Jackson v. City of Atlanta, TX Petitioner's Reply to Respondent's Brief in Opposition to Certiorari

    No. 95-1958

In The

Supreme Court of tije ^intteti States!
October Term, 1995

Winfred Waylon Jackson,

V.
Petitioner,

City of Atlanta, Texas, et al.,

Respondents.

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

for the Fifth Circuit

PETITIONER’ S REPLY TO RESPONDENT’ S 
BRIEF IN OPPOSITION TO CERTIORARI

Elaine R. J ones 
Director-Counsel

Norman J. Chachkin 
Charles Stephen  Ralston 
(Counsel of Record)
NAACP Legal Defense and 

Educational Fund, Inc.
99 Hudson Street 
Suite 1600
New York, New York 10013 
(212) 219-1900

C. Victor Lander 
Lander and Associates, P.C. 

1447 Plowman Avenue 
Dallas, Texas 75203 
(214) 942-1073

Attorneys for Petitioners

PRESS OF BYRONS. ADAMS ♦  WASHINGTON, D.C. ♦  1-800-347-8208



No. 95-1958

In  The

Supreme Court of tfje Unttefc States;
October Term, 1996

Winfred  Waylon Jackson,
Petitioner,

v.

City of Atlanta, Texas, et al,
Respondents.

On Petition for Writ of Certiorari to the United 
States Court of Appeals for the Fifth Circuit

PETITIONER’S REPLY TO RESPONDENTS’
BRIEF IN OPPOSITION TO CERTIORARI

I.
In their brief in opposition to the petition for a writ 

of certiorari, respondents argue that there is no conflict 
between the circuits, relying on erroneous readings of both 
the decision below and the contrary decisions of other 
circuits.

The specific issue presented by the petition herein is 
whether Title VII of the Civil Rights Act of 1964, as 
amended by the Equal Employment Opportunity Act of 
1972, is the exclusive remedy for claims of employment 
discrimination brought by state and local government 
employees, to the exclusion of 42 U.S.C. § 1983 or, indeed, 
42 U.S.C. § 1981. The Fifth Circuit unequivocally held that 
it was:

The governing statute, Title VII in this case,



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provides Jackson’s exclusive remedy. 
Congress intended for Title VII—with its own 
substantive requirements, procedural rules, 
and remedies—to be the exclusive means by 
which an employee may pursue a 
discrimination claim.

73 F.3d 60, 63 (5th Cir. 1996), App. p. 6a (footnote 
omitted).

Just as unequivocally, the Second Circuit in Annis v. 
County of Westchester, 36 F.2d 251 (2nd Cir. 1994), held that 
Title VII was not the exclusive remedy for such claims, but 
that a public employee can bring an action for discrimination 
under § 1983:

Congress undoubtedly and repeatedly 
considered the exclusivity question and, in the 
end, resolved not to make Title VII the sole 
statu tory  remedy for employment 
discrimination by state and municipal 
employers that amounts to a constitutional 
tort.

36 F.2d at 255 (footnote omitted). See also, Keller v. Prince 
George’s County, 827 F.2d 952 (4th Cir. 1987), cited by 
Annis.

Moreover, the circuits are in direct conflict with 
regard to the rationale advanced for the Fifth Circuit’s 
holding that Title VII was the exclusive remedy. Thus, the 
Fifth Circuit held that:

Allowing a plaintiff to state a discrimination 
claim under § 1983 as well would enable him 
to sidestep the detailed and specific provisions 
of Title VII.

73 F.2d at 63, App. at 6a (footnote omitted). The Second 
Circuit, on the other hand, rejected the lower court’s holding 
that a plaintiff must satisfy the procedural requirements of 
Title VII. 36 F.3d at 254, 255.



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The respondents’ argument that there is no conflict 
is based on language in Annis to the effect that Title VII is 
not the exclusive remedy for employment discrimination 
claims that are "cognizable under the Constitution." 36 F.3d 
at 254. Opposition to Petition for Writ of Certiorari, 5, 6-7. 
However, the import of this language is only that § 1983 can 
not be used to challenge alleged employment discrimination 
that would not violate the Constitution, i.e., discrimination 
that violated equal protection or due process. To the extent 
that other types of discrimination were not also 
constitutional torts, section 1983 could not be used.

In the present case, of course, the facts alleged 
clearly establish a violation of the fourteenth amendment, in 
that they allege discrimination based on petitioner’s race. 
Thus, the decision below cannot simply be read as holding 
that the complaint in the case was irremediably deficient in 
that it did not mention the Constitution; such a holding 
would violate the basic principle of federal procedure that a 
complaint will not be dismissed if the facts alleged set out a 
cause of action cognizable under federal law. If the only 
point of the Fifth Circuit’s decision was that there was a 
defective allegation of jurisdiction under Rule 8(a), F.R.Civ. 
Proc., the cure would be a remand to permit petitioner to 
amend the complaint under 28 U.S.C. § 1653, not dismissal.

II.

Moreover, as pointed out in the petition for a writ of 
certiorari, the complaint did in fact plead section 1983 as the 
basis for a claim under 42 U.S.C. § 1981. The Fifth Circuit’s 
decision is, therefore, only comprehensible as a reiteration 
and expansion of its earlier holding, cited by respondents, 
that Title VII is the exclusive remedy over a claim previously 
cognizable under section 1981. Carter v. South Cent. Bell, 
912 F.2d 832 (5th Cir. 1990), cert, denied, 501 U.S. 1260 
(1991). Once again, the rationale for the holding in Carter 
is that a plaintiff should not be able to bring an action under 
section 1981 because that would permit the evasion of the 
procedural requirements of Title VII. 912 F.2d at 839.



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While petitioner agrees with respondent that the 
continued vitality of Jett v. Dallas Independent School Dist., 
491 U.S. 701 (1989) may be questionable because of the 
addition of subsection (c) to section 1981 by the Civil Rights 
Act of 1991, this only highlights the importance of the issue 
presented by the petition in this case. Certainly, the lower 
federal courts need guidance as to whether other statutory 
remedies are still available to victims of discrimination in 
employment that is covered by Title VII.

III.

The need for review and guidance by this Court is 
highlighted by respondent’s discussion of the decisions of the 
various circuits cited in Annis. It is clear that the Second 
and Fifth Circuits are in direct conflict. It is also evident 
that the other circuits are in substantial disarray, with 
holdings that, in general Title VII is not the exclusive 
remedy, but with qualifications of that general rule in other 
decisions.

Thus, as noted in the petition at pp. 8-9, nn. 4, 7, 
both the Sixth and Tenth Circuits have handed down 
decisions that are equivocal on the issue. In Day v. Wayne 
County Board of Auditors, 749 F.2d 1199 (6th Cir. 1984), the 
court’s holding was that since the only illegal act that was 
proven was a violation of Title VII’s prohibition against 
retaliation for filing a charge with the Equal Employment 
Opportunity Commission, Title VII was the exclusive remedy 
and 42 U.S.C. § 1983 could not be used. In its more recent 
unpublished decision in Willis v. Morris, 70 F.3d 116, 1995 
WL 613642 (6th Cir. No. 95-5107, Oct. 18, 1995) cert, 
denied, 64 U.S.L. W. 3639 (March 25, 1996), however, the 
Sixth Circuit held more broadly that a claim of sex 
discrimination could not be brought under section 1983 since 
Title VII provided the exclusive remedy, citing the Tenth 
Circuit’s decision in Allen v. Denver Public School Bd., 928 
F.2d 978, 982 (10th Cir. 1991). However, Allen itself appears 
inconsistent with the Tenth Circuit’s earlier decision in 
Starrett v. Wadley, 876 F.2d 808 (10th Cir. 1989), which held 
that employment discrimination claims can be brought under



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both section 1983 and Title VII.

In sum, there is both disagreement and confusion 
among the courts of appeals as to whether Title VII is the 
exclusive remedy for all claims of discrimination by state and 
local government employees, or whether some or all of such 
claims can also be brought pursuant to 42 U.S.C. § 1983 
and/or § 1981. The present case thus raises important 
questions as to whether Johnson v. Railway Express Agency, 
421 U.S. 454 (1974) has been sub silentio overruled, and as 
to the continuing vitality of Jett v. Dallas Independent School 
Dist., 491 U.S. 701 (1989). This Court should grant 
certiorari to resolve these questions.

C o n c l u sio n

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

Respectfully submitted,

Elaine R. J ones 
D irector-Counsel

Norman J. Chachkin 
Chari.es Stephen  Ralston  
(Counsel o f Record)
NAACP Legal Defense and 

Educational F und , Inc .
99 Hudson Street, Suite 1600 
New York, NY 10013 
(212) 219-1900

C. Victor  Lander 
Lander and Associates, P.C. 

1447 Plowman Avenue 
Dallas, TX 75203 
(214) 942-1073

Attorneys for Petitioner