Peña-Rodriguez v. Colorado Brief Amici Curiae in Support of Petitioner

    No. 87-107

I n  the

( t o r t  o f %  lo tted  States
October T erm , 1987

B renda P atterson, 

vs.
Petitioner,

M cL ean Credit U nion ,
Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE FOURTH CIRCUIT

REPLY MEMORANDUM FOR THE PETITIONER

J ulius L eV onne Chambers 
P enda D. H air 
Charles S tephen  R alston* 
Ga il  J. W right

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

H arold L. K ennedy, I H  
H arvey L. K ennedy 

Kennedy, Kennedy, 
Kennedy and Kennedy 

710 First Union Building 
Winston-Salem, NC 27101 
(919) 724-9207

Attorneys for Petitioner 

*Counsel of Record



Table of Contents
Page

I. The Racial Harassment Claim . . 1
II. The Jury Instructions........ 16
Conclusion......................... 18

i



Table of Authorities
Cases Page
Block v. R. H. Macy & Co., 712 F.2d 
1241 (8th Cir. 1983)........  4, 8, 12

Brown v. GSA, 425 U.S. 820 (1976) . 7
Carter v. Duncan-Huggins, Ltd., 727 
F.2d 1225 (D.C. Cir. 1984) . . 4, 8, 10
Hamilton v. Rogers, 791 F.2d 439

(5th Cir. 1986) . . . .  2, 4, 5, 6
Johnson v. Railway Express Agency,

421 U.S. 454 (1975).......... 6
Ramsey v. American Air 

772 F .2d 1303
Filter Co. /

(7th Cir. 1985) . . . 4, 8, 11, 12
Wilmington v. J.I. Case Co. , 793

F.2d 909 (8th Cir. 1986) . 13, 14
StatutesStatutes
42 U.S.C. § 1 9 8 1 .............. passim
Title VII of the Civil

Rights Act of 1964 ............ 7
Other Authorities
H. Rep. No. 238, 92d Cong., 1st

Sess. (1971)................  8
110 Cong. Rec. 13650-52 (1964) . . .  7
S. Rep. No. 415, 92d Cong.,

li



1st Sess (1971) 8

iii



No. 87-107

In the
SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1987

BRENDA PATTERSON,
Petitioner.

vs.
MCLEAN CREDIT UNION,

Respondent.

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

For The Fourth Circuit

REPLY MEMORANDUM FOR THE PETITIONER

I.
THE RACIAL HARASSMENT CLAIM 

Respondent fails to articulate any 
legal theory or principle that would 
justify the exclusion of a cause of



2
action for racial harassment from Section 
1981's comprehensive coverage. Instead, 
in an attempt to distinguish away the 
conflict between the Fourth Circuit's 
decision below and the several federal 
courts of appeals that have upheld a 
Section 1981 cause of action for racial 
harassment, respondent seizes on two 
irrelevant factual differences alleged to 
exist between the cases. First, 
respondent attempts to distinguish one of 
the cases relied upon by plaintiff on the 
ground that the Section 1981 claim for 
racial harassment was joined with a 
parallel claim of racial harassment under 
Title VII. See. e . g . . Brief for 
Respondent, at 7 (discussing Hamilton v. 
Rogers, 791 F.2d 439 (5th Cir. 1986)). 
See also Brief for Respondent, at 11. 
Second, respondent distinguishes several 
other decisions that conflict with the



3
ruling below on the ground that the 
racial harassment claim in those cases 
allegedly was joined with another claim 
of discrimination, for discharge or 
failure to promote.

Respondent fails to explain why the 
factual distinctions to which it points 
have any relevance to the legal holdings 
of the cases cited by plaintiff. It is 
the holdings of several courts of appeals 
that Section 1981 encompasses racial 
harassment that conflict with the Fourth 
Circuit's ruling below. The fact that 
the Section 1981 claim for racial 
harassment was joined with some other 
type of claim is no more relevant to the 
circuits' holdings concerning Section 
1981's coverage than is the fact that the 
instant case involved a bank clerk, while 
the cases upholding section 1981's 
coverage of racial harassment involved a



4
firefighter, Hamilton v. Rogers; a sample 
librarian, Carter v. Duncan-Hugqins. 
Ltd. , 727 F. 2d 1225 (D.C. Cir. 1984); an 
Insulmat operator, Ramsev v. American Air 
Filter Co.. 772 F.2d 1303, 1306 (7th Cir. 
1985); and a sales associate, Block v. R. 
H. Macy & Co. . 712 F.2d 1241, 1243 (8th 
Cir. 1983). As discussed in more detail 
below, none of the decisions that has 
upheld a Section 1981 claim for racial 
harassment indicates that the holding was 
contingent upon joinder with another type 
of claim. Moreover, any theory that 
tempted to justify such a distinction 
would squarely conflict with this Court's 
prior decisions.

Respondent attempts to distinguish 
the ruling in Hamilton v. Rogers. 791 
F •2d at 442, that section 1981 
encompasses an "offensive work 
environment" caused by racial harassment,



5
on the ground the Section 1981 claim was 
joined with a parallel claim under Title 
VII. See Brief for Respondent, at 7. 
Respondent elsewhere argues that 
permitting an independent Section 1981 
claim for racial harassment would 
"effectively by-pass the purposes of 
Title VII." Brief for Respondent, at 11.

The decision in Hamilton v. Rogers 
makes clear that the court gave 
independent effect to the Section 1981 
claim, in addition to the Title VII 
remedies for racial harassment. 
Compensatory damages for emotional injury 
are not available under Title VII. 
Nonetheless, the court held that an award 
for such injury was available under 
sections 1981 and 1983 for plaintiff's 
"embarrassment, humiliation, and mental 
distress from his work environment." 791



6
F.2d at 442-43, 444 (emphasis added).1

Respondent's strained attempt to 
distinguish Hamilton v. Rogers would mean 
that even though Section 1981 provides a 
separate and additional remedy for racial 
harassment, this remedy would not be 
available unless the Section 1981 claim 
was joined with a parallel Title VII 
claim. However, this interpretation of
Hamilton__v. Rogers squarely conflicts
with the Court's ruling in Johnson v. 
Railway Express Agency. 421 U.S. 454, 461 
(1975), that all remedies provided by 
Section 1981 are separate and independent 
from Title VII remedies that may exist 
for similar conduct.

Respondent incorrectly states that the Court in Hamilton held the 
employer liable only under Title VII. 
Brief for Respondent, at 6. In fact, the 
plaintiff's supervisors, who were 
determined to be an employer, were held 
liable for compensatory damages under 
Sections 1981 and 1983. See 791 F.2d at 442-43, 444.



7
In Johnson. the Court rejected the 

argument that Title VII pre-empts a 
parallel Section 1981 claim. In that 
case, the Court held that the timely 
filing of a charge with the EEOC under 
Title VII did not toll the running of the 
limitations period for a Section 1981 
claim based upon the same facts. Id. at 
466. The Court concluded that "Congress 
clearly has retained § 1981 as a remedy 
against private employment discrimination 
separate from and independent of the more 
elaborate and time-consuming procedures 
of Title VII." Id. at 466 (emphasis 
added). See also Brown v. GSA, 425 U.S. 
820, 829, 833 (1976).2

2 These decisions are soundly 
based on the legislative history of Title 
VII. In 1964, Congress rejected an
amendment proposed by Senator Tower that 
would have made Title VII the exclusive 
f e d e r a l  r e m e d y  for e m p l o y m e n t  
discrimination. 110 Cong. Rec. 13650-52 
(1964). When Title VII was extended to 
cover state and local employees in 1972,



8
Respondent attempts to distinguish 

Carter v. Duncan-Hugqins. Ltd.. 727 F.2d 
1225 (D.C. Cir. 1984), Ramsey v. American 
Air Filter Co. . 772 F.2d 1303 (7th Cir. 
1985) , and Block v. R. H. Macv Co. . 712 
F.2d 1241 (8th Cir. 1983), on the ground 
that in each of these cases the claim of 
racial harassment was joined with a claim

both the House and the Senate Reports 
reaffirmed the continued viability of 
Section 1981 as an independent remedy for 
all types of employment discrimination. The House Report stated:

[T] he Committee wishes to emphasize 
that the individual's right to file a 
civil action in his own behalf, 
pursuant to the Civil Rights Act of 
1870 ..., 42 U.S.C. § 1981, ... is in 
no way affected. ... Title VII was 
envisioned as an independent 
statutory authority meant to provide 
an aggrieved individual with an 
additional remedy to redress 
employment discrimination.

H.R. Rep. No. 238, 92d Cong., 1st Sess. 
18-19 (1971). The Senate Report similarly 
provided that Title VII was not "meant to 
aff®ct existing rights granted under other 
laws." S. Rep. No. 415, 92d Cong., 1st Sess. 24 (1971).



9
of discriminatory firing, layoff or 
failure to promote. Respondent's theory 
is similar to the Fourth Circuit's ruling 
below that Section 1981 covers only 
"hiring, firing and promotion," because 
these matters "go to the very existence 
and nature of the employment contract." 
While the Fourth Circuit ruled that 
Section 1981 never covers other terms and 
conditions of employment, respondent 
suggests that claims of racial harassment 
are covered only if they are joined with 
a hiring, firing or promotion claim.

Respondent's novel joinder theory 
does not eliminate the conflict between 
the Fourth Circuit's ruling and the 
decisions of other courts of appeals. 
First, even accepting arguendo the 
joinder theory, a conflict still exists 
between the Fourth Circuit's absolute
exclusion of racial harassment claims and



10
the partial coverage of such claims under 
respondent's interpretation of the other 
decisions.

Second, the decisions that have 
upheld Section 1981's coverage of racial 
harassment make clear that these holdings 
are not contingent on joinder with 
another type of claim. Contrary to 
respondent's assertion, see Brief for 
Respondent, at 8, Carter v .  D u n c a n -  

Huggins did not involve the issues of 
hiring, firing and promotion. See 727 
F.2d 1228—30.3 Although respondent 
claims that "the issues presented to the 
jury are not set forth in the Opinion" in 
Carter, the opinion makes very clear what

garter__v. Duncan-Huacrins also
did not involve a parallel Title VII 
claim. The employer was too small to be 
covered by Title VII, so the plaintiffs' 
only cause of action was under 42 U.S.C. § 
1981. 727 F.2d at 1228. Thus, neither of
respondent's alleged factual distinctions 
exists with respect to the Carter decision.



11
those issues were. The court upheld the 
jury's verdict on the ground that the 
evidence supported the conclusion that 
plaintiff "consistently suffered conduct 
and conditions that were worse than those 
imposed upon her fellow white employees." 
727 F.2d at 1233. The award for 
"humiliation and other emotional harm" 
was based on a "'disrespectful' racial 
anecdote" and the tauting of plaintiff by 
a fellow employee. Id. at 1238.

Although the claim of racial 
harassment in Ramsey v, American Air 
Filter Co. . was joined with other claims 
of discrimination, including improper 
layoff procedures, it is clear that both 
the district court and the court of 
appeals viewed the racial harassment as a 
separate and independent cause of action. 
The instruction to the jury set forth 
three separate claims: "the claims of



12
racial harassment and/or denial of equal 
opportunities for change in his job 
classification and/or improper layoff 
procedures." 772 F.2d at 1312 (emphasis 
added). The jury was told that plaintiff 
"has the burden of proving separately as 
to each claim" the elements of a prima 
facie case. Id. Under respondent's 
alleged distinction, the jury would have 
been instructed that it could not find 
for plaintiff on the harassment claim 
unless it first found for plaintiff on 
the layoff claim. See Brief for 
Respondent, at 8. No such instruction 
was given. Instead, the jury was told 
that it could find for plaintiff on the 
harassment claim "and/or" the layoff 
claim. 772 F.2d at 1312. The court of 
appeals in Ramsey specifically upheld the 
jury instruction. IcL at 1312-13.

Similarly, in Block v. R. H. Macv &



13
Co. . 712 F . 2d 1241 (8th Cir. 1983), the
award of punitive damages under Section 
1981 was upheld as supported in part by 
evidence of a supervisor's use of a 
racial epithet. The use of a racial 
epithet occurred as a separate incident, 
prior to plaintiff's discharge. 712 F.2d 
at 1247. There is no hint in the Block 
opinion that Section 1981's coverage of 
this incident of racial harassment was 
contingent on joinder with a claim 
concerning plaintiff's subsequent 
discharge.

Respondent also attempts to 
distinguish Wilmington v. J. I. Case Co.. 
793 F. 2d 909 (8th Cir. 1986), on the 
ground that "the opinion of the Court 
does not specifically indicate that a 
separate issue of racial harassment was 
submitted to the jury under Section 
1981." In fact, the opinion inIn fact,



14
Wilmington does indicate that this issue 
was separately submitted to the jury. 
The court of appeals noted that the jury 
returned a "special verdict" that 
"Wilmington was the victim of intentional 
discrimination in the terms and 
conditions of his employment." 793 F.2d 
at 916. The Eighth Circuit treated this 
claim as separate and independent from 
plaintiff's discharge claim. Id. at 915- 
16.

Respondent provides no legal theory 
or analysis to support the novel joinder 
rule that it suggests limits the holdings 
of four courts of appeals. Apparently, 
respondent's legal argument is that 
Section 1981 provides a remedy for 
conduct that does not constitute a 
violation of Section 1981, but only if 
the reguest for the Section 1981 remedy 
is joined to a separate violation of



15
Section 1981. Respondent states that if 
the jury had found in favor of petitioner 
on her layoff and promotion claims, "then 
the jury could have properly awarded (if 
the facts supported) damages for racial 
harassment." Brief for Respondent, at 8. 
Under respondent's theory, if an employer 
subjects an employee to racial harassment 
and also fires her for a discriminatory 
reason, the employee can recover for both 
the harassment and the discharge. If, 
however, the employer simply harasses the 
employee so that the terms and conditions 
of her employment are substantially more 
oppressive than those of her white co­
workers, she can recover nothing under 
Section 1981. Petitioner is aware of no 
precedent in any area of law for the 
proposition that liability for one 
violation of a statute is dependent on 
proof of a second violation. Petitioner



16
submits that such a bizarre and novel 
limitation on their rulings cannot 
reasonably be attributed to these four 
courts of appeals.

II.
THE JURY INSTRUCTIONS 

R e s p o n d e n t  m i s a p p r e h e n d s  
petitioner's claim with regard to the 
jury instructions. Since a jury issues 
no findings of fact, it is impossible to 
know what facts it did or did not believe 
to be true in the absence of correct 
instructions. Thus, respondent's 
discussion of what it believes the facts 
to be is simply beside the point.

It is clear that evidence was 
presented to the jury from which it could 
have found, if properly instructed, that 
petitioner was not considered for a 
promotion free of racial discrimination. 
Thus, the district court, contrary to



17
respondent's position, noted that 
petitioner "offered evidence tending to 
show that she had not been trained for 
the job of accountant intermediate 
because of her race." And the evidence 
of racial harassment, racial epithets, 
and different treatment all supported the 
claim that the real reason for the 
failure to promote was race.

Thus, the instructions that required 
the jury to find proof of superior 
qualifications in order to hold for 
petitioner nullified this evidence. It 
is the fact of this instruction, and not 
what the jury might have found if 
properly instructed, that is at issue
here.



18

Conclusion
For the foregoing reasons the 

petition for a writ of certiorari should 
be granted.

Respectfully submitted,

JULIUS LeVONNE CHAMBERS 
PENDA D. HAIR 
CHARLES STEPHEN RALSTON* 
GAIL J. WRIGHT

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

HAROLD L. KENNEDY, III. 
HARVEY L. KENNEDY 

Kennedy, Kennedy,
Kennedy and Kennedy 
710 First Union Building 
Winston-Salem, NC 27101 
(919) 724-9207

Attorneys for Petitioner
*Counsel of Record



Hamilton Graphics, Inc.— 200 Hudson Street, New York, N.Y.— (212) 966-4177