Opposition Brief — Williams v. First Union National Bank of North Carolina

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No. 90-1558 MAY 7 199]

OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1990

—_

DEVAUGHN E. WILLIAMS,

Petitioner,

FIRST UNION NATIONAL BANK

OF NORTH CAROLINA,

Respondent.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Fourth Circuit

RESPONDENT’S BRIEF IN OPPOSITION

J. THomMas KIvpatrick

Counsel! of Record

PauL R. BESHEARS

SmitH, Currie & Hancock

2600 Harris Tower-Peachtree Center

233 Peachtree Street, N.E.

Atlanta, Georgia 30303-1530

(404) 521-3800

Francis C. CLarK

First Union Corporation

First Union Plaza LEG —- 0630

Charlotte, North Carolina 28288-0630

(704) 374-6611

Counsel for Respondent

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

LIST OF PARTIES

The parties to the proceeding below were Petitioner,

DeVaughn E. Williams, and Respondent, First Union

National Bank of North Carolina.

The parent company of Respondent is First Union

Corporation. All affiliates and subsidiaries of Respondent

are wholly owned by First Union Corporation.

TABLE OF CONTENTS

Page

Lat 42) Fee tee fo ok va vk adcdcekeneeeeoeee i

TASLE GP ALTER en ss > 0s evi kek45nese iil

STATERRet COP Tike GAs cds ieee ]

REASONS FOR DENYING THE WRIT............. 2

IT.

NO CONFLICT EXISTS AMONG THE COURTS

OF APPEALS AS TO WHETHER A CLAIM OF

RACIAL OR RETALIATORY DISCHARGE IS

ACTIONAGRLE UMEA © TOOE oiccvnenseteesee:

THE COURTS OF APPEALS ARE CORRECTLY

HOLDING THAT CLAIMS OF RACIAL AND

RETALIATORY DISCHARGE ARE NOT

COPE RAS on ski es eee eeeeerEae eee ee ee

TABLE OF AUTHORITIES

Page

CASES

Courtney v. Canyon Television & Appliance Rental,

we | 3

Gonzalez v. Home Ins. Co., 909 F.2d 716 (2d Cir.

ee a eigvelc wee avian y'e'e 3

Goodman v. Lukens Steel Co., 482 U.S. 656 (1987)...... 6

Hicks v. Brown Group, Inc., 902 F.2d 630 (8th Cir.

1990), vacated and remanded, 59 U.S.L.W. 3635

Rc ee os bie ek we 3

McKnight v. General Motors Corp., 908 F.2d 104 (7th

Cir. 1990), cert. denied, 59 U.S.L.W. 3535 (March

ea sg gba ee Wie « os 3

Overby v. Chevron U.S.A., Inc., 884 F.2d 470 (9th

RT oe i ee ee oe ee 9 8k 3

Patterson v. McLean Credit Union, 491 U.S. 164

eas Ng 0G a's by ve vo ele keke ks na es passim

Prather v. Dayton Power & Light Co., 918 F.2d 1255

(6th Cir. 1990), petition for cert. filed, 59 U.S.L.W.

OE, OE ne bi ve ewe eens svecesnnecs 3

Rathjen v. Litchfield, 878 F.2d 836 (5th Cir. 1989)...... 3

Thompkins v. DeKalb County Hosp. Auth., 916 F.2d

er 3

Trujillo v. Grand Junction Regional Center, 827 F.2d

eis ine cn eh eves eevrsevesous 3

Walker v. South Cent. Bell Tel. Co., 904 F.2d 175 (5th

eps eereces br svsevervcenes 3

Statutory AUTHORITY

gaa gar ce view vee ecehes wenn passim

STATEMENT OF THE CASE

The Petitioner, DeVaughn E. Williams (“Williams”),

initiated this action in the District Court for the Eastern

District of North Carolina. In the complaint, Williams

alleged he was subjected to discriminatory working con-

ditions during his employment with the Respondent,

First Union National Bank of North Carolina (“First

Union”), and eventually was constructively discharged

because of his race and in retaliation for his having filed

charges of discrimination against First Union with the

Equal Employment Opportunity Commission (“EEOC”).

In response to First Union’s motion to dismiss for

failure to state a claim upon which relief can be granted,

Williams filed an amended complaint. In the amended

complaint, which was brought solely pursuant to 42

U.S.C. § 1981, Williams alleged First Union violated

§ 1981 by refusing to enter into a nondiscriminatory

employment relationship with him because of his race, by

subjecting him to discriminatory conditions of employ-

ment because of his race and in retaliation for filing

charges of discrimination with the EEOC, and by con-

structively discharging him because of his race and in

retaliation for filing charges of discrimination.

First Union again moved to dismiss for failure to

state a claim upon which relief can be granted. The

motion was referred to a Magistrate who recommended |

the amended complaint be dismissed. More specifically,

the Magistrate found that Williams’ discriminatory hiring

claim was time barred and that, after Patterson v. McLean

Credit Union, 491 U.S. 164 (1989), Williams’ allegations of

discriminatory working conditions and of constructive

discharge based on racial discrimination and retaliation

failed to state a claim under § 1981. The district court

adopted the Magistrate’s recommendation, dismissed the

amended complaint, and entered judgment in favor of

First Union.

Williams appealed the judgment to the Court of

Appeals for the Fourth Circuit. On appeal, Williams

raised three issues: (1) whether a claim of discriminatory

discharge implicates the “make and enforce contracts”

provision of § 1981; (2) whether Williams’ claim that he

was subjected to discriminatory working conditions in

retaliation for filing EEOC charges is actionable under

§ 1981; and (3) whether Patterson v. McLean Credit Union

should have been applied retroactively to this case. On

December 6, 1990, the court of appeals affirmed, finding

the district court properly granted First Union’s motion

to dismiss for failure to state a claim upon which relief

can be granted. The court denied a petition for rehearing

on January 8, 1991.

REASONS FOR DENYING THE WRIT

I. NO CONFLICT EXISTS AMONG THE COURTS OF

APPEALS AS TO WHETHER A CLAIM OF RACIAL

OR RETALIATORY DISCHARGE IS ACTIONABLE

UNDER § 1981.

Williams contends this Court should grant his peti-

tion for writ of certiorari because the courts of appeals

are in conflict over the scope of § 1981 after this Court’s

decision in Patterson v. McLean Credit Union. He is wrong.

The only court of appeals decision to hold squarely

that discharge and retaliation claims remain actionable

under § 1981 after Patterson has been vacated by this

Court. Hicks v. Brown Group, Inc., 902 F.2d 630 (8th Cir.

1990), vacated and remanded, 59 U.S.L.W. 3635 (March 18,

1991). Every other court of appeals that has directly ruled

on this issue has agreed with the Fourth Circuit that these

ciaims are not actionable under § 1981. The Second, Fifth,

Sixth, Seventh, Ninth, Tenth, and Eleventh Circuits have

held racial discharge claims are not governed by § 1981.

Trujillo v. Grand Junction Regional Center, 928 F.2d 973

(10th Cir. 1991); Prather v. Dayton Power & Light Co., 918

F.2d 1255 (6th Cir. 1990), petition for cert. filed, 59 U.S.L.W.

3687 (March 26, 1991); Thompkins v. DeKalb County Hosp.

Auth., 916 F.2d 600 (11th Cir. 1990); Gonzalez v. Home Ins.

Co., 909 F.2d 716 (2d Cir. 1990); McKnight v. General Motors

Corp., 908 F.2d 104 (7th Cir. 1990), cert. denied, 59 U.S.L.W.

3635 (March 18, 1991); Walker v. South Cent. Bell Tel. Co.,

904 F.2d 175 (5th Cir. 1990); Courtney v. Canyon Television

& Appliance Rental, 899 F.2d 845 (9th Cir. 1990). The Fifth,

Seventh, Ninth, and Eleventh Circuits are in agreement

with the Fourth Cireuit that retaliatory discharge claims

are not actionable under § 1981. Thompkins v. DeKalb

County Hosp. Auth.; McKnight v. General Motors Corp.;

Overby v. Chevron U.S.A., Inc., 884 F.2d 470 (9th Cir. 1989);

Rathjen v. Litchfield, 878 F.2d 836 (Sth Cir. 1989).

Since the Eighth Circuit’s decision in Hicks v. Brown

Group, Inc. has been vacated, no conflict exists among the

courts of appeals over the scope of § 1981. A substantial

number of the courts of appeals have directly considered

whether racial and retaliatory discharge claims are

actionable under § 1981, and all have held they are not.

Since the courts of appeals are not in conflict, there is no

legitimate reason to grant a writ of certiorari in this case.

II. THE COURTS OF APPEALS ARE CORRECTLY

HOLDING THAT CLAIMS OF RACIAL AND

RETALIATORY DISCHARGE ARE NOT ACTION-

ABLE UNDER § 1981.

Williams contends the courts of appeals are misap-

plying this Court’s decision in Patterson v. McLean Credit

Union to hold claims of racial and retaliatory discharge

are not actionable under § 1981. A review of the Patterson

decision, however, reveals the courts of appeals are prop-

erly holding that allegations of racial and retaliatory dis-

charge do not state claims under § 1981. In Patterson, this

Court observed that:

The most -obvious feature of [§ 1981] is the

restriction of its scope to forbidding discrimina-

tion in the “mak[ing] and enforce[ment]” of con-

tracts alone. Where an alleged act of

discrimination does not involve the impairment

of one of these specific rights, § 1981 provides

no relief. Section 1981 cannot be construed as a

general proscription of racial discrimination in

ail aspects of contract relations, for it expressly

prohibits discrimination only in the making and

enforcement of contracts.

491 U.S. at 175. The Court then turned to an examination

of these two specific rights.

The right to make contracts, the Court noted,

“extends only to the formation of a contract, but not to

problems that may arise later from the conditions of

continuing employment.” /d. The right to enforce con-

tracts “embraces protection of a legal process, and of a

right of access to legal process, that will address and

resolve contract-law claims without regard to race.” 491

U.S. at 177.

The Court cautioned against reading the statutory

terms “make” and “enforce” beyond their plain and com-

mon sense meaning, stating that, “our task here is not to

construe § 1981 to punish all acts of discrimination, but

rather merely to give a fair reading to the scope of the

statutory terms used by Congress.” 491 U.S. at 185 n.6.

Accordingly, “[w]here an alleged act of discrimination

does not involve the impairment of one of these rights,

§ 1981 provides no relief.” 491 U.S. at 175.

Williams maintains that the termination of his

employment violated the right to make contracts provi-

sion of § 1981. As noted above, however, Patterson

expressly held this statutory protection governs conduct

only at the initial formation of the contract; it “does not

extend, as a matter of either logic or semantics, to con-

duct by the employer after the contract relation has been

established, including breach of the terms of the con-

tract... . ” 491 U.S. at 177. Clearly, termination of the

employment relationship is not conduct at the initial for-

mation of the contract, but involves instead acts “after the

contract relation has been established, [to wit] breach. . . .

” Consequently, the courts of appeals properly are hold-

ing that discharge is not actionable under the right to

make contracts provision of § 1981.

Williams also argues that his claims of retaliation are

actionable under § 1981 because the retaliation was in

response to his efforts to enforce his contract rights by

ee ee ee ee ea ns

filing EEOC charges. It is manifest from Patterson that this

is too broad a reading of the § 1981 protection. -

‘In discussing the reach of the statute’s right to

enforce contracts provision, this Court held:

It also covers wholly private efforts to impede

access to the courts or obstruct nonjudicial

methods of adjudicating disputes about the

force of binding obligations. ... The right to

enforce contracts does not, however, extend

beyond conduct by an employer which impairs

an employee’s ability to enforce through legal

process his or her established contract rights.

491 U.S. at 177.

As an example of private conduct that violates this

protection, the Court cited its decision in Goodman uv.

Lukens Steel Co., 482 U.S. 656 (1987). In Goodman, the

plaintiffs’ labor union refused to process grievances in

which employees claimed they were victims of racial

discrimination. The Patterson Court noted the Goodman

plaintiffs had stated a claim under the right to enforce

contracts portion of § 1981 because unions “bear explicit

responsibilities to process grievances, press claims, and

represent member [sic] in disputes. ...” 491 U.S. at 177.

Because the union in Goodman did not fulfill its explicit

responsibility to process the grievance, the employees

were completely barred from access to a legal process and

were impaired from enforcing their established contract

rights under the collective bargaining agreement. Accord-

ingly, the union violated § 1981 by interfering with the

employees’ right to enforce contracts.

There is an obvious difference between the conduct

in Goodman, which was found to be actionable, and that

complained of here. In Goodman, the union discrimi-

natorily refused to perform a function that was necessary

and essential for the plaintiffs to access the legal process.

By not processing the grievances, the union totally pre-

cluded the plaintiffs from enforcing their contract rights.

In contrast, the alleged retaliatory actions and retaliatory

discharge in the instant case clearly did not impair Wil-

liams from filing or pursuing his EEOC charges.

Although Williams argues the alleged retaliation

impacted his financial ability to pursue his claim, the

conduct of which he complains simply did not directly

impede or obstruct his access to legal process. Thus, the

conduct is not actionable under § 1981.

The courts of appeals are correctly holding that

claims of retaliatory discharge do not implicate the right

to enforce contracts provision of § 1981 and are not

actionable under that statute.

CONCLUSION

For these reasons, the Petition for Writ of Certiorari

should be denied.

Respectfully submitted,

J. THOMAS KILPATRICK

Paut R. BEsSHEARS