Amicus Brief — Great American Federal Savings & Loan Ass'n v. Novotny

Supreme Court brief1979

Ask Donna

What actually matters in this document.

Text

pupreme Uourt, U. 9

FiLs D

' MAR 1 1979

MIGHABL RODAK, JR., CLERK

A COD

IN THE

Siyrenw Court of the United States

OCTOBER TERM, 1978

No. 78-753

GREAT AMERICAN FEDERAL SAVINGS & LOAN ASSO-

CIATION, JOHN A. VIROSTEK, JOSEPH E. BUGEL,

JOHN J. DRAVECKY, DANIEL T. KUBASAK, EDWARD

J. LESKO, JAMES E. ORRIS, JOSEPH A. PROKOPO-

VITSH, JOHN G. MICENKO AND FRANK J. VANEK,

7 Petitioners,

JOHN R. NOVOTNY,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF ..MICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

AVRUM M. GOLDBERG

WILLIAM R. WEISSMAN

WALD, HARKRADER & Ross

1320 Nineteenth Street, N.W.

Washington, D.C. 20036

(202) 296-2121

Of Counsel:

ROBERT E. WILLIAMS

DouGLas 8. MCDOWELL

McGUINESS & WILLIAMS

1747 Pennsylvania Avenue, N.W.

Washington, D.C. 20006

(202) 296-0333

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

Page

ZABLE OF AUTHORITIG ...........0c00cccccccccccesscocessessess# II

STATEMENT OF THE CASE ....0000000000.00.c0cccceccces seiadbe 3

SUMMARY OF ARGUMENT. ...............ccccccccccsccossssccsseese

a sesnmiinuasononensesnnacers 8

I. SECTION 2 OF THE KU KLUX KLAN

ACT OF 1871 IS NOT AN ALTERNATIVE

MECHANISM FOR ENFORCING RIGHTS

CREATED BY TITLE VII OF THE CIVIL

RIGHTS ACT OF 1006 occ... .

A. Section 1985(3) Has No Application to

Federal Statutory Rights For Which Con-

gress Has Provided A Self-Contained En-

a 10

B. Title VII Establishes An Exclusive Com-

prehensive Scheme For Enforcing The

Rights Created By That Title ............. i 15

Il. THE ALLEGATION OF A CONSPIRACY

AMONG THE OFFICERS AND DIRECTORS

OF A SINGLE CORPORATION ACTING ON

BEHALF OF THE CORPORATION DOES

NOT SATISFY THE “TWO OR MORE PER-

SONS” ELEMENT OF 42 U.S.C. § 1985 (38)...... 23

os Se ducsensilecdhsntcenhinibbulamecsadtinsnds 30

TABLE OF AUTHORITIES

CASES: Page

Action v. Gannon, 450 F.2d 1227 (8th Cir. 1971)

NE sais ntas cciacsehscad be cacheniniieeeebinoindaaeadhbahanabdesonebicans 22

Albemarle Paper Co. Vv. Moody, 422 U.S. 405

ET a ENE RAC a TERA a Od OU ED 14

Alexander v. Gardner-Denver Co., 415 U.S. 36

| __ ARPRSED Soe OE Re Re Pere ne nA ee 17, 18, 21, 22

Arthur v. Kraft-Phenix Cheese Corp., 26 F. Supp.

FB ) RRA ES Soe cere 25

Baker v. Stuart Broadcasting Co., 505 F.2d 181

i I ceiebinaisuabeumete 24, 25

Beacon Fruit & Produce Co. v. H. Harris & Co.,

152 F. Supp. 702 (D. Mass. 1957) ..................00000. 27

Bellamy v. Mason’s Stores, Inc., 508 F.2d 504 (4th

Si eR EER aa le lr Nae ROSNER 22, 24

Boys Market, Inc. vy. Retail Clerks Union, 398 U.S.

REA ES A RERIIE eS Elana ee 11

Brown Vv. GSA, 425 U.S. 820 (1976)......6, 15, 16, 19, 20, 21

Califano v. Sanders, 430 U.S. 99 (1977) 0.000000... 16

Cameron V. Brock, 473 F.2d 608 (6th Cir. 19738)... 19

Chambliss v. Foote, 421 F. Supp. 12 (E.D. La.

1976), aff’d per curiam, 562 F.2d 1015 (5th Cir.

1977), cert. denied, 489 U.S. ——, 99 S. Ct. 127

PSS VERD Re 07 A Da Ae sie Oe A 24

Cohen Vv. Illinois Institute of Technology, 524 F.2d

818 (7th Cir. 1975), cert. denied, 425 U.S. 948

gS a ESP ae Sal A IOP Ue SILL Ea Ge a 22

Cole v. University of Hartford, 391 F. Supp. 888

uit cesdaubanabien 27

Coley v. M&M Mars, Inc., —— F. Supp. ——, 18

FEP Cas. 1809 (M.D. Ga. 1978) 000... 28

Davis v. United States Steel Supply, 581 F.2d 335

OIE INSEE ie ore a ee 19

Distriét of Columbia v. Carter, 409 U.S. 418

RESIST ec TaD Saree A i ae erie a ei Ra 11, 12

Dombrowski v. Dowling, 459 F.2d 190 (7th Cir.

EF Re PEE Ss ERTS Le A SAME A ea RR ee ew Rye Rs 24, 25, 27, 28

Dorsey V. Chesapeake and Ohio Railway, 476 F.2d

BE Wy ME BIE goo, occ convascaccouaesccnnidasivcnceduacocancsons 25

Doski v. M. Goldseker Co., 589 F.2d 1826 (4th Cir.

ae 21, 22

Ill

TABLE OF AUTHORITIES—Continued

Page

Dupree Vv. Hertz Corp., 419 F. Supp. 764 (E.D.

Bis ROG DO: Seecsncibtnsacceslctacisidiatiactacaeeatite cape 28

Egan v. United States, 187 F.2d 369 (8th Cir.),

cert. denied, 320 U.S. 788 (1948) 00.0.0... 29

Fallis v. Dunbar, 582 F.2d 1061 (6th Cir. 1976)... 24

Girard Vv. 94th St. & Fifth Ave. Corp., 580 F.2d 66

(2d Cir.), cert. denied, 425 U.S. 974 (1976)...... 24, 28

Goldlawr, Inc. v. Shubert, 276 F.2d 614 (8d Cir.

TOIND ecissckemesllie scnddencsrbebbcivenadteietatnetel ie Oe ere 25

Greenville Publishing Co. v. Daily Reflector, Inc.,

496 F.2d 891 (4th Cir. 1974)... 24, 25, 27

Griffin v. Breckenridge, 408 U.S. 88 (1971) ...000000.... 7,8, 9,

: 10, 13

H.&B. Equipment Co. v. International Harvester

Co., 577 F.2d 289 (5th Cir. 1978) ........ secidta cease 25, 27

Hodgin v. Jefferson, 447 F. Supp. 804 (D. Md.

| ORB a esc oes Pm Ebley ARs iPOD er a a Oe 2 11, 16

International Brotherhood of Teamsters v. Daniel,

— US. , 99 S. Ct. 790 (1979) .................. 16

International Brotherhood of Teamsters v. United

Bemba, GEE. Gite TIO TOAD. sensstacudossdcdcosesecessdessncss 8,14

International Union of Electrical Workers vy. Rob-

bins & Myers, Inc., 429 U.S. 229 (1976) ............ 8, 21

Jackson V. University of Pittsburgh, 405 F. Supp.

Be Ce Bt. NE hte teataleceitee tn 28

Johansen Vv. United States, 348 U.S. 427 (1952)... 16

Johnson V. Railway Express Agency, Inc., 421 U.S.

Re Ee odittlnad iar ets 8 21, 22, 29

Johnson V. University of Pittsburgh, 435 F. Supp.

RE Ce NG ED cccinictnantnctdeaddensscicensascensocmasss 28

Johnston v. Baker, 445 F.2d 424 (8d Cir. 1971).... 25, 27

Jones V. Tennessee Eastman Co., 397 F. Supp. 815

(E.D. Tenn. 1974), aff'd mem., 519 F.2d 1402

SR ri MI iceciadaeihctinlateicinbedices Gua toceideddans 24

Joseph E. Seagram & Sons, Inc. v. Hawaiian Oke

& Liquors, Ltd., 416 F.2d 71 (9th Cir. 1969),

cert. denied, 396 U.S. 1062 (1970) .....0000 24, 25

TABLE OF AUTHORITIES—Continued

Koehring Co. v. National Automatic Tool Co., 257

F, Supp. 282 (S.D. Ind. 1966), aff’d per curiam,

SEB F.Bd 414 (Tt Civ. 1067). .......ccccccsccsscccccscccssees

Local No..1 (ACA) Vv. International Brotherhood

of Teamsters, 419 F. Supp. 268 (E.D. Pa. 1976)..

Lorillard v. Pons, 484 U.S. 575 (1978) ............ ida

Lynch v. Household Finance Corp., 405 U.S. 538

CRT IED ccsainscssnsasicideudeunesninddicdbaddbebienbiacapbanbenesdinlihteds

McLellan Vv. Mississippi Power & Light Co., 545

F.2d 919 (5th Cir. 1977) (en banc) .......... TREND

Monell v. Department of Social Services, 436 U. S.

Monroe V. Pape, 365 U.S. 167 (1961).......... 8, 11, 12,

Morton Buildings of Nebraska, Inc. v. Morton

Buildings, Inc., 581 F.2d 910 (8th Cir. 1976)......

Murphy v. Operating Engineers, Local 18, ——

F. Supp. ——, 99 L.R.R.M 2074 (N.D. Ohio

|) | SRE PP CY ET ame LTR SE LU

Nelson Radio & Supply Co. Vv. Motorola, Inc., 200

F.2d 911 (5th Cir. 1952), cert. denied, 345 U.S

GID: CIS. svcoctansevaiacrastardhsaelicteateteatehasnes

Neumann V. Bastian-Blessing Co., 70 F. Supp. 447

CPEB. Tide: BIG Y seckertcecserciessteasaaniiabetiannade

New York Central & Hudson River Railroad vy.

United States, 212 U.S. 481 (1909) .........00000000....

Occidental Life Insurance Co. v. EEOC, 482 U.S.

Te: GREED ccncsctnseicipvcsedncnssntscapeunsacstenasan 17, 18, 19,

Pearson V. Youngstown Sheet and Tube Co., 332

F.2d 439 (7th Cir.), cert. denied, 379 U.S. 914

CRED vencsncanistnsicnrnspnineencciddsianphiccianianu eee

Person Vv. New York Post Corp., 427 F. Supp. 1297

(E.D.N.Y.), aff'd mem., 573 F.2d 1294 (2d Cir.

BODE: naccrcoivaiskecanistisdscsipiescuetsediaenieaenee meannane

Poller v. Columbia Broadcasting System, Inc., 284

F.2d 599 (D.C. Cir. 1960), rev’d, 368 U.S. 464

COIIIIED cecieseressnessasesnsacecegubiastoeseniuansenenainanaedl 24,

Preiser V. Rodriguez, 411 U.S. 475 (1978) .............

Page

24, 25

20, 21

25, 26

16, 19

TABLE OF AUTHORITIES—Continued

Page

Rackin v. University of Pennsylvania, 886 F.

RU, CE Cie eke CED ickcsctcevevcccsvcesceevsncesees: 28

Regents of the University of California v. Bakke,

Be I PI inks oc che secasaccahaetnenctboaeuanse 3

Richerson Vv. Jones, 551 F.2d 918 (8d Cir. 1977)... 19

Rosenfeld v. Southern Pacific Co., 444 F.2d 1219

EE is) TTT IRE csc atscceneahidsendcinbichcnceiebbiekbinetetousesnxnsonses 9

Scott v. Board of Education, —— F. Supp. ——,

18 FEP Cas. 1280 (D. Md. 1977) .........0.0000000..... 29

Slack v. Havens, 522 F.2d 1091 (9th Cir. 1975).... 19

Tamaron Distributing Corp. v. Weiner, 418 F.2d

ee ED atistibiatenitenanbtcicctuicencnstadsnennsseases 25

Trustees of Dartmouth College v. Woodward, 17

U.S. (4 Wheat.) 518 (1819) .................000 ee. 24

United Air Lines, Inc. v. Evans, 481 U.S. 553

ROUTED dedishenigsroibsosnedetaeine dake d mehcelapanaieatabiabanaisoionsanidesodss 8,19

United States v. Hilton Hotels Corp., 467 F.2d

1000 (9th Cir. 1972), cert. denied, 409 U.S. 1125

PURINE. cod cp chceonankediasenaitusednadabeumnclneebienbieadcdsas Whvwcudea 29

Walker v. Providence Journal Co., 498 F.2d 82

I Sa EPURD” hcnnisieletcedanicntehaeeveecteicesatanccimisatenl 24, 25

Willingham v. Macon Telegraph Publishing CS,

507 F.2d 1084 (5th Cir. 1975) . * 9

Zelinger Vv. Uvalde Rock Asphalt Co., “316 F, 2d AT

EG MII oDesk niicatsentnicdhenniubccvesaandnadssanses 24, 26

STATUTES:

Act of March 8, 1875, § 1, 18 Stat. 470 (1875)...... 12

Civil Rights Act of 1870, 16 Stat. 144 (1870):

42 U.S.C. § 1981 ................ RAS ae Ee nN ARIPO 21

Civil Rights Act of 1964:

Title VII, 42 U.S.C §§ 2000e et seq. ......00000000.... 2

§ 708 (a), 42 U.S.C. § 2000e-2(a) 20... 17

§ 704 (a), 42 U.S.C. § 2000e-3(a) o.oo. 3, 4, 6, 9, 14

§ 706(b), 42 U.S.C. § 2000e-5(b) ooo. 16

§ 706 (b)-(e), 42 U.S.C. § 2000e-5 (b)-(e) ...... 17

§ 706 (f) (1), 42 U.S.C. § 2000e-5 (f) (1) .......... 17

TABLE OF AUTHORITIES—Continued

Page

§ 706 (7), 42 U.S.C. § 2000e-5 (2) oo... 17, 19, 20

§ 717, 42 U.S.C. § 2000e-16 ooo... iain 15, 16

Fair Labor Standards Act of 1938:

Ku Klux Klan Act of 1871, 17 Stat. 18 (1871):

TA LRA SR NGA eee ie Seen e ED 12

Ry Ey Oe IED chvevccnvasuoscnasenicshinassdsnceseeentcnad passim

LEGISLATIVE MATERIALS:

CONG. GLOBE, 42d Cong., Ist Sess., App. 85 (1871).. 12

App. 158 .............. 12

Pee 12

App. 8744 .............. 8

ROR 13

SENATE COMMITTEE ON LABOR & PUBLIC WELFARE,

92d CONG., 2d SEss., LEGISLATIVE HISTORY OF

THE EQUAL EMPLOYMENT OPPORTUNITY AcT of

PE IEE “cnsnsiceconaccnacsnceussnnsennsonch Cbubidinsitiaaockaa 18, 23, 29

MISCELLANEOUS:

1971-1972 Annual Survey of Labor Relations Law,

13 B.C. INDus. & Com. L. REv. 1847 (1972)........ 21

2 BLACKSTONE, COMMENTARIES (Tucker ed. 1803).. 24

Comment, Private Conspiracies to Violate Civil

Rights: McLellan v. Mississippi Power & Light

Co., 90 HARV. L. REV. 1721 (1977) .00.0.0.e. 22, 25

FRIENDLY, FEDERAL JURISDICTION: A GENERAL

We RRR vsecescnconsesninansedtincijasansanchionnvunpescenmbuabesisns 19, 20

Leach, Title VII of the Civil Rights Act and the

EEOC: An Agency in the Midst of Change, 29

MERCER L. REV. 661 (1978) .....00....cccccccccceeeeeeeeeeeee 20

Note, Developments in the Law—Employment Dis-

crimination and Title VII of the Civil Rights

Act of 1964, 84 Harv. L. REv. 1109 (1971)... 9,18

Vil

TABLE OF AUTHORITIES—Continued

Note, Federal Power to Regulate Private Discrimi-

nation: The Revival of the Enforcement Clauses

of the Reconstruction Era Amendments, 74

COLUM. L. REV. 449 (1974) ..0.........:ccccceccccceeeeeeeeees

Note, Intra-Enterprise Conspiracy Under Section

1 of the Sherman Act: A Suggested Standard,

76 Mic. L. RBV. 717 (1977) ..........cccccccecessccoececess

Note, The Scope of Section 1985(3) Since Griffin

v. Breckenridge, 45 Gro. WASH. L. RFy. 239

CICS itsxisnascniieiinnicideiidlindsendiddaiinniniassas Bethea dae

Sape & Hart, Title VII Reconsidered: The Equal

Employment Opportunity Act of 1972, 40 GEo.

Wash. L. REV. 884 (1972) ...................................

Willis & Pitofsky, Antitrust Consequences of Us-

ing Corporate Subsidiaries, 48 N.Y.U.L. REv.

ae sees

13 WRIGHT, MILLER & COOPER, FEDERAL PRACTICE

AND PROCEDURE § 3561 (1975) ...... LSE ERS OO

Page

19, 20

IN THE

Supreme Court of the United States

OCTOBER TERM, 1978

No. 78-753

GREAT AMERICAN FEDERAL SAVINGS & LOAN ASSO-

CIATION, JOHN A. VIROSTEK, JOSEPH E. BUGEL,

JOHN J. DRAVECKY, DANIEL T. KUBASAK, EDWARD

J. LESKO, JAMES E. ORRIS, JOSEPH A. PROKOPO-

VITSH, JOHN G. MICENKO AND FRANK J. VANEK,

Petitioners,

JOHN R. NOVOTNY,

Respondent.

<. jreoromaesy

On Writ of Certiorari to the United States

Court of Appeals for the Third Circuit

BRIEF AMICUS CURIAE OF THE

EQUAL EMPLOYMENT ADVISORY COUNCIL

INTEREST OF THE AMICUS CURIAE

This brief of the Equal Employment Advisory

Council (“EEAC”’) as amicus curiae in support of

the petitioners is submitted with the written consent

of all parties." EEAC is a voluntary nonprofit asso-

ciation organized to promote the common interest of

employers and the general public in the development

and implementation of sound government policies,

procedures and requirements pertaining to nondis-

criminatory employment practices. Its membership

comprises a broad segment of the employer com-

munity in the United States, including both individual

employers and trade associations. Its governing body

is a Board of Directors composed primarily of spe-

cialists in the field of equal employment opportunity,

whose combined experience gives the Council a unique

depth of understanding of the practical and legal

considerations of EEO policies and requirements.

Substantially all of EEAC’s members, or their con-

stituents, are employers subject to the provisions of

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

42 U.S.C. § 2000e et seg., and 42 U.S.C. § 1985(3),

as applied by the Court below, as well as other equal

employment statutes and regulations. Most of

EEAC’s member representatives—many of whom are

corporate officers—are charged with corporate re-

sponsibility for compliance with the various federal,

state and local statutes, regulations and orders deal-

ing with equal employment opportunity. As such,

they have a direct interest in the principal issue pre-

sented by the instant case—i.e., whether 42 U.S.C.

§ 1985(3) applies to an alleged conspiracy among

the officers and directors of a single corporation to

violate Title VII. EEAC previously filed a brief

amicus curiae in this case supporting the petition

for certiorari.

‘Their consents have been filed with the Clerk of the

Court.

oe Oe eS a ee

Because of its interest in issues pertaining to equal

employment, EEAC has filed briefs as amicus curiae

in a number of other recent cases in this Court rais-

ing important equal opportunity issues. See, e.g.,

Regents of the University of California v. Bakke, 438

U.S. 265 (1978); County of Los Angeles v. Davis,

pending, No. 77-1553; Kaiser Aluminum & Chemi-

cal Corp. v. Weber, pending, No. 78-435; Interna-

tional Brotherhood of Teamsters v. United States,

431 U.S. 324 (1977); United Air Lines, Ine. v.

Evans, 431 U.S. 553 (1977); and International Un-

ion of Electrical Workers v. Robbins & Myers, Inc.,

429 U.S. 229 (1976).

STATEMENT OF THE CASE

Respondent John R. Novotny brought this suit on

December 17, 1976, in the United States District

Court for the Western District of Pennsylvania, al-

leging that petitioner Great American Federal Sav-

ings and Loan Association and its officers and di-

rectors, the individual petitioners, terminated his em-

ployment as an officer of the Association in viola-

tion of 42 U.S.C. § 1985(3) and Section 704(a) of

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

§ 2000e-3(a). Novotny alleged that on or about

January 22, 1975, at the Association’s annual meet-

ing, the Association and its officers and directors

failed to reelect him as an officer and terminated his

employment in retaliation for his earlier protest of

the Association’s alleged discrimination against cer-

tain of its female employees.

The Association having moved to dismiss Novotny’s

complaint, the district court on April 22, 1977, dis-

missed the complaint in its entirety. Pet. App. 76a.’

In an accompanying opinion, the district court held

that a conspiracy under §$ 1985(3) could not exist

because the complaint alleged that only one legal

entity, the Association, terminated Novotny. Pet.

App. 7la-73a. The court dismissed the Title VII

cause of action because in its view § 704(a), the

“retaliation” provision, did not protect Novotny’s

termination in the absence of any allegation that the

termination was connected with a Title VII en-

forcement proceeding. Pet. App. 73a-75a.

The Court of Appeals for the Third Circuit en

banc reversed the district court on August 7, 1978,

with respect to both counts of: the complaint. It held

that concerted action to deprive an employee of the

substantive rights conferred by Title VII could be

remedied under § 1985(3), and that the officers and

directors of a single corporation acting on its be-

half could form a conspiracy covered by § 1985(3).

Pet. App. 28a-29a, 36a-40a, 50a-55a. These are the

issues on which this Court granted certiorari and

are of particular concern to EEAC as amicus curiae.

The Court of Appeals also reinstated Novotny’s claim

under § 704(a), and no review of that determina-

tion has been sought. Pet. App. 56a-61a.

SUMMARY OF ARGUMENT

The Third Circuit’s determination that 42 U.S.C.

§ 1985(3) provides a remedy for conspiratorial in-

ferences with an employee’s Title VII rights is based

on an expansive misreading of the statute and its

*“Pet. App.” refers to the appendix of the Petition for

Certiorari filed in this case.

legislative history.* The decision below, if sustained

by this Court, will lead to the application of § 1985

(3) to a host of federal statutory rights for which

Congress provided specific remedial schemes exclu-

sive of §$ 1985(3). It will also seriously undermine

the careful administrative/judicial balance Congress

adopted for redressing violations of Title VII of the

Civil Rights Act of 1964.

Section 1985(3) is the current codification of § 2

of the Ku Klux Klan Act of 1871, a statute aimed

*42 U.S.C. § 1985(3) provides as follows:

(3) If two or more persons in any State or Terri-

tory conspire or go in disguise on the highway or on

the premises of another,- for the purpose of depriving,

either directly or indirectly, any person or class of per-

sons of the equal protection of the laws, or of equal

privileges and immunities under the laws; or for the

purpose of preventing or hindering the constituted au-

thorities of any State or Territory from giving or se-

curing to all persons within such State or Territory the

equal protection of the laws; or if two or more persons

conspire to prevent by force, intimidation, or threat,

any citizen who is lawfully entitled to vote, from giv-

ing his support or advocacy in a legal manner, toward

or in favor of the election of any lawfully quaiified per-

son as an elector for President or Vice President, or as

a Member of Congress of the United States; or to in-—

jure any citizen in person or property on account of

such support or advocacy; in any case of conspiracy set

forth in this section, if one or more persons engaged

therein do, or cause to be done, any act in furtherance

of the object of such conspiracy, whereby another is in-

jured in his person or property, or deprived of having

and exercising any right or privilege of a citizen of the

United States, the party so injured or deprived may have

an action for the recovery of damages occasioned by

such injury or deprivation, against any one or more of

the conspirators.

at providing a federal forum to protect citizens from

the violence of the Ku Klux Klan. In the years im-

mediately after the Civil War, protection of federal

constitutional rights—particularly those created by

the Thirteenth and Fourteenth Amendments—had

broken down in the Southern states. Since the state

courts were then the primary forum for the protec-

tion of federal rights, Congress created in the Ku

Klux Klan Act a limited federal forum not other-

wise available for redress of certain federal rights.

Its aim was not to create parallel remedies where

an effective remedy—particularly in a federal court

—was already available.

The plaintiff in this case, Novotny, has available

to him an effective federal court remedy provided

by § 704(a) of Title VII, 42 U.S.C. § 2000e-3(a).

Title VII creates both administrative and judicial

remedies aimed first at promoting voluntary compli-

ance with Title VII via administrative conciliation,

and then, if conciliation fails, at securing the most

complete relief possible via federal court litigation.

Its “careful blend of administrative and judicial en-

forcement powers” provides the exclusive means for

redressing violations of the statute. See Brown v.

GSA, 425 U.S. 820, 833 (1976). Although, to be

sure, Congress contemplated that Title VII would not

supplant pre-existing statutory prohibitions against

employment discrimination, there is nothing in the

legislative history of Title VII indicating that Con-

gress intended that remedies outside of the Title VII

scheme would apply to discrimination claims based

on Title VII.

II.

Section 1985(3) would not, in any event, be ap-

plicable to this case because the complaint does not

establish the existence of “two or more persons,”

the essential ingredient of a conspiracy. Griffin v.

Breckenridge, 403 U.S. 88, 102 (1971). The only

individuals claimed to have engaged in a conspiracy

in this case are the officers and directors of the As-

sociation, all of whom, according to the complaint,

“were and are acting on behalf of’ the Association.

Pet. App. 83a. Under long-settled and widely fol-

lowed principles of civil conspiracy law, the officers

and directors of a single corporation acting on its

behalf are the corporation’s agents, and together with

the corporation constitute a single legal personality.

To find a conspiracy in such a circumstance would

amount to helding that the corporation conspired

with itself. This is contrary to principles long ad-

hered to in various civil law contexts, including

cases in the antitrust, contracts and civil rights fields.

Except for the Third Circuit, every Court of Ap-

peals follows the traditional rule and it should not

now be overturned.

ARGUMENT

I. SECTION 2 OF THE KU KLUX KLAN ACT OF 1871

IS NOT AN ALTERNATIVE MECHANISM FOR

ENFORCING RIGHTS CREATED BY TITLE VII

OF THE CIVIL RIGHTS ACT OF 1964,

In Griffin v. Breckenridge, 403 U.S. 88 (1971),

this Court resurrected the long dormant Section 2

of the Ku Klux Klan Act of 1871 (Act of April 20,

1871, ch. 22, 17 Stat. 13), now codified as 42 U.S.C.

§ 1985(3). The case involved four black individuals

who were traveling along the highways of Kemper

County, Mississippi. Two local white residents mis-

took the driver of the car of black men for a civil

rights worker and blocked the car on the highway.

The occupants were forced out, held at bay with

firearms, threatened with murder, and then beaten

with “deadly blackjacks, pipes or other kinds of

clubs.” Jd. at 90-92. The facts of Griffin would fit

without alteration in the list of outrages described

by the Members of the 42d Congress that enacted

the Ku Klux Klan Act:

While murder is stalking abroad in disguise,

while whippings and lynchings and banishment

have been visited upon unoffending American

citizens, the local administrations have been found

inadequate or unwilling to apply the proper

corrective. Combinations, darker than the night

that hides them, conspiracies, wicked as the

worst of felons could devise, have gone unwhipped

of justice.

CoNnG. GLOBE, 42d Cong., Ist Sess., App. 374 (1871),

quoted in Monroe v. Pape, 365 U.S. 167, 175 (1961).

Mr. Justice Stewart, writing for the Court in

Griffin, appropriately characterized the facts as “so

close to the core of the coverage intended by Congress

that it is hard to conceive of wholly private conduct

that would come within the statute if this does not.”

Griffin, supra, 403 U.S. at 103. But he aiso made

clear that § 1985(3) is limited in scope, and is aimed

only at conspiracies in which there is “some racial,

or perhaps otherwise class-based, invidiously dis-

criminatory animus... .” Jd. at 101-02. The Court

declined to decide whether § 1985(3) extends beyond

a racially motivated discriminatory intent (7d. at 102

n.9), but warned of the “constitutional shoals that

would lie in the path of interpreting § 1985(3) as a

general federal tort law....” Id. at 102.

The present case, involving an alleged retaliatory

discharge of a white male bank employee, is a far cry

from Griffin and the concerns of the Congressional

sponsors of § 1985(3). Novotny’s claim involves no

highway marauders, .no violence or terror, no racial

discrimination, and no interference with a constitu-

tional right to be free of discrimination. If Novotny’s

dismissal from his job were to be held unlawful,

it would only be if the facts established a violation

of §704(a) of the Civil Rights Act of 1964, 42

U.S.C. § 2000e-3(a), which makes it unlawful to

retaliate against an employee because he has op-

posed a practice forbidden by Title VII. However

reprehensible one may regard such conduct, such a

dismissal by a private employer was not unlawful

prior to the enactment of Title VII in 1964. See,

e.g., Willingham v. Macon Telegraph Publishing

Co., 507, F.2d 1084, 1090-91 (5th Cir. 1975) (en

bane); Rosenfeld v. Southern Pacific Co., 444 F.2d

1219, 1225 (9th Cir. 1971); Note, Developments

in the Law—Employment Discrimination and Title

VII of the Civil Rights Act of 1964, 84 Harv. L.

REV. 1109, 1167 (1971).

The Court of Appeals held that Novotny’s allega-

tions, if proved, would constitute a violation of § 704

(a) (Pet. App. 59a-60a), and that holding has not

been challenged in this Court. It is therefore clear

that Novotny will have a chance to prove his claim,

and if he is successful, will be eligible for all the re-

lief provided by Title VI{. The sole issue here is

whether he should receive additional relief, such as

compensatory or punitive damages against the indi-

vidual defendants, under 42 U.S.C. § 1985(3).

As we shall show below, the Ku Klux Klan Act was

never intended to provide an additional or supple-

mental remedy for violations of federal rights for

which other specific remedies are provided by federal

law. See pp. 10-14 infra. If it were now to be so

construed, it would indeed be converted into “a gen-

eral federal tort law.” Griffin, supra, 403 U.S. at

102. Moreover, as we shall also show, the language

and legislative history of Title VII make clear that

its remedies were intended to be the exclusive means

for redressing Title VII violations. See pp. 15-23

infra. To grant Novotny a cause of action under

42 U.S.C. § 1985(3) for what is nothing more than

a violation of Title VII would fly in the face of that

clear Congressional intent.

A. Section 1985(3) Has No Application to Federal

Statutory Rights For Which Congress Has Provided

a Self-Contained Enforcement Scheme.

Although the Third Cireuit purported to hold that

§ 1985(3) applies only to the “deprivation of a right

secured by a federal statute guaranteeing equal em-

ployment opportunity” (Pet. App. 28a), the opinion

contains no basis for defining those federal statutory

rights reached by §1985(3) and those outside its

ambit. Under the court’s rationale, virtually any

right created by federal statute, particularly those

enacted under the Commerce Clause like Title VII,

could be enforced by § 1985(3).* This anomalous

result could only be reached, we believe, by failing

to place § 1985(3) in its historical context. See Dis-

trict of Columbia v. Carter, 409 U.S. 418, 420

(1973) ; ef. Boys Market, Inc. v. Retail Clerks Union,

398 U.S. 235, 250 (1970).

In this modern age when federal rights are rou-

tinely enforced in a federal judicial forum, it is easy

to overlook the revolutionary nature of the step Con-

gress took in 1871 when, it enacted the Ku Klux Klan

Act. See Monroe v. Pape, supra, 365 U.S. at 252-53

(Frankfurter, J., dissenting). At that time, there

was no federal question jurisdiction in the federal

. *The deprivation of a wide assortment of statutory rights,

including several based on Congress’ Commerce Clause power,

has already been held to state a cause of action under § 1985

(3) and indicates the potentially unlimited reach of the stat-

ute under the Third Circuit’s interpretation. See, e.g., Hodgin

v. Jefferson, 447 F. Supp. 804, 808 (D. Md. 1978) (violation

of Federal Equal Pay Act states claim under § 1985(3));

Local No. 1(ACA) v. Int’l Bhd. of Teamsters, 419 F. Supp.

263, 276 (E.D. Pa. 1976) (violation of Labor-Management

Reporting and Disclosure Act states claim under § 1985(3) ) ;

Murphy v. Operating Engineers, Local 18, =F. Supp. ——,

99 L.R.R.M. 2074, 2126 (N.D. Ohio 1978) (violation of Labor-

Management Reporting and Disclosure Act states § 1985(3)

claim). We believe these cases, like the decision below, to

have been wrongly decided.

courts.” Federal rights, whether constitutional or

statutory, were enforceable only in state courts sub-

ject to appellate review by the Supreme Court of the

United States. See id. at 252. State enforcement of

the rights created by the newly ratified post-Civil

War Constitutional amendments, however, had broken

down due largely to violent resistance by the Ku

Klux Klan. See Monroe v. Pape, supra, 365 U.S. at

172-73, quoting Message of President Grant, CONG.

GLOBE, 42d Cong., lst Sess. 244 (1871); see also id.

at 174-81. In direct response, Congress in 1871 cie-

ated a federal forum to secure the Fourteenth Amend-

ment rights against hostile or ambivalent state offi-

cials or non-official marauders. See District of Co-

lumbia v. Carter, supra, 409 U.S. at 428, 427-29

(1973) ; Lynch v. Household Finance Corp., 405 U.S.

538, 545 (1972); Monroe v. Pape, supra, 365 U.S.

at 171. Section 1 of the 1871 Ku Klux Klan Act, now

42 U.S.C. § 1983, was directed at constitutional de-

privations caused by official state action or neglect by

state officials. See CoNG. GLOBE, 42d Cong., 1st Sess.,

App. 85, 153 (1871), quoted in Monell v. Depart-

ment of Social Services, 436 U.S. 658, 685-86 n.45

(1978). Section 2, the precursor of 42 U.S.C. § 1985

(3), was aimed at private conspiracies—particularly

the Ku Klux Kian °—that interfered with or pre-

vented state officials from carrying out their duties

in enforcing the federal right to equal protection

* Federal question jurisdiction was first conferred on the

federal courts by the Act of March 3, 1875, § 1, 18 Stat. 470

(1875). See 18 WRIGHT, MILLER & COOPER, FEDERAL PRAC-

TICE & PROCEDURE § 3561, at 389 (1975); District of Colum-

bia v. Carter, 409 U.S. 418, 427 n.20 (1973).

® See Monell v. Dep’t of Social Services, 436 U.S. 658, 665 &

n.11 (1978).

of the law.’ Thus, with the enactment of the 1871

Ku Klux Klan Act, Congress sought to provide a

federal forum not otherwise available for redress of

federal rights.

When this Court in Griffin revitalized § 1985(3)

one hundred years after its enactment, it did so in

a case where the protection of the victimized black .

individuals would otherwise be dependent on the

state’s judicial system. Indeed, there is little to dis-

tinguish the Mississippi highway marauders described

in Griffin from the Klan whose activities a century

before inspired the precursor of $ 1985(3). In con-

trast, the plaintiff Novotny is far from dependent on

§ 1985(8) for a federal forum. He may have a

* This point is illustrated by the remarks of Representative

Poland during the debate on § 1985(3)’s ancestor:

... if a State shall deny the equal protection of the laws,

or if a State make proper laws and have proper officers

to enforce those laws, and somebody undertakes to step in

and clog justice by preventing the State authorities from

carrying out this constitutional provision, then I do claim

that we have the right to make such interference an of-

fense against the United States; that the Constitution

does empower us to aid in carrying out this injunction,

which, by the Constitution, we have laid upon the States,

that they shall afford the equal protection of the laws

to all their citizens. When the State has provided the

law, and has provided the officer to carry out the law,

then we have the right to say that anybody who under-

takes to interfere and prevent the execution of that State

law is amenable to this provision of the Constitution,

and to the law that we may make under it declaring it

to be an offense against the United States.

CONG. GLOBE, 42d Cong., Ist Sess. 514 (1871), quoted in

Monroe v. Pape, 365 U.S. 167, 201 n.10 (1961) (Harlan, J.,

concurring).

viable claim under § 704(a) of Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000e-3(a),

recognized as such by the Third Circuit (Pet. App.

59a-60a) and unchallenged here. Novotny is eligible

for relief in a federal court under a comprehensive

federal remedial scheme. If he proves his allegations

on remand, he would, like all other Title VII plain-

tiffs, be made “whole for injuries suffered on account

of unlawful employment discrimination.” Albemarle

Paper Co. v. Moody, 422 U.S. 405, 418 (1975); see

also International Brotherhood of Teamsters v. United

States, 431 U.S. 324, 367 (1977).

The aim of the 42d Congress in enacting the Ku

Klux Klan Act was to provide one reliable forum to

protect federal rights, and not simply to create paral-

lel federal remedies where an adequate federal remedy

is already available. “[T]he dominant jurisdictional

thought of the day,” as Mr. Justice Frankfurter has

pointed out, was “‘that redress in a federal trial court

was ... to be very sparingly afforded.” Monroe v.

Pape, supra, 365 U.S. at 253 (dissenting opinion).

The Third Circuit’s expansion of § 1985(3) to create

a federal remedy paralleling an effective federal

remedy already in existence thus is inconsistent with

§ 1985(38)’s limited aim of protecting otherwise un-

protected federal rights.*

® Since § 1985(3) rarely, if ever, will be coextensive with

the federal remedy enacted as part of a substantive statutory

scheme, § 1985(3), if construed as providing a parallel rem-

edy to other federal relief, is likely to undermine the Con-

gressional judgment as to particular forms of relief or types

of enforcement mechanisms intended to protect a particular

federal statutory right. Thus, as the Third Circuit acknowl-

edged, § 1985(3) may provide under those circumstances a

private remedy where Congress, as part of the substantive

B. Title VII Establishes an Exclusive Comprehensive

Scheme for Enforcing the Rights Created by That

Title.

In concluding that Title VII rights could be en-

forced through 42 U.S.C. § 1985(38), the Court of

Appeals gave scant attention to the remedies pro-

vided by Title VII itself. It spoke broadly about sex

discrimination and “equal privileges and immunities

under the laws” (Pet. App. 16a-18a, 29a-36a), but

completely overlooked this Court’s recent decision in

Brown v. GSA, 425 U.S. 820 (1976), which strongly

implied that the remedial scheme of Title VII was

the exclusive means for redressing Title VII viola-

tions.’ Jd. at 829.

In Brown, the Court analyzed § 717 of the Equal

Employment Opportunity Act of 1972, 42 U.S.C.

§ 2000e-16, the component of Title VII addressed to

the rights and remedies of federal employees. Its

conclusion was that the “balance, completeness and

structural integrity” of § 717 independently com-

statute, deliberately withheld creating a private right of ac-

tion as the vehicle for enforcing the federal right. Pet. App.

28a. Compare Fair Labor Standards Act § 16(b), as amended,

29 U.S.C. § 216(b) (private right to sue under Fair Labor

Standards Act and Equal Pay Act terminates upon filing of

complaint by Secretary of Labor) with Hodgin v. Jefferson,

supra note 4, 447 F.Supp. at 808 (§ 1985(3) provides alterna-

tive remedy for violation of Equal Pay Act). See also note 20

infra.

* As we explain more fully at a later point, we distinguish

between remedies for violations of Title VII and remedies

for violations of other statutes. The limitation upon Title

VII remedies applies only to Title VII rights; preexisting

substantive rights under other statutes are not supplanted by

Title VII. See pp. 21-23 infra.

pelled the holding that Title VII should be the ex-

clusive method by which federal employees may se-

cure redress from employment discrimination. 7d. at

832. Had the Third Circuit applied the Brown method

of analysis to the problem of the private employee in

the case before it, the court logically would also have

had to conclude that remedies for violations of rights

created by Title VII are limited to those contained

in Title VII itself.”

Like § 717, the hallmark of Title VII’s remedial

scheme for employees in the private sector is “a

careful blend of administrative and judicial enforce-

ment powers.” Jd. at 833. Under § 717, a federal

employee first seeks administrative relief from his

employing agency and then may seek review from

the Civil Service Commission. An aggrieved federal

employee must exhaust administrative procedures be-

fore being eligible to file suit in federal court. Jd.

at 831-32. Under Title VII, an aggrieved private

employee similarly may seek relief from employment

discrimination by filing an informal complaint with

the Equal Employment Opportunity Commission.

§ 706(b), as amended, 42 U.S.C. § 2000e-5(b). The

Commission, with state and local equal employment

agencies, is given broad authority to investigate and

1° This Court employed a similar analysis to achieve a simi-

lar result earlier this Term in Int’] Bhd. of Teamsters v.

Daniel, U.S. , 99 S.Ct. 790, 801-02 (1979). The

Court there concluded that the specific and comprehensive

provisions of the Employee Retirement Income Security Act

of 1974 govern employee pension plans to the exclusion of

the more generally directed Securities Act and Securities and

Exchange Act. See also Califano v. Sanders, 430 U.S. 99, 104-

07 (1977) ; Preiser v. Rodriguez, 411 U.S. 475, 488-90 (1978) ;

Johansen v. United States, 343 U.S. 427, 439 (1952).

conciliate the claimed violation of Title VII, termed

an “unlawful employment practice.” §§ 703(a), 706

(b)-(e) as amended, 42 U.S.C. §§ 2000e-2(a), 2000e-

5(b)-(e) ; Alexander v. Gardner-Denver Co., 415 U.S.

36, 44 (1974). If conciliation fails or the statutory

time allotted for conciliation has been exhausted,

either the Commission or the aggrieved party may

then file suit in federal court. § 706(f)(1), as

amended, 42 U.S.C. 2000e-5(f)(1)." The federal

court may fashion whatever relief is necessary. § 706

(g), as amended, 42 U.S.C. § 2000e-5(g). Though not

identical in every respect, both § 717 and the pro-

visions of Title VII applicable to private employees

thus provide “an integrated, multistep enforcement

procedure” * for the orderly and full consideration

of employment discrimination claims.

Title VII’s legislative history, moreover, demon-

strates that its detailed administrative/judicial en-

forcement machinery was carefully designed to bal-

ance the competing interests involved in an employ-

ment discrimination complaint. See Occidental Life

Insurance Co. v. EEOC, 482 U.S. 355, 359, 372-73

(1977). Delegation of enforcement authority to the

Commission shifts the burden of prosecution from the

individual complainant, assures employers that the

agency issuing discrimination guidelines will also be

the agency enforcing compliance, and encourages the

settlement of disputes through informal conciliation

1 An aggrieved party must also secure a “right to sue

letter” from the EEOC before initiating suit. § 706(f) (1), as

amended, 42 U.S.C. § 2000e-5 (f) (1) ; Alexander v. Gardner-

‘Denver Co., 415 U.S. 36, 47 (1974).

12 Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 359

(1977).

rather than formal judicial proceedings. See Note,

Developments in the Law—Employment Discrimina-

tion and Title VII of the Civil Rights Act of 1964,

84 Harv. L. Rev. 1109, 1200, 1270 (1971). Creation

of jurisdictional prerequisites to an _ individual’s

right to bring suit in a federal court affords the

Commission “an opportunity to settle disputes through

conference, conciliation, and persuasion,” indisputably

the “preferred means for achieving [the] goal” of

Title VII. Alexander v. Gardner-Denver Co., supra,

415 U.S. at 44. Authorization of a private right of

action, however, allows the individual to escape the

administrative machinery if it is not working."* Oc-

13Tn a section-by-section analysis of the 1972 amendments

to Title VII, Senator Williams, the floor manager of the bill,

explained:

In providing this remedy, it is intended that recourse

to this form of remedy will be the exception and not the

rule, and that the vast majority of complaints will be

handled through the offices of the EEOC. However, as

the individual’s rights to redress are paramount under

the provisions of Title VII, it is necessary that all ave-

nues of relief be left open for quick and effective relief.

In providing for the individual right to sue in the

event that action by the Commission is unsatisfactory or

unresponsive, it is not intended that duplication of pro-

ceedings should be allowed. Therefore, in any proceeding

where the General Counsel or the Attorney General, as

the case may be, is proceeding with due diligence within

the time limits specified in this subsection, the person

aggrieved would be precluded from instituting an indi-

vidual action until such time as one of the specific condi-

tions of this subsection are not met.

SENATE COMM. ON LABOR & PUBLIC WELFARE, 92D CONG.,

2D SESS., LEGISLATIVE HISTORY OF THE EQUAL EMPLOYMENT

OPPORTUNITY ACT OF 1972, at 1772 (1972) (hereinafter 1972

LEGISLATIVE HISTORY).

cidental Life Insurance Co. v. EEOC, supra, 482 U.S.

at 362-66. Ultimate resort to the federal courts also

delegates the task of investigation and fact-finding

to the agency that has the specialized knowledge and

resources to do so, while insuring that the private

claimant will receive the most complete relief pos-

sible. FRIENDLY, FEDERAL JURISDICTION: A GENERAL

VIEW 76, 64 (1973); Sape & Hart, Title VII Recon-

sidered: The Equal Employment Opportunity Act of

1972, 40 Geo. WASH. L. REv. 824, 881 (1972).

Allowing a Title VII claimant immediate access

to the courts under § 1985(3) would circumvent this

“careful and thorough remedial scheme.” Brown v.

GSA, supra, 425 U.S. at 833; cf. Preiser v. Rodriguez,

411 U.S. 475, 489-90 (1978). By pleading a con-

spiracy to violate Title VII and invoking § 1985(3),

a claimant can avoid Title VII’s limitations on filing

time,"* back pay,”’ jury trial,” and punitive damages.”

1 Compare United Air Lines, Inc. v. Evans, 431 U.S. 553,

555 (1977) (Title VII charge must be filed with EEOC within

90 days), with Davis v. United States Steel Supply, 581 F.2d

335, 3837 (3d Cir. 1978) (state law determines statute of limi-

tations for actions under Civil Rights Acts).

See § 706(g), 42 U.S.C. § 2000e-5(g) (Title VII’s two

year limit on back pay).

1° Compare Cameron v. Brock, 473 F.2d 608, 609 (6th Cir.

1973) (jury trial in § 1985(3) action) with, e.g., Slack v.

Havens, 522 F.2d 1091, 1094 (9th Cir. 1975) (no jury trial

provided in Title VII suits, joining Fourth, Fifth, and Sixth

Circuits) ; Lorillard v. Pons, 434 U.S. 575, 583-85 (1978) (em-

phasizes equitable nature of Title VII suit although not de-

ciding jury trial issue).

17 See Richerson v. Jones, 551 F.2d 918, 926 (3d Cir. 1977)

(punitive damages may not. be recovered under Equal Em-

ployment Opportunity Act of 1972).

Yet each of these provisions, no less than Title VII’s

blend of forums, reflects a deliberate choice made by

Congress in 1964 and 1972." A §1985(8) plaintiff

might also plan to circumvent the EEOC’s notorious

backlog of cases." In so doing, however, the “crucial

administrative role” of the EEOC (cf. Brown v. GSA,

supra, 425 U.S. at 838) is clearly undermined. Con-

gress was well aware of the EEOC’s backlog in 1972,

yet it reinforced the Commission’s conciliation role

'® The backpay formula, for example, limits recovery to two

years prior to the time a charge is filed with the Commission.

§ 706(g), as amended, 42 U.S.C. § 2000e-5(¢). The two year

limit protects employers from liability extending back to the

effective date of the 1964 Act, while the calculation date from

filing a Commission charge, rather than from filing a court

action, prevents an employee from being penalized for filing

with the Commission. The compromise that created this

formula is discussed in Sape & Hart, Title VII Reconsidered:

The Equal Employment Opportunity Act of 1972, 40 GEO.

WASH. L. REV. 824, 881-82 (1972).

1” See Occidental Life Insurance Co. v. EEOC, supra note 12,

432 U.S. at 369. According to the EEOC’s Vice Chairman,

Daniel Leach, the Commission’s 1977 backlog in three model

offices alone amounted to 10,300 cases. Leach, Title VII of the

Civil Rights Act and the EEOC: An Agency in the Midst of

Change, 29 MERCER L. REV. 661, 669 n.386 (1978). This prob-

lem is being alleviated by the institution of the Commission’s

new streamlined procedures that has resulte? in an 11% re-

duction in backlog of three model offices within 14 weeks. Id.

at 669 n.36. In view of the geometric increase in the number

of private civil rights cases filed in federal district courts

over recent years, and the potential litigation that could

follow the Third Circuit’s decision, the backlog of the district

courts could exceed that of the EEOC’s. See FRIENDLY, FED-

ERAL JURISDICTION : A GENERAL VIEW 16, 17, 75 & n.4 (1973).

with substantial additional enforcement powers.” Oc-

cidental Life Insurance Co. v. EEOC, supra, 432 U.S.

at 369-70; see 1971-1972 Annual Survey of Labor Re-

lations Law, 13 B.C. INpbus. & Com. L. Rev. 1347,

1366-67 (1972). The threat to Title VII’s remedial

scheme implicit in sanctioning independent enforce-

ment of Title VII rights led the Fourth Circuit to re-

ject the position embraced here by the Third. See

Doski v. M. Goldseker Co., 539 F.2d 1326, 1334 (4th

Cir. 1976). The Third Circuit’s position, antithetical

to this Court’s holding in Brown v. GSA, now merits

rejection by this Court.

A holding that enforcement of Title VII rights is

limited to the remedies found in Title VII would not

conflict with the clear Congressional intent that other

protections against employment discrimination were

not to be supplanted by enactment of Title VII. See

Alexander v. Gardner-Denver Co., supra, 415. U.S.

at 48-49; Johnson v. Railway Express Agency, Inc.,

421 U.S. 454, 459 (1975) ; International Union of Elec-

trical Workers v. Robbins & Myers, Inc., 429 U.S.

229, 236 (1976). The same conduct may violate an

employee’s rights under Title VII, under 42 U.S.C.

§ 1981, and under a collective bargaining agreement.

In that case, the employee’s claim stems from three

independent sources of federal substantive law, each

of which contemplates its own remedies without ex-

clusion of the others. See Alexander v. Gardner-

20 While the pendency of EEOC-initiated Title VII litigation

on behalf of an aggrieved individual is intended to preclude

a parallel Title VII suit by that individual (see note 13 supra),

the individual could circumvent that limitation if dissatisfied

with the progress of the litigation by initiating a separate

§ 1985(3) suit, perhaps even in another district court.

Denver Co., supra, 415 U.S. at 49-50; Johnson v.

Railway Express Agency, supra, 421 U.S. at 459;

International Union of Electrical Workers v. Robbins

& Myers, Inc., supra. Before a statute other than

Title VII can be used to remedy claims also arising

under Title VII, a right with an independent statu-

tory source must be found. Section 1985(3) is not

such a statute since it creates no substantive rights;

it is purely remedial in that it enforces rights created

somewhere else.” It does not, in itself prohibit private

employment discrimination, or retaliation against em-

ployees who opposed such discrimination.

Accordingly, Novotny would have no possible claim

under § 1985(3) were it not for the fact that Title

VII prohibits discrimination in employment based on

sex, and protects employees who oppose such dis-

crimination against retaliatory action by their em-

ployers. See Doski v. Goldseker Co., supra, 539

F.2d at 1334. However Title VII not only creates

these rights and protections, but also provides a com-

prehensive “unitary” remedial scheme for their en-

21 See Pet. App. 26a-27a; Cohen v. Illinois Inst. of Tech-

nology, 524 F.2d 818, 828 (7th Cir. 1975), cert. denied, 425

U.S. 943 (1976) (Stevens, J.) ; Bellamy v. Mason’s Stores, Inc.,

508 F.2d 504, 507 (4th Cir. 1974) ; McLellan v. Mississippi

Power & Light Co., 545 F.2d 919, 927 (5th Cir. 1977) (en

banc), Note, The Scope of Section 1985(3) Since Griffin v.

Breckenridge, 45 GEO. WASH. L. REV. 239, 245-51 (1977) ;

Note, Federal Power to Regulate Private Discrimination: The

Revival of the Enforcement Clauses of the Reconstruction Era

Amendments, 74 CoLuM. L. REv. 449, 498 (1974). Contra,

Action v. Gannon, 450 F.2d 1227, 1235 (8th Cir. 1971) (en

banc); Comment, Private Conspiracies to Violate Civil

Rights: McLellan v. Mississippi Power & Light Co., 90 Harv.

L. REV. 1721, 1724-27 (1977).

forcement.” The exclusivity of such a remedial scheme

for Title VII rights is not inconsistent with the

preservation of other pre-1964 substantive statutes

aimed at eliminating employment discrimination.

The fact that the plaintiff, Novotny, would not

have had a §1985(38) claim prior to 1964 also re-

futes the Court of Appeals’ argument that “if rights

protected by Title VII are to be excluded from the

scope of § 1985(8), such result must flow from the

fact that Title VII worked a partial repeal of § 1985

-(3)....” Pet. App. 38a. The issue is not one of

repeal of § 1985(3), but one of its applicability to a

comprehensive remedial scheme established to enforce

subsequently enacted federal rights.

II. THE ALLEGATION OF A CONSPIRACY AMONG

THE OFFICERS AND DIRECTORS OF A SINGLE

CORPORATION ACTING ON BEHALF OF THE

CORPORATION DOES NOT SATISFY THE “TWO

OR MORE PERSONS” ELEMENT OF 42 U.S.C.

§ 1985(3).

The Third Circuit’s holding that Title VII rights

may be redressed under 42 U.S.C. § 1985(3) was

premised on its equally novel conclusion that a cor-

poration and its officers and directors, acting within

the scope of their employment, constitute more than

one person for the purpose of counting conspirators

in a civil action. Pet. App. 50a-55a. In so concluding,

the Third Circuit flouted a fundamental principle of

corporate law: that when several individuals are

“consolidated and united into a corporation, they and

their successors are then considered as one person in

* See 1972 LEGISLATIVE HISTORY, supra note 18, at 1512

(remarks of Senator Javits).

law... .”’ 2 BLACKSTONE, COMMENTARIES ch. 18,

at 468 (Tucker ed. 1803) ; see Trustees of Dartmouth

College v. Woodward, 17 U.S. (4 Wheat.) 518, 636

(1819). The concept that the individuals who com-

pose a corporation constitute but a single legal person

has, accordingly, been recognized by every circuit but

the Third as precluding a finding of conspiracy when

the only actors are a corporation’s officers and di-

rectors.”

The common rationale in these and similar civil

conspiracy cases, whether arising under § 1985(3),”*

28 See, e.g., Walker v. Providence Journal Co., 493 F.2d 82,

87 (1st Cir. 1974) ; Girard v. 94th St. and Fifth Ave. Corp.,

530 F.2d 66, 70-71 (2d Cir.), cert. denied, 425 U.S. 974

(1976) ; Greenville Publishing Co. v. Daily Reflector, Inc.,

496 F.2d 391, 399 (4th Cir. 1974) ; Nelson Radio & Supply Co.

v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1952), cert.

denied, 345 U.S. 925 (1953) ; Fallis v. Dunbar, 532 F.2d 1061

(6th Cir. 1976) (per curiam) ; Dombrowski v. Dowling, 459

F.2d 190, 196 (7th Cir. 1972) (Stevens, J.) ; Baker v. Stuart

Broadcasting Co., 505 F.2d 181, 183 (8th Cir. 1974) ; Joseph

E. Seagram & Sons, Inc. v. Hawaiian Oke & Liquors, Ltd.,

416 F.2d 71, 82-83 (9th Cir. 1969), cert. denied, 396 U.S. 1062

(1970) ; Zelinger v. Uvalde Rock Asphalt Co., 316 F.2d 47, 52

(10th Cir. 1963); Poller v. Columbia Broadcasting System,

Inc., 284 F.2d 599, 603 (D.C. Cir. 1960), rev’d on other

grounds, 368 U.S. 464 (1962).

** See, e.g., Girard v. 94th St. & Fifth Ave. Corp., supra

note 23, 530 F.2d at 70-71; Bellamy v. Mason’s Stores, Inc.,

508 F.2d 504 (4th Cir. 1974) (Boreman, J., concurring) ;

Chambliss v. Foote, 421 F. Supp. 12, 15 (E.D. La. 1976),

aff'd per curiam, 562 F.2d 1015 (5th Cir. 1977), cert. denied,

439 U.S. ——, 99 S. Ct. 127 (1978) ; Jones v. Tennessee East-

man Co., 397 F. Supp. 815, 816 (E.D. Tenn. 1974), aff’d mem.,

519 F.2d 1402 (6th Cir. 1975); Dombrowski v. Dowling,

a —

§ 1 of the Sherman Act,” or other contexts,” is that

because a corporation can act only through its officers

supra note 23, 459 F.2d at 196; Baker v. Stuart Broadcasting,

supra note 23, 505 F.2d at 183. Accord, Comment, Private Con-

spiracies to Violate Civil Rights: McLellan v., Mississippi

Power & Light Co., 90 Harv. L. REv. 1721, 1723 n.15 (1977).

2° See, e.g., Walker v. Providence Journal Co., supra note 23,

493 F.2d at 87; Person v. N.Y. Post Corp., 427 F. Supp. 1297,

1307 (E.D.N.Y.), aff'd mem., 573 F.2d 1294 (2d Cir. 1977);

Greenville Publishing Co. v. Daily Reflector, Inc., swpra note

23, 496 F.2d at 399; H.&B. Equip. Co. v. Int’! Harvester Co.,

577 F.2d 239, 244 (5th Cir. 1978); Tamaron Distrib. Corp.

v. Weiner, 418 F.2d 137, 139 (7th Cir. 1969) ; Morton Bldgs.

of Neb., Inc. v. Morton Bldgs., Inc., 531 F.2d 910, 916-17 (8th

Cir. 1976); Jos. E. Seagram & Sons, Inc. v. Hawaiian Oke

& Liquors, Ltd., supra note 23, 416 F.2d at 82-83; Poller v.

Columbia Broadcasting System, Inc., supra note 23, 284 F.2d

at 603.

The Fifth Circuit’s decision in Nelson Radio & Supply Co.

v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1952), cert.

denied, 345 U.S. 925 (1953), is frequently cited as the foun-

tainhead of this rule not just for Sherman Act § 1 cases but

for other civil conspiracies. Pet. App. 52a n.117. But the fact

is that cases antedating Nelson Radio adhered to the rule.

See Arthur v. Kraft-Phenix Cheese Corp., 26 F. Supp. 824,

829-30 (D. Md. 1937) ; Neumann v. Bastian-Blessing Co., 70

F. Supp. 447, 449-50 (N.D. Ill. 1947). The Third Circuit

initially followed Nelson Radio in Goldlawr, Inc. v. Shubert,

276 F.2d 614, 617 (3d Cir. 1960), but then declined to approve

or disapprove it in Johnston v. Baker, 445 F.2d 424, 427 (3d

Cir. 1971), and rejected it in the instant case. Most commen-

tators, however, approve the Nelson Radio rule. See, e.g., Note,

Intra-Enterprise Conspiracy Under Section 1 of the Sherman

Act: A Suggested Standard, 75 Micu. L. REv. 717 (1977);

Willis & Pitofsky, Antitrust Consequences of Using Corporate

Subsidiaries, 48 N.Y.U.L. REv. 20, 24 n.15 (1968).

26 See, e.g., Dorsey v. Chesapeake & O. Ry., 476 F.2d 243,

245-46 (4th Cir. 1973) (per curiam); Pearson v. Youngs-

and directors—in effect, its agents—a conspiracy be-

tween the corporation and its officials is tantamount

to the corporation conspiring with itself.*’ Only the

Third Circuit has chosen to depart from this well-

settled principle of civil conspiracy law.

To support its holding, the Court of Appeals argued

that counting corporate officers and directors as sepa-

rate persons in a conspiracy action is necessary to

avoid immunizing their wrongful conduct. Pet. App.

5la. In particular, the court hypothesized that in-

town Sheet & Tube Co., 332 F.2d 439, 442 (7th Cir.), cert.

denied, 379 U.S. 914 (1964); Zelinger v. Uvalde Rock As-

phalt Co., supra note 28, 316 F.2d at 52.

*7In reaching its decision, the Court of Appeals disclaimed

any need to pass on the question of whether “a corporation

cannot conspire with itself.” Pet. App. 52a. The court took

this position by construing the § 1985(3) claim in Novotny’s

complaint as directed against only the individual defendants,

not the corporation. bid. In our view, this is a myopic way

of looking at this case. Although the complaint does not spe-

cifically name the corporation as a co-conspirator, the essence

of Novotny’s § 1985(3) claim, as reflected in paragraph 33

of the complaint, is that the corporation, through the action

of its board of directors and officers, terminated Novotny’s

employment. Pet. App. 83a. Furthermore, the rule of con-

spiracy law to be applied is the same whether or not the

corporation is named. Just as a single corporation cannot

conspire with itself, or with its officers and directors, the

officers and directors acting on its behalf cannot legally be

contemplated as conspiring with each other. See, e.g., Zelinger

v. Uvalde Rock Asphalt Co., supra note 23, 316 F.2d at 52;

Poller v. Columbia Broadcasting System, Inc., supra note 23,

284 F.2d at 603; Koehring Co. v. Nat’l Automatic Tool Co.,

257 F. Supp. 282, 290 n.6 (S.D. Ind. 1966), aff’d per curiam,

885 F.2d 414 (7th Cir. 1967).

dividuals agreeing to harass blacks who register to

vote could escape liability under § 1985(3) simply

by incorporating. Jd. at 5la-52a. To reach this type

of conduct, however, it is necessary only to apply

and not to discard the traditional rule of civil con-

spiracy. As pointed out by Judge (now Mr. Justice)

Stevens in his Dombrowski opinion:

Agents of the Klan certainly could not carry out

acts of violence with impunity simply because

they were acting under orders from the Grand

Dragon.

Dombrowski v. Dowling, supra, 459 F.2d at 196. That

is because when a corporation is a mere instru-

mentality formed to achieve a forbidden result, lower

federal courts have recognized an exception to the

traditional rule. See, e.g., Cole v. University of Hart-

ford, 391 F. Supp. 888, 893 & n.9 (D. Conn. 1975) ;

Beacon Fruit & Produce Co. v. H. Harris & Co., 152

F., Supp. 702, 704 (D. Mass. 1957). A second ecep-

tion arises when the acting officers and directors have

- an independent personal stake in the object of the

conspiracy. See, e.g., Johnston v. Baker, 445 F.2d

424, 427 (8d Cir. 1971); Greenville Publishing Co.

v. Daily Reflector, Inc., swpra, 496 F.2d at 399 & n.

16; H.&B. Equipment Co. v. International Harvester

Co., 577 F.2d 239 (5th Cir. 1978). The type of situa-

tion feared by the Third Circuit, consequently, would

not “immunize” its wrongful actors. On the con-

trary, individuals who incorporate to escape liability

for harassing black voters would quickly find their

corporation “pierced” and themselves held individually

liable as co-conspirators. Thus, the Third Circuit un-

necessarily rejected the traditional rule of civil con-

spiracy.”*

*®In support of its decision, the court below relied exclu-

sively on criminal conspiracy cases that follow a different

rule from that applied in civil conspiracy cases. Pet. App.

53a-55a. It ignored the fact that this difference stems from

the different jurisprudential functions served by criminal and

civil conspiracy remedies.

The court also suggested that the traditional civil rule

was inapplicable when the claim alleged a continuing pol-

icy, rather than an isolated act of discrimination. Pet.

App. 55a n.125. In so holding, the Third Circuit relied on

dictum in Dombrowski which it believed limited the traditional

rule to “a single act of discrimination by a single business

entity ... .” 459 F.2d at 196. Dombrowski involved only a

single isolated instance of discrimination and hence did not

hold that a conspiracy would have been established if the

plaintiff in that case had alleged multiple discriminatory

acts instead of the single act actually alleged. The Second

Circuit has declined to find a conspiracy where multiple acts

by a corporation’s office and directors amount to a single

policy of discrimination. See Girard v. 94th St. & Fifth Ave.

Corp., supra note 23, 580 F.2d at 71. Only District Courts

within Pennsylvania have adhered to the notion that concerted

action by corporate officers and directors, acting within their

authority, constitutes a conspiracy when multiple, but not

single, acts of discrimination are alleged. See, e.g., Rackin

v. Univ. of Pa., 386 F. Supp. 992, 1005-06 (E.D. Pa. 1974) ;

Dupree v. Hertz Corp., 419 F. Supp. 764, 766 (E.D. Pa.

1976); Jackson v. Univ. of Pittsburgh, 405 F. Supp. 607,

612-18 (W.D. Pa. 1975). But see Johnson v. Univ. of Pitts-

burgh, 485 F. Supp. 1828, 1870 (W.D. Pa. 1977).

We submit that the existence vel non of a conspiracy has

nothing to do with the number of acts of discrimination

alleged but with the relationship among the actors. See Coley

v. M&M Mars, Inc., —— F. Supp. ——, 18 FEP Cas. 1809,

1811 (M.D. Ga. 1978). One recent district court decision re-

jected the distinction based on the number of discriminatory

The implications of the Third Circuit’s conspiracy

decision are far-reaching and transcend the civil

rights field. Because a corporation can act only

through its officers and directors, the effect of the

court’s decision is automatically to transform all cor-

porate violations of Title VII into violations of § 1986

(8). In view of the fact that all but a handful of

Title VII cases involve corporate employers, the im-

pact of the Third Circuit’s conspiracy holding, if

permitted to stand, will be radically to expand the

scope and complexity of virtually every Title VII

case. Certainly, there is nothing peculiar to Title

VII, which is aimed primarily at the business entity

that discriminates rather than at individual third

parties,” to justify so vastly expanded a theory of

liability. Cf. Johnson vy. Railway Express Agency,

Inc., 421 U.S. 454, 464 (1975). It therefore follows

that if concerted action by corporate officers and di-

rectors acting on behalf of the corporation satisfies

acts alleged for essentially this reason, but then adopted the

equally untenable position that all acts of discrimination by

corporate management are, in a sense, ultra vires unless it

affirmatively can be shown that the discrimination was ex-

plicitly authorized by the corporation. Scott v. Bd. of Educ.,

—— F. Supp. ——, 18 FEP Cas. 1230, 1287 (D. Md. 1977).

That theory and its implications have been widely discredited

in other contexts. See, e.g., New York Cent. & H.R.R.R. v.

United States, 212 U.S. 481, 498-94 (1909); Egan v. United

States, 187 F.2d 369, 379 (8th Cir.), cert. denied, 320 U.S. 788

(1943) ; United States v. Hilton Hotels Corp., 467 F.2d 1000,

1004-07 (9th Cir. 1972), cert. denied, 409 U.S. 1125 (1973).

Plainly, the corporate officers here were authorized to adopt

personnel hiring and firing policy, and if in doing so they

stumbled into a violation of Title VII, their act was no less an

authorized one than any other employee dismissal.

*° See 1972 LEGISLATIVE HISTORY, supra note 18, at 1512.

the “two or more persons” required of § 1985(3),

the rule is jeopardized in its antitrust and corporate

law contexts as well.

CONCLUSION

The judgment of the Court of Appeals for the

Third Circuit, insofar as it set aside the dismissal of

respondent’s claim under 42 U.S.C. § 1985(3), should

be reversed.

Respectfully submitted,

AVRUM M. GOLDBERG

WILLIAM R. WEISSMAN

WALD, HARKRADER & Ross

1320 Nineteenth Street, N.W.

Washington, D.C. 20036

(202) 296-2121

Of Counsel:

ROBERT E. WILLIAMS

DouGLAs 8S. MCDOWELL

_ McGuINEss & WILLIAMS

1747 Pennsylvania Avenue, N.W.

Washington, IKC. 20006

(202) 296-0333

March 1979

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.