligan-Jense as well as in Rivers v. Roadway 
Express and Landgraf v. USI Film Industries.

Conclusion

For the foregoing reasons, the poetition for a writ of 
certiorari should be granted and the decision of the court 
below reversed.

Respectfully submitted,

Elaine R. Jones 
Charles Stephen Ralston 
(Counsel of Record)

99 Hudson Street 
Sixteenth Floor 
New York, NY 10013 
(212) 219-1900

Attorneys for Petitioner