# Amicus Curiae Brief — Lytle v. Household Manufacturing, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 494 U.S. 545

## Text

IN THE

CLERK

PH F. SPANIOL, JR.

Supreme Court of the

OCTOBER TERM, 1989

JOHN S. LYTLE,

Petitioner,

v.

SCHWITZER U.S., INC., a subsidiary of SCHWITZER, INC.,
Respondent.

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

BRIEF AMICUS CURIAE OF THE
EQUAL EMPLOYMENT ADVISORY COUNCIL
IN SUPPORT OF THE RESPONDENT

RoBertT E. WIL1.1AMS

Douctas 8S. Mc DoWELL

GAREN E. Dopce *
McGUINEssS & WILLIAMS
Suite 1200
1015 Fifteenth Street, N.W.
Washington, D.C. 20005
(202) 789-8600

Attorneys for Amicus Curiae,
Equal Employment
Advisory Council

* Counsel of Record

Witeon - Eras Printing Co.. Inc. - 769 COS86 - Wasnincron, D.C. 20001

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2

ii iii
; TABLE OF CONTENTS—Continued TABLE OF AUTHORITIES

Page Cases Page

Il PATTERSON wv. McLEAN CREDIT MAKES Albemarle Paper Company v. Moody, 422 U.S. 405
CLEAR THAT SECTION 1981 DOES NOT | (1975) 27

COVER CLAIMS OF DISCHARGE OR RE- | Alexander v. New York Medical College, No. 89

TALIATION, SINCE SUCH ACTIONS DO | Civ. 1092, 1989 U.S. LEXIS 11433 (S.D.N.Y.
NOT INVOLVE THE “MAKING” OR “EN- I ceeneremenneecs 18, 21

FORCING” OF A CONTRACT 15 | Beacon Theatres, Inc. v. Westover, 359 U.S. 500
Patterson Reasoned Progeny Deny a eemesstuesenewstuness 10, 11

4. Section toy Bde To Discharge And Beesley v. Hartford Fire Insurance Co., CA No.

Retaliation Cases 15 89-AR-1062-S (N.D. Alabama) (decision pend-
| | EES 3

B. Strong Policy Reasons Support The Exclu- Blonder-Tongue Laboratories, Inc. v. University
sion Of Discharge And Retaliation Claims of Illinois Foundation, 402 U.S. 313 (1971)... 13

From The Scope Of Section 1981 21 | Boston v. AT&T Information Systems, No. 88-
Courts Already Interpret Enforce Title CC 19

of Charging Parties And Is Consistent With Carroll v. General Motors Corp., CA No. 88-2532-
ee 0 EE a 18

Carter v. Aselton, 50 FEP 251 (M.D. Fla. 1989). 18

————— = Chance v. Board of Examiners, 534 F.2d 993 (2d
Cir. 1976), cert. denied, 431 U.S. 965 (1977)...... 24

Copperidge v. Terminal Freight Handling, 50 FEP
Cases 812 (W.D. Tenn. 1989) 18

Crawford v. Broadview Savings and Loan Co.,
No. 88-3694, 1989 U.S. App. LEXIS 9921 (6th
ce 17
Dairy Queen, Inc. v. Wood, 369 U.S. 469 (1962). 10
Dangerfield v. Mission Press, 50 FEP Cases 1171
a esuttnmeemnsonsecs 21
Dwyer v. Smith, 867 F.2d 184 (4th Cir. 1989). 13
EEOC v. Associated Dry Goods Corp., 449 U.S.

EEE 25
EEOC v. Commercial Office Products Co., 108

SE 25
EEOC v. Shell Oil Co., 466 U.S. 54 (1984)... 25
English v. General Dev. Corp., 717 F. Supp. 628

Sr 21

Fidelity & Deposit Co. of Md. v. United States, 187
ELE, 10

iv

TABLE OF AUTHORITIES—Continued

LE —_— ee

Page
Furnco Construction Co. v. Waters, 488 U.S. 567
( ae 3
Gairola v. Commonwealth of Virginia Department
of General Services, 753 F.2d 1281 (4th Cir.
Se ee ee eee 7
Galloway v. United States, $19 U.S. 872 (1948).... 9,10
Garcia v. Gloor, 618 F.2d 264 (5th Cir. 1980),
cert. denied, 449 U.S. 1113 (1981) -.................... 7,8
General Building Contractors Ass’n. Inc. v. Penn-
sylvania, 458 U.S. 375 (1982) ............................... 2, 24
General Telephone Co. of the Southwest v. Falcon,
7 naan 27
General Telephone Company of the Northwest,
Inc. v. EEOC, 446 U.S. 318 (1980) -.................... 27
Goodman v. Lukens Steel Co., 482 U.S. 656
| EE SSS ee 2, 25
Granfinanciera S.A. v. Nordberg, 109 S.Ct. 2782
ESS OT SIE 11
Greggs v. Hillman Distributing Co., 50 FEP Cases
7 OR OS OS a 18
Hall v. County of Cook, State of Illinois, No. 87 C
6918, 1989 U.S. Dist. LEXIS 9661 (N.D. II.
Ee ee 19
Hussein v. Oshkosh Motor Truck Co., 816 F.2d
a ae ae 11
International Brotherhood of Teamsters v. United
States, 481 U.S. 324 (1977) ..............-..-...--00---00--- 3
Irby v. Sullivan, 737 F.2d 1418 (5th Cir. 1984)... 8,9
Jackson v. RKO Bottlers, 743 F.2d 370 (6th Cir.
ae ee ee 7
Jett v. Dallas v. Independent School District, 109
FE 0 Sa rae 20
Jones v. Alltech Associates, Inc., No. 85 C 10345,
1989 U.S. Dist. LEXIS 10422 (N.D. Tl. 1989).. 18
Jordan v. U.S. West Direct Co., 50 FEP Cases 633
ON Se 21
Katchen v. Landy, 382 U.S. 323 (1966)......... 5, 10, 11, 12
Keller v. Prince George’s County, 827 F.2d 952
A a a ee ee ee 13

| i i i lll i ed i ees “4 a i |
|
:

Vv

TABLE OF AUTHORITIES—Continued
Page

Kerotest Mfg Co. v. C-O-Two Co., 342 U.S. 180
(1952) 13

Kolb v. Ohio, No. 87 Civ. 1814 (N.D. Ohio 1989) .. 18

Leong v. Hilton Hotels Corp., 50 FEP Cases 738

(D. Hawaii 1989)..................... 16,17
Lorillard v. Pons, 413 U.S. 575 (1978) ... eibicsibablaiand 3
Malhotra v. Cotter & Co., No. 88-2880 (7th Cir.

I, Tie Se Neraithtnccteneinciectitdtichanaitininitntpeinescenenete 20
Malone v. U.S. Steel Corp., Civ. No. H 83-727

(N.D. Ind. July 19, 1989) 20

Mathis v. Boeing Military Airplane Co., No. 86-
6002-K, 1989 U.S. Dist. LEXIS 8849 (D. Kan-

ED Fe allt ihiittrntctntiebincinbitimninenitemcniime 19
McDonnell Douglas Corp. v. Green, 411 U.S. 792

(19738) ..... 7
Moore v. City of Charlotte, 754 F.2d 1100 (4th

Cir.), cert. denied, 472 U.S. 1021 (1985) ......... 7
New York Gaslight Club, Inc. v. Carey, 447 US.

ge RS Rl EN Ee ee 25
Occidental Life Insurance Co. of California v.

EEOC, 482 U.S. 355 (1977)... 23
Overby v. Chevron USA, 884 F.2d 470, 50 FEP

Cases 1211 (9th Cir. 1989)... 16, 17, 22
Padilla v. United Air Lines, No. 88-A-400, 1989

U.S. Dist. LEXIS 8934 (D. Colo. 1989)... 19
Parklane Hosiery Co. v. Shore, 489 U.S. 322

dp) ce nn passim
Patterson v. McLean Credit Union, 109 8S. Ct.

passim

Rick Nolan’s Auto Body Shop, Inc. v. Allstate In-
surance Co., No. 88 C 7147, 1989 U.S. Dist.
LEXIS 10357 (N.D. Ill. 1989) -.........0..... 23

Riley v. Illinois Dept. of Mental Health and Devel-
opmental Disabilities, No. 87 C 10436, 1989 U.S.

Dist. LEXIS 7686 (N.D. Ill. 1989) 0.00.00... 19
Ritter v. Mount Saint Mary’s College, 814 F.2d 986
(4th Cir.) cert. denied, 484 U.S. 918 (1987) ......passim

vi
TABLE OF AUTHORITIES—Continued

Rivera v. AT&T Information Systems, Inc., No.
89-B-109, U.S. Dist. LEXIS 10812 (D. Colo.
Sept. 13, 1989) _.....................

Robinson v. Pepsi-Cola Co., Civ. No. H 87-375
(N.D. Ind. July 7, 1989)

Runyon v. McCrary, 427 U.S. 160 (1976)..............

Soffrin v. American Airlines, 717 F. Supp. 587,
50 FEP Cases 1245 (N.D. Ill. 1989) -.................

St. Francis College v. Al-Khazraji, 481 U.S. 604
1, PE Ses

Tadros v. Coleman, No. 88 Civ. 4431, 1989 U.S.
Dist. LEXIS 6895 (S.D.N.Y. 1989) ................

Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248 (1981)

Tull v. United States, 481 U.S. 412 (1987) ...........

United States Postal Service Board of Governors
v. Aikens, 460 U.S. 711 (19838).............................

United States v. East Texas Motor Freight Sys-
tem Inc., 564 F.2d 179 (5th Cir. 1977) ...............

United States v. Trucking Management, Inc., 662
F.2d 86 (D.C. Cir. 1961) ..................c0..0.00-.000....--

Wards Cove Packing Co. v. Atonio, 109 S.Ct. 2115

Waters v. Wisconsin Steel Works of International
Harvester Co., 502 F.2d 1309 (7ta Cir. 1974),
cert. denied, 425 U.S. 997 (1976) — 0...

Watson v. Fort Worth Bank & Trust, 108 S. Ct.
eB se a EY

Williams v. National Railroad Passenger Corp.,
716 F. Supp. 49, 50 FEP 721 (D.D.C. 1989)...

Wilmer v. Tennessee Eastman Co., CA No. H-85-
6742 (B.D. Tex. 1960) ................22..200..-ccocccceeeeesss-

Zipes v. Trans World Airlines, Inc., 455 U.S. 385
RE SE

Constitutional Amendment

Page

vii

TABLE OF AUTHORITIES—Continued
Statutes

Civil Rights Act of 1866, 42 U.S.C. § 1981 ............. passim

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

U.S.C. §§ 2000e et seq. passim

Rules and Regulations

29 C.F.R. § 1601.16(b) (1) and (2)
I crerresscenseeprensnszsenspecquccmenansesennesnnsnens
Fed. R. Civ. P. 23
A) | |)
Fed. R. Civ. P. 61 ..

Miscellaneous

EEOC: Investigative Compliance Policy, 8 Fair
Empl. Prac. (BNA) 401-2625-40:2626.............
EEOC: Policy Statement on Remedies and Relief
for Individual Victims of Discrimination, 8 Fair
Empl. Prac. (BNA), 401 :2615-401 :2618......
Developments in the Law—Employment Discrimi-
nation and Title VII of the Civil Rights Act of
1964, 84 Harv. L. Rev. 1109 (1971) —................
Sape & Hart, Title VII Reconsidered: The Equal
Employment Opportunity Act of 1972, 40 Geo.
Wash. L. Rev. 824 (1972) .....................................

IN THE
Supreme Court of the Wuited States

OCTOBER TERM, 1989

No. 88-334

JOHN S. LYTLE,
v Petitioner,

ScCHWITZER U.S., INC., a subsidiary of SCHwITzeEr, INC.,

Ao ceuteanes Ge Qantas atieht te
provisions of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. §§ 2000e et seq. (Title VII), as
well as the Civil Rights Act of 1866, 42 U.S.C. § 1981
(Section 1981). As such, they have a direct interest in

presentation of evidence at a bench trial, but when a

members have an interest in a related basis on which this
Court could properly dispose of this case without even
reaching the jury trial issue—that is, that Section 1981
does not cover race discrimination involving discharge or
retaliation, Lytle’s complaints herein, particularly after
this Court’s decision last term in Patterson v. McLean
Credit Union, 109 S. Ct. 2363 (1989).

Because of its interest in issues involving Section 1981,
EEAC filed briefs with this Court in the Patterson case,
both as initially argued and again upon reconsideration
of Runyon v. McCrary, 427 U.S. 160 (1976). The Coun-
cil also addressed Section 1981 issues in Goodman v. Lu-
kens Steel Co., 482 U.S. 656 (1987) (personal injury,
not contract, statute of limitations applies in a Section
1981 case), St. Francis College v. Al-Khazraji, 481 US.
604 (1987) (Section 1981 covers claims of ancestry and
ethnicity discrimination, as well as that of race), and
General Building Contractors Ass’n. Inc. v. Pennsylvania,
458 US. 375 (1982) (standard of proof under Section
1981 is one of intentional discrimination) .

3

Inded, because of EEAC’s concern related to the
proof of employment discrimination cases gene the
Council has filed briefs amicus curiae in this Court in
Wards Cove Packing Co. v. Atonio, 109 S. Ct. 2115
(1989): Watson v. Fort Worth Bank & Trust, 108 S. Ct.
2777 (1988); United States Postal Service Board of Gov-
ernors v. Aikens, 460 U.S. 711 (1983); Teras Dept. of
Community Affairs v. Burdine, 450 U.S. 248 (1981);
Furnco Construction Co. v. Waters, 438 U.S. 567 (1978) ;
and International Brotherhood of Teamsters v. United
States, 431 U.S. 324 (1977), among others. EEAC also
addressed the issue of jury trials under Title VII, Bees-
ley v. Hartford Fire Insurance Co., CA No. 89-AR-1062-S
(N.D. Alabama) (decision pending), and the Age Dis-
crimination in Employment Act, Lorillard v. Pons, 413
U.S. 575 (1978). Accordingly, because of its past ex-
perience with these issues, the Council is well qualified
to brief the Court in this case.

STATEMENT OF THE CASE

Schwitzer dismissed John Lytle from his position as
machinist on August 15, 1983, for excessive, unexcused
absences. Lytle had asked his supervisor for permis-
nes SS eS Sa ee
supervisor granted on condition that Lytle on
following Saturday. Lytle not only took Friday off, but
left work without authorization nearly two hours early
on Thursday, and then failed to report for eight hours
of work on Saturday. Because company policy does not

is black, filed suit in federal district court
under both Title VII and Section 1981, alleging that he

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The U.S. District Court for the Western Di

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1981 suit, Title VII was Lytle’s exclusive federal rem-
edy. At the close of Lytle’s presentation of evidence at
a Title VII bench trial, the court dismissed the allega-
tions of discriminatory discharge. The court held that
the evidence was not sufficient to establish a prima facie
case since Lytle failed to show that any white employees
received less severe discipline for unexcused absences.
The district court then entered a verdict for Schwitzer
on the retaliation claim, finding that the granting of one
“favorable” letter of reference to a white employee was
a through “inadvertence.” Joint Appendix (J.A.) at

The Fourth Circuit held 2-1 that although Title VII
provided an avenue of relief, the district court had er-
roneously dismissed the claims under Section 1981, which
provided an independent source of relief on the same
claim. But the appellate court also declined to order a
“second” trial—this one by jury under Section 1981—
reasoning that the district court’s Title VII findings were

SUMMARY OF ARGUMENT

The elements of a Section 1981 employment discrimi-
nation claim are identical to the elements of a Title VII
disparate treatment claim. Therefore, where a trial court
correctly concludes, after a bench trial on the merits, that
a plaintiff has failed to establish a prima facie case under
Title VII, it is entirely appropriate to deny a plaintiff
the so-called “right” to relitigate those same facts and
legal theories before a jury under Section 1981. This
Court, in Parklane Hosiery Co. v. Shore, 439 U.S. 322
(1979), indicated that a litigant is not always entitled
to have a jury determine issues that have been adjudi-
cated by a trial judge, and the Fourth Circuit below
properly applied that doctrine to the instant case. Indeed,
as the Fourth Circuit noted in Ritter v. Mount Saint
Mary's College, 814 F.2d 896, 992, cert. denied, 484 US.
913 (1987), where the plaintiff has had a full and fair
opportunity to litigate his claims, “one trial of common

facts is enough.”

Despite Petitioner’s arguments to the contrary, a court’s
refusal to sanction a needless relitigation of the same
facts under Section 1981 does not run afoul of the Sev-
enth Amendment’s right to a jury trial. As indicated
by this Court in Katchen v. Landy, 382 U.S. 323 (1966),
there are situations in which courts may dispose of equi-
table claims in a bench trial even though “the results
might be dispositive of the issues involved in the legal
claim.” Thus, the Seventh Amendment is not to be ap-
plied “in a rigid manner”; where the judge has already
assessed the relevant facts, there simply “is no further
factfinding function for the jury to perform.” Parklane
Hosiery, 439 U.S. at 336.

Indeed, strong policy reasons support the denial of a
“second” trial of common facts by a jury. For example,
a plaintiff will always be able to present his evidence at
the bench trial. And although the issues are not pre-
sented before a jury, all parties have had a full oppor-
tunity to litigate before an independent trier of fact.

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EEAC would also stress that this Court need not even
reach the jury issue since, under its decision last term in
Patterson v. McLean Credit Union, 109 S.Ct. 2363
(1989), it is now apparent that claims of discharge and
retaliation are not actionable under Section 1981. Rather,
that law only covers the “making” and “enforcing” of a
contract. Patterson strongly implies, and its reasoned

progeny clearly hold, that discharges and instances of
retaliation are neither.

Sound public policy supports this construction, in that

Section 1981. Moreover, it makes no sense to twist the
meaning of Section 1981 to reach discharge and retalia-
tion claims, since Title VII already covers such claims
and is currently being interpreted and enforced in a
manner that protects the rights of charging parties—
a manner that is consistent with our national antidis-
crimination laws and policies. As a result, this Court
would be warranted in dismissing the petition for a writ
of certiorari as improvidently grani~’ since the issues
are now moot.

7

ARGUMENT
Il. WHERE A COURT HAS CORRECTLY FOUND

And Thereby Deny Relitigation Of The Dismissed
Title VII Claim By A Jury Under Section 1981

As the Fourth Circuit below properly noted, “it is be-

yond peradventure that the elements of a prima facie
case of employment discrimination alleging disparate
treatment under Title VII and § 1981 are identical.” Slip
Op. at 7, citing Gairola v. Commonwealth of Virginia De-
partment of General Services, 753 F.2d 1281, 1285 (4th
Cir. 1985), and the cases cited therein. See Patterson v.

The court below found that Lytle failed to establish a
prima facie case of discrimination under Title VII, both
for his discharge and his retaliation claims.’ Specifically
—as discussed more fully in Respondent’s brief, and as

1 Other circuits agree. See Garcia v. Gloor, 618 F.2d 264, 271
(Sth Cir. 1980), cert. denied, 449 U.S. 1113 (1981); Jackson vo.
RKO Bottlers, 743 F.2d 370, 378 (6th Cir. 1984).

\

2 This Court, in McDonnell Douglas Corp. v. Green, 411 US.
792 (1973), set out the elements necessary to make out a prime
facie case of disparate treatment under both statutes. As modified
by the Fourth Circuit in Moore v. City of Charlotte, 754 F.2d 1100
(4th Cir.), cert. denied, 472 U.S. 1021 (1985), to address discrim-
inatory discipline cases involving race, a plaintiff must establish
these elements: (1) that he is black; (2) that he was discharged
for violation of a company rule; (3) that he engaged in prohibited
conduct similar to that of a person of another race; and (4) that
disciplinary measures enforced against him were more severe than
those enforced against the other person.

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cuit below correctly determined that “{[W]here
ments of two causes of action are the same, the
the court in one preclude the trial of the other. and
hold.” Slip op. at 8 See Garcia v. Gloor, 618 F
271 (5th Cir. 1980), cert. denied, 449 U.S. 1113 (1
(“The facts here that preclude relief under Title VII
precludes a Section 1981 claim”).

To deny relitigation of the same
by a jury is fully supported by the decisions of

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interests of judicial economy, and does not violate
Seventh Amendment's guarantee of a right
This Court concluded that where a judge has
facts to be adverse,

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tion for the jury to perform, since the common factual
issues” have been decided. Id. at 336. See also Galloway
v. United States, 319 U.S. 372 (1943).

Similarly, in Ritter v. Mount St. Mary’s College, 814
F.2d 986, the Fourth Circuit ruled that a trial court’s
Title VII findings prevent the relitigation of those find-
ings before a jury under a legal theory involving the
same facts. In Ritter, a professor sued her college under
Title VII, the Equal Pay Act (EPA), 29 U.S.C. § 206(d),
and the Age Discrimination in Employment Act (ADEA),
29 U.S.C. § 621 et seg. After a bench trial, the district
court correctly ruled that, under Title VII, she was not

ure, but erred in dismissing her claims
under the EPA and ADEA. Fourth Circuit applied
Parklane Hosiery to deny relitigation of the EPA and
ADEA claims before a jury, ruling that “[o]ne trial of
common facts is enough.” Ritter, 814 F.2d at 991. Like-
wise, the Fourth Circuit below correctly determined that
Lytle was not entitled to relitigate his Section 1981 claim.

As we now show, a court may deny needless relitiga-
tion under such circumstances and not violate the Sev-
enth Amendment.

B. A Court’s Refusal To Permit A Needless Relitiga-
tion Of Common Facts Under Section 1981 Does Not
Violate The Seventh Amendment’s Guarantee Of A
Jury Trial In Suits At Common Law

Petitioners argue that the Fourth Circuit’s ruling er-
roneously deprived Lytle of his “right to a jury trial,”
in violation of the Seventh Amendment to the U.S. Con-
stitution. Pet. Br. at 25. Petitioners call this right an
“entitlement,” the denial of which is subject to “reversal
per se.” Id. at 41. It is clear, however, that the Seventh
Amendment is not so broad. It simply provides that “In
suits at common law . . . the right to trial by jury shall
be preserved. ...” As explained fully by this Court in
Parklane Hosiery Co., 439 U.S. at 336, “(t]he Seventh
Amendment has never been interpreted in [a] rigid man-
ner,” and “many procedural devices developed since 1791

10

. . . have diminished the civil jury’s historic domain.”
For example, this Court has held that neither the doc-
trines of directed verdict nor summary judgment violate
the Seventh Amendment. See Galloway, 319 U.S. at 388-
93, and Fidelity & Deposit Co. of Md. v. United States,
187 U.S. 315, 319-21 (1902).

Of more direct relevance to the case herein, in Katchen

v. Landy, 382 U.S. 323 (1966), this Court held that a —

bankruptcy court, sitting as a statutory court of equity,
is empowered to decide equitable claims before deciding
legal claims—even though the factual issues could just
as well have been decided by a jury under the Seventh
Amendment if the legal claims had been adjudicated first.
See Parklane Hosiery, 439 U.S. at 334-35. Indeed, this
Court in Katchen stated that “there might be situations
in which the Court could proceed to resolve the equitable
claim first even though the results might be dispositive
of the issues involved in the legal claim.” 382 U.S. at
339-40. Such a situation was presented to the trial judge
below. He resolved the Title VII claims at the bench trial
after dismissing the Section 1981 claims. That he may
have erred in dismissing the Section 1981 claims does not
convert his Title VII findings into a violation of the Sev-
enth Amendment. As this Court stated in Parklane
Hosiery, there simply is “no further factfinding function
for the jury to perform,” 439 U.S. at 336.

Contrary to Petitioner’s assertions, such a ruling will
not diminish the effect of this Court’s decision in Beacon
Theatres, Inc. v. Westover 359 U.S. 500 (1959), or Dairy
Queen, Inc. v. Wood, 369 U.S. 469 (1962). Both cases
stand for the proposition that, whenever possible, the right
to a jury trial should be ensured in a claim containing
both legal and equitable claims in the same set of facts,
thus “precluding the prior determination of the factual
issues by a court sitting in equity.” Ritter, 814 F.2d at
990. But, as this Court made eminently clear in Katchen,
382 U.S. at 339, “[i]n neither Beacon Theatres nor Dairy
Queen was there involved a specific statutory scheme con-

11

templating the prompt trial of a disputed claim without
the intervention of a jury.”

Here, in stark contrast, a specific statutory scheme—

Title VII—contemplates a prompt trial of the same facts
and legal theories without the intervention of a jury.‘
Indeed, this Court in Parklane Hosiery, 439 U.S. at 334-
35, explained that the premise of Beacon Theatres is “no
more than a general prudential rule” that has since been
interpreted by Katchen to permit a court sitting in equity
to adjudicate equitable claims prior to legal claims “even
though the factual issues decided in the equity action
would have been triable by a jury under the Seventh
Amendment if the legal claims had been adjudicated
first.” 5 :

Petitioner contends that Parklane Hosiery is inapposite
because it presented only the issue of whether an adverse
equitable adjudication in one lawsuit collaterally estops

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v. Oshkosh Motor Truck Co., 816 F.2d
1987). But it is clear that this Court did
rulings to have such limited effect. As the Fourth Cir-
cuit in Ritter stated, it is irrelevant that Parklane Hos-
iery involved a “separate suit.” The error is the same:
a court resolves issues that could have been resolved by
a jury. Ritter explained:

It would be absurd to say that the requirement of a

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case cannot bind the parties in that same case.

* Petitioners call this doctrine the “narrow Katchen exception,”
applicable to the “specialized bankruptcy scheme.” Pet. Br. at 50,
n.29. Clearly this Court in Katehen and Parklane Hosiery in-
tended the doctrine to have wider applicability than is suggested
by Petitioners.

5 This Court’s recent decisions in Granfinanciera S.A. v. Nord-
berg, 109 S.Ct. 2782 (1989), and Tull v. United States, 481 U.S.
412 (1987) are not to the contrary. Those cases merely reiterated
this Court’s application of the “legal-equitable” distinction in de-
terming whether a right to jury trial exists.

———

Section 1981 claim.

814 F.2d at 992.

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could have obtained a directed verdict
Keller v. Price George’s County, 827 F.2d
(4th Cir. 1987) ; Dwyer v. Smith, 867 F.2d 1
1989). Certainly, Fed. R. Civ. P. 61, the
mitting “harmless error,” would not require a

THe
fucks

*In Ritter, the Fourth Circuit noted that “Parklane decided that
the judicial interest in the economical resolution of cases .. . does
override the interest of the plaintiff in retrying before a jury the
facts of a case determined by a court sitting in equity.” 814 F.2d
at 991.

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ing conditions. Such postformation conduct does not
ligations and the conditions of continuing employ-
ment, matters more naturally governed by state con-
tract law and Title VIL.
Id. at 2372-73 (emphasis supplied) .*
In this case, Lytle alleges that Schwitzer U.S., Inc. vio-
lated Section 1981 when the company terminated him for
excessive, unexcused absences, and retaliated against

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17

retaliatory discharge was not actionable under Section
1981. The Court in Overby stated:

conclusion regarding discharge cases. In a case

that “section 1981
lows contract formation
one’s right to enforce estabiished contractual duties.”
Crawford v. Broadview Savings and Loan Co., No. 88-
3694 at n.11, 1989 U.S. App. LEXIS 9921 (6th Cir.
1989).

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Hotels Corp., 50 FEP Cases at 741, ruled that a racially
motivated constructive discharge is not actionable under
Section 1981. Significantly, the court noted
the plaintiff in Leong, experienced a “more subtle” type
of harassment than did Brenda Patterson, and that
Kashiba received “favorable reviews and periodic raises,”
while Brenda Patterson’s income was affected by McLean
Credit’s actions. Jd. at 740. Even so, the court in Leong,
50 FEP Cases at 741 ruled:

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it_occurred when the plaintiff attempted
to enforee her contract.” Jd. at 813. Similarly, in Alezr-
ander v. New York Medical College, No. 89 Civ. 1092,
1989 U.S. LEXIS 11433 (S.D.N.Y. Sept. 29, 1989), the

:

does not invite {the) construction” that a discharge
is a failure to make a contract.”

Significantly, courts have begun to grant motions to
dismiss discharge cases involving Section 1981 at the
summary judgment stage. For example, the court in
Rivera v. AT&T Information Systems, Inc., No. 89-B-
109, 1989 U.S. Dist. LEXIS 10812 (D. Col. Sept. 13,
1989), held that the company was entitled to judgment

1 See also Carroll v. General Motors Corp., CA No, 88-2532-0,
1989 U.S. Dist. LEXIS 10481 (D. Kansas 1989) ; Carter v. Aselton,
50 FEP 251 (M.D. Fla. 1989) (same); Greggs v. Hillman Distrib-
uting Co., 50 FEP 429 (S.D. Tex. 1989); Jones v. Alltech Asso-
ciates, Inc., No. 85 C 10845, 1989 U.S. Dist. LEXIS 10422 (NLD.
Ill. 1989); Kolb v. Ohio, No. 87 Civ. 1814 (N.D. Ohio 1989); Wil-
liams v. National Railroad Passenger Corp., © FEP 721 (D.D.C.
1989): and Wilmer v. Tennessee Eastman Co., CA No. H-85-6742

(8.D. Tex. 1989).

v

; K,
1989 U.S. Dist. LEXIS 8849 (D. Kansas 1989): Boston
v. AT&T Information Systems, No. 88-141-B (S.D. lowa

Admittedly, some courts have ruled to the contrary—
that Section 1961 discharge suits should not be dismissed
in the same manner as harassment suits." In so holding,

*! See, ¢.g., Padilla v. United Air Lines, No. 88-A-400, 1
Dist. LEXIS 8934 (D. Colo. 1989). At least one court dy ae
criticized Padilla and the cases that follow its line of logic:

After careful consideration of the Supreme '
ts Hatem, Gi Gent tee Otome ana
fully disagree with the Colorado court [in Padilla).
were any indication that the right to make
§ 1981 should be construed broadly as th right
benefits of that contract, the Colorado court
be correct in its reasoning. But the Court in Part
not interpret the right to make a contract under § 1981

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formed and conduct which occurs after it is formed

reflects
an extremely narrow interpretation of the right to make a con-
tract guaranteed by § 1981, one which encompasses only the
right to enter into a contract. Thus, wader Patterson, once
an individual has secured employment, the statute's protection

Hall v. County of Cook, State of IMlinois, No. 87 C 69
. . 18, 1 ;
Dist. LEXIS 9661 (N.D. Ill. 1989) (emphasis hte 4 ae

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Civ. No. H 87-375

12, 1989) (retaliatory discharge

no te
cases, particularly those that do
claims may be adjudicated under Section 1981). It is clear, how-

Sept.
Robinson v. Pepsi-Cola Co.,

While there is some debate among the district courts
(N.D. Ind. July 7, 1989).

with regard to discharge, there has been no debate with
regard to retaliation

18 See, ¢.¢., Malone v. U.S. Steel Corp., Civ. No. H 88-727 (ND.

Concurring opinion of Judge Cudahy in Malhotra v. Cotter & Co.,
ever, that this case does not involve allegations of retaliatory

No. 88-2880 (7th Cir.
Ind. July 19, 1989) ;

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In denying Section 1981 coverage to the instant claim,

other policy rationales are evident. As this Court stated
in Patterson:

That egregious racial harassment of employees is
forbidden by a clearly applicable law (Title VII)
should lessen the temptation for this
Court to twist the interpretation of another statute
to cover conduct. i

this type of claim.

109 S.Ct. at 2375. This Court should not construe Sec-
tion 1981’s language to include terminations or retalia-
tions in no way impair a plaintiff’s access to the
courts.**

Indeed, by reading § 1981 not as a “general proscrip-
tion of racial discrimination” covering discharges and
retaliation, but as “limited to the enumerated rights
within its express protection, specifically the right to
make and enforce contracts,” this Court will go a long
way to “preserve the integrity of Title VII’s procedures
without sacrificing any significant coverage of the civil
rights laws.” 109 S. Ct. at 2375.

C. Courts Already Interpret And Enforce Title VII
In A Manner That Protects The Rights Of Charg-
ing Parties And Is Consistent With Federal Anti-

discriminatory Policy

As this Court has recognized repeatedly, Title VII’s
legislative history demonstrates that its detailed admin-
istrative and judicial enforcement machinery was care-
fully designed to balance the competing interests involved
in an employment discrimination complaint. See, e¢..,
Occidental Life Insurance Co. of California v. EEOC,

1% Unfortunately there is already evidence that plaintiffs have
begun to “artfully plead” their discharge cases to look like “mak-
ing of a contract” cases. See, e.g., Rick Nolan’s Auto Body Shop,
Inc. v. Allstate Insurance Co., No. 88 C 7147, 1989 U.S. Dist. LEXIS
10357 (N.D. Ill. 1989).

432 U.S. 355, 359, 372-73 (1977). Delegation of enforce-
ment authority to the Commission shifts the burden of
prosecution from the individual complainant, assures em-
ployees that the agency issuing discrimination guidelines
will also be the agency enforcing compliance, and encour-
ages the settlement of disputes through informal concilia-
tion rather than formal judicial proceedings."

In addition, potential substantive conflicts between Ti-
tle VII and § 1981 have been resolved in favor of those
standards adopted by Congress in Title VII—even when
specific exempting language of Title VII has not been
found in § 1981." Thus, it cannot be said that § 1981
provides more protection than Title VII in defining what
discriminatory conduct is prohibited under federal law.
Indeed, it is Title VII that provides more protections,
because, unlike § 1981, the EEOC and Title VII plain-
tiffs may proceed under the adverse impact theory and
are not limited to the disparate treatment model. General
Building Contractors Ass’n. Inc. v. Pennsylvania, 458
U.S. 375 (1982); Washington v. Davis, 426 U.S. 229
(1976).

17 See Note, Developments in the Law—Employment Discrimina-
tion and Title VII of the “ivil Rights Act of 1964, 84 Harv. L. Rev.
1109, 1200, 1270 (1971). ‘Itimate resort to the federal courts also
delegates the tasks 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 possible. Sape & Hart, Title Vil Reconsidered: The Equal
Employment Opportunity Act of 1972, 40 Geo. Wash. L. Rev. 824,
881 (1972).

18 See, e.g., Waters v. Wisconsin Steel Works of International
Harvester Co., 502 F.2d 1309, 1316, 1320 (7th Cir. 1974), cert.
denied, 425 U.S. 997 (1976) (seniority system that is valid under
Title VII cannot be attacked under § 1981) ; United States v. Truck-
ing Management, Inc., 662 F.2d 36 (D.C. Cir. 1981); Chance v.
Board of Examiners, 534 F.2d 993 (2d Cir. 1976), cert. de.ied, 431
U.S. 965 (1977); and United States v. East Texas Motor Freight
System Inc., 564 F.2d 179, 185 (5th Cir. 1977) (same re Executive
Order 11246).

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to waiver, estoppel and equitable tolling.”® Also, the
tations period gap between the two statutes has
narrowed substantially.” Moreover, charging parties
receive an award of attorney’s fees under Title VII
work done in connection with administrative proceedings
following reference to a state agency.”

EEOC investigations, of course, can be an extremely

aft

>
5

to the individual § 1981 plaintiff.“ And should the EEOC
decide not to sue, for whatever reason, the information
developed in its investigation is available to the charging
party and his attorneys once a private Title VII court
suit is filed. EEOC v. Associated Dry Goods Corp., 449
U.S. 590 (1981). This information can thus be used as
the basis for the plaintiff’s private lawsuit.

'® Zipes v. Trans World Airlines, Inc., 455 U.S. 385 (1982).

*” EEOC wv. Commercial Office Products Co., 108 C. Ct. 1666
(1988), virtually eliminated the 180-day filing period for Title
VII. The Court held that the extended 300-day period applies in
a deferral state even though an individual has not filed a timely
180-day charge with the state agency as required under state law.
By contrast, Goodman v. Lukens Steel Co., 107 8. Ct. 2617 (1987),
requires that § 1981 suits are governed by the state personal in-
jury statute of limitations period, which typically is much shorter
than the contract suit limitations period sought by § 1981 plaintiffs.

2! New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980).
22 EEOC v. Shell Oil Co., 466 U.S. 54 (1984).

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at agency in-
vestigations were impartial, thorough, legally sound, pro-

following: full (not partial) back pay; enhanced rein-
statement or placement rights; new notice posting re-
quirements to inform other employees of discrimination
problems; and potential direct disciplinary action against
offending supervisory personnel.”

Moreover, when the EEOC decides to sue an employer,
it may do so unencumbered by the class action limitations
of Rule 23 of the Federal Rules of Civil Procedure. Gen-

23 In conjunction with its enhanced remedial policy, the EEOC
also has adopted tougher policies and procedures for dealing with
recalcitrant employers and in seeking subpoenas. See 29 C.F.R.
1601.16(b) (1) and (2) [subpoenas]; and EEOC; Investigative
Compliance Policy, 8 Fair Empl. Prac. (BNA) 40:2625-40:2626.
Under these policies, when an employer fails to comply with re-
quests for information in a timely or complete manner, EEOC dis-
trict directors are instructed to take one or more actions including:
immediate issuance of a subpoena; proceeding more directly to
litigation; and drawing an adverse inference against a respondent
as to the evidence sought when records are destroyed or not
maintained.

est as well as to bring about more effective enforcement
of private rights. . . . The EEOC was to bear the pri-
mary burden of litigation, but the private action previ-
ously available under § 706 [of Title VII] was not super-
seded.” Jd. at 325-36.

Further, “EEOC enforcement actions are not limited
to the claims presented by the charging parties. Any
violations that the EEOC ascertains in the course of a
reasonable investigation of the charging party’s complaint
are actionable.” Jd. at 331. EEOC also may proceed
unencumbered by Rule 23’s requirement that an indi-
vidual’s claim be typical of other class members.* And
when the district court finds that discrimination has oc-

the power but the du

discrimination in the future.” Albemarle Paper Com-
pany v. Moody, 422 U.S. 405, 418 (1975) (emphasis

requirements intended to eliminate discrimination on a
broader scale by the involvement of an expert agency
— to give assistance to all victims of discrimina-

™ Jd.; Compere, General Telephone Co. of the Southwest v.
Falcon, 457 U.S. 147 (1982) (applicant cannot be class representa-
tive for incumbent employees).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0249%3A8. Public record. Not legal advice.