Reply Brief — Patterson v. McLean Credit Union

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No. 87-107

IN THE

Supreme Court of the Anited States

OcTOBER TERM, 1987

BRENDA PATTERSON,

Petitioner.

Vs.

McLeAN Crepit UNION,

Respondent.

On Writ of Certiorari To The United States

Court of Appeals for the Fourth Circuit

REPLY BRIEF FOR PETITIONER

Jutius LEVONNE CHAMBERS

CHARLES STEPHEN RALSTON*

99 Hudson Street

New York, N.Y. 10013

(212) 219-1900

PENDA D. HAIR

806 15th Street, N.W.

Washington, D.C. 20005

(202) 638-3278

HAROLD L. KENNEDY, III

HARVEY L. KENNEDY

KENNEDY, KENNEDY,

KENNEDY AND KENNEDY

710 First Union Building

(919) 724-9207

Attorneys for Petitwoner

*Counsel of Record

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

TABLE OF CONTENTS

TABLE OF AUTHORITIES

STATEMENT OF THE CASE

ARGUMENT

Il.

Itt.

Iv.

THE COURT SHOULD REJECT

THE NOVEL LIMITATION

PROPOSED BY THE

SOLICITOR GENERAL

SECTION 1981 PROHIBITS

RACIAL DISCRIMINATION

IN THE TERMS AND

CONDITIONS OF EMPLOYMENT

A. Section 1981 Is Not

Limited to Protection

Against Absolute Denial

of “Economic Rights”

B. Petitioner Presented a

Prima Facie Case of

Discrimination in the

Terms and Conditions

of Employment

THE “SUPERIOR QUALIFICATIONS”

JURY INSTRUCTION IMPROPERLY

DENIED PETITIONER A FULL

OPPORTUNITY TO PROVE

DISCRIMINATORY INTENT

CONCLUSION

Page

TABLE OF AUTHORITIES

Cases Page

Acha v. Beame, 570 F.2d 57,

(2@ Cir. 1977) - + +++ 2# © © # * 35

Adams v. MacDougal, 695 F.2d 104

(Sth Cir. 1983) ...-+++ ++ + 2

Block v. R. H. Macy & Co., 712

F.2d 1241, (8th Cir. 1983) .... 24

Chung v. Pomona Valley

Community Hospital, 667 F.2d

7868 (9th Cir. 1982) ..- +++» 35

Coates v. Johnson & Johnson,

756 F.2d 524 (7th Cir. 1985)... 37

Faraca v. Clements, 506 F.2d

956 (5th Cir.) cert. denied,

422 U.S. 1006 (1975) ...-+-+ + «+ 25, 26

Goodman v. Lukens Steel Co. ,

482 U.S. , 107 $.Ct. 2617

490083 « «© 0 0 8 6 8 6 © ee eee 20

Havens Realty Corp. v. Coleman,

455 U.S. 363 (1982) ...+++ + &

Hodges v. United States,

203 U.S. 1 (1906) ...--+-+-+ + «+ 36

Howard v. Lockheed-Georgia Co.,

372 F. Supp. 854 (N.D. Ga. 1974) . 24, 25

Howard v. Security Service, Inc.,

516 F. Supp. 508 (D. Md. 1961) . . 25

Irving v. Dubuque Packing Co.,

689 F.2d 170 (10th Cir.) ...-.- 19, 27

Jewett v. International

Tel. & Tel. Corp., 653 F.2d 89

(3rd Cir.), cert. denied,

454 U.S. 969 a - = =» © e

Johnson v. Bunny Bread Co.,

646 F.2d 1250 (8th Cir. 1981)

Johnson v. Railway Express

Agency, Inc., 421 U.S. 454

(1975) *. . . > . > . . . >. . > >. .

Jones v. Mayer Co., 392 U.S.

409 (1968) . . . . 7 . . . . . .

Kornegay v. Burlington

Industries, Inc., 803 F.2d

787 (4th Cir. 1986) ....

Long v. Ford Motor Co.,

496 F.2d 500 (6th Cir. | Pe

Macklin v. Spector Freight

Systems, 478 F.2d 979 (D.c. Cir.

1973) o > oe >. . >. . >. oo . >. . > .

Martin v. Citibank, 762 F.2d

meee Gems BOOS) ww ww tt ek

McDonald v. Santa Fe Trail

Transp. Co., 427 U.S. 273 (1976)

McKenzie v. Sawyer, 684 F.2d 62

(D.C. Cir. 1982) . >. >. . > . > .

Minority Police Officers

Association v. City of South

Bend, 617 F. Supp. 1330

N.D. Ind. 1985), aff’d, 801 F.2d

964 (7th Cir. 1986) ......

iii

26,

Muller v. U. S. Steel Corp.,

509 F.2d 923 (10th Cir.), cert.

denied, 423 U.S. 825 (1975)

Oklahoma City v. Tuttle,

471 U.S. 808 (1985)

Perez v. Laredo Junior College,

706 F.2d 731 (Sth Cir. 1983)

Ramsey v. American Air Filter

Co., 772 F.2d 1303 (7th Cir.

1985) or A i oe

Reed v. Lockheed Aircraft Corp.,

613 F.2d 757 (9th Cir. 1980)

Roberts v. North American

Rockwell Corp., 650 F.2d 823

(6th Cir. 1981) ‘- 2

Runyon v. McCrary, 427 U.S.

160 (1976) o «© « « «

Saint Francis College v.

Al-Khazraji, 481 U.S. ,

107 S. Ct. 2022 (1987)

Satz v. ITT Financial Corp.,

619 F.2d 738 (8th Cir. 1980)

Shaare Tefila Congregation v.

Cobb, 481 U.S. , 107 S.Ct.

2019 (1987) kt eno

Taylor v. Home Insurance Co.,

777 F.2d 849 (4th Cir. 1985),

cert. denied, 106 S. Ct. 2249

(1986) 4: Et ae eS eT ee

Tillman v. Wheaton-Haven

Recreation Ass'n, 410 U.S. 431

(1973) _ « & ee «

10,

18,

14,

Trans World Airlines v.

Thurston, 469 U.S. 111 (1985) .. 41

Vietnamese Fishermen’s Ass’n

v. Knights of the Ku Klux Klan,

518 F. Supp. 993 (S.D. Texas

nn * 6 6 6 eS Se Se Se ee 8 lt 16

Williams v. Atchison, Topeka &

Santa Fe Ry., 627 F. Supp. 752

(W.D. Mo. 1986) . . . . o . . . . 23

Wilmington v. J. I. Case Co.,

793 F.2d 909 (8th Cir. 1986) ... 24

Worthy v. United States,

616 F.2d 698 (3rd Cir. 1980 ... 37

Young v. National Center for

Health Services Research,

828 F.2d 235 (4th Cir. 1987) ... 10

Qther Authorities:

42 U.S.C. § 1981 . . ....e... passim

I.R.C. § 102 (c) (1) . . . . . . > . 15

Rabkin & Johnson, Federal Income,

Gift and Estate Taxation

S 26.0073) C2007) . 2 sw ce ec eee

= _— ——— = ?

_—— ES ae —_ ee se

No. 87-107

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1987

BRENDA PATTERSON,

Petitioner,

vs.

McLEAN CREDIT UNION,

Respondent.

On Writ of Certiorari To

The United States Court of Appeals

for the Fourth Circuit

REPLY BRIEF FOR PETITIONER

STATEMENT OF THE CASE

Petitioner believes that its initial

brief fairly states the evidence.

Because the district court’s legal ruling

and the erroneous jury instruction

prevented the jury from deciding the

facts, petitioner’s version of disputed

facts must be accepted for the purpose of

deciding the legal questions presented.

Petitioner will briefly respond to a few

of respondent’s alleged factual

misstatements.

Respondent asserts that petitioner

indicated that she did not want to do

teller work. Brief for Respondent at 4.

In fact, because Patterson had so much

filing work, the teller work that she was

assigned exacerbated the pressure on her.

TR 2-108, 3-103. In this’ context,

Patterson indicated that the part-time

teller work, on top of her other

responsibilities, was too much of a

burden. TR 2-108.

Respondent states that Stevenson

stared at Mrs. Patterson “from as much as

forty feet away.” Brief for Respondent

at 6. The record shows that Stevenson’s

staring and close scrutiny of Patterson

frequently occurred from five to ten feet

away and on some occasions from much

closer. TR at 1-38, 1-90, 2-86 to 2-87.

Respondent asserts that Patterson

was not qualified for the bookkeeping job

because she answered only four of fifteen

math questions on a pre-employment test.

Respondent fails to note that this was a

Wunderlic personnel test for which there

was no evidence of validity or job-

relatedness. 1}

Respondent asserts that petitioner

“misleads the Court” by asserting that

she was never able to find out about

promotion opportunities and that white

workers with less education and seniority

were promoted over her. Brief for

Respondent at 6. Patterson introduced

evidence of respondent’s hiring of four

1 The fifteen math questions were

scattered among fifty questions and

Patterson had only twelve minutes to

complete the entire test. She was

instructed not to “skip about” in

answering the questions and the cover

sheet stated: “(ijt is unlikely that you

will finish all of [the 50 questions).”

Record, Vol. VII, Defendant Ex. 21.

white workers into accounting or

secretarial positions, while failing to

consider Patterson for promotion to these

positions. See TR at 1-92 to 1-97.

Respondent asserts that merit

increases were denied to white employees

at the same time that Patterson was

denied an increase. Brief for Respondent

at 7. However, of the two white

employees who did not receive an

increase, one had been on maternity leave

for a substantial part of the year. TR

3-108, 3-150, 3-152. The district court

refused to admit evidence of a possible

violation of the Pregnancy Disability

Act. TR 3-152.

Respondent correctly asserts that

Patterson expressed interest in

accounting and secretarial positions to

Mr. Steer, the person who first

interviewed her for the job, rather than

to Mr. Stevenson. Brief for Respondent

at 2-3. However, it is clear that Steer

was acting as an agent for McLean Credit

Union at the time. The Credit Union was

Closely associated with McLean Trucking

Company and the Trucking Company

performed most of the personnel functions

for the Credit Union. TR 1-14 to 1-18,

3-79 to 3-81, 3-132 to 3-133, 3-135 to 3-

138, 3-140 to 3-141. Thus, applicants

for employment at the Credit Union filled

out Trucking Company applications and

were interviewed and screened by the

Trucking Company personnel office. TR 3-

81, 3-133 to 3-135.

Respondent asserts that petitioner’s

statement about discrimination in filling

secretarial positions is a "gross

misstatement of the testimony" because

"(t)he uncontradicted evidence was that

no blacks ever applied for a secretarial

position." Brief for Respondent at 7.

This is not true. As an example, Brenda

Patterson, who had previously worked as a

secretary, TR 1-12 to 1-14, applied for

"any position" for which she was

qualified. Record, Vol. VII, Defendant

Ex. 10, page 1.2

ARGUMENT

THE COURT SHOULD REJECT THE NOVEL LIMI-

TATION PROPOSED BY THE SOLICITOR GENERAL

The Solicitor General* offers a

3 In the testimony on which

respondent relies as “uncontradicted

evidence", Stevenson testified that he

did not know of any black applicants for

secretarial positions. TR 4-12.

However, Stevenson was in no position to

know the race of all of the applicants,

since the Trucking Company screened the

applicants and referred only some of them

to the Credit Union. Id.

4 The Equal Employment Opportunity

Commission, the federal agency with

primary responsibility for enforcing

employment discrimination laws, is not on

the Solicitor General’s brief and is not

mentioned in the statement of interest.

Compare, e.g., Brief for the United

States as Amicus Curiae at 1, Watson v.

, No. 86-6139

(argued January 20, 1988).

novel limitation on section 1981’s

coverage. Although the Solicitor

General’s theory at first.glance may seem

more expansive than the Fourth Circuit’s

rule, the protection offered by the

Solicitor General is largely illusory.

As it applies to discriminatory

working conditions, the Solicitor

General’s theory has two prongs. First,

the Solicitor General correctly concludes

that “an employer violates Section 1981

when it intentionally assumes different

contractual obligations with respect to

black persons than to white persons."

Brief for United States, at 11. See also

id. at 17 n.8. Thus, an employer which

uses two different form contracts,

providing white employees with

appropriate working conditions and

Similarly-situated black employees with

menial tasks, excessive work and undue

scrutiny, would be liable under section

1981. This different treatment of white

and black employees is actionable under

section 1981 even where the

contractually-explicit discriminatory

working conditions are not so egregious

as to constitute a constructive discharge

or to violate any state law. See Brief

for United States at 11.

Petitioner agrees with the Solicitor

General that contractually-explicit

discrimination in working conditions

violates section 1981. This conclusion

theoretically expands upon the Fourth

Circuit’s ruling that only discrimination

in hiring, firing and promotion is

covered. However, in practical effect

this prong of the Solicitor General’s

theory will provide little, if any,

additional protection. Virtually all

employers are now sophisticated enough

not to write racial harassment, race-

based workloads or race-based level of

scrutiny explicitly into their employment

contracts.

4 The second prong of the Solicitor

General’s theory . suggests an

unprecedented limitation on section

1981’s coverage. The Solicitor General

asserts that where the employer does not

write down (or state at the outset) that

it intends to practice racial

discrimination in the conditions of

employment, such discrimination is

actionable under section 1981 only if the

employer has agreed (either explicitly or

implicitly) to provide a non-

discriminatory working environment. The

Solicitor General thus invokes a breach

of contract theory to define the coverage

of section 1981.

Except for some collective

bargaining agreements, it is unlikely

that many employers will explicitly

contract to provide a non-discriminatory

working environment. And the implicit

duty of good faith dealing under state

laws that the Solicitor General reads

into employment contracts appears to be

so narrow that it would cover only the

most egregious conduct that would give

rise to a cause of action for

constructive discharge. See Brief for

United States at 18-19.5 Even under the

Fourth cCircuit’s restrictive

interpretation, section 1981 covers

"firing," which presumably includes

constructive discharge. Thus, this prong

of the Solicitor General’s theory would

provide no real additional protection.

5 Several courts have held that a

constructive discharge occurs only when

the working conditions are so intolerable

that the employee is forced to quit.

E.g.,

Young v. Nationa] Center for Health

Services Research, 828 F.2d 235, 238 (4th

Cir. 1987);

Co., 689 F.2d 170, 172 (10th Cir. 1982);

Johnson v. Bunny Bread Co., 646 F.2d

1250, 1256 (8th Cir. 1981); Muller vy.

U.S. Stee] Corp., 509 F.2d 923, 929 (10th

Cir. 1975), cert. denied, 423 U.S. 825 (1975).

It is difficult to discern why the

Solicitor General concludes that

discriminatory treatment of black

employees arising out of policy or

practice should be excluded from section

1981’s coverage, while such

discriminatory treatment written into the

contract is covered. Petitioner can only

speculate that the Solicitor General

adopts an extremely literal reading of

section 1981’s language guaranteeing

black persons the "same right ... to make

++. contracts." If the discriminatory

treatment is in the contract, then it is

obvious that the black employee has not

been afforded the "same" contract. If,

however, the discriminatory treatment

arises in practice, then the black

employee technically has been provided

with the "same" contract, and the

Solicitor General apparently views the

discriminatory working conditions as

unrelated to this contract.

This overly literal reading of

section 1981 has several problems. This

theory converts section 1981 from a

remedy for refusals to provide blacks

with equal contractual opportunities to a

remedy for breach of contract in those

rare situations where the black worker is

able to obtain a contract that requires

non-discriminatory working conditions.

Section 1981 is a federal anti-

discrimination statute, designed to

provide equal contractual opportunities,

not a breach of contract remedy.

Incorporation of state laws to determine

the scope of substantive protections

under section 1981 is at odds with the

legislative purpose. The extensive

legislative history, detailed in

petitioner’s initial brief, pp. 46-55,

shows that one purpose of section 1981

was to pre-empt a large body of state

laws collectively known as Black Codes.

There is no indication that Congress

intended to incorporate the varied and

inconsistent state laws to determine

substantive liability under section 1981.

Liability under section 1981 should

not turn on whether the employer

explicitly writes down the discriminatory

conditions in the employment contract.

The denial of the full benefit of the

contract occurs regardless of whether the

discriminatory treatment is explicitly

included in the contract or is simply

practiced by the employer.

In addition, the desirable working

conditions provided to white workers and

the discriminatory working conditions

provided to black workers are not

separate and independent from the

contract of employment. Even if working

conditions are not in the contract, they

are related to it.® Subjecting black

workers to discriminatory working

conditions is analytically the same as

the award of a year-end bonus to white

but not to black employees. The bonus is

not a contractual right for either the

white or the black worker, but it

nonetheless results from the employment

pursuant to the contract.’

6 The Court’s decision in Tillman

v. Wheaton-Haven Recreation Ass’n, 410

U.S. 431 (1973), makes clear that a

benefit that is related to the holding of

property is covered by section 1982, even

where there is no property right to the

benefit. The black plaintiff in Tillman

had purchased a home close to a private

swimming club which voluntarily provided

membership preferences to homeowners in

the neighborhood. Nothing in the black

homeowner’s purchase agreement or deed

gave him a right to preference for club

membership. Nonetheless, the Court held

that the club’s discriminatory membership

policy “abridged and diluted" the black

homeowner’s "right to acquire a home."

410 U.S. at 437.

7 A bonus that results’ from

employment is treated as taxable salary,

and not as a gift, under federal income

Furthermore, section 1981 prohibits

racially discriminatory conduct, whether

by the employer or a third person, that

discourages or interferes with the right

to obtain equal contractual

opportunities. cuvicusiy, an employer’s

discriminatory treatment of black

employees will discourage such workers

from applying for and accepting

employment with that employer. In this

case, when Brenda Patterson complained

about her working conditions, she was

told "that I could always leave." TR l1-

48. Such discrimination in the

conditions of employment is no different

from a Ku Klux Klan cross burning in the

front yard of a worker, as a message that

the worker should not apply for, accept,

or continue to hold, a particular job.

The Court has made clear that conduct on

tax law. I.R.C. § 102(c) (1). See also

Rabkin & Johnson, Federal Income, Gift

and Estate Taxation § 14.08[3] (1987).

the basis of race discouraging an

employee from continuing her employment

violates section 1981 regardless of

whether the employee actually resigns.®

The theory advanced by the Solicitor

General is inconsistent with the Court’s

prior decisions. Johnson v. Railway

Express Agency, Inc., 421 U.S. 454,

(1975), applied section 1981 to

discrimination in job assignments. There

is no suggestion in that opinion that

this discrimination was written into the

employment contracts, and thus covered by

8 The Court concluded that where "a

group of white men had terrorized several

Negroes to prevent them from working in a

sawmill ... there was no doubt that [the

whites] had deprived their Negro victims,

on racial grounds, of the opportunity to

dispose of their labor by contract," in

violation of section 1981. Jones v.

Mayer Co., 392 U.S. 409, 441-42, n.78

(1968) (overruling Hodges v. United

States, 203 U.S. 1 (1906)). See also

Vietnamese Fishermen’s Ass

- ‘n_v. Knights

, 518 F. Supp. 993,

of the Ku Klux Klan

1008 (S.D. Texas 1981) (KKK threats and

intimidation in attempt to cause

termination of contract between fishermen

and dock owners actionable under § 1981).

the first prong of the Solicitor’s

theory. Moreover, there is no suggestion

that the employer in that case had

contracted to make job assignments on a

non-discriminatory basis, thus bringing

its conduct under the second prong of the

Solicitor General’s theory. Similarly,

Shaare Tefila Congregation v. Cobb, 481

U.S. , 107 §&.Ct. 2019 (1987), and

Tillman _v. Wheaton-Haven Recreation

Ass’n, 410 U.S. 431 (1973), involved

neither discrimination that was written

into the deed nor a non-discrimination

agreement that had been breached. 2?

9 The Solicitor General suggests

that the Court’s decision in

, 427 U.S. 273

(1976), supports its theory. The

Solicitor General construes McDonald as

holding that "the white employees had

been denied the specific contractual

opportunity made available to the black

employee -- continued employment

notwithstanding charges of

misappropriation of the employer’s

property." Brief for United States at

12. However, the opportunity to remain

employed notwithstanding charges of

misappropriation is no more “contractual”

II.

SECTION 1981 PROHIBITS RACIAL

DISCRIMINATION IN THE TERMS AND

CONDITIONS OF EMPLOYMENT

A. Section 1981 Is Not Limited to

Protection Against Absolute Denial

" "

of “Economic Rights

Respondent’s major argument is that

section 1981 “was passed to protect

property and economic rights." Brief for

Respondent at 21.49 Respondent contends

than the opportunity to remain employed

under non-discriminatory working

conditions. This opportunity was not a

part of either the black or the white

employees’ contract. It was a benefit,

voluntarily conferred by the employer.

Nonetheless, the Court concluded that the

discriminatory provision of this benefit

would violate section 1981.

10 Respondent also argues that

section 1981 “is addressed solely to

legal capacity to contract." Id. at 25.

The argument that section 1981 extends

only to legal rules which deny minorities

the capacity to make or enforce contracts

was rejected in Runyon v. McCrary, 427

U.S. 160 (1976). Respondent quotes

extensively from the concurring and

dissenting opinions in that case,

apparently in the hope that the Court

will reconsider and overrule - See

Brief for Respondent at 19-20, 25-26.

Petitioner believes that Runyon and Jones

v. Mayer Co., 392 U.S. 409 (1968), were

that economic rights encompass only “the

right to enter into a contract and bind

the other party to it." Id.

In attempting to limit section 1981

to so-called “economic rights" -- defined

to exclude discrimination in the terms

correctly decided. The various opinions

in those cases thoroughly analyze whether

section 1 of the 1866 Civil Rights Act

provides a cause of action for private

discrimination, and petitioner has

nothing to add to that debate.

In any event, Jones and Runyon

settled the debate and there is no reason

for the Court to revisit the issues

resolved in those decisions. As stated

by Justice Stevens in his concurring

opinion in Runyon: "Jones has been

decided and is now an important part of

the fabric of our law. ... For the Court

now to overrule Jones would be ... so

clearly contrary to ... the mores of

today that I think the Court is entirely

correct in adhering to Jones." 427 U.S.

at 190, 191-192. Members of the Court

who dissented in Jones and Runyon have in

recent years indicated acceptance of

those decisions. For example, last Term

the Court unanimously reaffirmed that

section 1981 "“forbid[{s) all ‘racial’

discrimination in the making of private

as well as public contracts." Saint

Francis College v. Al-Khazraji, 481 U.S.

__, 107 S&S. Ct. 2022, 2026 (1987).

and conditions of employment--

respondent ignores the extensive

legislative history establishing that

Congress was most concerned with

discriminatory treatment of black workers

who entered into contracts of employment

with former slave owners. This clear

expression of legislative intent alone

mandates rejection of respondent’s narrow

interpretation of section 1981.

The authorities cited by respondent

do not support its “economic rights"

limitation. The “economic rights" theory

is derived from language in the

dissenting opinion in Goodman v. Lukens

Stee] Co., 482 U.S. __, 107 S.Ct. 2617,

2628 (1987) (Brennan, J., joined by

Marshall & Blackmun, JJ.). See Brief for

Respondent at 23. Yet, the Court in

Goodman rejected the notion that section

1981 protects only economic rights. The

Court held that the guarantee to make and

enforce contracts “is ... part of the

federal law barring racial

discrimination, which ... is a

fundamental injury to the individual

rights of the person." 107 s.Ct. at

2621. Moreover, the dissenting opinion

on which respondent relies concluded that

section 1981 prohibits employers from

“provid({ing) [to minorities) a lesser

opportunity [to contract) than others, in

the form of less favorable contract terms

or unequal treatment discouraging entry

into contractual relations." 107 S.Ct.

at 2627 n.4.

Respondent appears to concede that

the cCourt’s prior decisions do not

support the result that it advocates,

asserting that those decisions “have

added to the difficulty" in discerning

the scope of section 1981. Brief for

Respondent at 28. As set out in detail

in petitioner’s initial brief, the

Court’s prior decisions make clear that

racial discrimination in the terms and

conditions of employment is prohibited by

section 1981.11

11 Respondent attempts to limit

Johnson v. Railway Express Agency, Inc.,

421 U.S. 454 (1975), asserting that

the coverage of seniority and job

assignments in that case “is not

inconsistent with the idea that § 1981

was passed to protect property and

economic rights and does not address

interpersonal relationships." Brief for

Respondent at 21. The alleged

discrimination in the Johnson case is no

different from the discrimination against

petitioner in the instant case. In

Johnscn, the plaintiff alleged that the

employer “assigns, reassigns, promotes,

and otherwise acts or fails to act" in a

discriminatory manner. Appendix at 6a

(Complaint ¢ V(2)), Johnson _v. Railway

Express. The EEOC Final Investigative

Report, attached to the Complaint in

Johnson, described a variety of

allegations, including racial harassment

of Willie Johnson, “more severe” work

orders and discipline for black employees

and “dual standards, based on race, for

conditions of employment and disciplinary

action." Id. at 22a, 36a. The Brief for

Petitioner in Johnson opened with the

statement: "Petitioner, Willie Johnson,

Jr., is a black man who claims to have

been subjected by respondents to racial

discrimination jn the terms and

conditions of employment.” Brief for

Petitioner at 2 (emphasis added). In

this context, the Court in Johnson

The lower court cases cited by

respondent also do not support its

“economic rights" theory. Respondent

cites only two lower court cases that are

on point. Williams v. Atchison, Topeka

& Santa Fe Ry., 627 F. Supp. 752 (W.D.

Mo. 1986); Minority Police Officers

Association v. City of South Bend, 617 F.

Supp. 1330 (N.D. Ind. 1985), aff*’d, 801

F.2a 964 (7th Cir. 1986). These two

specifically held “that § 1981 affords a

federal remedy against discrimination in

private employment on the basis of race."

421 U.S. at 459-460.

In both Johnson and the instant

case, the claim involves the treatment of

the employee “after the contract is in

effect" and is inconsistent with

respondent’s position that section 1981

prohibits only conduct that absolutely

prevents entry into the contract. See

Brief for Respondent at 22. In addition,

a major part of petitioner’s claim in

this case involves her job assignments,

such as dusting and sweeping the office

and excessive work. It is difficult to

understand why the job assignment issue

in Johnson is deemed to affect economic

rights, while petitioner’s job assignment

Claim is labelled as affecting only

“interpersonal relationships."

district court decisions both conclude in

a footnote that section 1981 does not

cover discrimination in the terms and

conditions of employment. However,

neither of these decisions includes any

analysis of the issue or cites any

authority to support the conclusion. The

decisions make no mention of an “economic

rights" theory. Each of these district

court footnotes contravenes the governing

law of the circuit that section 1981

’

encompasses discrimination in the terms

and conditions of employment. See Ramsey

vy. American Air Filter €o., 772 F.2d

1303, 1312 (7th Cir. 1985); Wilmington yv.

J. I. Case Co., 793 F.2d 909, 916 (8th

Cir. 1986); Block v. R. H. Macy & Co.,

712 F.2d 1241, 1247 (8th Cir. 1983).22

12 Respondent also cites Howard v.

Lockheed-Georgia Co., 372 F. Supp. 854

(N.D. Ga. 1974), as holding “that

separate claims for racial harassment are

not cognizable under § 1981." Brief for

Respondent at 15. In fact, Howard did

not address the scope of section 1981’s

Respondent relies on four other

cases to support its assertion that

section 1981 protects only economic

rights. See Brief for Respondent at 24-

25 and n.17. None of these cases even

hints that the scope of section 1981 is

limited to so-called economic interests.

To the contrary, in one of the cases the

Fifth Circuit decided the merits of a

section 1981 claim for racial

discrimination in working conditions,

thus implying that this cause of action

is cognizable.?°

coverage, but held that section 1981 does

not authorize the award of compensatory

damages. See 372 F. Supp. at 855-58.

This conclusion was rejected in Johnson

v. Railway Express, 421 U.S. at 459-60.

13 Adams _v. MacDougal, 695 F.2d

104, 105-107 (5th Cir. 1983). The other

three cases cited by respondent are not

on point. See Howard v. Security

Service, Inc., 516 F. Supp. 508, 513 (D.

Md. 1981); Faraca v. Clements, 506 F.2d

956 (5th Cir.), cert. denied, 422 U.S.

1006 (1975); Macklin v. Spector Freight

Systems, 478 F.2d 979 (D.C. Cir. 1973).

As is true of dozens of other cases, in

Howard, Faraca and Macklin, the claimed

Respondent also cites several

constructive discharge cases, asserting

that such cases "are helpful because they

demonstrate that racial harassment is an

element necessary in such cases rather

than a separate claim for relief." Brief

for Respondent at 30-31.14 In fact, two

of these cases support petitioner’s

position. In Martin v. Citibank, 762

violation was the defendant’s refusal to

enter into a contract. The fact that

cases exist upholding section 1981’s

coverage of such conduct does not mean

that this is the only type of conduct

that violates section 1981. In fact, the

Court in Faraca recognized that

"interference" with the right to contract

violates section 1981. 506 F.2d at 958.

14 Respondent asserts that "the

Petitioner’s claims alleging constructive

discharge were dismissed by the trial

judge upon Respondent’s motion for

summary judgment." Brief for Respondent

at 32. This is incorrect. Petitioner,

who was laid off, did not assert a

constructive discharge claim. See Joint

Appendix at 5-16 (Complaint). The

district court’s ruling denying the

defendant’s motion for summary judgment

did not mention any constructive

discharge claim. Record, Vol. I, Tab 13

(Memorandum and Order, filed March 14, 1985).

F.2d 212, 214-215 (2d Cir. 1985), the

court entertained on the merits a section

1981 claim of discriminatory working

conditions based on the administration of

a polygraph test to minority employees.

762 F.2d at 216-220.15 And in Long v.

Ford Motor Co., 496 F.2d 500, 505 (6th

Cir. 1974), the Court concluded: "When

an employer ... places more stringent

requirements on employees because of

their race, section 1981 is violateda."1®

15 The working conditions claim was

joined with a separate claim of

constructive discharge. The court ruled

on the merits that the plaintiff had

presented insufficient evidence to

support the jury verdict of

discrimination in working conditions.

762 F.2d at 220.

16 The three other constructive

discharge cases cited by respondent do

not address section 1981’s coverage of

discriminatory working conditions. The

plaintiff in

Co., 689 F.2d 170, 171-172 (10th Cir.

1982), framed his allegations as

constructive discharge and did not assert

a separate claim related to the

conditions of employment. In Johnson v.

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

1981), the plaintiff joined claims under

Respondent also argues that

"(generally]), ... the cases have not

supported an independent claim for racial

harassment or hostile work environment

under section 1981 separate and apart

from claims under Title VII or collateral

claims of racially discriminatory

promotion and discharge practices under

section 1981." Brief for Respondent at

29. To support this argument, respondent

offers novel theories to distinguish the

numerous court of enpeais decisions?’

that have upheld a section 1981 cause of

action for discriminatory terms and

both section 1981 and Title VII of

discrimination in working conditions and

discharge. The court ruled against

plaintiff on the merits of all claims

without addressing whether the working

conditions claim was actionable under

section 1981. See 646 F.2d at 1252 n.1.

Muller v. U. S. Steel Corp., 509 F.2d 923

(10th Cir.), cert. denied, 423 U.S. 825

(1975), held only that discriminatory

failure to promote does not alone

constitute constructive discharge.

17 See cases cited in Brief for

Petitioner at 35 n.12.

conditions of employment. Brief for

Respondent at 30. As set out in the

Reply Memorandum for the Petitioner, at

1-16, filed in support of the petition

for writ of certiorari, respondent’s

effort to distinguish these court of

appeals decisions fails.

Underlying respondent’s argument is

the assumption that discrimination in the

terms and conditions of employment does

not affect the employee’s economic

interests. 18 This assumption is

incorrect. The humiliation and

18 Respondent’s “economic rights"

theory ignores the fact that petitioner’s

Claim of salary discrimination was

dismissed on the ground that it was not

within the scope of section 1981. It is

difficult to imagine a claim more related

to economic interests than salary

discrimination.

degradation suffered by an employee who,

because of her race, is assigned menial

tasks, is given an oppressive workload,

is told that “blacks are slower by nature

than whites," and is subjected to undue

and unequal scrutiny, clearly discourages

the making and enforcing of an employment

contract. The economic choice available

to an employee who is offered employment

under such discriminatory conditions is

different from that available to a worker

who is offered non-discriminatory terms

and conditions. For example, a black

employee who has the opportunity to

choose between taking or continuing in a

job that pays ten dollars per hour with

discriminatory, humiliating conditions,

or another job at five dollars per hour

with non-discriminatory conditions, may

well choose the lower paying job in order

to avoid the harm inherent in the

racially-biased environment. Clearly,

whatever choice she makes, that worker’s

economic interest has been adversely

affected, because she does not have the

same economic opportunity as a white

worker.

B. Petitioner Presented a Prima Facie

Case of Discrimination in the Terms

and Conditions of Employment

Respondent argues that petitioner

failed to present evidence sufficient to

support a claim of racial harassment.

This argument was not raised in

respondent’s brief in the court of

appeals or in respondent’s brief in

opposition to the petition for

certiorari, and is not included in the

Questions Presented on which the Court

granted review. The Court should decline

to exercise its discretion to consider

this fact-based argument. See Oklahoma

City v. Tuttle, 47I-U.S. 808, 815-816

(1985).

On the merits, there can be no doubt

that the evidence introduced by

petitioner is sufficient to support a

Claim of discrimination in the terms and

conditions of employment. Petitioner

introduced evidence of a pattern

throughout her employment of an unequal

and oppressive workload and of unequal

and demeaning scrutiny. In addition,

plaintiff presented evidence that she was

denied a salary increase that was given

to other employees and that respondent

gave a false explanation for the denial

of this increase to plaintiff.

Contrary to respcendent’s assertion,

the discrimination in the terms and

conditions of petitioner’s employment did

not occur outside the three-year statute

of limitations period. At trial, the

district court carefully divided the

presentation of plaintiff’s case into

incidents that occurred after January,

1981, and those that occurred before.

Thus, petitioner presented evidence that

after January, 1981, she was the only

clerical employee required to dust and

sweep the office, TR 1-30, 1-31,)9 that

her workload was oppressive and much in

excess of that given to white clerical

workers, TR 1-27 to 1-29, that other

employees performed the tasks of white

workers while they were on vacation, but

when Patterson went on vacation her work

just “piled up,” TR 1-37, that Stevenson

stared at her four to five times a week

and made comments about Patterson being

“still behind,” TR 1-39, 1-38, that this

staring and these remarks were not made

to white workers, jid., that Stevenson

criticized Patterson publicly by name in

staff meetings while addressing white

workers’ errors in private counselling

sessions, TR 1-39 to 1-40, and that in

19 Respondent did not deny

petitioner’s evidence about dusting and

sweeping the office.

1982 Stevenson remarked that a black job

applicant "could just forget it,” TR 1-44

to 1-45. Only after Patterson introduced

this evidence of events occurring within

the limitations period was she allowed to

go back in time and show that these

incidents were part of a pattern that

started with her pre-employment interview

and continued throughout her employment.

TR 1-80.29

20 Respondent asserts that the pre-

1981 discrimination is not actionable.

However, where a pattern of

discriminatory conduct by the employer

continues into the limitations period,

the court may reach back and provide a

remedy for conduct that is part of the

pattern. E.g. Havens Realty Corp. v.

Coleman, 455 U.S. 363, 380-381 (1982)

(applying continuing violation doctrine

to 180-day filing requirement under Fair

Housing Act); Taylor yv. Home Insurance

Co., 777 F.2d 849, 856 (4th Cir. 1985),

cert. denied, 106 S. Ct. 2249 (1986);

McKenzie v. Sawyer, 684 F.2d 62, 72 (D.C.

Cir. 1982);

& Tel. Corpm,., 653 F.2d 89, 91-92 (3rd

Cir.), cert. denied, 454 U.S. 969 (1981);

650 F.2d 823, 826-828 (6th cir, 1981);

Satz v. ITT Financial Corp., 619 F.2d

738, 743-744 (8th Cir. 1980); Reed vy.

Meckheed Aircraft Corp., 613 F.2d 757,

Patterson also introduced evidence

of several racial remarks made by

respondent’s President. These remarks

are not the type of sporadic comments in

“casual conversation" that may not alone

be actionable under section 1981 or Title

VII. Rather than being isolated, Mr.

Stevenson’s remarks are directly related

to and explanatory of respondent’s harsh

conduct toward petitioner. Because

Stevenson believed that “blacks are ...

slower than whites by nature," he

persisted in piling work on petitioner

759-760 (9th Cir. 1980); Acha vy. Beame,

570 F.2d 57, 65 (2d Cir. 1977). Clearly,

the disc, imination against Mrs. Patterson

in the terms and conditions of her

employment, which was a continuing and

almost daily ttern, falls within the

continuing violation doctrine. The

continuing violation doctrine applies to

Claims under § 1981 as well as Title VII.

E.G. Perez v. Laredo Junior College, 706

F.2d 731, 733 (Sth Cir. 1983); Shung—y.

Pomona Valley Community Hospital,

F.2d 788, 791 (9th Cir. 1982); ie

478 F.2d at 994 n.30. But see

Kornegay

v. Burlington Industries. Inc., 803 F.2d

787 (4th Cir. .986).

and then criticizing her for being

“slow.” The fact that Stevenson did not

make the racial remark every day does not

reduce the harm to petitioner, since

Stevenson by his actions toward Brenda

Patterson reiterated his racial beliefs

day after day, year after year.?!

Patterson also introduced evidence

that she suffered substantial injury as a

result of respondent’s discriminatory

conduct:

I was humiliated, I was

nervous all the time, I

worried, I lost sleep, I’m

dreaming about working during

the night and completing jobs,

I was -- I brought my troubles

and my worries home, and I

cried constantly, and I was

just nervous and I felt

aded, and I felt like I

was just being used by the

credit union, and being

harassed and humiliated.

21 Stevenson also told Patterson

that "“{a)ll the other white girls can do

your jobs faster than you can" and,

“after ... he quit saying the blacks and

the whites ... he mentioned animals were

faster -- that some animals was faster

than other animals...." TR 2-83.

TR 1-60.

Respondent also argues that it

satisfied its burden of articulating a

non-discriminatory explanation for its

treatment of petitioner and that

petitioner failed to introduce additional

evidence of pretext.?2 The law is clear

that the plaintiff is not required to

introduce additional evidence of pretext,

but may rely on her case-in-chief and

cross-examination of the defendant’s

witnesses to establish pretext.?2 In

this case, the parties introduced

conflicting evidence concerning

petitioner’s workload and respondent’s

22 Respondent does not make this

argument with respect to petitioner’s

salary discrimination claim. Respondent

also introduced no explanation for

assigning petitioner, but not the other

= cal workers, to dust and sweep the

office.

23 Coates v. Johnson & Johnson, 756

F.2d 524, 531 n.5 (7th Cir. 1985);

, 616 F.2d 698, 701 (3rd

Cir. 1980).

scrutiny of her, and resolution of the

conflict would depend largely on the

credibility of individual witnesses. For

example, if the jury believed the

evidence concerning Stevenson’s racial

remarks and attitudes, it could

reasonably have concluded that this

racial prejudice, rather than legitimate

employer concerns, caused his workload

decisions and his criticism and scrutiny

of Brenda Patterson.

Itt.

THE “SUPERIOR QUALIFICATIONS" JURY

INSTRUCTION IMPROPERLY DENIED PETITIONER

MN FULL OPPORTUNITY TO PROVE

DISCRIMINATORY INTENT

Respondent apparently does not

disagree with petitioner’s legal analysis

of the many ways to prove discriminatory

intent. Instead, respondent argues the

facts, asserting that petitioner did not

present any of the types of evidence that

are probative on the issue of intent.

Respondent asks the Court to find that

“under the facts of this case, the jury

instruction was correct." Brief for

Respondent at 41.

Neither the district court nor the

court of appeals suggested that the

validity of the “superior qualifications"

jury instruction was limited by the facts

of this case. And, in view of the

evidence presented by petitioner,

respondent’s suggestion is clearly

without merit.

The extensive evidence of the racial

prejudice of respondent’s President and

key decisionmaker, Robert Stevenson, is

set out in petitioner’s brief and will

only be summarized here. The company

Vice-President, while testifying as a

witness for the defendant, admitted that

Stevenson “didn’t want to hire any

blacks," TR 4-89. A supervisor testified

about a 1980 incident in which Stevenson

refused to hire a black applicant because

"(wje don’t need any more problems around

here." TR 2-161. Mrs. Patterson

testified about another incident in which

Stevenson refused to take the application

of a black worker. TR 1-43 to 1-45.

Mrs. Patterson also testified that

Stevenson expressed the view that "blacks

are known to work slower than whites by

nature." TR 1-88. Stevenson told

Patterson when she first came to work

that the “white women... probably

wouldn’t like me because they weren’t

used to verking with blacks." TR 1-19.24

Respondent contends that this

evidence is insufficient to permit a jury

to infer that the company’s asserted

24 petitioner also established that

Stevenson hired no black employee from

1953 to 1972, that the company never had

a black supervisor, secretary (the

secretaries worked personally for the

upper managers) or accounting employee

and that the company had only three black

employees during Stevenson’s thirty-two

years tenure. TR 1-29, 3-124, 3-129, 4-

12.

reliance on qualifications is suchestess.

Apparently, respondent believes that the

only sufficient proof of pretext is an

admission by the employer that its racial

attitudes and policies infected this

decision. To the contrary, petitioner’s

direct evidence, if believed, would shift

the burden of proof to the employer.

Trans World Airlines v. Thurston, 469

U.S. 111 (1985).

Clearly, a jury that believed

plaintiff’s evidence?5 could reasonably

find that Patterson was not given fair

consideration for the promotion because

of her race. In fact, on this evidence,

if true, it is almost inconceivable that

a black employee could have been given

non-discriminatory consideration.

25 since Stevenson denied most of

this evidence, a jury that believed

plaintiff’s evidence might well refuse to

find Stevenson credible in any of his

testimony. Respondent’s defense depended

largely on Stevenson’s credibility.

Respondent also argues that

petitioner did not establish a prima

facie case, alleging that Patterson was

not qualified for the promotion and that

no vacancy existed. The district court

ruled that the evidence was sufficient to

require submission of these questions to

the jury. The Court should exercise its

discretion to decline to address these

factual questions.

If the Court reaches the merits of

the prima facie case argument,

respondent’s allegations must be

considered in the context of the

company’s operating procedures and the

evidence about the qualifications of the

selectee. Respondent had no _ formal

procedures for making promotions, for

upgrading a particular position or for

distinguishing between the two. TR 3-

131. Respondent had no statement or

description of the qualifications for the

job of accounting clerk intermediate,

which was a bookkeeping position.

Petitioner Patterson had a college

degree and more seniority with the

company, while Williamson had taken

college courses in accounting, but did

not obtain a degree. Patterson had

performed some bookkeeping functions with

her prior employer. TR 1-21 to 1-22.

Respondent admitted that Williamson had

to be trained in the bookkeeping

functions that she performed. TR 3-187

to 3-188. Patterson testified that

Williamson was given new tasks and new

training for the new job of accounting

clerk intermediate. TR 1-49, 2-56 to 2-

57. Although respondent allegedly gave

Williamson the promotion to reward her

outstanding past performance, one

supervisor testified that Williamson’s

performance was unsatisfactory and that

she did not understand accounting

functions. TR 2-159, 2-185 to 2-190.26

In this situation and given petitioner’s

Girect evidence, it is the jury’s

province to decide whether racial

discrimination biased that decisionmaking

process.

26 Respondent incorrectly asserts

that this supervisor said only that

Williamson did not understand data

processing. Respondent also asserts that

this supervisor’s testimony “is

irrelevant or severely limited" because

he was terminated for poor job

performance. Brief for Respondent at 3

n.3. In fact, the record strongly

supports the inference that this

supervisor was terminated for opposing

racial discrimination practiced by

respondent. See TR 2-164 to 2-169.

CONCLUSION

For the reasons stated, the Court

should reverse the decision of the Court

of Appeals and remand the case for a new

trial.

Respectfully submitted,

JULIUS LeVONNE CHAMBERS

CHARLES STEPHEN RALSTON*

99 Hudson Street

New York, N.¥. 10013

(212) 219-1900

PENDA D. HAIR

806 15th Street, N.W.

Suite 940

Washington, D.C. 20005

(202) 638-3278

HAROLD L. KENNEDY, III

HARVEY L. KENNEDY

Kennedy and Kennedy

710 First Union Building

Winston-Salem, NC 27101

(919) 724-9207

Attorneys for Petitioner

* Counsel of Record

February 11, 1988

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.