Respondents Brief — Patterson v. McLean Credit Union

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No. 87-107 JAN 12 j9ga

In The

Supreme Court of the United States

October Term, 1987

—

BRENDA PATTERSON,

Petitioner,

vs.

McLEAN CREDIT UNION,

Respondent.

—_ *

~ 2a

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

—.,*

—_— >

BRIEF FOR RESPONDENT

—_ *

—

H. Lee Davis, Jn.*

Grorce E. Doventox, Jr.

Hvurcutiys, TyxpDa.,

Doventon & Moore

115 West Third Street

Winston Salem, NC 27101

(919) 725-8385

Attorneys for Respondent

*Counsel of Record

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

BEST AVAILABLE COPY

1. Whether a separate claim for racial harassment is

cognizable or must be submitted to the jury under 42

U.S.C. § 1981, independent of a parallel Title VII or

§ 1981 claim for discriminatory promotion and discharge?

2. Whether the Plaintiff in a claim under 42 U.S.C.

§ 1981 has the burden of proof of showing that she

was better qualified than another employee who was pro-

moted, after the employer has offered evidence that su-

perior qualifications were the basis of such promotion and

the claimant has shown no ‘‘other unlawful criteriat’’

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED i

TABLE OF CONTENTS ii

iii

TABLE OF AUTHORITIES —

STATEMENT OF THE CASE

SUMMARY OF ARGUMENT

ARGUMENT | a

L THE PETITIONER WAS NOT ENTITLED

TO THE SUBMISSION OF A SEPARATE IS-

SUE OF RACIAL HARASSMENT UNDER

SECTION 1981 .

A. A Separate Discrete Claim for Racial Har-

assment is Not Cognizable Under § 1981 __

B. A Separate Discrete Action for Racial Har-

assment Under ( 1981 Cannot Stand Alone

(. Petitioner Has Failed te Sustain a Prime

Face Case of Racial Harassment —

Il. PETITIONER HAS NOT SUSTAINED A

CLAIM FOR PROMOTION DISCRIMINA-

TION UNDER ¢ 1981 a 36

A. Petitioner Has Failed To Present Sufficient

Evidence To Support A Prima Facie Claim of

Promotion Discrimination Under § 1981 _ 36

B. Unuer the Pacts of This Case, The Jury Tn

struction Was Correct 41

CONCLUSION cea 46

iii

TABLE OF AUTHORITIES

Page

CASEs :

Adams v. McDougal, 695 F.2d 104 (Sth Cir. 1983) 24

Anderson v. City of Bessemer, 717 F.2d 149 (4th

Cir. 1983) rev'd on other grounds, 470 U.S. 564

(1985) ES 13, 44

Beaty Shopping Center, Inc. v. Monarch Insur-

ance Company, 315 F.2d 467 (4th Cir. 1963) 37

Block v. R.H. Macy and Co., 712 F.2d 1241 (8th

CE EE EEE EE 28

Blum v. Gulf Oil Corp., 597 F.2d 936 (Sth Cir. 1979) _.. 29

Boeing all v. eee « 411 F.2d 365 —

Cir. 1969) . -—— : Seaieeen aa oe

Brady v. Southern Railroad — 320 U.S.

476 (1943) . cceiaenaee | ae

Broadnaz v. Burlington 5 Industries, Inc., 7 FEP

eases, 252 (M.D.N.C. 1972) _. Sa a 33

Caldwell v. National ete Co., 443 F.2d 1044

(5th Cir. 1972) EE 26

Cariddi v. Kansas City Chiefs Football Club,

Inc., 568 F.2d 87 (8th Cir. 1977) a 15

Cook v. Advertiser Co., 458 F.2d 1119 (5th Cir.

i | ae eee 24

EEOC v. Federal Reserve Bank of Richmond, 698

F.2d 633 (4th Cir. 1983) rev’d on other grounds

sub nom Cooper v. Federal Reserve Bank of

Richmond, 467 U.S. 867 (1984) 13, 39, 44

EEOC v. Murphy Motor Freight, 488 F.Supp.

381, 384-86 (D.Minn. 1980) Se, ae

Erebia v. Chrysler Plastic Products “Calg 772

F.2d 1250 (6th Cir. 1985), cert. denied, — U.S.

—, 106 S.Ct. 1197 (1986) _ Oe

TABLE OF AUTHORITIES—Continued

7 Page

Faraca v. Clements, 506 F.2d 956 (Sth Cir. 1975) 25

Furnco Construction —_— v. Waters, 438 U.S. 467,

477 (1978) . itn RAD ES os a A

Garcia v. Gloor, 609 F.2d 156 (5th Cir. 1980) — ——s

General Building Contractors Ass’n., Inc. v. Penn-

sylvania, 458 U.S. 375 (1982) 200 10, 20, 21, 36, 44

Goodman v. Lukens Steel Co., 482 U.S.—, 107 S.Ct.

— , ae 9, 22, 23, 28

Hamilton v. Rogers, 791 F.2d 489 (5th Cir. 1986) 29, 30

Henson v. City of Dundee, 682 F.2d 897 (11th

SS RE ee EE 11, 35

Howard v. Lockheed- — Co., 372 F. Sane. 854

(N.D.Ga. 1974) . oe am § © © FY

Howard Security Services, Inc. v. Johns Hop-

kins Hospital, 516 F.Supp. 508 (D.Md. 1981) ............. 25

Irving v. Dubuque Packing Co., 689 F.2d 170 aie

= ao 31

Johnsox va Alevander, 572 F.2d 1219 (8th Cir.

1978) cert. denied, 439 U.S. 99 (1978)... sa

Johnson v. Bunny Bread Co., 646 F.2d 1250 (8th

Cir. 1981) .... cael aes ae | 6lU

Johnson v. Railway Express Agency, Ine., 421

U.S. 454 (1975) tumtrrununfdy 17, 21, 26, 28, 33

Jones v. nasttsite H. Mayer Co., 392 U.S. 409 (1968)

sad | | 8, 17, 18, 21

Lattimore v. Lowes Theatres, Inc., 410 F.Supp.

1397 (M.D.N.C. 1975) 33

Long v. Ford Motor Co., 496 F.2d 500 (6th Cir. 1974) 31

Lovelace v. Sherwyn Williams Company, 681 ¥.2d

230 (4th Cir. 1982) . a? 39, 41

—— a

TABLE OF AUTHORITIES—Continued

Page

Lucero v. Beth Israel Hospital Geriatric, 479 F.

eres Se 28

Macklin v. Spector Freight Systems, 478 F.2d 979

RE .

Martin v. Citibank, N.A., 762 F.2d 212 (7th Cir.

I dS 10, 31

McDonnell-Douglas v. Green, 411 U.S. 792 (1973) . passim

Meritor Savings Bank v. Vinson, No. 84-1979

(U.S. June 19, 1986), Slip Op. 9 . eetiesiageienaaia.” mae

Mitchell v. Baldridge, 759 ¥'.2d 80 (DK C, ce. 1985) 46

Minority Police Officers Ass'n. of South Bend

v. City of South Bend, Indiana, 617 F.Supp. 1330

(M.D.Ind. 1985), aff’d 801 F.2d 764 (7th Cir.

SITE aisiaaibicahanneenaentnineniaposemmienmptibnmeieechiaanntate 9, 15, 16, 27

Muller v. United States Steel Corp., 509 F.2d 923

(10th Cir.), cert. denied, 423 U.S. 825 (1975) ...10, 31, 32-

Patterson v. McLean, 805 F.2d 1143 (4th Cir. 1986) ..27, 29

Pinehurst, Inc. v. Schlamowitz, 351 F.2d 509 ane

pase v. Retail Credit Consens, 4 453 F.2d 336 (4th

Cir. 1972), cert. denied, 409 U.S. 1109 (1973) 2000.) 387

Rogers v. Equal Employment Opportunity

Comm’n., 454 F.2d 234 (Sth Cir. 1971) cert. de-

nied, 406 U.S. 957 (1972) 20 8, 14, 27, 35, 36

Runyon v. McCrary, 427 U.S. 160 (1976) 0. 9, 17, 19, 25

Saunders v. General Services Corp., Slip Op. No.

86-0229-R (E.D.Va. — — —* No.

87-2175 (4th Cir.) .. 20

Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) 18

Texas Department of Community Affairs v. Bur-

dine, 450 U.S. 248 (1981) 12, 13, 40, 42, 44, 45

TABLE OF AUTHORITIES—Continued

Tillman v. Wheaton-Haven Rec. Assoc., 410 U.S.

431 (1973) ............. a NR nn 9, 23, 24

United States v. Buffalo, 457 F.Supp. 612

(W.D.N.Y. 1978), modified on other grounds,

633 F.2d 643 (2d Cir. 1980) 000. 14

United States Postal Service Board of Governors

v. Aikens, 460 U.S. 711 (1983) 0 .... 3 46

Vaughn v. Pool Offshore Co., Etc., 683 F.2d 922

ff 0 ——

—s v. Jackson State Univ., 616 F.2d 116 hse

Williams v. Atchison, Topeka and Santa Fe 7%

627 F.Supp. 752 (W.D.Mo. 1986) 0... 9, 15, 27

Young v. Lehman, 748 F.2d 194 (4th Cir, 1984) _. 7, 12, 44

OTHER AUTHORITIES:

42 U.S.C. § 1981 (1982) ..... | passim

42 U.S.C. § 2000(e)(2)(a) (1982) 000 past

ob 6 ee passim

5A Moore’s Federal Practice (2d Ed. 1971), § 50.02[1] 37

—————— SO

No. 87-107

_— *

In The

Supreme Court of the United States

October Term, 1987

BRENDA PATTERSON,

Petitioner,

vs.

McLEAN CREDIT UNION,

Respondent.

ty.

ON WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

—_ *

BRIEF FOR RESPONDENT

STATEMENT OF THE CASE

Petitioner’s Brief has inaccurately represented the

facts and omitted pertinent matters to such a degree that

the Respondent is compelled to address the Statement of

the Case prior fo presenting its argument.

The Respondent, McLean Credit Union, is a financial

institution chartered by the State of North Carolina mak-

ing loans and accepting deposits solely from a defined

field of members. At all times relevant to this cause of

uetion, the field of membership for McLean Credit Union

was limited to the employees of McLean Trucking Com-

pany. However, other than this relationship, McLean Cred-

it Union and McLean Trucking Company were separate

corporate entities and McLean Trucking Company had no

direct responsibilities with regard to the operation or

policies of the Credit Union. TR' 3-79 to 3-80.

‘Consistent with Petitioner's Brief, references are to the

Transcript of Trial, November 12, 13, 14, 15, 18, 1985.

The Petitioner, Brenda Patterson, was employed by

the Respondent, McLean Credit Union, in 1972 as a ‘‘ File

Co-Ordinator.’” TR 1-20; TR 1-99. As the result of a

decline in business in 1981 and 1982, the Petitioner and two

other general clerical employees (both white) were laid

off. TR 3-83 to 3-93. Notwithstanding Petitioner’s con-

tentions to the contrary, seniority was neither the com-

pany policy nor a criteria used in determining these lay-

offs and no competent evidence was tendered showing

otherwise. TR 3-96. In accordance with the layoff pro-

cedure adopted, the Respondent terminated these employ-

ees, including Petitioner, after six months without recall.

TR 3-91 to 3-92.

Susan Williamson, a white, was hired by the Respon-

dent in 1974 as an ‘‘ Accounting Clerk’’. TR 3-105. Mrs.

Wil'iamson had completed two years of college and was a

Dean's List student. She had completed courses in college

in Accounting I and II, Economies I and I, College Math,

Caleulus I, I and ITI and Business Finance and expressed

an aptitude and enjoyment in working with figures. Def.

Ex. 6, TR 2-33, 4-106.

Brenda Patterson admittedly was hired as a File Co-

ordinator or filing clerk. However, because McLean Truck-

ing Company performed the payroll functions for the

Credit Union as an accommodation to Respondent, Mrs.

Patterson’s job classification was listed as ‘‘ Accounting

Clerk’’ on her original rating classification card in order

to be consistently reflected under the MeLean Trucking

Company job classifications. TR 3-82, 3-105 to 3-107; (PI.

Ex. 3, TR 1-60, 1-65). Between 1972 and 1982 the maximum

number of general office hourly employees (such as Pe-

titioner and Williamson) employed by the Respondent was

nine, including at all times the Petitioner. TR 3-82 to 3-83.

Petitioner contends in her brief that she told Respon-

dent’s President, Stevenson that she was interested in

bookkeeping or secretarial jobs? However, the record

clearly shows that this statement was made to Mr. Steer

Brief for Petitioner at pp. 9-10.

a a 4

at McLean Trucking Company, a separate corporate en-

tity in a prior separate interview. TR 1-22 to 1-23; 3-80.

There is no evidence that any such request was made to

Mr. Stevenson or to any of Petitioner’s supervisors at the

Credit Union. To the contrary, Petitioner admits that dur-

ing her employment, she never asked or made any inquiry

for any promotion to or training for an accounting position

or any other position. TR 2-61 to 2-62. During William-

son’s employment at McLean, she worked solely in the

accounting area, TR 2-53, except for a brief transfer to

data processing from October 1, 1979 to February 18, 1980.

TR 2-159 to 2-160.

In 1982, in recognition of her satisfactory job per-

formance’, Williamson received a title change from ‘* Ac-

count Junior’’ to ‘‘ Account Intermediate.’’ However, there

were no changes in Wiliiamson’s job responsibilities, fune-

tions or supervisor subsequent to this change. Contrary to

Petitioner’s contentions, there was no job vacancy before

or after Williamson’s title change. The Respondent hired

no other employees after Williamson’s title change. Wil-

liamson received a pay increase but continued her same

duties. TR 4-26 to 4-28.

Contrary to her contentions, Petitioner was not quali-

fied for nor did she have the experience, aptitude or quali-

fications to perform the accounting job. Evidence further

showed that Williamson was more qualified than Petitioner

to do each job function required for the accounting posi-

tion. TR 4-28 to 4-32. Additionally, each year from 1980

through 1982, Williamson’s annual evaluations exceeded

Petitioner’s. TR 433 to 4-35; (PLEx. 5, TR 1-62, 1-65;

Def.Ex. 4, TR 2-30, 4106; Def.Ex. 8, TR 2-105, 4106;

Def.Ex. 16, TR 4-31, 4-106; Def.Ex. 17, TR 4-31, 4106;

Def. Ex. 20, 4-31, 4-106).

Further, Petitioner’s application test showed that Pe-

titioner attempted to answer only four of che fifteen math-

ematies questions. Of the four questions attempted, only

one was answered correctly. TR 4-95 to 4-97; (Def.Ex. 21,

TR 4-93, 4-106).

Finally, when the Petitioner worked part-time as a

teller, she indicated to the President of the Credit Union

that such work was too much pressure. There was evidence

that Petitioner was poor at “‘balancing’’ and made nu-

merous errors. Petitioner indicated that she did not want

to do teller work. TR 3-103 to 3-104.

Petitioner alleges that she was diseriminated against

because she was not considered for the job of Account In-

termediate which was the ‘‘promotion’’ received by Wil-

liamson. TR 1-46 to 1-48. However, the accounting posi-

tions required more numerical aptitude and bookkeeping

skills than the teller position which Petitioner could not

adequately perform. TR 4-37 to 4-38.

Petitioner’s assertions that ‘‘throughout the time she

worked at Mclean Credit Union, [she] was subjected to

abusive and demeaning terms and conditions of employ-

ment’? and that she was ‘‘constantly scrutinized and eriti-

of Petitioner’s initial interview in 1972, Respondent's

President allegedly informed her that she would be work-

ing only with white women” TR 3-96 to 3-97. The

other statement which Petitioner testified was a racial re-

mark was a statement allegedly attributed to Respondent’s

President in 1976 that—‘‘blacks were slower than whites

by nature. TR 1-88. Respondent’s President denied the

remark. TR 3-109. Although Petitioner complains that she

received personal criticism during staff meetings, the

record is clear that such criticisms were business related,

were made without personal comment and reflected errors

which she admittedly had made prior to the date of the

meeting. Tr 1-89; TR 2-72 to 2-78. She further admits ~

that whites were also criticized at staff meetings. TR 2-72.

Further, she could not recall the time periods such eriti-

cisms occurred and whether they were within the period of

limitations. TR 2-73 to 2-76.

abe

‘i

i°

Efe

“

and that subsequent to her termination, the job functions

which she had been previously performing were absorbed

by other members of the staff without the necessity of hir-

ing additional personnel. TR 4-45.

Petitioner further contends that she was racially har-

assed because Respondent’s President ‘‘stared’’ at her.

TR 1-38 to 1-39. Mr. Stevenson contends that he neces-

sarily observed the employees at their work. TR 3-109 to

3-110. Petitioner concedes that this observation was from

as much as forty feet away, TR 2-86; and that to observe

her work in the vault, it wae necessary to stand at or near

the vault door. TR 1-101.

There was no formal training avilable to any clerical

employee and no employee including Williamson received

any job training that was not available to all employees.*

In fact, Petitioner received additional help and training.

TR 2-33; TR 2-38; TR 3-111.

Petitioner misleads the Court by asserting that she

was ‘‘never able to find out about promotion opportunities

until after the decisions had been made"’ and that “‘several

white workers with less education, less seniority and less

experience than Patterson were hired or promoted’’ while

she was not.” In fact Petitioner offered evidence at trial

of only one ‘ promotion’’ for which she contended she was

the object of racial diserimination——that of Williamson to

the position of Account Intermediate. TR 1-46 to 1-47.

Petitioner's contention that white workers with less edu-

cation, less seniority and less experience than she had were

hired or promoted to secretarial or bookkeeping positions

while she was not, is not only a misstatement of the evi-

sisting of a unsubstantiated allegation that Williamson

“was given training for this position.” TR 1-49. Peti-

tioner eg ye ae oy a

ing” consisted of. In contradiction, the showed

that Williamson did not receive any special training, TR 4-110

eee Sea

*Brief for Petitioner at p.10.

dence, but such allegations concern matters clearly outside

the statute of limitations. Further, Petitioner offered no

evidence that either education or seniority were criteria

used by Respondent in making promotions."

Finally, Petitioner is incorrect in her allegation that

she was denied a ‘‘merit’’ increase in salary that was given

to white employees." To the contrary, other black em-

ployees were given a ‘‘merit’’ increase in 1982 while

‘‘merit’’ increases were denied to other white employees.

Merit raises were given on the basis of performance and

were not automatic raises. TR 3-108.

Likewise, Petitioner's contentions that ‘‘when secre-

tarial or bookkeeping positions opened, white workers were

hired or promoted into the positions, while the black work-

ers remained in the file room,’ is a gross misstatement

of the testimony. The uncontradicted evidence was that

no blacks ever applied for a secretarial position. TR 4-11

to 4-12. Further, Patterson testified that she requested to

move her desk from behind the teller line to the vault where

the filing took place. TR 1-100 to 1-101. Lastly, Carrie

Worsley, a black, who was at all times employed as a teller,

worked on the teller line and not in the vault or file room.

TR 1-42.

Following her termination, the Petitioner pursued and

exhausted her administrative remedies under Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (1982)

and received on June 30, 1983 a ‘Notice of Right to

Sue.”’ JA p.18 The Petitioner chose not to file an action

under Title VII for racial harrassment or disparate treat-

ment and instead filed this action under 42 U.S.C. § 1981

on January 25, 1984. JA pp. 5-16.

Nevertheless, greater education and seniority do not out-

more direct experience. Young v. Lehman, 748 F.2d 194,

198 (4th Cir. 1984), cert. d ~ied, 471 U.S. 1061 (1985).

"Brief for Petitioner at p.12.

"Brief for Petitioner at p.9

SUMMARY OF ARGUMENT

I. A separate discrete claim for racial harrassment

is not cognizable under § 1981. Title 42 U.S.C. § 1981 pro-

vides, in pertinent part, that ‘‘[a]ll persons within the

jurisdiction of the United States shall have the same

right in every State and Territory to make and enforce

contracts * * * as is enjoyed by white citizens * * * .”’

It is well established that § 1981 may provide a cause

of action parallel to Title VII, 42 U.S.C. § 2000(e) in

cases of racial discriminatory practices in hiring, firing

and promotion. The Civil Rights Act of 1964, Title VII,

42 U.S.C. § 2000(e), et seq. makes employment practices

unlawful that ‘‘diseriminate against any individual with

respect to his compensation, terms, conditions, or priv-

ileges of employment, because of such individual's race,

color, religion, sex or national origin.’’ It has further

been established that the remedies under § 1981 and Title

VII are separate and distinct. Johnson v. Railway Express

Agency, Inc., 421 U.S, 454 (1975).

In addition to actions for discrimination in hiring, fir-

ing or promotions, Title VII also makes actionable a racial-

ly discriminatory work environment. Rogers v. Equal Em.

ployment Opportunity Comm'n, 454 P2d 234 (5th Cir,

1971) cert. denied, 406 U.S. 957 (1972). However, a sepa-

rate discrete cause of action for racial harassment is not

cognizable under Section 1981.

The legislative history and plain and ordinary con-

struction of the language of § 1981 support the con-

tention that a separate diserete claim for relief for racial

discrimination will not stand when isolated from « claim

for racially discriminatory hiring, firing or promotion,

Section 1981 prohibits discrimination in the “‘making

and enforeing of contracts."’ Beginning with the decision

of Jones v. Alfred H. Mayer Co., 392 US, 409 (1968) this

Court has consistently interpreted the legislative history

of $1981 as granting the ‘‘competence and capacity’’ to

contract. Further, the cases in this Court addressing the

legislative history and interpretation of § 1981 have con-

sistently interpreted the statute as one affecting economic

rights. See, e.g., Runyon v. McCrary, 427 U.S. 160 (1976);

Goodman v. Lukens Steel Co., 482 U.S. —; 107 S.Ct. 2617

(1987); see also, Tillman vo. Wheaton-Haven Rec. Asso.,

410 U.S. 431 (1973) (construing the economic impact of

the paralle! provisions of 42 U.S.C. § 1982.)

Racial harassment in the work place that does not

impact on hiring, discharge or promotion decisions has no

effect on the economic rights of a minority employee and

does not affect such an employee's basic fundamental rights

to ‘‘make and enforce contracts.’’

Although this Court has not yet addressed the issue

of whether a separate independent claim of racial har-

assment is cognizable under § 1981, several other lower

federal courts in addition to the Fourth Cireuit have de-

termined that such a claim is not cognizable. See, ¢.¢.,

Williams v. Atchison, Topeka and Santa Fe Ry., 627 F.

Supp. 752 (W.D.Mo. 1986); Minority Police Officers Ass'n.

of South Bend . City of South Bend, Indiana, 617 F Supp.

1330 (M.D.Ind. 1985); Howard v. Lockheed-Georgia Co.,

372 F.Supp. 854 (N.D.Ga. 1974).

The basic fundamental rights granted to all persons,

the same as white citizens, are the rights to enter into a

contract and bind the other party to it and the right to

enforee such contracts in court. Neither in 1866 nor in

1870 did ‘white citizens’’ have the right to bring an action

strictly for harassment. It was not the intent of the

Thirty-ninth Congress to grant such a substantive tort

claim for relief. Other laws may grant remedies for har.

asament, such as Title VII, breach of contract actions,

malicious interference with contracts, intentional inflic-

tion of emotional distress or other actions and § 1981

grants access to the courts and the rights of all persons to

maintain such independent causes of action. However,

§ 1981 establishes no separate cause of action for racial

harassment.

Although there is some confusion in the courts as to a

differentiation of the various rights and remedies avail-

able under Tithe VIT and § 1981, such decisions generally

practices were not so opprobrious or working conditions

so intolerable as to enforce a constructive discharge claim

or trigger a claim under Title VII. Johnson v. Bunny Bread

Co., 646 F 2d 1250 (8th Cir, 1981); Martin o. Citibank, N_A.,

762 F.2d 212 (7th Cir. 1985); Muller o. United States Steel

three year statute of limitations bars any allegations or

claims prier to January 25, 1981. The remaining allega-

tions by the Petitioner (which are unsubstantiated

date) are that the Respondent's President stared at her,

gave her an inordinate amount of work, criticized her in

staff meetings and requested that she dust and sweep.

Even taking all of the Petitioner’s allegations as factually

correct and undisputed, they still fall far short of con-

ditions ‘‘sufficiently pervasive so as to alter the condi-

tions of employment and create an abusive working en-

vironment.’’ See Henson v. City of Dundee, 682 F.2d 897

(11th Cir. 1982). After Respondent’s evidence offering

non-discriminatory explanations in response to such al-

legations, Petitioner offered no rebuttal to show pretext.

Petitioner’s allegations are insufficient to support a claim

of racial! harassment even under Title VIL.

Il. Likewise, Petitioner’s evidence with regard to

her allegation of promotion discrimination was insuffi-

cient to support a prima facie case. To establish such a

prima facie case, the Petitioner must meet the elements

required by McDonnell-Douglas v. Green, 411 U.S. 792,

802 (1973).

The evidence regarding the promotion incident was

that Susan Williamson had been working for 74 of the

prior 8 years as an Account Junior and because of her

satisfactory job performance, she received an upgrade in

title and pay. Mrs. Williamson received no additional or

different job responsibilities. No job vacancy was open,

filled or created by the so-called promotion. Mrs. Wil-

liamson had completed college courses in calculus, account-

ing and business finance. The Petitioner who was at all

times employed as a filing clerk had experienced difficulty

in balancing her books when she worked as a part time

teller, disliked the pressure of working as a teller, had no

experience in the accounting functions, had received nu-

merous evaluation notes for slow work and lacked the

necessary education, skills or aptitude to perform the ae-

counting position. However, the Petitioner claims that

she was entitled to the position of Account Intermediate

and that the Respondent unlawfully discriminated age . ¢

12.

her by advancing Mrs. Williamson rather than providing

this position to the Petitioner. The only reasonable in-

ference which any reasonable person could draw from these

facts is that there was no ‘‘promotion’’ for which there

was a vacancy and that Petitioner produced no evidence

that she was qualified to perform the accountant functions.

However, the Court allowed the claim to go to the jury,

obviously with the opportunity in the event of a verdict

adverse to the Respondent, to reconsider Petitioner’s prima

facie case at Respondent’s Motion for a judgment not-

withstanding the verdict pursuant to Rule 50 of the Fed-

eral Rules of Civil Procedure.

Once the court had determined to allow the issue of

promotion discrimination to be resolved by the jury, the

Respondent was compelled under a strict application of

the McDonnell-Douglas proof scheme to offer a non-

discriminatory reason for its decision. Within the con-

text of established case law, the simple explanation for the

‘‘decision’’ was Mrs. Williamson’s superior qualifications.

Once this evidence was proffered, the burden was on the

Petitioner to show pretext or that Respondent’s explana-

tion was unworthy of credence. Texas Department of Com-

munity Affairs v. Burdine, 450 U.S. 248, 259 (1981). Pe-

titioner contends that such pretext could have been shown

not only by showing superior qualifications but (1) by

showing equal qualifications; (2) by showing that the

employer did not rely on qualifications; or, (3) by show-

ing that the employer’s explanation was not credible. Be-

cause Petitioner offered no rebuttal evidence and the

record was void of any evidence that Petitioner's qualifi-

cations were equal to Mrs. Williamson's or that the em-

ployer did not rely on qualifications in making its decision

or that the reason given by the employer was not credible,

the court correctly charged the jury in accordance with

established precedents that the Petitioner must show her

superior qualifications. Young v. Lehman, 748 V.2d 194

(4th Cir. 1984); Anderson v. City of Bessemer, 717 F.2d

149 (4th Cir. 1983), rev'd on other grounds, 470 U.S. 564

(1985); EEOC v. Federal Reserve Bank of Richmond, 698

F.2d 633 (4th Cir. 1983) rev’d on other grounds sub nom;

Cooper v. Federal Reserve Bank of Richmond, 467 US.

867 (1984). ‘*The employer has discretion to choose among

equally qualified candidates, provided the decision is not

based upon unlawful criteria.’’ Texas Department of Com-

munity Affairs v. Burdine, 450 U.S. 248, 259 (1981). There-

fore, where there is no evidence of an unlawful criteria and

Respondent has profferred a non-discriminatory reason for

its decision, it is encumbent upon the Petitioner to show

her superior qualifications.

ARGUMENT

THE PETITIONER WAS NOT ENTITLED TO THE

SUBMISSION OF A SEPARATE ISSUE OF RACIAL

HARASSMENT UNDER § 1981

A. A Separate Discrete Claim for Racial Harassment Is

Not Cognizable Under § 1981

The issue to be determined in this matter is whether

racial harassment is cognizable under 42 U.S.C. § 1981

(1982) separate and apart from an actionable claim of

racially diseriminatory hiring, firing, or promotion. The

statute, 42 U.S.C. § 1981, provides:

All persons within the jurisdiction of the United

States shall have the same right in every state and

territory to make and enforce contracts, to sue, be

parties, give evidence and to the full and equal bene-

fit of all laws and proceedings for the security of

persons and property as is enjoyed by white citizens,

and shall be subject to like punishment, pains, penal-

ties, taxes, licenses and exactions of every kind, and

to no other.

(emphasis added).

Obviously racial harassment may be relevant as

evidence of discriminatory intent supporting a cognizable

claim of employment discrimination under § 1981, and may

give rise to a discreet claim under Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000(e). See, e.g., EEOC

v. Murphy Motor Freight, 488 F.Supp. 381, 384-86 (D.

Minn. 1980); and, United States v. Buffalo, 457 F.Supp.

612, 631 (W.D.N.Y. 1978), modified on other grounds,

633 F.2d 643 (2d Cir. 1980). However, the pertinent lan-

guage of Title VII which makes unlawful ‘‘discrimin-

at{ion] against any individual with respect to his compen-

sation, terms, conditions or privileges of employment be-

cause of such individual’s race,’’ 42 U.S.C. § 2000(e)

(a) (1982) (emphasis added) is in sharp contrast to § 1981's

prohibition of discrimination in making and enforcing

contracts. Although a cause of action for racial harass-

ment is cognizable under Title VII and the Petitioner

in this action requested and received a Notice of Right to

Sue from the EEOC, she elected to file her action solely

under § 1981."

Various courts have undertaken to define racial har-

assment. In a Title VII case, the Fifth Cireuit held that

Title VII was ‘‘aimed at the eradication of such noxious

practices ... [as| .. . working environments so heavily

polluted with discrimination as to destroy completely the

emotional and psychological stability of minority [ |

workers.’ Rogers v. Equal Employment Opportunity

Comm’n., 454 F.2d 234, 238 (5th Cir. 1971), cert. dented,

406 U.S. 957 (1972). The court went on to say that the

‘‘mere utterance of an ethnic or racial epithet which en-

genders offensive feelings in an employee’’ does not nee-

essarily fall within Title VII id. at 238, Another court ree-

"See, JA p.18. Petitioner received a notice of right to sue

on or about July 5, 1983; however, this action was not instituted

until january 25, 1984 and any cause of action stated under Title

Vil would have at that time been barred by the applicable stat-

ute of limitations.

ognized that derogatory remarks would constitute a Title

VII violation ‘‘upon attaining an excessive or opprobrious

level,’’ or that ‘‘a malicious or inordinate racial slur ws-

age would result in defendant’s liability.”’ Vaughn v.

Pool Offshore Co., Etc., 683 F.2d 922, 925 (5th Cir. 1982).

Likewise, the Court in Cariddi v. Kansas City Chiefs Foot-

ball Club, Inc., 568 F.2d 87, 88 (8th Cir. 1977) ‘‘recognized

that derogatory comments could be so excessive and op-

probrious as to constitute an unlawful employment prac-

tice under Title VIT.”’

Respondent has conceded that intentional racial ani-

mus is an element of and therefore relevant to Petitioner's

claims of racially discriminatory discharge and promotion

practices. However, several lower federal court cases have

commented that separate claims for racial harassment are

not cognizable under § 1981. See, e.g., Williams v. Atchison,

Topeka and Santa Fe Ry. 627 F.Supp. 752 (W.D.Mo.

1986); Minority Police Officers Assn. of South Bend v.

City of South Bend, Indiana, 617 F.Supp. 1330 (N.D Ind.

1985) aff’d 801 F.2d 764 (7th Cir. 1986); and Howard v.

Lockheed-Georgia Co., 372 F.Supp. 854 (N.D.Ga. 1974).

In Williams v. Atchison, Topeka and Santa Fe Ry.,

627 F.Supp. 752 (W.D.Mo. 1986), the court stated:

**I believe the working conduions issue is a Title VII

issue and not an independent issue under 42 USC.

§ 1981. See Minority Police Officers v. City of South

Bend, 617 F.Supp. 1330, 1352 n.52 (N.D.Ind. 1985). It

seems to be assumed in some cases, however, that the

statutes run parallel, except for the more liberal dam-

age potential of § 1981. Erebia v. Chrysler Plastic

Products Corp., T72 F.2d 1250 (6th Cir. 1985) cert.

denied, — U.S. —, 106 S.Ct. 1197 (1986). But Title

VII by its terms is more comprehensive than § 1981,

and, except as to damages and to time limits, cuts

deeper."’

Id. at 757 v5 (emphasis added).

Further, in Minority Police Officers Assn. of South

Bend v. City of South Bend, Indiana, 617 F.Supp. 1330

(N.D.Ind. 1985), the court stated :

The relationship between the employee and his work-

ing environment is encompassed within the ‘terms,

conditions or privileges of employment’ language of

Title VII. Section 1981 of Title 42 United States Code

is not specifically addressed to employment diserim-

ination and this court has found no cases to Milicate

a plaintiff can state a claim under § 1981 based on

working conditions alone. However, conditions in the

work place, including racially derogatory slurs and

incidents may be used to show discriminatory intent.

Nor has the Court found any cases indicating that

such a claim can be stated under the Fourteenth

Amendment.

Id. at 1252 at n.52 (emphasis added).

In Howard v. Lockheed-Georgia Co., 372 F.Supp. 854

(N.D.Ga. 1974), an attempt to use § 1981 for the purpose

of seeking emotional distress damages was rejected. The

= Court stated that:

[T]o judicially legislate a con-current and broader

remedy under Section 1981 would invite covery plain-

tiff asserting a claim for racially diseriminatory em-

ployment practices to ignore the remedy which Con-

gress so carefully constructed in Tithe VII. Why

should a claimant genuinely participate in the concilia-

tion procedures of Title VII, or his attorney advise

him to do so, when larger awards await if he refuses

and proceeds to suit? Such a holding would frustrate

the clear intent of Congress that racial bias problems

be resolved by conciliation. This the Court declines

to do.

J. at 857-858.

The pivotal issue in a determination of this case is

an interpretation of the meaning of ‘‘to make and enforce

contracts.” To make such a determination, a closer look

at the Legislative History of the statute and an interpre-

tation of the clear ordinary language of the statute is

helpful.

The Legislative History of § 1981 has been discussed

and analyzed on several occasions by this Court. See, e.g.

Jones v. Alfred H. Meyer Co., 392 U.S. 409 (1968) ; Runyon

v. McCrary, 427 U.S. 160 (1976). This Court has deter-

mined that 42 U.S.C. § 1981 was drawn from both § 16 of

the Voting Rights Act of 1870 and from §1 of the Civil

Rights Act of 1866. Runyon v. McCrary, 427 U.S. 160,

168 n.8 (1976)."

During Reconstruction and the passage of these stat-

utes, slaves for the first time were declared to be ‘‘citi-

zens’’, to possess the rights to sue, to give evidence and

to hold real and personal property, and to have full ac-

cess to all the laws and be subject to all the responsibilities

of citizenship. The grant of these rights to ‘‘all people’’

Civil Rights Act of 1866 under the Thirteenth Amendment,

this Court wrote that:

Surely Congress has the power under the Thirteenth

Amendment rationally to determine what are the

badges and incidents of slavery, and the authority to

translate that determination into effective legislation.

Nor can we say the determination Congress has made

is an irrational one. For this Court recognized long

ago that, whatever else they may have encompassed,

the badges and incidents of slavery—its ‘‘ burdens and

disabilities’’—include restraints upon ‘‘those funda-

mental rights which are the essence of civil freedom,

namely, the same right ... to inherit, purchase, lease,

sale and convey property, as is enjoyed by white citi-

zens.’

Jones v. Alfred H. Mayer Co., 392 U.S. 409, 440-441 (1968)

(footnote omitted) (quoting Civil Rights Cases, 109 U.S.

3, 22 (1883) (emphasis added).

Further, the Court wrote:

Of course, Senator Trumbull’s bill would, as he point-

ed out, ‘destroy all [the] diseriminations’ embodied

in the Black Codes, but it would do more: it would

affirmatively secure for all men, whatever their race

or color, what the Senator called the ‘great fundamen-

tal rights’: the right to acquire property, the right

to go and come at pleasure, the right to enforce rights

in the courts, to make contracts, and to inherit and dis-

pose of property. As to those basie civil rights, the

Senator said, the bill would ‘break down all discrim-

ination between black men and white men.’

Id. at 432 (emphasis in original).

It is logical to assume that Congress meant fundamen-

tal legal capacities. Additionally, Senator Trumbull’s re-

marks chiefly address economic rights. There is a great

contrast between bestowing the capacity to contract or the

right or capacity to enforce legal rights in the courts and

(Continued from previous page)

Agency, 421 U.S. 454, 457-461, 44 L.Ed.2d 295, 95 S.Ct. 1716

(1975). See also Sullivan v. Little Hunting Park, 396 U.S. 229,

237-238, 24 L.Ed.2d 386, 90 S.Ct. 400 (1969).

the grant of substantive rights and causes of action sound-

ing in tort which necessarily regulate interpersonal rela-

tionships. Such an interpretation goes far beyond ‘‘those

basic civil rights,’’ protected by the statute.

In his coneurring opinion in Runyon v. McCrary, 427

U.S. 160 (1976), Justice Stevens clearly and succinetly de-

elared:

There is no doubt in my mind that the construction of

the statute would have amazed the legislators who

voted for it. Both its language and the historical set-

ting in which it was enacted convince me that Congress

intended only to guarantee all citizens the same legal

capacity to make and enforce contracts, to obtain, own,

and convey property and to litigate and give evidence.

Id. at 189 (emphasis added).

Further, the dissent by Justice White with whom Jus-

tice Rehnquist joined states:

What is conferred by 42 U.S.C. § 1981 is the right—

which was enjoined by whites—‘to make contracts’

with other willing parties and to ‘enforce’ those con-

tracts in court. Section 1981 would thus invalidate

any state statute or court made rule of law which would

have the effect of disabling Negroes or any other

class of persons from making contracts or enforcing

contractual obligations or otherwise giving less weight

to their obligations than is given to contractual obli-

gations running to whites. ...

_. . The legislative history of 42 U.S.C. ¢ 1981 con-

firms that the statute means what it says and no more,

ie.. that it outlaws any legal rule establishing any

person from making or enforcing a contract ...”’

Id. at 194-195 (footnote omitted) (emphasis added).

Even the explanation of the ‘‘classic violation of

§ 1981’’ in the majority opinion in Runyon resounds with

concepts and phrases associated with traditional contrac-

tual relationships.

[A] Negro’s [§ 1981] right to ‘make and enforce con-

tracts’ is violated if a private offeror refuses to ex-

tend to a Negro, solely because he is a Negro, the

same opportunity to enfer into contracts as he extends

to white offerees.

_.. The parents ... sought to enter into a contractual

relationship with [the schools]. Under those contrac-

val relationships, the schools would have received pay-

ments for services rendered, and the prospective stu-

dents would have received instruction in return for

those payments. The educational services of [the

schools} were advertised and offered to members of

the general public. But neither school offered services

on an equal basis to white and non-white students.

Id. at 170-173 (footnotes omitted) (emphasis added).

While Plaintiff cites Runyon to support their claim,

in fact Runyon involved the defendants’ direct refusal to

enter into a contract with black applicants. The plaintiff

was effectively denied the right to contract for education-

al services. Such a case presents a far different issue than

where racial harassment is direeted toward a_ student

enrolled. While admittedly such conduct would be dis-

eriminatory, it would not deny the plaintiff the right to

enter or enforce a contract. See e.g. Saunders v. General

Services Corp., Slip Op. No. 86-0229-R (E.D.Va. 1987), ap-

peal pending, No. 87-2175 (4th Cir.).

In General Building Contractors Ass’n., Inc. v. Penn-

sylvania, 458 U.S. 375 (1982), this Court addressed the

duties under § 1981.

The question is what duty does § 1981 impose. More

precisely, does § 1981 impose a duty to refrain from

intentionally denying blacks the right to contract on

the same basis as whites or does it impose an affirma-

tive obligation to insure that blacks enjoy such a

right? The language of the statute does not speak

in terms of duties. It merely declares specific rights

held by ‘[a]ll persons within the jurisdiction of th

United States.’ We are confident that the Thirty-

ninth Congress meant to do no more than prohibit the

employers and associations in these cases from inten-

tionally depriving black workers of the rights enu-

merated in the statute, including the equai right to

eontract....”’

17, at 396 (original emphasis).

In Johnson v. Railway Express Agency, Inc., 421 U.S.

454 (1975), the Court determined that under 9 1981 the

running of the statute of limitations is not suspended dur

ing the pendency of a timely filed administrative complaint

with the EEOC under Title VII. Although the emjloyer

conduct alleged to have occurred was discrimination with

respect to seniority rules, job assignments and discharge,

each of these are unique to the economic factors generall,

relevant to a contractual relationship. This is not incon-

sistent with the idea that § 1981 was passed to protect pro, -

erty and economic rights and does not address interper-

sonal relationships.

Further, the Court’s language in Jones, 392 U.S. 409

(1968) supports the interpretation that § 1981 only con-

fers the right to enter into a contract and bind the other

party to it. In that decision, the Court stated simply that

‘the right to contract for employment [is] a right se-

cured by 42 U.S.C. § 1981.’ Jones, 392 U.S. at 441 78

(emphasis added).

In Jones, the specific issue before the Court involved

whether § 1982 applied to private, and not only state ac-

tion in the sale or rental of property and, if so, whether

such scope was constitutional. In its examination of

§ 1982, the Court compared § 1982 to the Fair Housing

Act. Unlike the Fair Housing Act, the Court explained,

§ 1982 ‘tis not a comprehensive open housing law.’’ Id.

369 US. at 413 (1968). A like analysis should distinguish

$1981 from Title VII, for § 1981 is not a comprehensive

employment law. in summary of the comparison between

the two statutes, the Court noted the ‘‘vast differences

between, on the one hand, a general statute applicable

only to racial discrimination in the rental and sale of

property |] and, on the other hand, a detailed housing

iaw, applicable to a broad range of discriminatory prac

tices and enforceable by a complete arsenal of authority.”’

Id. at 417

ae)

—

The above language s~pports the view that § 1981 was

intended only to procure the opportunity, whether it is

to contract for work or contract for education. After the

contract is in effect, whatever conduct may violate an in-

dividual’s rights, breach the contract or affect the terms

or conditions of the contract, whether express or implied,

is remedied by other laws. For example, an action under

Title VIT, an action for intentional infliction of emotional

distress, breach of contract actions, malicious interfer-

ence with contract or other actions may be instituted."

Furthermore, this Court has recently very generally

held in Goodman v. Lukens Steel Co., 482 U.S. —, 107 8.Ct.

9617 (1987) that the Defendant company had violated

both Title VII and § 1981 with regard to the discharge of

employees during their probationary period, the tolera-

tion of racial harassment, initial job assignments, promo-

tions and decisions on incentive pay. Such genera! lan

guage is used with regard to a case which includes activ

ities, which is racially motivated, are obviously included

in the protections offered by § 1981, Le. promotion and «is-

charge. Notwithstanding this general language, this Court

also clearly stated that § 198] grants competence and ¢a-

pacity to contract:

Insofar as it deals with contracts, [§ 1981] declares

the personal right to make and enforee contracts, a

right, as the section has been construed, that may not

be interefered with on racial grounds. The provision

asserts in effect, that competence and capacity to con-

tract shall not depend upon race.

Id. at —, 107 S.Ct. at 2621 (emphasis added).

16The fallacy of the argument propounded by the govern-

ment in the Amicus Brief filed by the Solicitor General is that

there exists causes of actions for breach of contract or malicious

interference with contract which are directly applicable to a

“breach of the covenant of good faith and fair dealing.” There

is no reason to expand § 1981 far beyond any intent of the

Thirty-ninth Congress in order to create a substantive right or

remedy for such a cause of action under § 1981. Indeed § 1981

grants the capacity or competence of al/ persons to institute any

such claims and does not necessarily create such a substantive

cause of action.

In a separate opinion, Justice Brennan joined by Jus-

tice Marshall and Justice Blackmun, expressed the opinion

that ‘‘Congress clearly believed that freedom would be

empty for black men and women if they were not also as-

sured an equal opportunity to engage in business, to work,

and to bargain for sale of their labor.’’ Id. at —, 107 S.Ct.

at 2628. Justice Brennan further quoted from the legisla-

tive history:

[Section 1981’s] object is to secure to a poor, weak

class of laborers the right to make contracts for their

labor, the power to enforce the payment of their wages,

and the means of holding and enjoying the proceeds

of their toil. Cong. Globe, 39th Cong., Ist Sess. 1109

(1866) (Rep. Windom).

Id. at —, 107 S.Ct. at 2628 (emphasis added). Such lan-

guage translates directly to prohibitions against racially

discriminatory hiring and discharge practices and access

to the courts. It is well established that § 1981 covers these

matters. Again a dominant concern in the interpretation

of § 1981 is the effeet on economic rights. Justice Brennan

further concluded that:

[T]he historical origins of § 1981 therefore demon-

strate its dominant concern with economic rights. The

preeminence of this concern is even clearer if one

looks at § 1981 in conjunction with 42 U.S.G.S. § 1982.

(42 U.S.C. § 1982] which was simultaneously enacted.

The plain language of § 1982 speaks squarely and ex-

clusively to economic rights and relations.

_.. [I]t is apparent that the primary thrust of the 1866

Congress was the provision of equal rights and treat-

ment in the matrix of contractual and quasi contrac-

ual relationships that form the economic sphere.

Id. at —, 107 S.Ct. at 2629 (emphasis added) (Brennan,

J., joined by Marshall and Blackmun, J.J., concurring in

part and dissenting in part).

In Tillman v. Wheaton-Haven Rec, Asso., 410 U.S.

431 (1973), it was held that an association which operated

a community swimming pool was not a private club and

that denial of membership to a Negro couple violated 42

U.S.C. 41982. The Court noted that the operative lan-

guage of both §§ 1981 and 1982 was tracable to the act of

April 9, 1866 and saw no reason to construe those sections

differently when applied to these facts. Id. at 410-411. In

reaching its conclusions, this Court looked closely at the

economic impact and quoted from the dissent in the lower

eourt:

Several years from now it may well be that a white

neighbor ean sell his home at a considerably higher

price than Dr. and Mrs. Press because the white owner

will be able to assure his purchaser of an option for

membership in Wheaton-Haven. Dr. and Mrs. Press,

however are denied this advantage. 451 F.2d at 1225.

Id. at 437.

This Court further noted that ‘‘the automatic wait-

ing-list preference given to residents of the favored area

may have affected the price paid by the Presses when

they bought their home. Thus the purchase price to them

. may well reflect benefits dependent on residency in

the preference area.’’ Id. at 437. The emphasis on pur-

chase price reflects that the economic factors were those

being protected in these statutes, not the right to bring

an action solely based on racially motivated slurs and

incidents in the workplace.

Lower federal courts have also made it clear that

§ 1981 was intended to protect economic contractual re-

lationships. Whereas, Title VII was intended by Con-

gress to prohibit a discriminatory and offensive work en-

vironment. For example, the Fifth Cireuit in Adams v.

McDougal, 695 V'.2d 104 (5th Cir. 1983) diseussed the ap-

plicability of § 1981 to contracting for employment:

The term contract, as used in § 1981, refers to ‘a right

in the promissee against the promissor, with a cor-

relative special duty in the promissor to the promissee

of rendering the performance promised.’ Cook v.

Advertiser Co., 458 F.2d 1119, 1128 (Sth Cir. 1972)

(Wisdom, J., coneurring).

In this ease, despite the indefinite tenure of the job

of the deputy sheriff, the sheriff and his deputies had

expectations arising from the deputy’s employment.

The Sheriff promised to pay his deputies a stated

salary. In return, the deputies promised to perform

their jobs. We hold that the employment relationship

represented in this case was sufficient to bring Adams

under the protective umbrella of § 1981.

Id., at 108 (emphasis added). The explanation of the Court

clearly invokes concepts traditionally associated with the

right to make and enforce contracts.

In Howard Security Services, Inc. v. Johns Hopkins

Hospital, 516 F.Supp. 508 (D.Md. 1981), the District Court

upheld the Plaintiff corporation’s § 1981 canse of action

based upon the hospital’s alleged refusal to award a con-

tract to the corporation because the president was black.

Again, as Howard indicates, § 1981 addresses the right

to make contracts and the legal right to enforce contracts.

Other cases likewise support the view that § 1981 protects

merely the right to make and enforce contracts.”

That § 1981 is addressed solely to the legal capacity

to contract is discussed in detail in the dissenting opinion

by Justice White, joined by Justice Rhenquist in Runyon.

The opinion states:

Thus the legislative history of § 1981 unequivocal-

ly confirms’ that Congress’ purpose in enacting that

statute was solely to grant to all persons equal ca-

pacity to contract as is enjoyed by whites... .’’

Runyon, 427 U.S. at 205. The opinion continued with a

close look at such legislative history:

The fact that one of tle leaders of the efforts to pass

the Thirteenth Amendment statutes—Senaior Stew-

art—included the right to ‘make contracts’ but not

the right to ‘purchase, ete., real and personal pro-

perty’ in the Fourteenth Amendment statute provid-

ing for equal rights under law which he sponsored

See e.g. Faraca v. Clements, 506 F.2d 956 (5th Cir. 1975)

(the Court recognized the Plaintiff's cause of action under

§ 1981 against an employer for refusing to hire the Plaintiff be-

cause his wife was black): Macklin v. Spector Freight Systems,

478 F.2d 979 (D.C.Cir. 1973) (Court of Appeals upholding Plain-

tiff’s § 1981 claim alleging a practice of refusing to hire blacks).

four years later is strong evidence of the fact that

Congress always viewed the right to ‘make contracts’

as simply granting equal legal capacity to contract....

Indeed, Senator Stewart specifically drew a distine-

tion between the rights enumerated in the Fourteenth

Amendment statute including the right to ‘make con-

tracts’ and the real and personal property rights

not so included. In connection with the Fourteenth

Amendment statute he was asked:

‘MR. POMEROY. I have not examined this Bill,

and I desire to ask the Senator from Nevada a

question. I understood him to say that this Bull

gave the same civil rights to all persons in the

United States which are enjoyed by citizens of

the United States. Is that it?’

He replied:

‘MR. STEWART. No; it gives all the protection

of the laws. Ifthe Senator will examine this Bill

in connection with the original civil rights bill, he

will see that it has no reference to inheriting or

holding real estate.’

Id. at 209-210 (White, Rhenquist, J.J. dissenting) (original

emphasis).

Justice White proved to be prophetic when he stated

that ‘‘imaginative judicial construction of the word ‘con.

tract’ is foreseeable.’’ Id. at 212."

No court has yet attempted to analyze and elarify the

full extent of the distinctions between § 1981 and Title

VII. Obviously, in the case of racially discriminatory pro-

motion and discharge, there is an overlap of rights. See

Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 46°

462 (1975) (promotion) ; Caldwell v. National Brewing

Co., 443 F.2d 1044 (1972) (discharge). Title Vi? clearly

I8Although the dissent opposed the extension and “reach of

4? U.S.C. § 1981 so as to establish a general prohibition against

a private individual's or instiiution’s refusing to enter into a con-

tract with another person because of that person's race,” Id.

427 US. at 192, the discussic” of the legislative history and the

plain meaning of the “right to make and enforce contracts,”

is equally applicable to this case.

covers a racially hostile work environment. Rogers v.

EEOC 454 F.2d 234 (5th Cir. 1972); and at least some

courts, including the Fourth Circuit in the case sub judice,

have determined that such a claim is not actionable under

§ 1981. Patterson v. McLean, 805 F.2d 1145, 1145 (4th Cir.

1986). Other courts have recognized the danger in eXx-

panding §1981 to cover all employment diserimination

‘Sagainst any individual with respect to his compensation,

terms, conditions or privileges of employment because

of such individual’s race.’’ 42 U.S.C. § 2000(e)(2)(a);

See, Williams v. Atchison, Topeka and Santa Fe Ry., 627

F.Supp. 752 (W.D.Mo. 1986) ; Minority Police Officers

Ass’n of South Bend v, City of South Bend, Indiana, 617

F.Supp. 1330 (N.D.Ind. 189); Howard v. Lockheed-

Georgia Co., 372 F.Supp. 854 (N.D.Ga. 1974).

If this Court determines that § 1981 broadly covers all

incidents of the contractual relationship as is suggested

by the Petitioner, then such a holding would grant broader

and greater remedies in cases of racial discrimination

than in eases of sexual discrimination, diserituination

based upon age, religious discrimination, or discrimination

based upon national origin. The ultimate effect and re-

sult is that Title VII and the concilatory procedures so

carefully constructed therein will become both unnecessary,

useless ond unadvisable because of the potential for

greater monetary awards for racial harassment under

§ 1981. Surely this was not the intent of Congress.

The obvious distinction between Title VII aqd § 198]

in cases of racial discrimination is that § 1981 grants the

capacity and competence to make and enter legal and

binding contracts; while Title VII regulates the conditions

of the work environment. As pointed out by the Fourth

Cireuit, ‘“‘racially discriminatory hiring, firing and pro-

motion go to the very existence and nature of the em-

ployment contract and thus fall easily within § 1981's

protection.’ Patterson v. McLean, 805 F.2d at 1145.

The plain simple language of (1981 grants no more

than the right of all persons to enter into and enforce

promissory agreements that create a legal relation to do

or not to do a particular thing. A common sense reading

of 41981 supports the contention that the Thirty-Ninth

Congress did not intend that the statute broadly cover

racial harassment in the work place. On the other hand,

racial animus that results in discriminatory hiring, pro-

motion or discharge decisions is under the umbrella of

§ 1981 rights. Certainly, Respondent is aware of no case

authority or legislative history indicating that in the

Nineteenth Century whites were entitled to maintain

actions against their employer for racial harassment. The

statute grants only to ‘‘all persons... the same right...

to make and enforce contracts . . . as is enjoyed by white

citizens... .’’ In contrast, rights to institute actions for

all harassment were conferred by Title Vil.

B. A Separate Discrete Action For Racial Harassment

Under Section 1981 Cannot Stand Alone.

Many cases in the lower federal courts and even de-

cisions by this Court have added to the diffieulty in dif-

ferentiating the ‘‘separate, distinct and independent’’

remedies available under Title VII and under § 1981."

Johnson v. Railway Express Agency, Inc., 421 U.S. 404

(1975).

Obviously, many cases are prosecuted where claims

are made under both Title VII and § 1981; and, many

cases are prosecuted under both "S.tle Vil and § 198]

jointly where there are not only claims of iacial harass-

ment but racially discriminatory rractices of hiring, fir-

ine snd discharge. Because the statutes de overlap and

ihe offer of proof is similar, there is seldom a need for the

19Se6e@ 2, Goodman v. Lukens Steel Co., 42 U.S. —, 107

$.Ci. 2617 (1987) (generaily holding the Union was in violation

of both Title Vil and § 1981 for the toleration and tacit encour-

agemen' of racial harassment among other things.); Lucero v

Beth Israel Hospital Geriatric, 479 F.Supp. 452 (D.C.Col. 1979) (re-

covery ellowed to Plaintiff for compensatory damage for mental

pain and suffering under § 1981 where Plaintiff brought claims

under both Title VII and § 1981); Block v. R.H. Macy and Co.,

=12 F.2d 1241 (8th Cir. 1983) (recovery permitted under § 1981

for emotional distress in conjunction with her claim under Title

VII and § 1981 for racially discriminatory discharge).

courts to differentiate under which statute a particular

claim is sustained.

Generally, however, the caves have not supported an

incependent claim for racial harassinent or hostile work-

ing environment under $1981 separate and apart ‘rom

claims under Title VII or collateral claims of ~acially dis-

eriminatory promotion and discharge practices under

§ 1981. This is the basis of the i'ourth Cireuit’s decision

that a separate independent claim for racial harassment

standing alone, is not cognizable under § 1981. Patterson,

805 F.2d at 1145-1146. In response to the cases submitted

by the Petitioner, the Fourth Cireuit observed: ‘*None di-

rectly holds that racial harassment gives rise to a diserete

claim under § 1981, as distinguished from recognizing that

racial harassment may be relevant as evidence of dis-

criminatory intent supporting a cognizable claim of em-

ployment discrimination under § 1981 and that it may give

rise to a diserete Title VII claim.’* 7d. at 1146.

In Whiting v. Jackson State Univ., 616 “2d 116 (5th

Cir, 1980). the court observed :

[w]hen $1981 is used as a parallel basis for relief

with Section 706 of Title VII against disparate treat-

ment in employment, its elements appear to be iden-

tical to those of Section 706. Garcia [v. Gloor], 609

F.2d [156] at 164; Blum v. Gulf Qu Corp., 597 F.2d

936, 938 (5th Cir. 1979); see also, Johnson v. Alea-

ander, 572 F.2d 1219, 1223 0.3 (and cases cited there-

in) (Sth Cir. 1978), cert. denied, 439 U.S. 99 [] (1978).

Id. 616 F.2d at 121. (emphasis added).

In Hamilton v. Rogers, 791 F.2d 459 (5th Cir. 1986),

the claimant brought claims under §§ 1981, 1983 and Title

VII for alleged racial harassment and retaliation. The

Court (on rehearing) held that the employer was liable

only under Title VII. /d. at 445. A reading of the ap-

2Cf Frebia v. Chrysler Plastic Products Corp., 772 F.2d

1250 (6th Cir. 1985), cert. denied, — U.S. —, 106 S.Ct. 1197

(1986) (submission of an issue to the jury under § 1981 by Mexi-

can American for a claim of a hostile working environment al-

lowed by the Sixth Circuit).

propriate part of the opinion shows that the court, in

restating the familiar McDonnell-Douglass proof scheme

completes its analysis by concluding that ‘‘suecessfully

meeting these requirements | the McDonnell-Douglass proof

scheme] would also establish a successful case under 42

U.S.C. §§ 1981 and 1983; when these statutes are used as

parallel causes of action with Title VII, they require the

same proof to show liability. Jd. at 442.

Petitioner contends that the lower federal courts have

‘‘ananimously concluded that discrimination in the terms

and conditions of employment is actionable under ‘ 1981.7!

However, these cases involve parallel Title VII claims or

claims involving promotion or discharge where harassment

is an element of the claim rather than a separate distinet

claim.”

Even assuming arguendo that a separate discrete claim

for racial harassment may be cognizable under § 1981,

there is no ruling that such an issue must be submitted to

a jury separate and apart from issues of promotion or

discharge discrimination. In fact, most of the cases cited

by the Petitioner involve cases where the claimant has

brought claims under various federal statutes including

§§ 1981, 1983 and Title VII for racial harassment, pro-

motion discrimination, hiring discrimination, discharge dis-

criminaton and other claims which may be cognizable under

these various federal statutes. Part of the problem in

determining what causes of action, as opposed to what

remedies, may be cognizable under each of these statutes,

is the failure of the various courts to distinguish precisely

what separate substantive claims might be enforeed under

the various and potentially applicable statutes.

The many constructive discharge cases which have

been determined in the lower courts are helpful because

they demonstrate that racial harassment generally is an

element necessary in such cases rather than a separate

21See Brief for Petitioner at p. 35, n.12.

2See Respondents’ Brief in Opposition to Writ of Certiorari

pp. 5-10 where these cases have previously been distinguished.

elaim for relief. In Long v. Ford Motor Co., 496 F.2d 500

(6th Cir. 1974), the court indicated that where intentional

racial prejudice impacted a minority employee’s oppor-

tunities for promotion, {1981 may be violated.

In Irving v. Dubuque Packing Co., 689 2d 170 (10th

Cir. 1982), the court affirmed a jury finding of unlawful

failure to promote and remanded a constructive discharge

claim for a new trial. The Court stated:

The constructive discharge is only actionable under

42 U.S.C. § 1981 if it is motivated by [|] race [J].

In other words, an employee must be subjected to

employment practices which are discriminatory and

which make the working conditions intolerable, thus

forcing the employee to quit. Further, the employer's

action must be intended by the employer as an effort

to force the empleyee to quit. J/uller vr. United States

Steel Corp., (509 F.2d 923 (10th Cir. 1975) ]; Johnsen

v. Bunny Bread Co., 646 F.2d 1250 (8th Cir. 1981).

Id. at 172. The rationale is that racially discriminatory

treatment which impacts on hiring, discharge or promotion

decisions is actionable under § 1981 with regard to claims

for racially discriminatory hiring, discharge or promotion

decisions.

In Martin v. Citibank, N.A., 762 F.2d 212 (7th Cir.

1985) the Court held that ‘*{a] finding of constructive dis-

charge in violation of §1981 or Title Vil requires

that the trier of fact ‘be satisfied that the “ * * working

conditions would have been so difficult or unpleasant that

a reasonable person in the employee’s shoes would have

felt compelled to resign’ ’’ (Citations omitted) id. at 221.

In that case, ‘‘the evidence was insufficient as a maiter

of law to establish constructive discharge.’’ The plaintiff

testified that ‘ther supervisor loudly mentioned her being

polygraphed; complaints concerning her attitude to co-

workers were unfounded; her supervisor had once given

her the wrong combination to the night deposit box and

that someone using his card once interfered with her de-

posit; and that she had been required to process depos %

records while serving customers.’’ /d. at 221.

In Johnson v. Bunny Bread Co., 646 F.2d 1250 (8th

Cir. 1981), the court found no discrimination under § 1981

on plaintiffs’ claims of disparate treatment and construc-

tive discharge where plaintiffs alleged ‘‘close monitoring

and harsh treatment ... made his working conditions in-

tolerable.’’ ‘‘A constructive discharge exists when an em-

ployer deliberately renders the employee’s working con-

ditions intolerable and thus forces him to quit his job.”’

(Citations omitted). Jd. at 1256. The court further stated

that ‘‘a constructive discharge arises only when a reason-

able person can find conditions intolerable.’’ Jd. at 1256.

The court concluded by finding ‘‘no steady barrage of op-

probrious racial comment”’ as would trigger a claim under

Title VII. Jd. at 1257.

Likewise, in Muller v. United States Steel Corp.,

509 F.2d 923 (10th Cir.) cert. denied, 423 U.S. 825 (1975),

the court found that unfavorable job assignments and dis-

criminatory failure to promote do not constitute construc-

tive discharge. Jd. at 929.

There is no controversy that racial harassment is

an element of and a necessary part of the proof required

in claims for racially discriminatory hiring, firing and

promotion practices under § 1981. The significance of these

eases is the degree of harassment necessary to support

such claims. If the alleged practices are not so ‘‘oppro-

brious’’ as to support a claim of constructive discharge,

then it is logical that such conduct cannot stand alone

to support a claim for relief for racially discriminatory

harassment or hostile working environment under § 1981.

It is noteworthy that the Petitioner’s claims alleging con-

structive discharge were dismissed by the trial judge upon

Respondent’s motion for summary judgment and are not

before this Court.

C. Petitioner Has Failed To Sustain A Prima Facie Case

Of Racial Harassment

Notwithstanding a determination that racial harass-

ment or disparate treatment claims are cognizable under

§ 1981 absent a claim for racially discriminatory firing,

hiring or promotion, this Petitioner has failed to present

33 ‘

evidence sufficient to support a claim of racial harassment

even under Title VII.

It is established that the applicable statute of limita-

tions for a claim for relief under 42 U.S.C. § 1981 is con-

trolled by state law. Johnson v. Railway Express Agency,

Inc., 421 U.S. 454 (1975). Section 1981 actions arising in

North Carolina come under the provisions of North Caro-

lina General Statute § 1-52 which sets forth a three year

statute of limitations. Lattimore v. Lowes Theatres, Inc.,

410 F.Supp. 1397 (M.D.N.C. 1975) ; Broadnax v. Burlington

Industries, Inc., 7 EP cases, 252 (M.D.N.C. 1972). There-

fore, the only claims which are actionable under § 1981

are those claims which fall within the three years pre-

ceeding the filing of the complaint on January 25, 1984.

The record reflects only two allegations of racial re-

marks. At the time of Petitioner’s initial interview in

1972, Respondent’s President allegedly informed her that

she would be working only with white women. The only

other statement which Petitioner testified was a racial

remark was the statement allegedly attributed to Respon-

dent’s President that—‘‘blacks were slower than whites

by nature.’’ Likewise, by her own admission, this alleged

racial comment was made in 1976, well outside the applic-

able period of limitations.”> Petitioner also testified that

she received personal criticism during staff meetings, that

she was given an excessive work load, that she was re-

quired to dust and sweep, and that the Respondent’s Presi-

dent stared at her. This was the substance of her evidence

in support of her claim for racial harassment.

Following this evidence, the trial court heard oral

argument with regard to whether or not the Petitioner

TR 1-19, TR 1-88 (Although these alleged instances are far

outside the applicable three year statute of limitations, the dis-

trict court allowed the testimony as background and to sup-

port the element of intent required in a § 1981 case. However,

they are not independently cognizable under Title Vil or § 1981

because of the statute of limitations bar. See, e.g., Lattimore v.

Lowes Theatres, Inc., 410 F.Supp. 1397 (M.D.N.C. 1975): Broad-

nax v. Burlington Industries, Inc., 7 FEP cases, 252 (M.D.N.C.

1972).

had established a prima facie case of racial harassment

occurring within the three year period of limitations.“ The

trial court expressed the opinion that the Petitioner had

not yet made a prima facie case of harassment” but al-

lowed the Petitioner to continue her presentation of evi-

dence to facilitate an out of state witness, with the warn-

ing that ‘‘when all the evidence is in, I'll just have to

make a ruling and straighten it out with the jury if it is

allowed to go to the jury.’ Petitioner produced no fur-

aer evidence of personal racial harassment and the

court’s opinion at this point was tantamount to the dis-

missal of her claim on the basis of insufficient evidence.

The formal ruling of dismissal followed Respondent’s Mo-

tion under Rule 50 at the end of the Petitioner’s evidence.

In later oral argument, the trial court expresse? its

opinion to counsel for the Petitioner that ‘‘[y]ou’re very

weak on your question of harassment other than charac-

terization of counsel and the witnesses.’”’ The court

stated that at this point in the trial, the Petitioner’s evi-

dence supported only two hostile, discrete acts, one failure

to promote and the termination.” Finally, at the Respon-

dent’s motion for a directed verdict pursuant to Rule 50

of the Federal Rules of Civil Procedure at the end of the

Petitioner’s evidence, the trial court ruled :”

... [i]f the jury finds a history of racial harassment

which culminated in failure to promote and discharge

of the Plaintiff, they can take that into consideration.

But it is not a separate claim under Title—-under

Section 1981, in my opinion, in the context of this case.

It is clear from the judge’s ruling that even if a claim

for racial harassment or racial mistreatment were cogniz-

able under § 1981 that ‘‘in the context of this case,’’ the

*4TR 1-66 to 1-80

25TR 1-77

TR 1-79

27TR 2-152

28TR 2-153

TR 3-75

Petitioner had failed to present a prima facie case of

harassment.

The Eleventh Cireuit in Henson v. City of Dundee, 682

F.2d 897 (11th Cir. 1982) has recognized that:

[T]he ‘mere utterance of an ethnic or racial epithet

which engenders offensive feelings in an employee’

does not affect the terms, conditions, or privileges

of employment to a sufficiently significant degree to

violate Title V'I. For [] harassment to state a claim

under Title Vil, it must be sufficiently pervasive so

as to alter the conditions of employment and create

an abusive working environment.

682 F.2d at 904 (citing Rogers v. Equal Employment Op-

portunity Comm’n., 454 F.2d 234, 238 (5th Cir. 1971) cert.

denied, 406 U.S. 957, (1972)).

All of the alleged racial slurs clearly occurred outside

the statute of limitations applie~hl to a ¢ 1981 claim and

Petitioner’s remaining allega. that Respondent’s

president stared ai her, criticizeu her in meetings and

gave her an inordinate amount of work fall far short of

conditions ‘‘sufficiently pervasive so as to alter the con-

ditions of employment and create an abusive working en-

vironment, ”’

Even if these alleged incidents of harassment were

sufficient to support a prima facie case, Respondent’s prot-

fered explanations of justifiable employee supervision

and observation,” Petitioner’s long history of slow work

performance”, and legitimate review and critique of em-

ployee performance at staff meetings’? more than over-

came Petitioner’s initial burden. Petitioner offered no

rebuttal to Respondent’s proffered explanations nor did

she offer any evidence that such explanations were merely

pretextual. See, McDonnell-Douglass Corp. v. Green, 411

U.S. 792 (1973).

Lastly, there is no evidence that Petitioner ever com-

plained about any of the circumstances she now contends

TR 3-109 to 3-110

See, n.7, supra.

2TR 3-110 to 3-111.

embrace racial harassment. Neither did Petitioner pursue

her claim of constructive discharge. Certainly, a working

environment heavily charged with discrimination may con-

stitute an unlawful practice under Title VII. Rogers v.

Equal Employment Opportunity Comm’n., 454 F.2d 234

(5th Cir. 1971), cert. denied, 406 U.S. 957 (1972). How-

ever, Petitioner’s allegations are insufficient to support

such a claim under Title VII or under § 1981 if this Court

finds such a claim is cognizable.

PETITIONER HAS NOT SUSTAINED A CLAIM FOR

PROMOTION DISCRIMINATION UNDER § 1981

A. Petitioner Has Failed To Present Sufficient Evidence

To Support A Prima Facie Claim Of Promotion Dis-

crimination Under § 1981

The Petitioner contends that because of racial discrim-

ination, she was denied a job advancement received by

Susan Williamson from Account Junior to Account Inter-

mediate? At the time of this advancement by Mrs. Wil-

liamson within the accounting section, Petitioner was a file

clerk.**

To make a prima facie case, the Plaintiff must estab-

lish the four familiar elements required by McDonneil-

Douglas:

(i) that he belongs to a racial minority; (ii) that he

applied and was qualified for a job for which the em-

ployer was seeking applicants; (iii) that, despite his

qualifications, he was rejected; (v) that, after his re-

jection, the positon remaneid open and the employer

continued to seek applicants from persons of complain-

ant’s qualifications.

Id. at 802.

Additionally, a claim under § 1981 can be sustained

only with the proof of intentional purposeful discrimina-

tion. General Building Contractors Ass’n., Inc. v. Penn-

sylvania, 458 U.S. 375, 391 (1982).

STR 1-46 to 1-48

MTR 1-99

Petitioner’s proof does not establish a prima facie

claim and therefore should have been dismissed without

submission of the issue to the jury.** Petitioner could not

prove that the employer was seeking applicants for the

position of Account Intermediate nor that she applied for

or was qualified for such a position. In fact, the only ele-

ment under the McDonnell-Douglas proof scheme which

Petitioner could prove in support of her prima facie case

was that she was a member of a racial minority.

The facts of this case do not present a traditional or

classic promotion discrimination claim. There was no job

opening for which notices were posted or application so-

licited. There were no new jobs on the nine person cleri-

eal staff. Here, the evidence was clear and uncontradicted

that there were no job vacancies, that Ms. Williamson re-

ceived only a title change and raise, and that Ms. William-

son did not change job functions or responsibilities or even

the place where she worked. Further, she continued to be

supervised by the same supervisor, and the ‘‘promotion’’

was merely a reflection of her satisfactory performance

in order to allow her to move to a higher job title°® Dur-

ing this period of time, the Petitioner worked as a filing

clerk and was not performing any accounting functions.

The test on directing a verdict under Rule 50 is not wheth-

er there is any evidence, but whether “there are no controverted

issues of fact upon which reasonable men could differ.” 5A

Moore’s Federal Practice (2d Ed. 1971), § 50.02[1]; Brady v.

Southern Railroad Company, 320 U.S. 476, 479-480 (1943); Pine-

hurst, Inc. v. Schlamowitz, 351 F.2d 509, 513 (4th Cir. 1965);

Pogue v. Retail Credit Company, 453 F.2d 336 (4th Cir. 1972),

cert. denied, 409 U.S. 1109 (1973).

“The Federal Courts are ee committed to a rejection

of the so-called ‘scintilla rule,” by which a Court might not

direct a verdict so long as there is any evidence in support of

the proposition tendered by the part against whom the motion

is direct.” 5A Moore’s Federal Practice (2d Ed. 1971), § 50.02[1];

Boeing Company v. Shipman, 411 F.2d 365, 372, 373 (Sth Cir.

1969); Beaty Shopping Center, Inc. v. Monarch Insurance Com-

pany, 315 F.2d 467 (4th Cir. 1963).

TR 4-26 to 4-28

Under no imaginative argument could this advancement or

‘‘promotion’’ of Mrs. Williamsen-be described as a ‘‘ job

opening for which the employer was seeking applicants’’.

However, once the plaintiff had made a claim that she was

entitle tc this position (for the first time some three years

following the promotion); the Respondent, is foreed by a

strict application of the McDonnell-Douglas proof scheme

to articulate some non-discriminatory reason for its actions.

In this situation, an employer should not be forced to

explain every promotion or advancement decision simply

because a disgruntled employee has retrospectively made

a self-serving determination and allegation that she was

entitled to such advancement. The method of proof was

‘‘never intended to be rigid, mechanized, or ritualistic.’

Furnco Construction Corp. v. Waters, 438 U.S. 467, 477

(1978). ‘*The facts necessarily will vary in Title VII

cases, and the specification . . . of the prima facie proof

required from [the Plaintiff] is not necessarily applicable

in every respect to differing factual situations.’ McDon-

nell-Douglass Corp. v. Green, 411 U.S. 792, 802, n.13 (1973).

To have considered or given the advancement received by

Mrs. Williamson to the Petitioner would have forced the

employer to supplant Mrs. Williamson from the jo that

she had been performing in an exceptional manner.

The Petitioner has submitted no evidence that would

support the necessary determination that the decision to

advance Mrs. Patterson was based upon an intent to racial-

ly discriminate against the Petitioner and that race was a

motivating factor in denying such an advancement to the

Petitioner.

It is obvious from the record that Ms. Williamson was

qualified for the position for she continued the same job

responsibilities she had been previously performing satis-

factorily. (Williamson had college level calculus, account-

ing and business finance and eight years experience in the

accounting area.) Likewise, it is blatantly obvious from

the record that the Petitioner was absolutely unqualified

for the position. (Petitioner was able to correctly answer

only one of fifteen arimetic questions on her application.

She made numerous errors on the teller line. She lacked

the knowledge to work in oth’~ areas of the office. ™sti-

tioner disliked teller work which rezaired less mathematic

skill and aptitute than the accounting job).

The employer has the right to fix the qualifications

that are ‘‘nesessary or preferred’’ in selecting the em-

ployee for promotion, and, in order to make out a prima

facie case, a plaintiff aust establish that she meets these

qualifications. EEOC v. Federal Reserve Bank of Rich-

mond, 698 F.2d 633, 671 (4th Cir. 1983) rev’d on other

grounds sub nom Cooper v. Federal Reserve Bank of Rich-

mond, 467 U.S. 867 (1984). The cold, hard reality of the

facts presented and the only reasonable inference which

any reasonable person could draw is that there was no

‘*promotion’’ for which there was a vacancy and the Pe-

titioner produced not even a scintilla of evidence that she

qualified for the position of Account Intermediate. There-

fore, this claim should have been dismissed prior to sub-

mission to the jury.

However, as is often the case, the court submitted the

issue to the jury for its consideration. Obviously, in the

event of a verdict adverse to the employer, the trial judge

would have had the opportunity to re-consider the prima

facie proof at the Respondent’s motion for a judgment

notwithstanding the verdict pursuant to Rule 50 of the

Federal Rules of Civil Procedure. Once the jury returned

a verdict in favor of the Respondent, this was not neces-

sary.*’

The Fourth Circuit has recognized the propriety of grant-

ing a directed verdict or judgment n.o.v. for the Employer-De-

fendant in a discrimination-jury case. Lovelace v. Sherwin Wil-

liams Company, 681 F.2d 230 (4th Cir. 1982).

The court outlined a general procedural doctrine to deter-

mine the sufficiency of the evidence required in a jury trial to

survive defendant's challenge by motion for a directed verdict:

“(a) The first question is whether Plaintiff’s evidence may

have carried the original production burden without need

(Continued on following page)

(Continued from previous page)

to invoke the McDonnell Douglass presumption . . . If

_ the plaintiff’s evidence fails even to support the unad-

mitted predicates of the presumption so that it may not

be invoked to carry this original burden, inquiries similarly

end and the motion can be granted. (b) If the plaintiff's

evidence supports the predicates of the presumption with-

out regard to any additional probative force the evidence

may have, inquiry must then proceed to whethe: the de-

fendant has carried the production burden of rebutting the

presumption by ‘admissible evidence’ that is ‘legally suf-

ficient’ as justification. See, Burdine, 450 U.S. at 255, 258,

101 S.Ct. at 1094, 1096; Loeb, 600 F.2d at 1016 & n.16 (c)

if the defendant’s evidence fails to carry this burden, in-

quiry ceases .. . if on the other hand, the Defendant's evi-

dence carries this burden so that the presumption’s force

is dispelled, inquiry must »roceed to the plaintiff's re-ac-

quired production burder (d) This burden relates against

to the motivational issue but now as re-cast by the defen-

dant’s proffered explanation into the more specific form

whether as between the plaintiff's [race] and the defen-

dant’s proffered reason, [race] is the ‘more likely.’ In as-

sessing whether this re-cast burden of production has been

carried, the Court may properly consider plaintiffs evi-

dence offered ito establish the dispelled presumption along

with any design to show defendant's proffered explanation

to be a pretextual one. If the burden is carried, the case is

for the jury under proper instructions defining the moti-

vational issue as ultimately framed at the ‘new level of spe-

cificity’ created by the defendant's rebutting evidence. If

this ultimate burden is not carried, the defendant’s motion

should, of ceurse, be granted, even though the plaintiff's

original burden of production was carried by force of the

presumption.”

Id. at 240-41 (1982). The Court acknowledged that it was “a

very close question” as to whether or not the plaintiff had met

his initial burden of proof and established a prima facie case.

However, for the purpose of the appeal, the court assumed that

the plaintiff had met its burden and directed its attention to

whether the defendant-employer carried its burden to dispel

the mandatory presumption:

“The question here is simply whether the defendant has

‘introduced . . . admissible evidence’ of a ‘legitimate non-

discriminatory reason’ that is ‘legally sufficient to justify a

judgment for the defendant.’ Burdine, 450 U.S. at 254-55,

256-56, 101 S.Ct. at 1095-1096. There is no doubt that this

relatively modest burden was carried... . At this point,

(Continued on following page)

The promotion of Susan Williamson frum Account

Junior to Account Intermediate is comparable to the pro-

motion of an associate lawyer in a law firm to partnership.

The Petitioner’s claim that she was entitled to the position

of Account Intermediate is equivalent to the claim of a

minority paralegal in such a firm that she should be grant-

ed the position of partner, rather than the associate attor-

ney. Both claims are significantly absurd in that they es-

tablish no prima facie cause of action for discriminatory

employment practices, whether or not the decision maker

may have exhibited prior racial bias.

B. Under The Facts Of This Case, The Jury Instruction

Was Correct.

The Defendant Court instructed the jury that in order

for the Petitioner to prevail upon the issue of promotion

discrimination, it was necessary that she prove that she

was more qualified to receive the promotion than the per-

son receiving such promotion and that under § 1981 she

must show intentional discrimination.** Petitioner. incor-

rectly contends that the district court erred by looking at

the wrong question.*® But in fact, the district court suc-

cinctly charged the jury as follows:

(Continued from previous page)

in the assessment, the probative force of the [plaintiff's]

presumption had been completely dispelled.

Id. at 244. The court looked further at the plaintiff's new pro-

duction burden as whether the circumstantial evidence supports

as a reasonable probability the inference that but for claimant's

[age] he would not have been demoted.” Lovelace, at 244.

The court concluded that:

“When, as is proper, the unrefuted basic facts underlying

the ne ag she roffered explanation of the [failure to pro-

mote or layoff] are taken into account in assessing the

reasonableness of the necessary inference, . . . the district

court [may] properly [grant a directed verdict] or judgment

n.o.v.”

Lovelace at 246.

38JA 40-42

*Brief for Petitioner at p.64.

‘You should consider all the evidence, direct and cir-

cumstantial, to determine whether Plaintiff was not

promoted because of her race or because of the rea-

sons given by the Defendant. In making this deter-

mination, vou should keep in mind that the ultimate

factual question for you to answer is whether the

Plaintiff was the victim of an unfavorable employ-

ment decision because of the Defendant’s intentional

discrimination against her because of her race.”’

JA p. 42 (emphasis added).

Learned counsel for the Petitioner has submitted a

well reasoned and compelling legal argument with regard

to the various ways in which a plaintiff might prevail:

Where the employer articulates the selectee’s alleged

superior qualifications as the reason for its decision,

the Plaintiff may still prevail without proving that

her own qualifications are superior. In that situation,

the plaintiff may prevail either by showing that her

own qualifications are superior or by convincing the

fuct finder that the employer did not actually rely on

a comparison of the candidates qualifications in mak-

ing its decision.

Brief for Petitioner at p.65. This Court has determined

that an ‘‘employer has discretion to choose among equally

qualified candidates provided that the decision is not based

upon unlawful ecriteria.’’ Texas Department of Community

Affairs v. Burdine, 450 U.S. 248, 259 (1981). Stated an-

other way, if the employer has the discretion to choose

between equally qualified candidates, and there is no evt-

dence of unlawful criteria, then surely it is encumbent

upon a Plaintiff to show that she is ‘‘more qualified’’ in

order to prevail, where she has offered no other evidence

of pretext.

Because of the unique factual situation represented in

this case where there were no job openings or vacancies

and the alleged incident of promotion discrimination in-

volved merely a title change rather than a change in job

functions or responsibilities, Respondent could articulate

no more obvious reason for its decision than the qualifi-

cations of Mrs. Williamson.

With -.gard to this specific employment decision, the

Petitioner was unable to present any evidence which would

support a finding that the employer did not actually rely

on a comparison of the candidates qualifications in mak-

ing its decision. Therefore, by Petitioner’s own reason-

ing, she can prevail only by showing that her qualifica-

tions are superior. This is precisely the result which the

‘rial court reached and the obvious basis upon which the

trial court charged the jury.

The Petitioner was granted every opportunity to pre-

sent evidence to support her contention that this employ-

ment decision was based upon ‘‘unlawful criteria.’’ How-

ever, with regard to this employment decision, no com-

petent evidence was submitted. Certainly, discriminatory

intent may be proved in a variety of methods as Petitioner

contends. However, under the unique facts of this case,

the Fourth Circuit properly upheld the lower court’s

charge regarding ‘‘superior qualifications.’’ In effect, the

trial court found no ‘‘unlawful criteria’ as a matter of

law and submitted, the case to the jury for a factual deter-

mination of relative qualifications. Petitioner consistently

maintained at trial that any deficiency in qualifications

were the result of discriminatory training opportunities

and the judge charged the jury accoraingly allowing the

jury to factually determine the issue of inadequate train-

ing and its impact on qualifications. JA 41.

The familiar proof scheme applicable to cases of racial

discrimination was first articulated in McDonnell-Douglas

Corp. v. Green, 411 U.S. 792 (1973). The initial burden

of proof to establish a prima facie case or racial discrim-

ination is on the Plaintiff. Once the claimant has estab-

lished a prima facie case, the burden of production is on

the defendant to articulate a non-discriminatory motive

for the employment decisions. The burden of proof is then

on the plaintiff to show that the reasons proffered by the

defendant were in fact pretextual.

{

Once the trial court allowed this case to go beyond

the prima facie stage, the employer was compelled to ar-

ticulate a non-discriminatory reason for advancing Mrs.

Williamson to Account Intermediate. The very simple ex-

planation for such a decision was Mrs. Williamson’s qual-

ity of performance in undertaking her job responsibilities.

Within the context of established case law, this proffered

explanation most closely translated as a decision based on

superior qualifications.

The trial court then relied on established Fourth Cir-

cenit cases which state:

The rule in this Circuit is that where relative quali-

fications are advanced as the non-discriminatory rea-

son for an employment decision, the plaintiff has the

burden of establishing that she was better qualified

than the successful applicant. Anderson v. City of

Bessemer, 717 F.2d 149, 153 (4th Cir. 1983), [rev’d on

other grounds, 470 U.S. 564 (1985)]; EEOC v. Fed-

eral Reserve Bank of Richmond, 698 F.2d 633, 672 (4th

Cir. 1983) [rev’d on other grounds sub nom. Cooper

v. Federal Reserve Bank of Richmond, 467 U.S. 867

(1984).]

Young v. Lehman, 748 F.2d 194 (4th Cir. 1984). This

Fourth Circuit rule is not inconsistent with the decision of

this Court that ‘‘the employer has discretion to choose

among equally qualified candidates, provided the decision

is not based upon unlawful criteria.’”’ Texas Dep’t of Com-

munity Affairs v. Burdine, 450 U.S. 248, 259 (1981).

Peti‘‘oner has confused the various elements neces-

sary to support her claim of promotion discrimination. To

earry her burden and sustain a claim under § 1981, a Plain-

tiff must always show intentional discrimination. General

Building Contractors v. Pennsylvania, 458 U.S. 375, 391

(1982). However, in addition to a showing of intent, under

the three stage method of proof established in McDonnell-

Douglas, once the employer has shown that its decision was

based on a ‘“‘legitimate non-discriminatory reason,’’? Bur-

dine, 450 U.S. at 254, the ‘‘factual inquiry proceeds to a

new leve! *specificity.’’ Burdine, 450 U.S. at 255. Where,

as in this case, the employer has proffered superior quali-

fications as the non-discriminatory reason for its employ-

ment decision, Petitioner’s burden is to demonstrate ‘‘ pre-

text.’’ Petitioner’s burden is to show that the ‘‘ proffered

explanation is unworthy of credence.’’ Burdine, 450 U.S.

at 256. Petitioner states that ‘‘there are at least three

ways through which the Petitioner can meet her burden of

discrediting the proffered explanation’’ other than proof

of her superior qualifications: (1) by showing her quali-

fications are equal; (2) by showing that the employer did

not rely on qualifications in making its decision; and (3)

by showing that the reason given by the employer is not

credible.”

Assuming arguendo that Petitioner’s analysis is cor-

rect, it is logical that where a Plaintiff has not shown that

her qualifica:ions are equal or, has m.. shown that the em-

ployer did not rely on qualifications or has not shown that

the employer’s proferred reason lacks credibility, then

the only alternative remaining way to show pretext is that

of superior qualifications. Petitioner offered no evidence

in rebuttal to the simple non-discriminatory explanation

for the advancement of Mrs. Williamson to Account Inter-

mediate. Therefore, where the Petitioner has offered no

legally sufficient evidence to sustain a finding of one of

the ‘‘other ways’’ to show pretext, the court was correct

in instructing the jury that she mast show superior quali-

fications in order to establish pretext. Even under Peti-

tioner’s own analysis this was a proper instruction.

The Petitioner implies that the district court judge

instructed the jury that the Plaintiff must show that she

was better qualified than the person who received the pro-

motion in order to make a prima facie case“! In fact, the

trial judge outside the bearing of the jury, stated to coun-

sel that ‘‘the law in tiie Fourth Circuit seems to be that

“Brief for Petitioner at p. 82.

“'Brief for Petitioner at pp. 88-91.

in order to make out a prima facie case, you must show

that yon are better qualified than the person who received

the promotion.

Although Petitioner has seized on this statement by

the court as an apparent misstatement of the law, such

comments by the court are not pertinent because they were

made outside the hearing of the jury and because once

such a case has been fully tried on the merits, the ques-

tion of whether the plaintiff has established a prima facie

case is no longer relevant. United States Postal Service

Board of Governors v. Aikens, 460 U.S. 711, 714-715 (1983) ;

Mitchell v. Baldridge, 759 F.2d 80 (D.C.Cir. 1985).

Respondent contends that Petitioner need establish

only that she was qualifie, not that she was more qualified

than Mrs. Williamson, in addition to the other elements

necessary, to prove her prima facie case. However, under

the facts of this case, Petitioner must show superior quali-

fications after a showing by the employer that qualifica-

tions were the basis for its decision.

With regard to Petitioner’s claim of promotion dis-

crimination, she has offered no competent evidence

of unlawful criteria legally sufficient to rebut the prof-

fered explanation that Mrs. Williamson received a title ad-

vancement based upon her qualifications and performance.

i>.

“TR 5-29 to 5-31

CONCLUSION

For the reasons stated, the decision of the Fourth

Cireuit Court of Appeals should be affirmed as to all

issues.

Respectfully submitted,

*H. Lee Davis, Jr.

Georce E. Doventon, Jr.

Hutcuins, TynDAL1,

Doveuton & Moore

115 West Third Street

Winston Salem, NC 27101

(919) 725-8385

Attorneys for Respondent

Dated: January, 1988.

*Counsel of Record

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.