Delaware v. Dickerson Brief Amicus Curiae

    No. 97-66

In  Th e

Supreme Court of tije Untteb States;
O ctober  T e r m , 1996

M a u r ic e  Riv er s  and  R obert  C. Da v iso n ,

V.
Petitioners

R oadw a y  Ex pr ess , In c .,

Respondent.

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

for the Sixth Circuit

PETITIONERS’ REPLY TO BRIEF OF RESPONDENT 
IN OPPOSITION TO THE PETITION 

FOR WRIT OF CERTIORARI

Eric Schnapper 
University of 
Washington 
School of Law 

1100 N.E. Campus Way 
Seattle, WA 98195 
(206) 616-3167

Ellis Boal 
925 Ford Building 
Detroit, MI 48226 
(313) 962-2770

Elaine R. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Charles Stephen Ralston 
(Counsel o f Record)
NAACP Legal Defense & 

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

Attorneys fo r  Petitioners
PRESS OF BYRON S. ADAMS ♦  WASHINGTON, D.C. ♦  1-800-347-8208



No. 97-66

In The

Supreme Court of tfje fMntteb States!
October Term, 1996

Maurice Rivers and Robert C. Davison,
Petitioners,

v.

Roadway Express, Inc.,
Respondent.

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

for the Sixth Circuit

PETITIONERS’ REPLY TO BRIEF OF RESPONDENT 
IN OPPOSITION TO THE PETITION 

FOR A WRIT OF CERTIORARI

Petitioners wish to respond briefly to a number of 
points made by the respondent in its brief in opposition to 
the petition for a writ of certiorari.

1. Respondent makes factual assertions that are 
based on the district court’s findings of fact at the bench 
trial on petitioners’ Title VII claims. This reliance is 
misplaced, since the issue here is whether the courts below 
were correct in granting summary judgment on petitioners’ 
claims under 42 U.S.C. § 1981, thereby depriving petitioners 
of a jury trial to which they were entitled under Lytle v. 
Household Mfg., Inc., 494 U.S. 545 (1990). Thus, for 
example, at pages 5-6 of the Brief in Opposition, respondent 
asserts that petitioners were ordered to attend the hearings 
on September 26. However, petitioners disputed this, and 
the district court erred in resolving this factual dispute in



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respondent’s favor on summary judgment. See, the Petition 
for a Writ of Certiorari, p. 13.

2. At page 19 of the Brief in Opposition, respondent 
asserts that the petitioners have misrepresented the facts 
when they state that it is "undisputed that one of the 
grounds for the successful grievance was that discipline was 
being carried out in a racially discriminatory fashion." 
Petition for a Writ of Certiorari, page 29. This statement by 
petitioners is accurate, however: it is fact that one of the 
grounds that petitioners asserted during their first, successful 
grievance, was that discipline was being carried out in a 
racially discriminatory manner. The grievance committee 
upheld the grievance (without specifying the particular 
ground or grounds for its decision). Respondent refers, in 
footnote 3 on page 19 of the Brief in Opposition, to the 
bench trial on the Title VII claims. For the reasons stated 
in paragraph 1. above, this reference is unavailing. At the 
jury trial on their 1981 claims to which petitioners are 
entitled, the question of the admissibility of an arbitrator’s 
spontaneous volunteering of the racial reasoning behind the 
grievance panel’s favorable decision will be raised.

3. In footnote 2, page 11, of the Brief in Opposition, 
the respondent cites four recent decisions of the Sixth 
Circuit which it claims shows that there is no conflict with 
other circuits. However, if anything, the cases cited support 
the need for a grant of certiorari to resolve the question of 
the appropriate standards for deciding a case of retaliatory 
discharge:

a. Crabbs v. Copperweld Tubing Products Co., 114 
F.3d 85 (6th Cir. 1997) and Woythal v. Tex-Tenn Corp., 112 
F.3d 243 (6th Cir. 1997) are two more examples of 
affirmances by the Sixth Circuit of grants of summary 
judgment in EEO cases. Thus, they support petitioners’ 
argument, made at pages 24-25 and notes 47 and 48 of the 
Petition for a Writ of Certiorari, as to why certiorari should 
be granted. Moreover, neither of the decisions constitutes 
a holding concerning the issue of comparator evidence, since 
in neither case, according to the court of appeals, was there 
any evidence in the record of discrimination based on age.



3

b. EEOC v. Avery Dennison Corp., 104 F.3d 858 (7th 
Cir. 1997) did not raise the issue of comparators at all, since 
the issue presented was purely one of retaliation for filing a 
charge with the Equal Employment Opportunity 
Commission. Thus, unlike the present case, the issue of race 
and comparisons with similarly situated white employees was 
not present.

c. Ensley-Gaines v. Runyon, 100 F.3d 1220 (6th Cir. 
1996) is also inapposite, since the claim was discrimination 
under the Pregnancy Discrimination Act (PDA). The 
holding of the Sixth Circuit was that the standard for 
comparisons under the PDA was different from that for race 
claims under Title VII. In race cases the standard was, as 
discussed in the Petition for a Writ of Certiorari, that white 
comparators must be "similarly situated ‘in all respects.’" 
Because of the specific language of the PDA, the 
comparator need only be "similar in his or her ‘ability or 
inability to work’" as the plaintiff. 100 F.3d at 1226. Thus, 
once again, this decision supports the arguments made in the 
Petition for a Writ of Certiorari as to why certiorari should 
be granted.

4. With regard to the question of what contractual 
right was sought to be enforced by petitioners and gave rise 
to their claim under section 1981, it is clear that petitioners 
were seeking to enforce their right to file a grievance over 
discipline, including specifically to grieve on the basis that 
discipline was administered in a racially discriminatory 
manner. Petitioners won that grievance and were, it is 
alleged, retaliated against for being successful.

It is also clear that this contractual claim was not 
identified for the first time in response to the respondent’s 
motion for summaiy judgment in 1995, but was raised at 
least as early as the first appeal to the Sixth Circuit in 1992. 
As the dissent below noted (Appendix to the Petition at p. 
8a), the first decision of the court of appeals stated that 
"Rivers and Davison were punished, they contend, for trying 
to utilize the established legal process for their grievances." 
Appendix to the Petition at page 62a; Harvis v. Roadway 
Express, 973 F.2d 490, 494 (6th Cir. 1992).



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In addition, it is clear that petitioners sought to 
enforce contractual rights to be free of racial discrimination, 
to have proper notice of disciplinary hearings, and to have 
discipline based only on "just cause." The fact that these 
rights were not specifically spelled out in black letters in the 
collective bargaining agreement did not mean that those 
rights did not exist. Petitioners’ claim is that they were 
established by custom and past practice, and, therefore, were 
enforceable. See, e.g., Elkouri and Elkouri, H ow 
Arbitration Works, Chapter 12, "Custom and Past Practice," 
pp. 437-56 (4th ed., BNA 1985)(discussing past practice); 
Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 
579 (1960)(specific words of contract not dispositive); Ethyl 
Corp. v. Steelworkers, 768 F.2dd 180, 185-86 (7th Cir. 
1985)(implied terms in a contract). The meaning of the 
contract and whether there was a past practice that 
supported the claim of implied rights would have been for 
the jury in the section 1981 trial to decide. Scott v. Anchor 
Motor Freight, 496 F.2d 276 (6th Cir. 1974).

C o n c l u s io 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. Jones 
Director-Counsel

Theodore M. Shaw 
Norman J. Chachkin 
Charles Stephen Ralston 
(Counsel o f Record)
NAACP Legal Defense & 

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



Eric Schnapper 
University of 
Washington 
School of Law 

1100 N.E. Campus Way 
Seattle, WA 98195 
(206) 616-3167

Ellis Boat 
925 Ford Building 
Detroit, MI 48226 
(313) 962-2770

Attorneys for Petitioners