Lytle v. Household Manufacturing Inc. Brief for Petitioner

    No. 88-334

' L L  I O

In The

Supreme Court of tfje Uniteti states
October Term, 1989

John S. Lytle

v.
Petitioner,

Household Manufacturing, Inc., 
d/b/a Schwitzer Turbochargers,

Respondent.

BRIEF FOR PETITIONER

J ulius LeVonne Chambers 
Charles Stephen Ralston 
Ronald L. E llis 
E ric Schnapper 
J udith Reed*

NAACP Legal Defense & 
Educational Fund, Inc.

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

Penda D. Hair 
1275 K Street, N.W.
Suite 301
Washington, D.C. 20005 
(202) 682-1300

Pamela S. Karlan 
University of Virginia 

School of Law 
Charlottesville, VA 22901 
(804) 924-7810

Attorneys for Petitioner
*  Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



QUESTION PRESENTED

Did the Fourth Circuit err in holding violations of 

the Seventh Amendment unreviewable on direct appeal 

when the district court compounds the violation by decid­

ing itself the questions that should have been presented 

to the jury?



LIST OF PARTIES

The respondent, Household Manufacturing, Inc., is a 

wholly owned subsidiary of Household International, Inc. 

All other parties in this matter are set forth in the 

caption.

11



TABLE OF CONTENTS

Page

QUESTION PRESENTED ............................................  i

LIST OF PA RTIES........................................................... ii

OPINIONS B E L O W ......................................................  1

JURISDICTION.............................................................  1

STATUTES, CONSTITUTIONAL PROVISION, AND
RULES INVOLVED.......................................... 2

STATEMENT OF THE CASE ..................................  5

1. Background..............................................  5

2. Petitioner’s Term ination......................... 8

3. Respondent’s Retaliation ......................  13

4. Proceedings in the District C o u rt.......... 14

5. Proceedings in the Court of Appeals . . 19

SUMMARY OF ARGUMENT ..................................  22

A RG UM ENT.................................................................. 25

iii



I. THE DECISION BELOW DEPRIVED 
PETITIONER OF HIS RIGHTS UNDER THE 
SEVENTH A M EN D M EN T...................... 25

A. The District Court Erroneously Deprived
Petitioner of His Right to a Jury Trial on 
His § 1981 C la im s........................... 25

B. Petitioner Was Denied the Benefit of the
Fundamental Values Protected by the 
Seventh Amendment Right to Trial by 
JuD ...........................................................  28

II. THE DENIAL OF SEVENTH AMENDMENT 
RIGHTS IS SUBJECT TO REVERSAL PER
SE ON DIRECT A PPEAL................................  34

A. This Court Has Always Treated Seventh 
Amendment Violations as Reversible Per 
Se ..........................................    34

A Violation of the Seventh Amendment,
Like Other Errors Which Result in the 
Wrong Entity Finding the Facts, Is 
Subject To Reversal Per Se . .................. 41

III. THE COURTS BELOW ERRED IN
APPLYING PRINCIPLES OF COLLATERAL 
ESTOPPEL TO THIS CASE ......................... . 45

A. Parklane Hosiery Does Not Apply to this
C a s e ............................................................  45

iv



B. The Fourth Circuit’s Approach Would in 
Fact Undermine the Interest in Judicial 
Economy that the Doctrine of Collateral 
Estoppel Is Intended to S e rv e ...............  52

CONCLUSION................................................................ 55

v



Cases
TABLE OF AUTHORITIES

Page

Aetna Insurance Co. v. Kennedy,
301 U.S. 389 (1937)......................................................  54

Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813 (1986) . . .  43

Aetna Life Ins. Co. v. Ward, 140 U.S. 76 (1891)..........  31

Amoco Oil Co. v. Torcomian, 722 F.2d 1099
(3d Cir. 1 9 8 3 ) ...............................................................   36

Arizona v. California, 460 U.S. 605 (1983) ....................  47

Arlington Heights v. Metropolitan Housing Corp.,
429 U.S. 252 (1977)......................................................  31

Bank of Columbia v. Okely, 17 U.S.
(4 Wheat.) 235 (1819) ........................     35

Baylis v. Travelers’ Ins. Co.,
113 U.S. 316 (1885)..........................................  28, 29, 35

Beacon Theatres, Inc. v. Westover, 359 U.S. 500
(1959) ....................................................................... passim

Bibbs v. Jim Lynch Cadillac, Inc., 653 F.2d 316
(8th Cir. 1981) ............................................  36

vi



Buzard v. Houston, 119 U.S. 451 (1886) ......................  35

Cohen v. Beneficial Industrial Loan Corp,,
337 U.S. 541 (1949)............................................... 24, 53

Coopers & Lybrand v. Livesay,
437 U.S. 463 (1978)......................................................  53

Curtis v. Loether, 415 U.S. 189 (1974)............... 22, 26, 35

Dairy Queen, Inc. v. Wood, 369
U.S. 469 (1962)...................................................  23, 40, 50

Davis & Cox v. Summa Corp.,
751 F.2d 1507 (9th Cir. 1 9 8 5 )..................................... 36

Duncan v. Louisiana, 391 U.S. 145 (1968) .................... 30

Dwyer v. Smith, 867JF.2d 184 (4th Cir. 1989)............... 45

EEOC v. Corry Jamestown Corp.,
719 F.2d 1219 (3d Cir. 1983) ..................................... 36

Ellis v. Union Pac. R.R. Co., 329 U.S. 649 (1947) . . . .  31

Estes v. Dick Smith Ford, Inc.,
856 F.2d 1097 (8th Cir. 1 9 8 8 )..................................... 32

Bouchet v. National Urban League, 730 F.2d 799
(D.C.Cir. 1984) .....................................................  48, 49

Flemming v. Nestor, 363 U.S. 603 (1960)......................  44

vii



Gomez v. United States, 109 S.Ct. 2237 (1989)............  43

Goodman v. Lukens Steel Co.,
107 S.Ct. 2617 (1987)..................................................  27

Granfinanciera S.A. v. Nordberg,
109 S.Ct. 2782
(1989) ......................................................... 23, 36, 37, 47

Gulfstream Aerospace v. Mayacamus Corp.,
109 S.Ct. 1133 (1988).................................................... 52

Hall v. Sharpe, 812 F.2d 644 (11th Cir. 1987)..........  36, 54

Hardin v. Straub, 109 S.Ct. 1998, (1989) ......................  27

Hildebrand v. Bd. of Trustees of 
Michigan State Univ.,
607 F.2d 705 (6th Cir. 1979)....... ...............................36

Hodges v. Easton, 120 U.S. 408 (1882) ............  22, 29, 36

Hussein v. Oshkosh Motor Truck Co.,
816 F.2d 348 (7th Cir. 1987)...........................  20, 48, 49

Hyde v. Booraem & Co., 41 U.S.
(16 Pet.) 232 (1842)......................................................  32

Gargiulo v. Delsole, 769 F.2d 77 (2d Cir. 1985) . . . . .  54

Jacob v. City of New York, 315 U.S. 752 (1942) . . . . .  29

viii



Katchen v. Landy, 382 U.S. 323 (1966) .................  50, 51

Keller v. Prince George’s County,
827 F.2d 952 (4th Cir. 1987)...................... ................  45

Killian v. Ebbinghaus, 110 U.S. 246 (1884).................... 35

Lauro Lines S.R.L. v. Chasser,
109 S.Ct. 1976
(1989) ........................................................  25, 41, 42, 53

Lewis v. Cocks, 90 U.S. 70 (1874)..................................  36

Lewis v. Thigpen, 767 F.2d 252 (5th Cir. 1985)............  36

Liljeberg v. Health Services Acquisition Corp.,
108 S.Ct. 2194 (1988) . . ...............................................  43

Lincoln v. Board of Regents, 697 F.2d 928 (11th Cir. 
1983) ..............................................................................  27

Marshak v. Tonetti, 813 F.2d 13 (1st Cir. 1987) ..........  36

Matter of Merrill, 594 F.2d 1064 (5th Cir. 1979)...........  36

Meeker v. Ambassador Oil Corp., 375 U.S. 160
(1963) ....................................................................... passim

Midland Asphalt Corp. v. United States,
109 S.Ct. 1494 (1989).................................................... 52

Johnson v. Railway Express Agency,
421 U.S. 454 (1975)......................................................  25

ix



Moore v. Sun Oil Co., 636 F.2d 154 (6th Cir. 1980) . . 27

Morgantown v. Royal Insurance Co.,
337 U.S. 264 (1949)....... .......................... .. 53

North v. Madison Area Ass’n for Retarded
Citizens, 844 F.2d 401 (7th Cir. 1988) ....................... 27

Owens v. Okure, 109 S.Ct. 573 (1989)...........................  27

Palmer v. United States,
652 F.2d 893 (9th Cir. 1981)...................... ................ 36

Parklane Hosiery Co. v. Shore, 439 U.S. 322
(1979) .................................................................... passim

Patterson v. McLean Credit Union,
105 L.Ed.2d 132 (1989) ..................................  22, 25, 26

Pennoyer v. Neff, 95 U.S. (5 Otto) 714 (1877) ___ _ . 46

Pernell v. Southall Realty, 416 U.S. 263 (1974)............  35

Ritter v. Mount St. Mary’s College,
814 F.2d 986 (4th Cir. 1986)...........................  20, 45, 49

Roebuck v. Drexel University,
852 F.2d 715 (3d Cir. 1988) .......................................  48

Rose v. Clark, 478 U.S. 570 (1 9 8 6 )................................  41

Schoenthal v. Irving Trust Co., 287 U.S. 92 (1932) . . .  35

x



Setser v. Novack, 638 F.2d 1137 (8th Cir. 1 9 8 1 )..........27

Sibley v. Fulton DeKalb Collection Service,
677 F.2d 830 (11th Cir. 1 982 )..................................... 36

Sioux City & Pacific R.R. Co. v. Stout,
84 U.S. (17 Wall.) 657 (1 874 ).............................  22, 29

Skinner v. Total Petroleum,
859 F.2d 1439 (10th Cir. 1988) ..................................  27

Standard Oil Co. v. Brown 218 U.S. 78 (1 9 1 0 )............ 32

Stevens v. Nichols, 130 U.S. 230 (1889)......................... 44

Swentek v. USAir, 830 F.2d 552 (1987 )........................  45

Taylor v. Louisiana, 419 U.S. 522 (1975)'...................... 30

Tennant v. Peoria & P^kin Union Ry. Co.,
321 U.S. 29 (1944)........................................................  31

Thiel v. Southern Pacific Co., 328 U.S. 217 (1945) 30, 44

Tull v. United States,
95 L.Ed.2d 365 (1987) ..................................  21, 23, 37,

38, 47
United States v. One 1976 Mercedes Benz 208 S,

618 F.2d 453 (7th Cir. 1980)................................ 30, 36

Scott v. Neely, 140 U.S. 358 (1891)................................  35

xi



United States v. State of New Mexico,
642 F.2d 397 (10th Cir. 1 9 8 1 )..................................... 36

Volk v. Coler, 845 F.2d 1422 (7th Cir. 1988) . . . ____48

Wade v. Orange County Sheriffs Office,
844 F.2d 951 (2d Cir. 1988) ........................................ 48

Webster v. Reid, 52 U.S. 437 (1850) .................... 36

Western Elec. Co. v. Milgro Electronic Corp,
573 F.2d 255 (5th Cir. 1978)........................................ 53

Williams v. Cerberonics, Inc.,
871 F.2d 452 (4th Cir. 1989)..................... ................ 48

Williams v. Owens-Illinois, Inc.,
665 F.2d 918 (9th Cir.),
cert, denied, 459 U.S. 971 (1982) . ..............................  27

Wilson v. Garcia, 471 U.S. 261 (1985)............... ' . . . . .  27

Statutes. Constitutional Provisions and Rules

28 U.S.C. § 455 .................................................................  43

28 U.S.C. § 1254(1) . ........................................................... . 2

28 U.S.C. § 1861.................................................................... 30

42 U.S.C. § 1981    passim

xii



42 U.S.C. § 2000e-5 ............................................................. 5

Rule 38, Federal Rules of Civil Procedure . . . .  4, 27, 54

Rule 39 of the Federal Rules of Civil Procedure ..........4

Rule 41(b), Federal Rules of Civil P rocedure.......33

Rule 52(a), Federal Rules of Civil P rocedure...... 43

Title VU'of the Civil Rights Act of 1964 ...............passim

U.S. Const, amend. VII ...............................................passim

Other Authorities 

9 Wright & Miller,
Federal Practice and Procedure § 2322 ..................  54

18 Wright, Miller & Cooper,
Federal Practice and Procedure § 4418 
(1989 Supp.)...................................................................... 48

Schnapper, Judges Against Juries --
Appellate Review of Federal Jury Verdicts,
1989 Wis.L.Rev. 237 ..................................

42 U.S.C. § 2000e-(2)(a) .................................................... 3

xiii

31, 32



BRIEF FOR PETITIONER

OPINIONS BELOW

The opinion of the court of appeals is unpublished, 

and is set out in the Appendix to the petition for writ of 

certiorari ("App.") at pages la-21a. The order of the 

court of appeals denying rehearing, which is not 

reported, is set out at App. 22a-24a. The district judge’s 

bench opinion, which is unreported, is set out at App. 

25a-31a and in the Joint Appendix (JA) at pages 56-64. 

The order of the district court dismissing the case is set 

out at App. 34a-35a.

JURISDICTION

The judgment of the court of appeals affirming the 

district court’s dismissal of the case was entered on 

October 20, 1987. App. la. A timely petition for



rehearing was denied on Apri! 27, 1988. On July 19,

1988, Chief Justice Rehnquist entered an order extending

the time for filing a petition for writ of certiorari to and

including August 25, 1988. The petition for writ of

certiorari was filed on August 23, 1988, and was granted

on July 3, 1989. The jurisdiction of this Court is invoked

under 28 U.S.C. § 1254(1).

STATUTES, CONSTITUTIONAL PROVISION, 
AND RULES INVOLVED

The Seventh Amendment to the United States 

Constitution provides:

In suits at common law, where the value in 
controversy shall exceed twenty dollars, the right of 
trial by jury shall be preserved and no fact tried by 
jury shall be otherwise re-examined in any Court of 
the United States, than according to the rules of the 
common law.

2



All persons within the jurisdiction of the United 
States shall have the same right in every State and 
Territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal 
benefit of all laws and proceedings for the security of 
persons and property as is enjoyed by white citizens, 
and shall be subject to like punishment, pains, 
penalties, taxes, licenses, and exactions of every kind, 
and to no other.

Section 703(a) of Title VII of the Civil Rights Act of 

1964, 42 U.S.C. § 2000e-(2)(a), provides in pertinent 

part:

Section 1981 of 42 U.S.C. provides:

It shall be an unlawful employment practice 
for an employer-

(1) to fail or refuse to hire or to discharge 
any individual, or otherwise to discriminate against 
any individual with respect to his compensation, 
terms, conditions, or privileges of employment 
because of such individual’s race, color, religion, sex, 
or national origin . . . .

3



Rule 38 of the Federal Rules of Civil Procedure provides 

in pertinent part:

(a) Right Preserved. The right of trial by 
jury as declared by the Seventh Amendment to the 
Constitution or as given by a statute of the United 
States shall be preserved to the parties inviolate.

(b) Demand. Any party may demand a trial 
by jury of any issue triable of right by a jury by 
serving upon the other parties a demand therefor in 
writing at any time after the commencement of the 
action and not later than 10 days after the service of 
the last pleading directed to such issue. Such 
demand may be indorsed upon a pleading of the 
party.

Rule 39 of the Federal Rules of Civil Procedure provides 

in pertinent part:

(a) By Jury. When trial by jury has been 
demanded as provided in Rule 38, the action shall 
be designated upon the docket as a jury action. The 
trial of all issues so demanded shall be by jury, 
unless (1) the parties or their attorneys of record, by 
written stipulation filed with the court or by an oral 
stipulation made in open court and entered in the 
record, consent to trial by the court sitting without a 
jury or (2) the court upon motion or of its own 
initiative finds that a right of trial by jury of some or

4



all of those issues does not exist under the
Constitution or statutes of the United States.

STATEMENT OF THE CASE

This action involves claims of intentional racial 

discrimination in violation of 42 U.S.C. § 1981 and Title 

VII of the Civil Rights Act of 1964, as amended, 42 

U.S.C. § 2000e-5. Petitioner John S. Lytle, a black 

person, contends that he was fired by respondent on 

account of his race and that respondent then retaliated 

against him for pursuing his federal equal employment 

opportunity claims.

1. Background

Schwitzer Turbochargers, a subsidiary of respondent 

Household Manufacturing, Inc. [hereafter referred to as 

"Schwitzer"], makes turbochargers and fan drives at its 

Arden, North Carolina, plant. Tr. 13. In February 1982,

5



Schwitzer adopted an employee absence policy with the 

following salient features. First, workers must report all 

anticipated absences to their supervisors "as soon as 

possible in advance of the time lost, but not later than 

the end of the shift on the previous workday." PX 22, p. 

1. Second, certain kinds of absences -- in particular, 

those involving personal illness, PX 22, p. 2 -  are 

characterized as "excused." Third, even though absence 

due to illness is excused, an "excessive" level of such 

absences -  defined as a "total absence level which 

exceed[s] 4% of the total available working hours, 

excluding overtime," id. at 2-3 -  "will, most likely, result 

in termination of employment." Id. at 3. Fourth, a 

worker also faces termination for excessive absence if he 

has "any unexcused absence which exceeds a total of 8 

hours (or one scheduled work shift) within the preceding 

12-month period." Id.

6



Petitioner is an experienced machine operator.1 Tr. 

84. In January 1981, he was hired by respondent as a 

machinist trainee at the Arden plant. Less experienced 

whites were hired directly into machine operator 

positions. Tr. 83-84, 87. Ultimately, petitioner achieved 

the highest graded machinist classification. Tr. 87-89. In 

his 1982 performance evaluation, he was commended for 

his good attendance record, t r .  86; PX 6. Until the 

events that precipitated this lawsuit, he had never been 

reprimanded or disciplined for attendance problems. Tr. 

86-87.

' This discussion of the events pertaining to petitioner’s
discharge claim is based primarily on Lytle’s testimony at trial. The 
district court dismissed his discharge claim at the close of 
petitioner’s evidence; hence, virtually all the record testimony on 
behalf of the respondent goes only to retaliation, not discharge.

7



2. Petitioner’s Termination

In February 1983, petitioner embarked on a rigorous 

evening program studying mechanical engineering at 

Asheville-Biltmore Technical College. Tr. 90-95.2 By the 

summer, he began to suffer health problems. The plant 

nurse recommended that he consult a doctor. Tr. 71-72, 

121. In June or July, Lytle also informed his supervisor, 

Larry Miller, who was white, of his health problems and 

stated that for this reason he preferred not to work 

overtime. Tr. 120.

At the beginning of August 1983, Lytle cut back his 

school program to two evenings per week. Tr. 95. 

During the first week of August, Schwitzer machinists

2 On class days, Lytle left work at 3:30 p.m., arrived home 
about 4:00 p.m., had something to eat, arrived at the college library 
to study at 4:30 or 5:00 p.m., and attended class from 6:30 p.m. until 
between 9:00 and 11:00 p.m. Tr. 92. He also frequently found it 
necessary to study in the late evening and early morning hours. Tr. 
120.

8



were called upon to work a substantial amount of 

overtime in order to keep up with production 

requirements. Tr. 238.

The next week, Lytle’s health problems worsened,3 

and he scheduled an appointment for Friday, August 12, 

1983, with a doctor who had been recommended by the 

Schwitzer nurse. Tr. 122, 130-131. On Thursday 

morning, August 11, Lytle asked his supervisor for 

permission to schedule Friday, August 12, as a vacation 

day. Tr. 129-132.4

At the time, Miller approved petitioner’s request. 

Tr. 130. However, later in the day, Miller told petitioner 

that "if you’re off Friday, you have to work on Saturday,"

3 On one occasion he became so dizzy that he fainted. Tr.
132.

4 Although sick leave would have been granted for a 
doctor’s appointment, Lytle preferred to have the absence treated as 
a vacation day. Tr. 194* Such treatment meant that the day would 
not be counted as an absence under Schwitzer’s policy regarding 
"excessive absence." Tr. 208.

9



Tr. 131, which was not a normal work day for Lytle, Tr. 

132. Lytle "explained that I wanted Friday off to see the 

doctor, and I wouldn’t be able to work Saturday because 

I was physically unfit." Tr. 131-32. When Miller still 

insisted that Lytle work on Saturday, Lytle told him that 

he would also take Saturday as a vacation day. Tr. 132. 

Miller walked off, without objecting to this suggestion. 

Tr. 132. Lytle understood that Friday would be treated 

as a vacation day, and that he had sufficiently informed 

Miller that he was physically unable to work on Saturday. 

Tr. 191. Moreover, Lytle repeated his intentions to the

10



Human Resources Counselor, Judith Boone. Tr. 137- 

138.5

Lytle returned to work on Monday, August 15. 

After a meeting with Schwitzer’s personnel manager and 

Miller, during which Lytle was asked to provide an 

explanation for his absence, Lytle was fired. Tr. 142- 

143. The apparent reason for the termination was for 

alleged excessive unexcused absences, primarily the 

Friday and Saturday shifts Lytle had missed as a result of 

his health problems.6 JA 8; Tr. 220. Had petitioner’s

Boone confirmed that Lytle had a conversation with 
her that day regarding problems with Miller; however, she testified 
that she did not recall any mention of vacation scheduling. Tr. 60- 
61.

6 In addition to the two days in question, apparently 
Schwitzer treated Lytle’s departure on Thursday, August 11, shortly, 
after the normal end of his shift, as 1.8 hours of "unexcused 
absence," because he did not work two hours of overtime that may 
or may not have been scheduled. There was conflicting evidence 
concerning whether Lytle was in fact scheduled for overtime on 
Thursday and whether his purported failure to inform Miller that he 
had to leave was directly attributable to Miller’s behavior toward 
Lytle. Tr. 135. In any event, the district judge found Lytle to have 
had 9.8 hours of unexcused absence. JA 59-60.

11



absences been properly classified either as vacation days 

or as excused absences, he would not have fallen within 

the terms of the excessive absence policy. Tr. 252-253. 

Moreover, Schwitzer’s records showed that white 

employees were not terminated despite "excessive 

absence." Instead, these white workers were given

warnings and an opportunity to improve.7

7 Donald Rancourt, a white machinist, received a written 
warning from Larry Miller concerning an absence rate of 7.5% in 
January', 1983. Tr. 217-18, 222, 230. Rancourt’s April 1983 annual 
performance review mentioned an absence problem Tr. 48; PX 15- 
C, page 4. Rancourt was not terminated. Tr. 54.

As of March 2, 1984, Jeffrey C. Gregory, a white machinist, had 
an annual absence level of 6.3% of total available working hours. 
Tr. 57-58; PX 28-B. He was not terminated. Tr. 58. It is not clear 
whether he was even counselled concerning his excessive 
absenteeism. Tr. 58.

On July 13, 1983, approximately one month prior to Schwitzer’s 
termination of Lytle, Rick Farnham, a white machine operator, was 
counselled for excessive absenteeism. Tr. 55-56; PX 12-B. At that 
time Farnham’s annual absence rate was 4.3%. Tr. 56; PX 12-B. 
Farnham was not terminated.

On August 23, 1982, David Calloway, a white machinist, was 
given his second warning in three months about excessive 
absenteeism. In June, 1982, his absence percentage was 4.5%, and 
he was warned that "an immediate improvement must be made." PX 
13-B, p. 1. In August, his absence percentage remained at 4.5% He 
had been absent for a total of 16.2 hours since the June warning, 
and two absences were on consecutive Mondays. Tr. 44. Instead of 
termination, Calloway was given an additional sixty days in which to

12



3. Respondent’s Retaliation

On August 23, 1983, Lytle filed a charge of 

discrimination with the Equal Employment Opportunity 

Commission. Tr. 61; PX 1. This charge was received by 

Schwitzer’s Human Resources Counselor, Judith Boone, 

who is white, shortly thereafter. Tr. 61-62.

At approximately the same time, Lytle began looking 

for another job in the Asheville area. Several 

prospective employers told him that they were having 

difficulty getting an adequate reference from Schwitzer. 

Tr. 111. Boone refused to return questionnaires from

correct the problem. PX 13-B.
Finally, Greg Wilson, a white machinist, was absent two 

successive days without obtaining prior approval. Tr. 23-24. Of the 
sixteen hours of absence, eight were categorized as unexcused. The 
second day’s absence was "excused” because Wilson called to inform 
his supervisor that he was ill. This two-day absence followed three 
unexcused tardies. Thus, as of March, 1983, Wilson had 
accumulated excessive unexcused absences. Tr. 67. Yet, Wilson was 
not fired, but merely counselled to improve his absence record. PX 
14B.

13



two employers. Although Schwitzer claimed that it was 

merely applying its normal policy with respect to 

references for individuals who have been involuntarily 

terminated, Tr. 261, the company had in fact provided a 

favorable letter of reference for Joe Carpenter, a white 

male, the only other machinist involuntarily terminated 

prior to Lytle in 1983. See PX 10.

4. Proceedings in the District Court

Lytle filed a complaint in federal district court 

alleging that respondent had fired him because of his 

race and retaliated against him for filing a charge of 

discrimination with the Equal Employment Opportunity 

Commission, all in violation of both Title VII and Section 

1981. JA 9-10. The notation "Jury Trial Demanded" 

appears on the first page of the complaint, JA 4, and at 

the end of the complaint was the following statement:

14



"Plaintiff requests a jury trial of all issues triable herein 

by a jury." JA 14. The relief requested involved 

backpay, damages for "emotional and mental suffering," 

punitive damages, and injunctive relief including 

reinstatement.

Respondent answered the complaint and ultimately 

moved for summary judgment on several grounds. On 

May 17, 1985, the district court denied the motion, 

finding that "there is a genuine issue as to material facts." 

Dkt. Nr. 19.

On the day of trial, the district court granted 

Schwitzer’s motion to dismiss all claims under § 1981, 

holding that Title VII provides the exclusive remedy for 

employment discrimination. The dismissal of petitioner’s 

§ 1981 claims necessarily meant the striking of his jury

15



demand. JA 56-57.8 The court then conducted a bench

trial of petitioner’s Title VII claims.

In essence, the trial revolved around four issues -  

whether Lytle had in fact received permission from 

Miller not to work on Friday and Saturday, whether the 

decision to fire Lytle was based in whole or in part on 

impermissible racial motives, whether Schwitzer’s absence 

policies had been applied to white workers who were 

similarly situated, and whether the refusal to provide a 

reference for Lytle involved retaliation for his having 

filed a Title VII charge. Resolution of each of these 

issues was critically dependent on the factfinder’s 

assessment of the credibility of the witnesses and the 

plausibility of their conflicting stories.

8 The district court did not rule on the proposal made by 
Lytle’s attorney that the court "dismiss the Title VII action and go 
to the jury on the 1981 action.” Tr. 4. The district court also 
denied Lytle’s motion for reconsideration of the § 1981 dismissal 
made on the second day of trial. JA 97-98.

16



At the close of petitioner’s case, the court dismissed 

petitioner’s Title VII discriminatory discharge claims, 

finding that he had failed to present a prima facie case. 

The district judge found that, while Lytle had 

demonstrated that one white employee, Greg Wilson, had 

exceeded the limit on unexcused absences and that at 

least four white employees who violated the excessive 

absence policy were only given warnings, the conduct of 

these employees was not "substantially similar in 

seriousness" to that of petitioner. Tr. 259; JA 59-60. 

This determination was based apparently on the judge’s 

supposition that Schwitzer treated excused and unexcused 

absences differently, and that Wilson’s infraction was de 

minimis. However, there was no evidence that the 

employer intended to treat the classes of absences 

differently as to the ultimate penalty that could be

17



imposed,9 and the record was, by the trial judge’s own 

recognition, unclear on the exact amount of Wilson’s 

additional absences.10

Following the close of all the evidence, the judge 

ruled from the bench in favor of respondent on the

Indeed, the record contradicts such a conclusion in the 
several respects. First, Schwitzer’s absence policy itself includes both 
excused and unexcused absences in the category for which 
termination will "most likely result," when the stated limits are 
exceeded. PX 22, p. 2. Second, the policy notes that termination of 
employment may result even before maximum limits are reached, 
where a pattern of absence, excused or unexcused, is observed. Id., 
p. 3. Finally, Schwitzer has already made a distinction between 
unexcused and excused absences by adopting a policy that permits 
excused absences to total at least 72 hours, assuming a year 
consisting of 48 weeks of 40 hours each, while tolerating only 8 
hours of unexcused absences. Id.; Tr. 17 ("On the excused portion 
. . . , we have allowed more flexibility there."). The trial judge’s 
addition of yet another layer of distinction, by finding that excessive 
excused absences are not "serious," in the face of a policy statement 
that "absence hurt us all" (PX 22, p. 3), suggests that the trial judge, 
was not acting merely as a factfinder, but was drawing a number of 
inferences from the evidence. Opposite inferences could have as 
easily been drawn. See, infra, Argument, Sec. I.B.

10 The trial judge concluded that Wilson had exceeded the 
limit by only six minutes, based on his interpretation of the 
documents. Tr. 251-252. ("Frankly, the evidence wouldn’t support 
this, but I think that decimal number . . . really means minutes 
rather than hundreths.") Cf. PX 14-B; Tr. 39, line 16-17; PX 14-C 
(indicating nine tardy incidents during the period of March 1983 
through February 1984).

18



retaliation claim.11 App. 26a-31a. The trial judge 

subsequently entered a judgment for defendant on all 

issues. App. 32a-35a.

5. Proceedings in the Court of Appeals

On appeal to the Fourth Circuit, petitioner argued, 

among other things, that the district court’s erroneous 

dismissal of his § 1981 claim had denied him his Seventh 

Amendment right to a jury trial.

A majority of the Fourth Circuit panel acknowledged 

that the district court had erred in dismissing petitioner’s 

§ 1981 claim. App. 7a, n.2. But although the Court 

recognized that petitioner had been wrongfully denied 

the right to present his claims of intentional racial

11 The district judge found that the fact that Schwitzer had 
issued a favorable letter of recommendation for a white who was the 
only other employee whose employment had been involuntarily 
terminated was not sufficient; rather the judge found that instead of 
Lytle receiving disparate treatment, the white employee had simply 
been treated "disproportionately favorably." Tr. 203.

19



discrimination to a jury, it refused to correct this 

constitutional error. Instead, the appellate court followed 

Ritter v. Mount St. Mary’s College. 814 F.2d 986 (4th 

Cir. 1986), cert, denied. 108 S. Ct. (1987), and held that 

the findings made by the district judge during the bench 

trial of petitioner’s Title VII claims collaterally estopped 

petitioner from litigating his § 1981 claim. App. 8a-9a. 

Notably, the Court of Appeals did not conclude that a 

jury would necessarily have reached the same factual 

conclusions as the district judge. Rather, it determined 

only that the. district judge’s findings of fact were "not 

clearly erroneous." App. 10a-13a.

Judge Widener, in a dissenting opinion, noted that 

the majority’s view of collateral estoppel was inconsistent 

with a Seventh Circuit decision on "exactly this issue" in 

Hussein v. Oshkosh Motor Truck Co.. 816 F.2d 348 (7th 

Cir. 1987), and that it was "not consistent with" the

20



recent decision of this Court in Tull v. United States. 95 

L.Ed.2d 365 (1987). App. 19a. He concluded that if the 

appellate courts were powerless to correct the erroneous 

denial of a jury trial merely because the judge involved 

had issued a constitutionally tainted decision of his own 

on the merits, "the Seventh Amendment means less today 

than it did yesterday." Id. A timely petition for 

rehearing and suggestion for rehearing en banc were 

denied with Judges Widener, Russell and Murnaghan 

voting to rehear the case en banc. Id. at 22a-24a.

21



SUMMARY OF ARGUMENT

I. Throughout this nation’s history the right to 

trial before a jury of one’s peers has held a revered 

place in American jurisprudence. Hodges v. Easton. 120 

U.S. 408 (1882). The jurisprudence of this Court has 

recognized that juries bring to their evaluation of the 

facts a perspective that is distinct from that of judges. 

Sioux City &  Pacific R.R. Co. v. Stout. 84 U.S. (17 Wall.) 

657 (1874).

The Seventh Amendment preserved the right 

to a jury in actions at law and therefore those brought to 

enforce statutory rights. Curtis v. Loether. 415 U.S. 189 

(1974). Thus, plaintiffs possess that right in actions 

brought under section 1981, provided that, as here, a 

proper demand has been made. Patterson v. McLean 

Credit Union. 105 L.Ed.2d 132 (1989). Where legal

22



and equitable claims are joined in the same action, this 

Court has held that the right to a jury trial on the legal 

claims is not lost, and the jury claims are to be tried first, 

absent compelling circumstances. Beacon Theatres. Inc, 

v. Westover. 359 U.S. 500 (1959); Dairy Queen. Inc, v. 

Wood. 369 U.S. 469 (1962).

II. When a district court flouts this rule, this 

Court has consistently reversed the judgment below and 

remanded for trial before a jury. This Court has never 

sanctioned appellate review that proceeds as if the error 

never happened. Granfinanciera S.A. v. Nordberg. 109 

S.Ct. 2782 (1989); Tull v. United States. 481 U.S. 412 

(1987); Meeker v. Ambassador Oil Corp.. 375 U.S. 160 

(1963).

The court of appeals fundamentally misapplied this 

Court’s decision in Parklane Hosiery Co. v. Shore. 439 

U.S. 322 (1979). Parklane cannot be read, as did the

23



Fourth Circuit, to apply collateral estoppel to preclude 

review on direct appeal of a Seventh Amendment 

violation. Parklane applies by its terms, as do all 

principles of preclusion, to subsequent proceedings rather 

than to appellate review in a single proceeding. This 

Court has never held that a district court may accomplish 

by error what Beacon Theatres prohibits it from doing 

purposefully.

III. A rule that an appellate court may not review 

violations of the Seventh Amendment, so long as the 

district court’s findings are not clearly erroneous, would 

fail to serve the interest in judicial repose fostered by the 

rules of preclusion. Instead, such a procedure would 

increase the burden on appellate courts by requiring 

parties to proceed by mandamus or take an interlocutory 

appeal, whenever their constitutional right to a jury has 

been violated. Lauro Lines S.R.L. v. Chasser. 109 S.Ct.

24



1976 (1989); Cohen v. Beneficial Industrial Loan Corp., 

337 U.S. 541 (1949).

ARGUMENT

I. THE DECISION BELOW D EPR IV ED  
PETITIONER OF HIS RIGHTS UNDER THE 
SEVENTH AMENDMENT

A. The District Court Erroneously Deprived 
Petitioner of His Right to a Jury Trial on His 
g 1981 Claims

The Court of Appeals correctly recognized that 

petitioner’s complaint stated a claim under § 1981. 

Johnson v. Railway Express Agency. 421 U.S. 454 (1975). 

In fact, the complaint raised two distinct violations of § 

1981.12 It alleged that respondent had fired petitioner on

12 In Patterson v. McLean Credit Union. 105 L.Ed.2d 132 
(1989), this Court reaffirmed the application of § 1981 to private 
conduct and held that § 1981 covered the making and enforcing of 
employment contracts, although it did not cover racial harassment 
occurring after the formation of the contract.

25



account of race, and it alleged that respondent had 

retaliated against petitioner because petitioner had 

pursued his rights under Title VII.

Petitioner was entitled to a jury trial of his § 1981 

claims.13 As this Court noted in Curtis v. Loether. 415 

U.S. 189 (1974), the "Seventh Amendment . . . applies] 

to actions enforcing statutory rights, and requires a jury 

trial upon demand, if the statute creates legal rights and 

remedies enforceable in an action for damages in the 

ordinary courts of law." Id. at 194.14 Applying that 

principle, every court of appeals to have addressed the 

issue has recognized that the Seventh Amendment

3 The fact that the district court denied respondent’s 
summary judgment motion on petitioner’s Title VII claims because 
it saw "a genuine issue as to material facts” regarding what in fact 
happened, JA 23, strongly substantiates the conclusion that, had the 
court not applied erroneous legal principles to petitioner’s § 1981 
claims, petitioner would have been entitled to present the facts 
underlying those claims at trial.

14 See also, Patterson v. McLean Credit Union. 105 
L.Ed.2d 132, 156 (1989) (addressing jury instruction issue).

26



applies to § 1981 actions when the jury demand has been 

properly preserved.15 That conclusion is further 

buttressed by this Court’s holding that cases under the 

Reconstruction Civil Rights Acts resemble traditional tort 

actions (which lie within the core of the Seventh 

Amendment), and thus that the state statutes of 

limitations to "borrow" in § 1981 cases are those used in 

tort cases. See, e.g.. Hardin v. Straub. 109 S.Ct. 1998, 

2000 (1989); Owens v. Okure. 109 S.Ct. 573 (1989); 

Goodman v. Lukens Steel Co.. 107 S.Ct. 2617 (1987); 

Wilson v. Garcia. 471 U.S. 261 (1985).

It is undisputed in this case that Lytle made a timely 

request for a jury trial pursuant to Fed. R. Civ. P. 38,

15 See, e.g.. Moore v. Sun Oil Co.. 636 F.2d 154 (6th Cir.
1980) ; North v. Madison Area Ass’n for Retarded Citizens. 844 F.2d 
401 (7th Cir. 1988); Setser v. Novack. 638 F.2d 1137, 1147 (8th Cir.
1981) ; Williams v, Owens-Illinois, Inc., 665 F.2d 918, 929 (9th Cir.), 
cert, denied. 459 U.S. 971 (1982) ; Skinner v. Total Petroleum. 859 
F.2d 1439 (10th Cir. 1988); Lincoln v. Board of Regents. 697 F.2d 
928, 935 (11th Cir. 1983).

27



and that he never waived that demand. In fact, he 

continued to object to the denial of his Seventh 

Amendment rights even after trial was underway. Thus, 

the district court erred by "substituting] itself for the jury 

and, passing upon the effect of the evidence, finding] the 

facts involved in the issue and rendering] judgment 

thereon." Bavlis v. Travelers’ Ins. Co.. 113 U.S. 316, 321 

(1885).

B. Petitioner Was Denied the Benefit of the 
Fundamental Values Protected bv the Seventh 
Amendment Right to Trial by Jury

The Seventh Amendment provides in pertinent part 

that ”[i]n suits at common law, where the value in 

controversy shall exceed $20, the right of the trial by jury 

shall be preserved . . . ." That entitlement holds a 

special, privileged position in American jurisprudence as 

a "basic and fundamental" right to be jealously guarded.

28



Jacob v. City of New York. 315 U.S. 752 (1942); Bavlis v. 

Travelers’ Ins. Co., supra: Hodges v. Easton. 106 U.S. 

(16 Otto) 408 (1882).

This Court has long recognized the critical function 

juries perform:

[I]t is a matter of judgment and discretion, of 
sound inference, what is the deduction to be 
drawn from the undisputed facts . . . .  It is this 
class of cases and those akin to it that the law 
commits to the decision of a jury. Twelve men of 
the average of the community, comprising men 
of education and men of little education, men of 
learning and men whose learning consists only in 
what they have themselves seen and heard, the 
merchant, the mechanic, the farmer, the laborer; 
these sit together, consult, apply their separate 
experience of the affairs of life to the facts 
proven, and draw a unanimous conclusion. This 
average judgment thus given it is the great effort 
of the law to obtain. It is assumed that twelve 
men know more of the more common affairs of 
life than does one man, that they can draw wiser 
and safer conclusions from admitted facts thus 
occurring than can a single judge.

Sioux City & Pacific R.R. Co. v. Stout. 84 U.S. (17 Wall.)

657, 664-64 (1874). It is precisely because the system of

29



adjudication benefits so strongly from "the infusion of the 

earthy common sense of a jury," United States v. One 

1976 Mercedes Benz 208 S. 618 F.2d 453, 469 (7th Cir. 

1980), that the Court and Congress16 have repeatedly 

insisted, in both civil and criminal cases, that juries be 

drawn from the widest possible section of the community. 

See, e.g., Taylor v. Louisiana. 419 U.S. 522 (1975); 

Duncan v. Louisiana. 391 U.S. 145 (1968); Thiel v. 

Southern Pacific Co.. 328 U.S. 217 (1945). As Chief 

Justice Rehnquist noted in his dissent in Parklane 

Hosiery Co. v. Shore. 439 U.S. 322, 344 (1979), "juries 

represent the layman’s common sense, the ’passional 

elements in our nature,’ and thus keep the administration 

of law in accord with the wishes and feelings of the

28 U.S.C. § 1861 et seq. (Jury System Improvements
Act of 1978).

30



community. O. Holmes, Collected Legal Papers 237 

(1920)."

The right to litigate claims under § 1981 before a 

jury can be especially important. When a plaintiffs claim 

rests on the assertion that a facially neutral action was 

undertaken for invidious racial purposes, the factfinder’s 

assessment will often depend on "a sensitive inquiry into 

such circumstantial and direct evidence of intent as may 

be available." Arlington Heights v. Metropolitan Housing 

Corp., 429 U.S. 252, 266 (1977). The factfinder will 

often be called upon to draw on his or her experience in 

the real world in assessing the plausibility of conflicting 

testimony,17 and making inferential judgments.18 The

17 Aetna Life Ins. Co. v. Ward. 140 U.S. 76, 88 (1891); Ellis 
v. Union Pac. R.R. Co.. 329 U.S. 649, 653 (1947). See, also, 
Schnapper, Judges Against Juries -  Appellate Review of Federal 
Jury Verdicts. 1989 Wis.L.Rev. 237, 265-67.

18 Tennant v. Peoria & Pekin Union Rv. Co.. 321 U.S. 29, 
34-35 (1944) ("It is the jury, not the court, which . . . weighs the 
contradictory evidence and inferences . . . and draws the ultimate

31



perspectives of lay people, of different racial and ethnic 

backgrounds, both male and female, many of whom are 

likely to have had employment histories similar to a 

plaintiff, are bound often to result in juries reaching 

conclusions "that a judge either could not or would not 

reach." Parklane Hosiery Co. v. Shore. 439 U.S. at 344 

(Rehnquist, J., dissenting). That a factual "dispute 

relates to an element of a prima facie case under 

McDonnell-Douglas . . . does not make it any less a 

matter for resolution by the jury." Estes v. Dick Smith 

Ford. Inc.. 856 F.2d 1097, 1101 (8th Cir. 1988).

The instant case, involving straightforward claims but

conclusion as to the facts. The very essence of its function is to 
select from among conflicting inferences and conclusions that which 
it considers most reasonable."); Standard Oil Co. v. Brown 218 U.S. 
78, 86 (1910) (”[W]hat the facts were . . . and what conclusions were 
to be drawn from them were for the jury and cannot be reviewed 
here."); Hvde v. Booraem & Co.. 41 U.S. (16 Pet.) 232, 236 (1842) 
("We have no authority, as an appellate court, upon a writ of error, 
to revise the evidence in the court below, in order to ascertain 
whether the judge rightly interpreted the evidence or drew right 
conclusions from it. That is the proper province of the jury . . . ."). 
Schnapper, n. 17, at 277-83.

32



conflicting evidence, is precisely the sort of litigation 

where a judge and jury might well have reached 

diametrically opposite conclusions.19 A jury of 

laypersons, who resided in North Carolina and who 

worked in a similar setting, might well have concluded, 

for example, that Lytle was justified in believing that he 

did not have to call in on Saturday, because both Friday 

and Saturday were excused.20 Had Miller testified, a jury 

might well have decided that his treatment of Lytle was 

not free from racial motives, based on credibility- 

determinations, inferences from the evidence that racial 

discrimination had entered into Lytle’s hiring (supra, p.7),

19 Lytle’s testimony of the events is all that was before the 
district, since the trial judge’s Rule 41(b) dismissal truncated the 
proof. While it may be presumed that Miller would have disputed 
some of this testimony, he has never testified as to his version of 
the events of August 11, 1983.

20 The trial judge agreed that such a conclusion would be 
a "reasonable interpretation of the evidence." Tr. 252-53. Moreover, 
the district court found that at least one of the days in question was 
excused. See n. 6, supra.

33



or the fact that white employees were treated differently. 

Similarly, with regard to Lytle’s claim of retaliation, a 

jury might well have concluded, not that the glowing 

letter of reference for Carpenter was inadvertent21 but, 

that no such reference was given to Lytle because he had 

taken action to redress an alleged violation of his 

federally granted rights.

II- THE DENIAL OF SEVENTH AMENDMENT 
RIGHTS IS SUBJECT TO REVERSAL PER SE 
ON DIRECT APPEAL

A. This Court Has Always Treated Seventh 
Amendment Violations as Reversible Per Se

This Court has long recognized that "the claims of

the citizen on the protection of this court [and, since the

Joe Carpenter was fired for falsification of timesheets. 
Tr. 214-25. Carpenter, a white machinist who was the only 
Schwitzer employee other than Lytle fired in 1983, PX 19. Thus, 
although Lane Simpson, Schwitzer’s manager of human resources 
testified on direct examination that he confused Carpenter with 
somebody else, a jury might have rejected this assertion based on 
that fact as well as on statements he made during cross examination. 
See, Tr. 271-274.

34



development of the courts of appeals, on those courts as 

well] are particularly strong" when a litigant has been 

denied his Seventh Amendment rights. Bank of 

Columbia v. Okelv. 17 U.S. (4 Wheat.) 235, 240 (1819). 

Thus, the Court has repeatedly and consistently redressed 

Seventh Amendment violations by directing that the 

issues improperly heard by a judge be retried. before a 

jury. This Court has never excused the Seventh 

Amendment violation by holding that the judge’s 

intervening factual findings pretermit presentation of a 

litigant’s case to a jury. See, e.g.. Pernell v, Southall 

Realty. 416 U.S. 263 (1974); Curtis v. Loether. 415 U.S. 

189 (1974); Meeker v. Ambassador Oil Corp.. 375 U.S. 

160 (1963); Schoenthal v. Irving Trust Co.. 287 U.S. 92 

(1932); Scott v. Neely. 140 U.S. 358, 360 (1891); Buzard 

v. Houston. 119 U.S. 451, 454 (1886); Baylis v. Travelers’ 

Insurance Co.. 113 U.S. 316 (1885); Killian v.

35



Ebbinghaus, 110 U.S. 246, 248-249 (1884); Webster v. 

Reid, 52 U.S. 437 (1850); Lewis v. Cocks. 90 U.S. 70, 71 

(1874); Hodges v. Easton. 106 U.S. 408 (1882).22

As recently as last Term, this Court once again 

applied this longstanding rule. In Granfinanciera S.A. v. 

Nordberg, 109 S.Ct. 2782 (1989), the bankruptcy court 

denied the petitioners’ request for a trial by jury, 

conducted a bench trial, and entered findings and a 

judgment against the petitioners. Id. at 2787. The 

district court and court of appeals affirmed the

22 Other than the Fourth Circuit, all courts of appeals to 
have addressed this question have also treated Seventh Amendment 
violations as reversible per se. See. e.g„ Marshak v. Tonetti. 813 
F.2d 13 (1st Cir. 1987); Amoco Oil Co. v. Torcomian. 722 F.2d 1099 
(3d Cir. 1983); EEOC v. Cony Jamestown Corp.. 719 F.2d 1219 (3d 
Cir. 1983); Lewis v. Thigpen. 767 F.2d 252 (5th Cir. 1985); Matter 
of Merrill, 594 F.2d 1064 (5th Cir. 1979); Hildebrand v. Bd. of 
Trustees of Michigan State Univ,. 607 F.2d 705 (6th Cir. 1979); 
United States v. One 1976 Mercedes Benz. 618 F.2d 453 (7th Cir.
1980) ; Bibbs v. Jim Lynch Cadillac. Inc.. 653 F.2d 316 (8th Cir.
1981) ; Davis & Cox v. Summa Corp.. 751 F.2d 1507 (9th Cir. 1985); 
Palmer v. United States. 652 F.2d 893 (9th Cir. 1981); United States 
v. State of New Mexico. 642 F.2d 397 (10th Cir. 1981); Hall v. 
Sharpe, 812 F.2d 644 (11th Cir. 1987); Sibley v. Fulton DeKalb 
Collection Service. 677 F.2d 830 (11th Cir. 1982).

36



bankruptcy judge’s findings.

This Court concluded that the petitioners had been 

denied their rights under the Seventh Amendment. Id. 

at 2789-2800. Having reached that conclusion, the Court 

held that "the Seventh Amendment entitles petitioners to 

the jury trial they requested," id. at 2802, reversed the 

judgment of the court of appeals, and remanded for 

further proceedings, presumably including the jury trial 

petitioners had wrongly been denied. Notably, this Court 

accorded no weight whatsoever to the bankruptcy court’s 

factual findings. Nor, of course, did it direct the court of 

appeals to review those improperly entered findings for 

correctness. In short, unlike the Fourth Circuit in Lytle’s 

case, this Court in Granfinanciera did not hold that 

petitioner’s Seventh Amendment claims were precluded 

by the decision in the bench trial.

This Court took the same approach in Tull v. United

37



States. 481 U.S. 412 (1987). In that case, the district 

court denied Tull’s timely demand for a jury trial in a 

suit seeking civil penalties under the Clean Water Act, 

conducted a 15-day bench trial, entered findings against 

Tull, and imposed substantial fines. Id. at 415. This 

Court concluded that Tull had "a constitutional right to a 

jury trial to determine his liability on the legal claims," id. 

at 425, and remanded for him to be afforded a trial by 

jury, id. at 427. Again, in direct contrast to the approach 

used by the Fourth Circuit in Lytle’s case, this Court in 

Tull afforded no weight whatsoever to the factual 

findings entered after the bench trial.23

23 Of particular salience, Tull also involved issues which were 
properly assigned to the judge rather than the jury. See 481 U.S. at 
425-27 (size of civil fine). But this Court did not find that the 
judge’s proper participation in the last stage of the proceeding 
immunized his erroneous appropriation of the jury’s role, even 
though, in adjudicating the penalty, the judge necessarily revisited 
many of the factual issues involved in the finding of liability.

Similarly, the fact that the judge in this case was the 
appropriate factfinder on Lytle’s Title VII claims should not 
immunize his unwarranted appropriation of the jury’s role in

38



Of this Court’s earlier cases, Meeker Oil v. 

Ambassador Oil Corp.. 375 U.S. 160 (1963) (per curiam), 

represents a particularly decisive rejection of the Fourth 

Circuit’s position. In Beacon Theatres, Inc, v. Westover, 

359 U.S. 500 (1959), a case which came before this Court 

on a petition for a writ of mandamus, the Court held 

that when the pleadings raise both legal and equitable 

issues, and a jury trial has been timely requested, the 

legal claims must be tried first before a jury, lest a 

premature non-jury decision on the equitable claims 

preclude a jury trial on those legal issues. Id. at 508-11. 

In Meeker, the trial judge, in violation of Beacon 

Theatres, decided the equitable claims first, and then 

relied on his own decision in favor of defendants to deny 

plaintiffs a jury trial, or any other relief, on their legal 

claims. The Tenth Circuit affirmed. 308 F.2d 875 (10th

determining Lytle’s § 1981 claims.

39



Cir. 1962). The petition for certiorari in Meeker 

challenged ”[t]he error of the Court of Appeals in 

holding that the petitioners were in any way estopped or 

prohibited from contesting" their legal claims.24 This 

Court granted certiorari, and after briefing and argument 

reversed the Tenth Circuit per curiam, citing Beacon 

Theatres and Dairy Queen. Inc, v. Wood. 369 U.S. 469 

(1962).

In all significant respects, the present case is Meeker. 

Here, too, the court of appeals has relied on the district 

court’s findings on a plaintiffs equitable claims to justify 

not presenting legal claims raised in the same action to 

the jury. The fact that the district court here dismissed 

Lytle’s legal claims before the bench trial, rather than 

simply holding them in abeyance pending the outcome of

24 Petition for Writ of Certiorari, October Term 1963, No. 
46, p. 5.

40



the bench trial, does not alter the conclusion that the

district court’s errors denied the plaintiff his Seventh 

Amendment rights and must be reversed.

B. A Violation of the Seventh Amendment. Like 
Other Errors Which Result in the Wrong 
Entity Finding the Facts, Is Subject To 
Reversal Per Se

This Court has repeatedly held that when "the wrong 

entity" has conducted a trial over the objection of a 

litigant, reversal is the required appellate response 

"regardless of how overwhelming] the evidence . . . 

Rose v. Clark. 478 U.S. 570, 578 (1986) (judge cannot 

direct verdict for conviction). This principle lies at the 

heart of the Court’s decision last Term in Lauro Lines 

S.R.L. v. Chasser. 109 S.Ct. 1976 (1989). In Chasser. 

respondent sued petitioner in the Southern District of 

New York, over petitioner’s objection that a forum- 

selection clause on respondent’s ticket required all suits

41



to be brought in Naples, Italy. The Court held that the 

denial of petitioner’s motion to dismiss on the basis of 

the forum-selection clause was not immediately 

appealable. It stated that "[p]etitioner’s claim that it may 

be sued only in Naples, while not perfectly secured by 

appeal is adequately vindicable at that stage — surely as 

effectively vindicable as a claim that the trial court lacked 

personal jurisdiction over the defendant . . . ." Id. at 

1979. The clear import of the Court’s analysis is that, if 

the forum-selection clause was violated, any verdict 

obtained in the Southern District will have to be set 

aside, regardless of whether the evidence would support 

it, because such a verdict will have been obtained from a 

factfinder not entitled to adjudicate the claims presented.

The perspective underlying Chasser is reflected in a 

wide array of cases in this Court which have rejected the 

assumption that the participation of an incorrect

42



factfinder is irrelevant if a proper factfinder could have 

reached the same result.25 Cf.. e.g.. Gomez v. United 

States. 109 S.Ct. 2237 (1989) (when magistrate, rather 

than judge, presided over jury selection, reversal per se is 

required regardless of overwhelming evidence of guilt to 

support jury verdict); Lilieberg v. Health Services 

Acquisition C om . 108 S.Ct. 2194, 2206 n. 16 (1988) 

(when judge should have recused himself under 28 U.S.C. 

§ 455, new trial was required even though court of 

appeals held that his findings of fact had not been clearly 

erroneous); Aetna Life Ins. Co. v. Lavoie. 475 U.S. 813, 

825-28 (1986) (when judge should have disqualified

25 In any event, the clearly erroneous standard of Rule 52(a) 
applied by the court of appeals, see App. 10a-13a, simply cannot be 
appropriate to this kind of case. The Fourth Circuit did not decide 
that a jury could not or would not have found for Lytle. All its 
Rule 52(a) analysis determined was that a jury was not required as 
a matter of law to have done so, and thus that the judge’s findings 
for the defendant were not wholly unsupportable. This Court has 
never held, in the case of a constitutional violation, that the 
appropriate standard of review is sufficiency of the evidence.

43



himself, reversal was required without regard to whether 

court would have decided the same way in the absence 

of the judge); Thiel v. Southern Pacific Co., 328 U.S. 217, 

225 (1946) (verdict of jury selected from venire from 

which daily wage earners had improperly been excluded 

had to be set aside regardless of whether plaintiff was in 

any way prejudiced by its decision); Stevens v. Nichols, 

130 U.S. 230 (1889) (where matter was improperly 

removed from state to federal court the latter’s judgment 

after trial would be reversed for trial by state court); 

Flemming v. Nestor, 363 U.S. 603, 606-607 (1960) (where 

a statute mandates a three-judge court, judgment entered 

by a single judge must be reversed and remanded for

44



trial before a three-judge court, and consideration of the 

merits is precluded).

m . THE COURTS BELOW ERRED IN APPLYING 
PRINCIPLES OF COLLATERAL ESTOPPEL TO 
THIS CASE

The linchpin of the Fourth Circuit’s analysis was its 

fundamentally flawed reading of this Court’s opinion in 

Parklane Hosiery Co. v. Shore. 439 U.S. 322 (1979). Not 

only did the court of appeals misread Parklane Hosiery, 

but its interpretation would in fact fail to serve the 

interests in judicial economy embodied in the doctrine of 

collateral estoppel.26

26 The Fourth Circuit declined to apply the collateral 
estoppel rule, announced in Ritter v. Mount St. Mary’s Colleee. 814 
F.2d 986 (4th Cir. 1987), cert, denied. 108 S. Ct. (1987), and 
followed by the panel in the instant case, in Swentek v. USAir, 830 
F.2d 552, 559 (4th Cir. 1987). See also, Keller v. Prince George’s 
County, 827 F.2d 952 (4th Cir. 1987) (applying the traditional rule 
that jury' trial claims may be reviewed despite an intervening decision 
on the issues by a trial judge, but without referring to Ritter). But 
cf. Dwver v. Smith, 867 F.2d 184, 192 (4th Cir. 1989) (noting 
inconsistency both within and without circuit, but holding that Ritter

45



A. Parklane Hosiery Does Not Apply to this 
Case

The question presented in Parklane Hosiery was 

"whether a party who has had issues of fact adjudicated 

adversely to it in an equitable action may be collaterally 

estopped from relitigating the same issues before a jury 

in a subsequent legal action brought against it by a new 

party." 439 U.S. at 324 (emphasis added). Parklane 

Hosiery Company was the defendant in two lawsuits: the 

first, an equitable action by the SEC; the second, a 

damages action by its stockholders. The question was 

whether the findings entered in the SEC’s non-jury trial,27

preclusion rule is binding in the circuit).

27 In concluding that collateral estoppel was permitted (not, 
contrary to the Fourth Circuit’s rule in this case, that it was 
required, see 439 U.S. at 331), the Court expressly noted that ”[t]he 
petitioners did not have a right to a jury trial in the equitable 
injunctive action brought by the SEC." 439 U.S. at 338 n. 24. Thus, 
Parklane Hosiery rests on the premise that the first proceeding was 
decided in a proper forum. Cf. Pennover v. Neff. 95 U.S. (5 Otto)

46



and affirmed on appeal, id. at 325, could bind Parklane 

Hosiery in the later damages action. The Court 

answered that question in the affirmative.

Parklane Hosiery clearly says nothing about whether 

the denial of the right to trial by jury is reviewable on 

direct appeal. Thus, Parklane Hosiery in no way 

undermines the force of the Meeker-Tull-Granfinanciera 

line of cases. Indeed, application of collateral estoppel 

presumes "litigation [which] proceeds through preliminary 

stages, generally matures at trial, and produces a 

judgment, to which, after appeal, the binding finality of 

res judicata and collateral estoppel will attach." Arizona 

v. California. 460 U.S. 605, 619 (1983) (emphasis added). 

As courts and commentators have recognized, there is a 

vast "difference between correction of procedural errors

714 (1877) (when a prior judgment was obtained in an improper 
forum, collateral estoppel is inappropriate).

47



on appeal in a single lawsuit and the refusal to inquire 

into possible errors when a prior judgment is offered to 

support preclusion." 18 Wright, Miller & Cooper, 

Federal Practice and Procedure § 4418 (1989 Supp.) at 

104 (footnote omitted); see Roebuck v. Drexel 

University, 852 F.2d 715, 738 (3d Cir. 1988); Volk v. 

Coler. 845 F.2d 1422, 1437 (7th Cir. 1988) (same); Wade 

v. Orange County Sheriffs Office. 844 F.2d 951, 954-55 

(2d Cir. 1988); Hussein v. Oshkosh Motor Truck Co.. 816 

F.2d 348 (7th Cir. 1987) (same); Bouchet v. National 

Urban League. 730 F.2d 799 (D.C.Cir. 1984) (same). 

See also, Williams v. Cerberonics. Inc.. 871 F.2d 452, 463 

(4th Cir. 1989) (Phillips, J., dissenting).28

28 The appellant in Bouchet argued that the district judge 
had improperly dismissed her legal claims, and then resolved against 
her the similar issues raised by her equitable claims. Writing for the 
panel in that case, then-Judge Scalia explained that not only was the 
appellant entitled to a jury trial on her legal claims but the 
erroneous denial of her

law claims and the consequent denial of her demand for
jury trial would infect the disposition of her [equitable]

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Thus, as the Seventh Circuit noted in Hussein, a case

whose procedural posture was identical to that of the 

present case:

We believe that the present case presents 
a substantially different situation than that before 
the Supreme Court in Parklane. Here, there is 
no earlier valid judgment . . . .

It is hardly "needless litigation" to reverse 
a judgment on the ground that the plaintiff was 
denied his right to a jury trial through no fault 
of his own solely because of the error of the trial 
court. It is inappropriate to apply collateral 
estoppel to preclude review of an issue on which 
the appellant could not have previously sought
r e v ie w ..............  The burden on judicial
administration is no more than in other 
situations in which legal error is committed and

claim as well, since most if not all of its elements would 
have been presented to the wrong trier of fact. Not only 
would a jury trial on her tort claims be required, but the 
[equitable] judgment -- even if otherwise valid — would 
have to be vacated, and the whole case retried, giving 
preclusive effect to all findings of fact by the jury.

730 F.2d at 803-04.

The Fourth Circuit has expressly rejected then-Judge Scalia’s 
reasoning: "The Bouchet proposition is . . . set forth without
reference to Parklane. despite the clear relevance of that case to the 
issues presented. We find th[is] lower court opinio[n] unpersuasive 
. . . ." Ritter. 814 F.2d at 991.

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a retrial is required . . . .  We cannot sanction 
an application of collateral estoppel which would 
permit findings made by a court . . .  to bar 
further litigation of a legal issue . . . when those 
findings were made only because the district 
court erroneously dismissed the plaintiffs legal 
claim. To permit such an application would 
allow the district court to accomplish by error 
what Beacon Theatres otherwise prohibits it 
from doing.

816 F.2d at 355-57.

Under the Fourth Circuit’s approach, the narrow 

Katchen exception29 would swallow up the broad Meeker 

Oil-Beacon Theatres-Dairv Queen rule. Faced with cases 

raising both legal and equitable claims, it would be the 

rare judge indeed who would not try the equitable claims 

first. Conducting the bench trial first would avoid the ' 

expenses and delays associated with jury trials. It would 

obviate the need for the kind of evidentiary rulings and

In Katchen v. Landv. 382 U.S. 323 (1966), the Court 
held that the Seventh Amendment is not violated by limiting trial to 
the court in a specialized bankruptcy scheme.

50



instructions that attend jury trials. And it would save the 

judge from facing the vast majority of post-trial motions 

for a judgment n.o.v. or for a new trial. Moreover, the 

preclusion afforded those bench rulings means that a trial 

court faces no costs in denying the right to a jury: even 

if the Seventh Amendment right was violated, the trial 

judge will not be required ever to conduct a jury trial. 

In short, the Fourth Circuit has created a powerful 

inducement for trial courts to violate the Seventh 

Amendment.

The holding in Parklane Hosiery was clearly not 

intended to create a perverse incentive for lower courts 

to violate the Seventh Amendment. Indeed, the Court’s 

approving citation of Beacon Theatres’ general prudential 

rule and the discussion of the limited situations under 

which that rule should not be followed, see 439 U.S. at 

334-35 (discussing Katchen v. Landv, 382 U.S. 323

51



(1966)), show that Parklane Hosiery cannot be read to 

eliminate Seventh Amendment rights whenever bench 

trials have occurred.

B. The Fourth Circuit’s Approach Would in Fact 
Undermine the Interest in Judicial Economy 
that the Doctrine of Collateral Estoppel Is 
Intended to Serve

The Seventh Amendment clearly is not a provision 

whose violation can be rendered harmless in the normal 

course of events by subsequent proceedings. Cf. Midland 

Asphalt Corp. v. United States. 109 S.Ct. 1494 (1989). 

Thus, the Fourth Circuit’s rule cannot be read to bar ah 

appellate review of Seventh Amendment claims. But if 

review of final judgments is barred, then appellate review 

must necessarily occur at some interlocutory phase of the 

litigation — either (1) through mandamus proceedings 

prior to trial, see, e.g.. Gulfstream Aerospace v.

52



Mavacamus Corp.. 109 S.Ct. 1133, 1143 n. 13 (1988) (an

"order that deprives a party of the right to trial by jury is 

reversible by mandamus"); Beacon Theatres. Inc, v. 

Westover. 359 U.S. 500, 510-11 (1959) (same), or (2) 

through application of the collateral order doctrine of 

Cohen v. Beneficial Industrial Loan Corp.. 337 U.S. 541 

(1949).30

In either event, the result is the same: appellate

30 Until now, the collateral order doctrine has been held 
inapplicable to denials of jury trials precisely because wrongful 
denials of jury trials could be corrected on appeal. See Morgantown 
v. Royal Insurance Co.. 337 U.S. 264 (1949); Western Elec. Co. v. 
Milgro Electronic Corp. 573 F.2d 255, 256-57 (5th Cir. 1978) 
(specifically tying that conclusion to the nonapplicability of collateral 
estoppel when the Seventh Amendment had been violated).

But under the Fourth Circuit rule, denials of jury demands will 
fall under the collateral order doctrine, since they will satisfy all 
three prongs of the Cohen rule. See, e.e.. Lauro Lines, 109 S.Ct. at 
1978 (setting out the three conditions); Coopers & Lybrand v. 
Livesav, 437 U.S. 463, 468 (1978) (same). First, such orders will 
"conclusively determine the disputed question," id., namely, whether 
the litigant has the right to trial before a jury. Second, they will 
"resolve an important issue completely separate from the merits of 
the action," id., since who the factfinder should be is in no sense 
equivalent to what the facts are. Finally, the very nature of the 
Fourth Circuit rule is to hold such orders entirely "unreviewable on 
appeal from final judgment." Id.

53



courts will continue to face claims of Seventh

Amendment violations. The primary effect of the Fourth 

Circuit’s rule will be to require interlocutory appellate 

review, and to prompt appeals in ah cases in which a 

jury demand has been denied (and not only in cases 

where the party demanding the jury subsequently loses at 

the bench trial),31 since parties whose demands have 

been denied will no longer be able to appeal that denial 

as part of an appeal from a generally adverse final

31 The availability of collateral review or mandamus does not, 
however, mean that an aggrieved party who elects not to utilize 
those avenues of review, but instead awaits conclusion of the district 
court proceedings, loses the right of review. 9 Wright & Miller, 
Federal Practice and Procedure: Civil § 2322 at p. 105 (1971). The 
failure to take an immediate appeal of the denial of a Seventh 
Amendment right has never been construed as a waiver of that 
constitutional right. Rule 38, Fed. R. Civ. P., specifies what 
constitutes waiver of the right: failure to make a timely demand. 
And such waiver is not to be implied lightly. See, e.g.. Aetna 
Insurance Co. v. Kennedy, 301 U.S. 389, 393 (1937) ("the right of 
jury trial is fundamental [and] courts [must] indulge every reasonable 
presumption against waiver"); Hall v. Sharpe. 812 F.2d 644, 649 
(11th Cir. 1987); Gargiulo v, Delsole. 769 F.2d 77, 79 (2d Cir. 1985) 
("plaintiffs were not required to walk out of the courtroom rather 
than proceed with the bench trial in order to preserve [their right of 
appeal]").

54



judgment. Thus, the Fourth Circuit’s rule will have the 

ironic consequence of increasing the burden on courts of 

appeals.

In short, the Fourth Circuit’s rule does not even 

serve the goals it purports to further. In light of the 

tremendous costs it imposes on a fundamental 

constitutional right, it is entirely unjustified.

CONCLUSION

For the foregoing reasons, the decision below should 

be reversed.

Respectfully submitted,

JULIUS LEVONNE CHAMBERS 
CHARLES STEPHEN RALSTON 
RONALD L. ELLIS 
ERIC SCHNAPPER 
JUDITH REED*

NAACP Legal Defense and 
Educational Fund, Inc.
99 Hudson Street 
16th Floor

55



August, 1989

New York, New York 10013 
(212) 219-1900

PENDA D. HAIR 
NAACP Legal Defense and 
Educational Fund, Inc.
Suite 301
1275 K Street, N.W. 
Washington, D.C. 20005 
(202) 682 1300

PAMELA S. KARLAN 
University of Virginia 
School of Law 
Charlottesville, VA 22901 
(804) 924-7810

Attorneys for Petitioner 
* Counsel of Record

56