Opposition Brief — CBOCS West, Inc. v. Humphries

(4B

No. 06-1431

FILED

JUL 18 2007

In The

Supreme Court of the Anited States

S

CBOCS WEST, INC.,

Petitioner,

v.

HEDRICK G. HUMPHRIES,

Responder’.

¢

On Petition For A Writ Of Certiorari To

The United States Court Of Appeals

For The Seventh Circuit

¢

RESPONDENT'S BRIEF IN OPPOSITION

S

CYNTHIA H. HYNDMAN

Counsel of Record

ANGEL M. KRULL

ALEEZA M. STRUBEL

ROBINSON CURLEY &

CLAYTON, P.C.

300 South Wacker Drive,

Suite 1700

Chicago, Illinois 60606

(312) 663-3100 (Phone)

(312) 663-0303 (Fax)

Counsel for Respondent

Hedrick G. Humphries

CUCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

Page

_ ge ee i

pF, ii

STATEMENT OF THE CASE ...........csssssccsssscseeseesececeees 1

REASONS FOR DENYING THE WRIT.................:0008 5

A. The Circuit Courts Agree That Retaliation

Claims Are Cognizable Under Section 1981...... 5

B. The Issue Is Already Settled By Supreme

I ee inictriicsinadiincsenicciitiiiibliintaddeiriunintaseatanes 8

C. The Seventh Circuit’s Interpretation Of Section

1981 Is Uncontroversial And Appropriate ......... 13

D. Cracker Barrel’s Policy Argument Regarding

Overlap Between Section 1981 And Title VII Is

pT a Eee Ie OE 16

E. This Case Is An Inappropriate Vehicle For

Deciding Whether Retaliation Claims Are Cog-

nizable Under Section 1981 Because Cracker

Barrel Forfeited The Issue By Failing To Raise

It Before The District Court.................ccccceeeeeees 20

EA tavacccccsseserensectnisesennesees reltninenncgnnendersesonnesiiee 22

ii

TABLE OF AUTHORITIES

Page

CASES

Aleman v. Chugach Support Serv.,

485 F.3d 206 (4th Cir. 2007).............cccsccccssssrerreeeess 5, 8, 18

Andrews v. Lakeshore Rehab. Hosp.,

140 F.3d 1405 (11th Cir. 1998).............sccccccsssessssseesers 6, 7

Burlington Indus., Inc. v. Ellerth,

ET cn ee 20

Choudhury v. Polytechnic Inst. of N.Y.,

Fe OE GD BOD octttccctcsccccccsncescccosevecsvovesone 4,19

Day v. Wayne County Bd. of Auditors,

co | 7,8

Eldred v. Ashcroft,

ee ne 15

Faragher v. City of Boca Raton,

| an a eae 20

Foley v. Univ. of Houston Sys.,

Se eee ee GE IN Bi Pecescnececccccccescenccescesenccsentosesonnn 5

Gaddis v. Redford Twp.,

Se ee Ee I I Sa ccctcccccensccnsedcnsonnsationcessececsocsion 8

Gen. Bldg. Contractors Ass’n, Inc. v. Pennsylvania,

ici ta ee inidaitiiadianlibanaieaseani 3,9

Goff v. Cont Oil Co.,

Se GIES BID ictcesecccessccosscssocsosscsssseieonenns 19

Hart v. Transit Mgmt. of Racine, Inc.,

426 F.3d SES (Tihs Cir. 2006)........0cccccccccsscssccccccsscsscssooes 6,7

Hawkins v. 1115 Legal Serv. Care,

ee ee TY CD scretetcsintceisiiicrassecsnsanenmniniicidtds 6

ill

TABLE OF AUTHORITIES — Continued

Page

Humphries v. CBOCS West, Inc.,

O74 F.BG SBT (TU Cie, 9007)..000ssccccccccscscccccccoscccceees passim

Jackson v. Birmingham Bd. of Educ.,

4 re passim

Johnson v. Ry. Express Agency, Inc.,

I a seraemnellaatel 17

Johnson v. Univ. of Cincinnati,

so ccctneatneiiicsieapesinmnenioasiboans 7

Jones v. Alfred H. Mayer Co.,

Ee 9,10, 12

Jones uv. R.R. Donnelley & Sons Co.,

cin cecnctntnieanensctabeninnenenti 3, 12,14

Kim v. Nash Finch Co..,

Bee Ee PP OEE GES BOI Y Pc cccccccccocnsncnsncnccccocsenscocoenses 6

Landgraf v. USI Film Prods.,

I seinem 4,15

Ledbetter v. Goodyear Tire & Rubber Co.,

I ier rtiredicilidieite 16

Little v. United Techs.,

BD ee We Cte CII, BOF) ccvcccccccsscccscsccsosecccccocovens 6, 7

Manatt v. Bank of Am., N.A.,

I I, a sersaseiennctineunsoienuemsinnens 5

O’Neal v. Ferguson Constr. Co.,

BT | 6

Patterson v. McLean Credit Union,

ea es eT passim

Rivers v. Ry. Express, Inc.,

Se IIE cidcnbiinteceencnthinennsenindnndidastmiieni 12,15, 18

iv

TABLE OF AUTHORITIES — Continued

Pag

Runyon v. McCrary,

lirica a aecenctectenntanenintiaide 3, 9, 14,17

Sullivan v. Little Hunting Park, Inc.,

EE ee passim

Tillman v. Wheaton-Haven Recreation Ass’n,

sea a canepsnenaclinnssiaines 3,9

Zedner v. United States,

ns aihcerniaiicattncidniiainnesabiaiits 15

STATUTES AND OTHER MATERIALS

Se I iain ienraanatiaitrenmniensedetutinietaaiinnials 10

Ee Lt TT i otiinhnocietdomarsnienunentbonensiasnenniennnncetenti passim

sisi ncinscinsnishendnndinninuipesiensaiieesiabiinstiancloa passim

ON sans caatincinsceipeninitntinibeteiionenionaninill 2,18

cara ssrercanciecennemenninsiinininenenteliéd 18

ie siceceteitenaridininnncdsatinunmiininmeipiild 18

Civil Rights Act of 1866, 14 Stat. 27.00.0000... eee passim

Civil Rights Act of 1991, Pub. L. No. 102-166, 105

SS TEITITET tricsteihd tli ediiccichineabaeninennnteitacncinbecdinpsonastamnatal passim

Fe nen nee 15, 16

Fe a ee See visi cacsinlineneuedasonsdecndtcnoeesionesdeens 18

Be I IID I oa iiirsinntanncinescnpenseenanitnonenconbicneanbiinns 8

1

RESPONDENT’S BRIEF IN OPPOSITION

In asking the Court to grant review of the issue

whether retaliation claims are cognizable under 42 U.S.C.

§ 1981, Petitioner CBOCS West, Inc. (“Cracker Barrel”)

repeatedly states that the issue suffers from jurispruden-

tial “vacillation and uncertainty.” Such “vacillation and

uncertainty,” however, exists only in Cracker Barrel’s

imagination. All eight circuits to consider the question

have unanimously recognized retaliation claims under

section 1981. Moreover, this Court held only two years ago

in Jackson v. Birmingham Board of Education, 544 U.S.

167 (2005), that retaliation is a form of discrimination, and

in doing so reaffirmed the holding in Sullivan v. Little

Hunting Park, Inc., 396 U.S. 229 (1969), that retaliation

claims are cognizable under 42 U.S.C. § 1982, the compan-

ion statute to section 1981. There is no confusion, no

vacillation, and no uncertainty. There is simply no reason

for the Court to grant Cracker Barrel's petition for a writ

of certiorari.

S

STATEMENT OF THE CASE

Respondent Hedrick Humphries, an African-

American, was an associate manager at a Cracker Barrel

restaurant in Bradley, Illinois. Pet. App. 3a. He com-

plained to his supervisors about race discrimination, and

Cracker Barrel fired him shortly thereafter. Pet. App. 4a-

5a. Mr. Humphries timely filed a charge with the Equal

Employment Opportunity Commission (“EEOC”), which

conducted an investigation and issued Mr. Humphries a

right-to-sue letter. Within ninety days of receiving the

letter, Mr. Humphries timely filed a pro se complaint

against Cracker Barrel, alleging race discrimination and

2

retaliation under Title VII of the Civil Rights Act of 1964,

42 U.S.C. § 2000e, et seg., and 42 U.S.C. § 1981.

At the same time he filed his pro se complaint, Mr.

Humphries filed an application to proceed in forma pau-

peris (“IFP”). The district court denied the application

partly because Mr. Humphries did not provide the court

enough information about his expenses. Although Mr.

Humphries filed two amended IFP applications to clarify

those issues, the district court denied both amended

applications and ordered Mr. Humphries to pay the filing

fee, which he did on January 12, 2004.

Cracker Barrel then moved to dismiss the Title VII

claims on the ground that Mr. Humphries did not pay his

filing fee within ninety days after receiving his right-to-

sue letter. By this time, Mr. Humphries had retained

counsel, who argued that the IFP applications tolled the

time to pay the filing fee and that Mr. Humphries had paid

the fee when the court ordered him to do so. The district

court nevertheless dismissed Mr. Humphries’ Title VII

claims, and the case proceeded on the section 1981 claims

only. Those claims were dismissed on summary judgment

in October 2005. In the district court, Cracker Barrel

failed to raise any argument that retaliation claims are

not cognizable under section 1981. Pet. App. 5a-6a. When

Mr. Humphries appealed the dismissal of the section 1981

claims, he did not appeal the dismissal of his Title VII

claims because Cracker Barrel had not previously chal-

lenged the viability of his claims under section 1981.

Nonetheless, on appeal Cracker Barrel argued for the first

time that retaliation claims are not cognizable under

section 1981. Jd. The Seventh Circuit rejected that argu-

ment and reversed the grant of summary judgment.

3

The sole issue that Cracker Barrel asks the Court to

review is whether retaliation claims are cognizable under

section 1981, which states as follows:

(a) All persons within the jurisdiction of the

United States shall have the same right in every

State and Territory to make and enforce con-

tracts, to sue, be parties, give evidence, and to

the full and equal benefit of all laws and proceed-

ings for the security of persons and property as is

enjoyed by white citizens, and shall be subject to

like punishment, pains, penalties, taxes, licenses,

and exactions of every kind, and to no other.

(b) For the purposes of this section, the term

“make and enforce contracts” includes the mak-

ing, performance, modification, and termination

of contracts, and the enjoyment of all benefits,

privileges, terms, and conditions of the contrac-

tual relationship.

(c) The rights protected by this section are pro-

tected against impairment by nongovernmental

discrimination and impairment under color of

State law.

The language in section 1981(a) was initially part of

section 1 of the Civil Rights Act of 1866 (“1866 Act”), which

was later broken into section 1981 and its companion

statute section 1982. See, e.g., Jones v. R.R. Donnelley &

Sons Co., 541 U.S. 369, 372 (2004) (discussing history of

section 1981); Gen. Bldg. Contractors Ass’n, Inc. v. Penn-

sylvania, 458 U.S. 375, 383-84 (1982) (same, and referring to

sections 1981 and 1982 as “companion” statutes); Runyon v.

McCrary, 427 U.S. 160, 170 (1976) (same); Tillman v. Whea-

ton-Haven Recreation Ass'n, 410 U.S. 431, 439-40 (1973)

(discussing the “historical relationship” between sections

1981 and 1982). The language in sections 1981(b) and (c)

4

was added in 1991 when Congress enacted the Civil

Rights Act of 1991 (“1991 Act”), Pub. L. No. 102-166, 105

Stat. 1071.

Congress passed the 1991 Act in direct response to

this Court’s decision in Patterson v. McLean Credit Union,

491 U.S. 164, 177 (1989), which narrowly interpreted the

phrase “make and enforce contracts” as excluding “conduct

by the employer after the contract relation has been

established.” See Landgraf v. USI Film Prods., 511 U.S.

244, 251 (1994) (finding that section 101 of the 1991 Act

“amended the 1866 Civil Rights Act’s prohibition of racial

discrimination in the ‘making and enforcement [of] con-

tracts’ in response to Patterson v. McLean Credit Union”)

(citations omitted). Prior to Patterson, there was a “gen-

eral consensus” in the circuit courts that section 1981

prohibited retaliation. Humphries v. CBOCS West, Inc.,

Pet. App. 12a; see also Choudhury v. Polytechnic Inst. of

N.Y., 735 F.2d 38, 42-43 (2d Cir. 1984). Patterson changed

that legal landscape, and in response Congress amended

section 1981 to add the broad definition of “make and

enforce contracts” that is quoted above. Congress titled

this section of the 1991 Act “Prohibition Against A// Racial

Discrimination in the Making and Enforcement of Con-

tracts.” Civil Rights Act of 1991, § 101 (emphasis added).

As explained below, all circuits that have analyzed the

1991 amendment to section 1981 have interpreted it to

prohibit retaliation. That unanimous conclusion is consis-

tent with the Court’s decisions in Jackson v. Birmingham

Board of Education, 544 U.S. 167 (2005), and Sullivan v.

Little Hunting Park, Inc., 396 U.S. 229 (1969). Also sup-

porting that result is the text of the 1991 Act, the House

Committee Report for the 1991 Act, and public policy

encouraging the enforcement of civil rights statutes.

5

Finally, the Court should deny the writ because Cracker

Barrel sandbagged Mr. Humphries by first raising its

section 1981 argument after it was too late to appeal the

district court’s Title VII ruling.

S

REASONS FOR DENYING THE WRIT

A. The Circuit Courts Agree That Retaliation Claims

Are Cognizable Under Section 1981.

Despite Cracker Barrel’s claim of widespread “vacilla-

tion and uncertainty” on this issue, there is simply no split

of authority in the circuit courts regarding whether re-

taliation claims are cognizable under section 1981. All

eight circuits to address this issue — the Second, Fourth,

Fifth, Seventh, Eighth, Ninth, Tenth, and Eleventh -

unanimously hold that section 1981 prohibits retaliation.

See Aleman v. Chugach Support Serv., 485 F.3d 206, 213-

14 (4th Cir. 2007) (rejecting argument that “Section 1981

does not contain an anti-retaliation provision” because “it

is foreclosed by Supreme Court and circuit precedent,

which hold retaliation to be a form of differential treat-

ment subsumed in the antidiscrimination language of

Section 1981”); Pet. App. 20a (“[T]he issue before us is

whether section 1981, as amended by the Civil Rights Act

of 1991, applies to claims of retaliation. We hold that it

does.”); Foley v. Univ. of Houston Sys., 355 F.3d 333, 339

(5th Cir. 2003) (“We hold that an employee’s claim that he

was subjected to retaliation because he complained of race

discrimination is a cognizable claim under § 1981(b).”);

Manatt v. Bank of Am., N.A., 339 F.3d 792, 800-01 (9th

Cir. 2003) (reaffirming prior holding that where “a plain-

tiff charges an employer with racial discrimination in

taking retaliatory action, a cause of action under § 1981

6

has been stated”); O’Neal v. Ferguson Constr. Co., 237 F.3d

1248, 1258 (10th Cir. 2001) (“Both Title VII and § 1981

support a cause of action for retaliation.”); Hawkins v. 1115

Legal Serv. Care, 163 F.3d 684, 693 (2d Cir. 1998) (“We

remain of the view, in light of the broad sweep of § 1981(b),

that a retaliation claim may be brought under § 1981.”);

Andrews v. Lakeshore Rehab. Hosp., 140 F.3d 1405, 1412-

13 (11th Cir. 1998) (claim alleging “retaliation due to filing

a race-based claim with the EEOC ... is cognizable under

the amended section 1981”); Kim v. Nash Finch Co., 123

F.3d 1046, 1054, 1059 (8th Cir. 1997) (“[A] claim of retalia-

tion, in a racial discrimination context, can violate both

Title VII and 42 U.S.C. § 1981.”).

Confronted with the unanimity of the circuits on this

issue, Cracker Barrel attempts to create legal uncertainty

where none exists by arguing that the Seventh and Elev-

enth Circuits recently “reversed course” on this issue. Pet.

7, 9. Not true. Both circuits agree that retaliation claims

arising after the 1991 Act may be brought under section

1981, and they never held otherwise. Pet. App. 20a;

Andrews, 140 F.3d at 1412-13. Although both circuits

limited standing to bring a retaliation claim under section

1981 to individuals who complained of discrimination they

personally suffered, see Hart v. Transit Mgmt. of Racine,

Inc., 426 F.3d 863, 865-66 (7th Cir. 2005), and Little v.

United Techs., 103 F.3d 956, 961 (11th Cir. 1997), neither

circuit hel’ that retaliation was never actionable under

section 198:.' Indeed, that was an open issue in the

* The Sevent.: Circuit overruled Hart on an issue not presented

here, i.e., whether an individual may sue under section 1981 for being

retaliated against for opposing discrimination suffered by someone

outside his or her protected class. Pet. App. 30a-3la. The Eleventh

Circuit has yet to revisit that issue in light of this Court's decision in

(Continued on following page)

7

Seventh Circuit before Humphries was decided. Pet. App.

19a (“This is the first opportunity we have had since the

enactment of the Civil Rights Act of 1991 to revisit the

issue of whether section 1981 forbids all retaliatory

discharge claims. Cracker Barrel contends that our deci-

sion in Hart has already foreclosed retaliation claims

under section 1981. This is incorrect.”) (citation omitted).

The Eleventh Circuit likewise noted that, after Little, the

issue whether section 1981 forbids retaliation “remained

open” in the Eleventh Circuit. Andrews, 140 F.3d at 1412.

Thus, neither circuit changed course on this issue as

claimed by Cracker Barrel. Pet. 7.

Cracker Barrel’s characterization that there is an

“apparent intra-circuit split” on this issue in the Sixth

Circuit is equally misleading. Pet. 8. The Sixth Circuit has

not yet decided whether after the 1991 Act retaliation

claims are cognizable under section 1981. It has hinted in

dicta that it would recognize such claims, but the issue has

not been squarely before it. Johnson v. Univ. of Cincinnati,

215 F.3d 561, 573-76 (6th Cir. 2000) (relying heavily on

Sullivan and observing that “it is clear that a Caucasian

high-level affirmative action official could bring a claim

under § 1981 ... for discrimination based upon his advo-

cacy on behalf of minorities . . . ”). Cracker Barrel suggests

that Day v. Wayne County Board of Auditors, 749 F.2d

1199 (6th Cir. 1984), is evidence of an internal] split, but

that case is inapposite for two reasons. First, Day was

Jackson. And contrary to Cracker Barrel’s argument, Andrews does not

conflict with Little. Pet. 7. The plaintiff in Andrews was retaliated

against for complaining about discrimination she personally suffered,

while the Little plaintiff, like the Hart plaintiff, complained of retalia-

tion for opposing discrimination suffered by someone outside her

protected class. Andrews, 140 F.3d at 1412-13.

8

decided before both Patterson and the 1991 Act. Second,

the section 1981 claim in Day was abandoned on appeal,

and the Sixth Circuit therefore reached no conclusion

about whether retaliation claims are viable under section

1981. Day, 749 F.2d at 1202. Moreover, even if there were

an “intra-circuit split” in the Sixth Circuit, that would still

not warrant review by the Court. See S. Ct. Rule 10. The

Sixth Circuit is capable of and respcnsible for resolving

any internal conflict by, for example, conducting an en

banc review. See Gaddis v. Redford Twp., 364 F.3d 763,

770 (6th Cir. 2004) (“We have a settled procedure for

resolving cases of intra-circuit conflict.”), Therefore,

nothing about the state of the law in the Sixth Circuit

supports Cracker Barrel’s petition for a writ of certiorari.

In sum, the circuit courts to consider this issue are in

agreement that retaliation claims are cognizable under

section 1981. In fact, just two months ago in an opinion

written by Judge Wilkinson, the Fourth Circuit joined the

other circuits on this issue. Aleman, 485 F.3d at 213-14.

Thus, because there is no confusion, no disagreement, and

no split in the circuits for this Court to resolve, Cracker

Barrel’s petition should be denied.

B. The Issue Is Already Settled By Supreme Court

Precedent.

It is no surprise that there is no circuit split on this

iseve because Supreme Court precedent has settled the

question. Two of the Court’s decisions, Jackson v. Birming-

ham Board of Education, 544 U.S. 167 (2005), and Sullivan

v. Little Hunting Park, Inc., 396 U.S. 229 (1969), taken

separately or together, resolve the question whether retalia-

tion claims are cognizable under section 1981. Those cases

9

hold that (1) section 1982 (the companion statute to

section 1981) supports retaliation claims, see Sullivan, 396

U.S. at 237; and (2) retaliation “is a form of ‘discrimina-

tion’ because the complainant is being subjected to differ-

ential treatment,” Jackson, 544 U.S. at 174.

In Sullivan, a white homeowner rented a house to a

black man and sought to assign him a membership inter-

est in a private community park. 396 U.S. at 234-35. The

corporation that owned the park refused to approve the

assignment to a black man, and when the white home-

owner protested, the corporation retaliated by expelling

him from the corporation. Jd. The Supreme Court recog-

nized the white homeowner’s right to sue under sec-

tion 1982 because he had been “punished for trying to

vindicate the rights of minorities protected by § 1982.” Jd.

Although the word “retaliation” never appears in Sullivan

or in the text of section 1982, this Court later explained

that “in Sullivan we interpreted a general prohibition on

racial discrimination to cover retaliation against those

who advocate the rights of groups protected by that

prohibition.” Jackson, 544 U.S. at 176.

The applicability of Sullivan to section 1981 cannot be

questioned because both sections 1981 and 1982 were

carved from section 1 of the Civil Rights Act of 1866 and

therefore share the same general purpose and historical

origins. See, e.g., Gen. Bldg. Contractors, 458 U.S. at 384;

Runyon, 427 U.S. at 170; Tillman, 410 U.S. at 439-40. There

is simply no meaningful analytical reason to conclude that

section 1982 prohibits retaliation while section 1981 does

not. Indeed, this Court often looks to section 1982 to inter-

pret section 1981. See Gen. Bidg. Contractors, 458 U.S. at

384; Runyon, 427 U.S. at 170; Tillman, 410 U.S. at 439-40.

For example, in Runyon, the Court relied on Jones v. Alfred

10

H. Mayer Co., 392 U.S. 409, 423-24 (1968), a case holding

that section 1982 prohibits discrimination in the private

sector as well as by state actors, to hold that section 1981

also applies in the private sector. Sullivan was decided

nearly 40 years ago, and Congress has not deemed it

necessary to alter its holding that retaliation claims are

actionable under section 1982. In fact, in passing the 1991

Act, Congress strengthened section 1981, knowing that the

Court uses the same principles to interpret sections 1981

and 1982.’ Thus, the Court should deny Cracker Barrel’s

petition because the matter is settled by Sullivan.

More recent Supreme Court precedent also eliminates

any need for review of this case. In Jackson v. Birming-

ham Board of Education, a male coach of a high school

girls’ basketball team complained to his supervisors that

the girls’ team did not receive equal funding and access to

athletic equipment and facilities. 544 U.S. at 171-72. In

retaliation for his complaints, he was removed as the

team’s coach. Jd. at 172. The coach sued under Title IX of the

Education Amendments of 1972, 20 U.S.C. § 1681(a), which

provides that “[nJo person in the United States shall, on the

basis of sex, be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under any

* Because Sullivan interprets a statute, as opposed to the Consti-

tution, this Court gives it special deference as precedent. Patterson, 491

U.S. at 172-73 (“[T)he burden borne by the party advocating the

abandonment of an established precedent is greater where the Court is

asked to overrule a point of statutory construction. Considerations of

stare decisis have special force in the area of statutory interpretation,

for here, unlike in the context of constitutional interpretation, the

legislative power is implicated, and Congress remains free to alter what

we have done.”).

11

education program or activity receiving Federal financial

assistance.”

The lower courts had held that the coach could not

bring a retaliation claim under Title IX because the word

“retaliation” does not appear in the statute. In rejecting

that overly restrictive reading of Title IX, this Court held

that retaliation is a form of discrimination and as such is a

cognizable claim under Title IX:

Retaliation against a person because that person

has complained of sex discrimination is another

form of intentional sex discrimination encom-

passed by Title IX’s private cause of action. Re-

taliation is, by definition, an intentional

act. It is a form of “discrimination” because

the complainant is being subjected to dif-

ferential treatment. Moreover, retaliation is

discrimination “on the basis of sex” because

it is an intentional response to the nature of

the complaint: an allegation of sex dis-

crimination. We conclude that when a funding

recipient retaliates against a person because he

complains of sex discrimination, this constitutes

intentional “discrimination” “on the basis of sex,”

in violation of Title IX.

Jackson, 544 U.S. at 173-74 (bold emphasis added, italics

in original).

Jackson is on point here because, like Title IX, section

1981 does not use the word “retaliation” and instead

broadly prohibits differential treatment. According to

Jackson, that broad prohibition encompasses retaliation

because retaliation is differential treatment on the basis of

a complaint about discrimination. That rationale applies

equally to section 1981 because retaliation for opposing

12

race discrimination is differential treatment based on the

racial nature of the complaint. Further proof that Jackson

resolved this issue in the context of section 1981 is that

Jackson relied heavily on Sullivan and expressly con-

cluded that “retaliation for advocacy on behalf of a black

lessee in Sullivan was discrimination on the basis of race.”

Id. at 176-77 (emphasis added).

In holding that retaliation is a form of discrimination

prohibited by Title IX, Jackson reasoned that it should

interpret Title IX broadly because Congress wrote it in

broad terms and therefore “gave the statute a broad

reach.” Jd. at 175, Likewise, section 1981 is written in

broad terms, and it simply cannot be disputed that Con-

gress — both in 1866 and in 1991 — intended to give section

1981 a broad reach. The careful and thorough analysis of

the 1866 Act in Jones v. Alfred H. Mayer Co., leaves no

doubt that Congress intended the 1866 Act to have an

expansive scope. 392 U.S. at 422 & 426-27 (holding that

the 1866 Act “was cast in sweeping terms” to prohibit “all

racially motivated deprivations of the rights enumerated

in the statute” and further stating that such “broad

language” was not a “mere slip of the legislative pen”)

(emphasis in original). See also Sullivan, 396 U.S. at 237

(cautioning against a “narrow construction of the language

of § 1982” because it “would be quite inconsistent with the

broad and sweeping nature of the protection meant to be

afforded by § 1 of the Civil Rights Act of 1866, 14 Stat. 27,

from which § 1982 was derived.”). And in 1991, Congress

strengthened and expanded the broad sweep of section

1981. Rivers v. Ry. Express, Inc., 511 U.S. 298, 303 (1994);

Jones, 541 U.S. at 372 n.17. The very first sentence of the

1991 Act states that it is intended to “strengthen and

improve Federal civil rights laws ... ” Civil Rights Act of

13

1991, 105 Stat. at 1071 (emphasis added). The statute

further states that one of its purposes is “to respond to

recent decisions of the Supreme Court by expanding the

scope of the relevant civil rights statutes in order to

provide adequate protection to victims of discrimination.”

Id. at Sec. 3(4) (emphasis added). Because section 1981 is

an intentionally broadly written statute, the holding in

Jackson that retaliation is a form of discrimination applies

with equal force to section 1981.

Sullivan and Jackson already resolved all the issues

needed to determine whether section 1981 prohibits

retaliation. Jackson is a very recent case, and the holding

in Sullivan was reaffirmed in Jackson. Neither Sullivan

nor Jackson has caused confusion in the circuit courts,

which all agree that retaliation claims are cognizable

under section 1981. Thus, because this Court has already

spoken on these issues, and because there is no confusion

in the circuit courts, the Court need not grant Cracker

Barrel’s petition for a writ of certiorari.

C. The Seventh Circuit’s Interpretation Of Sec-

tion 1981 Is Uncontroversial And Appropriate.

Cracker Barrel contends that this Court should grant

review because Humphries “ignore[d]” the text of the

statute and “relied heavily, if not exclusively,” on the

legislative history of section 1981. Pet. 9. Nothing could be

further from the truth, as even a cursory reading of the

opinion makes clear. Instead, Cracker Barrel is really

claiming that because section 1981 does not use the word

“retaliation,” the Seventh Circuit’s analysis has no “tex-

tual support.” Pet. 9. Cracker Barrel is wrong.

14

The structure and language of section 1981(b) make

clear that it prohibits retaliation. Section 1981(b) states

“for purposes of this section, the term ‘make and enforce

contracts’ includes the making, performance, modification,

and termination of contracts, and the enjoyment of all

benefits, privileges, terms, and conditions of the contrac-

tual relationship.” It is unsurprising that this list, which is

cast in terms of the most basic categories of contract

activity — performance, modification, and termination —

does not refer to the legal claim of retaliation, or, for that

matter, discrimination and harassment. Yet there has

never been any doubt that racial discrimination claims are

actionable under section 1981. See, e.g., Runyon, 427 U.S.

at 169 (“It is now well established that § 1 of the Civil

Rights Act of 1866, 14 Stat. 27, 42 U.S.C. § 1981, prohibits

racial discrimination in the making and enforcement of

private contracts.”). As for harassment claims, the Court

has already recognized that Congress enacted the 1991 Act

in part to undo Patterson’s holding that harassment claims

are not cognizable under section 1981, even though the

word “harassment” is not included in the amended section

1981. See Jones, 541 U.S. at 372-73. Thus it cannot be that

the absence of the word “retaliation” from the list of

contract-related activities in section 1981(b) means that

such claims are not cognizable under section 1981.

Furthermore, in focusing exclusively on the absence of

the word “retaliation” from section 1981, Cracker Barrel

itself ignores the text of the 1991 Act, which is the best

indication of the statute’s purpose. The 1991 Act states

that the purpose of the Act is “to expand|[] the scope of

relevant civil rights statutes in order to provide adequate

protection to victims of discrimination.” Civil Rights Act of

1991, 105 Stat. at 1071, at Sec. 3(4). Cracker Barrel’s

15

proposed narrow reading of section 1981 to exclude re-

taliation is at odds with this purpose.

Moreover, it is entirely proper to turn to the legisla-

tive history of the 1991 Act to confirm that Congress

intended for retaliation, like harassment and discrimina-

tion, to be prohibited conduct. That is exactly v hat the

Court did in Zedner v. United States, 126 S. Ct. 1976

(2006), where eight Justices acknowledged that the Court’s

“interpretation [of the Speedy Trial Act] is entirely in

accord with the Act’s legislative history.” Jd.‘ at 1985

(quoting at length from House and Senate Reports).

Indeed, the Court previously relied on the legislative

history of this very statute — the 1991 Act — to confirm its

conclusion that Congress did not intend the statute to

apply retroactively. See, e.g., Rivers, 511 U.S. at 305-09; see

also Landgraf, 511 U.S. at 262 (“The relevant legislative

history of the 1991 Act reinforces our conclusion . . . ”).

In addition, the relevant legislative history at issue

here is the most authoritative of all legislative history -

the Committee Reports. See, e.g., Eldred v. Ashcroft, 537

U.S. 186, 209 n.16 (2003) (“In surveying legislative history

we have repeatedly stated that the authoritative source for

finding the Legislature’s intent lies in the Committee

Reports on the bill, which ‘represent the considered and

collective understanding of those [members of Congress]

involved in drafting and studying proposed legislation.’”)

(citations omitted). In this case, the House Committee

Report “confirms that Congress intended retaliation to be

included within section 1981.” Pet. App. 21a; see also, e.g.,

H.R. REP. No. 102-40, pt. I, at 90 (1991) (“The list set forth

in subsection (b) is intended to be illustrative rather than

exhaustive. In the context of employment discrimination,

for example, this would include, but not be limited to,

16

claims of harassment, discharge, demotion, promotion,

transfer, retaliation, and hiring.”), id. at 92 (“In cutting

back the scope of the rights to ‘make’ and ‘enforce’ con-

tracts[,] Patterson also has been interpreted to eliminate

retaliation claims that the courts had previously recog-

nized under section 1981. Section 210 would restore rights

to sue for such retaliatory conduct.”) (citations omitted).’

In any event, the Seventh Circuit did not rely “heavily,

if not exclusively” on the legislative history. Pet. 9. To the

contrary, it was only a small part of the rationale in the

Humphries decision, and the use of legislative history to

confirm the conclusion reached by every circuit court to

consider this question is certainly not a reason to grant

the writ of certiorari.

D. Cracker Barrel’s Policy Argument Regarding

Overlap Between Section 1981 And Title VII Is

Irrelevant, Wrong, And Not A Reason To Grant

The Writ.

Cracker Barrel contends that public policy supports

granting the writ because allowing retaliation claims

under section 1981 would “eviscerate” certain administra-

t. 2 procedures required under Title VII. Pet. 16. Cracker

Barrel argues that the Court should grant the writ to end

the “senseless conflict” between Title VII and section 1981.

Pet. 17. That is not a proper reason to grant the writ. As

the Court has recognized, Congress intended to allow

plaintiffs to proceed under both Title VII and section 1981

* There was no Senate Committee Report for the 1991 Act.

Ledbetter v. Goodyear Tire & Rubber Co., 127 S.Ct. 2162, 2183 n5

(2007) (Ginsburg, J., dissenting).

17

independently, despite the absence of Title VII’s adminis-

trative procedures in section 1981:

[Tihe legislative history of Title VII manifests a

congressional intent to allow an individual to

pursue independently his rights under both Title

VII and other applicable state and federal stat-

utes. In particular, Congress noted “that the

remedies available to the individual under Title

VII are co-extensive with the indiv[ijdual’s right

to sue under the provisions of the Civil Rights

Act of 1866, 42 U.S.C. § 1981, and that the two

procedures augment each other and are not mu-

tually exclusive.” Later, in considering the Equal

Employment Opportunity Act of 1972, the Senate

rejected an amendment that would have de-

prived a claimant of any right to sue under

§ 1981.

Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 459

(1975) (citations omitted). See also Runyon, 427 U.S. at 174

& n.11 (same). Congress knew in 1991 that overlap existed

in the two statutory schemes, but rather than eliminate the

overlap, Congress increased the coverage of section 1981 to

include post-formation conduct, which had the obvious effect

of expanding the overlap with Title VII. Cf Civil Rights Act

of 1991, § 102(b)(4) (“Nothing in this section shall be con-

strued to limit the scope of, or the relief available under,

section 1977 of the Revised Statutes (42 U.S.C. 1981).”).

By increasing the coverage of section 1981, Congress

recognized that it has a purpose and function beyond any

overlap with Title VII. There are many retaliation claims

that cannot be brought under Title VII, and removing all

retaliation claims from the ambit of section 1981 would

leave those plaintiffs with no avenue for relief. For exam-

ple, employers with fewer than 15 employees are not

18

covered by Title VII. 42 U.S.C. § 2000e(b). In 1990, the

Senate found that section 1981 “is the only federal law

banning race discrimination applicable to the 3.7 million

firms with fewer than 15 employees.” S. Rep. No. 101-315,

pt. IV. Independent contractors are not protected by Title

VII. 42 U.S.C. § 2000e(b). Neither are employees of bona

fide private membership clubs, 42 U.S.C. § 2000e-2(a),

certain government entities, 42 U.S.C. § 2000e(b), Indian

tribes, id., and Alaska Native Corporations, 43 U.S.C.

§ 1626(g) (2000).* Furthermore, section 1981 applies to all

contracts outside the employment context. See Rivers, 511

U.S. at 304 (“Moreover, § 1981 (and hence § 101 [of the

Civil Rights Act of 1991]) is not limited to employment;

because it covers all contracts, a substantial part of § 101’s

sweep does not overlap Title VII.”) (emphasis in original,

citations omitted). Because there is no overlap between

Title VII and section 1981 in a substantial number of

employment and non-employment cases, excluding retalia-

tion claims from section 1981 on the basis of a partial

overlap with Title VII would be unwarranted.

Moreover, there are compelling public policy argu-

ments in support of the unanimous status quo, which

allows retaliation claims to proceed under section 1981.

First, removing retaliation claims from the purview of

* The Fourth Circuit's recent decision to join the other circuits on

the section 1981 issue is a perfect example of how removing retaliation

claims from section 1981 would leave many people without a remedy. In

Aleman, a Caucasian employee was terminated for reporting discrimi-

nation against Hispanic employees. 485 F.3d at 209. His employer was

an Alaska Native Corporation, which is not covered by Title VII. 43

U.S.C. § 1626(g). The Fourth Circuit correctly held that retaliation

claims are viable under section 1981 and that the exemption for AJaska

Native Corporations in Title VII does not apply to section 1981. Jd. at

213-14.

19

section 1981 would undermine the statute by giving

employers and other contractors free rein to punish

individuals for attempting to enforce their rights under

the statute. Retaliation must be prohibited by section 1981

to ensure that the statute is “an available and effective

remedy for racially motivated employment discrimina-

tion.” Choudhury, 735 F.2d at 43. “[A]n employee who is

punished for seeking administrative or judicial relief ...

has failed to secure that right to equal treatment which

constitutes the fundamental promise of § 1981.” Jd. Allow-

ing retaliation for reporting discrimination under section

1981 to go unchecked would render the statute meaning-

less because “[t]he ability to seek enforcement and protec-

tion of one’s right to be free of racial discrimination is an

integral part of the right itself.” Goff v. Cont’ Oil Co., 678

F.2d 593, 598 (5th Cir. 1982). As this Court explained in

the context of Title [X, “filf recipients were permitted to

retaliate freely, individuals who witness discrimination

would be loathe to report it, and all manner of Title IX

violations might go unremedied as a result.” Jackson, 544

U.S. at 180. The Court expressed the same concerns in the

context of section 1982. Sullivan, 396 U.S. at 237 (noting

that without protection against retaliation, the underlying

discrimination is perpetuated).

A second policy reason supporting the lower courts’

unanimous interpretation of the statute is that recognition

of a cause of action under section 1981 will help reduce

federal litigation. Allowing employers and other contractors

to retaliate against individuals for reporting discrimination

would create a strong disincentive for individuals to report

discrimination internally in the hopes of resolving the issue

without resorting to a federal lawsuit. In the context of

employment, instead of encouraging internal dispute

resolution, the removal of retaliation claims from section

20

1981 would only encourage employees to file suit without

first allowing the employer to remedy the situation.

Compare with Burlington Indus., Inc. v. Ellerth, 524 U.S.

742, 765 (1998) and Faragher v. City of Boca Raton, 524

U.S. 775, 807 (1998) (establishing affirmative defense in

Title VII harassment cases where employer can avoid

liability if the plaintiff “unreasonably failed to take advan-

tage of any preventive or corrective opportunities provided

by the employer”). Thus, in addition to the substantive

legal reasons for denying Cracker Barrel’s petition, these

policy reasons support the denial as well.

Even if this Court were inclined to address the limited

overlap between Title VII and section 1981, this is not the

proper case to highlight any potential abuse of that over-

lap. Mr. Humphries did not circumvent the administrative

procedures required by Title VII. He timely filed a charge

with the EEOC, which investigated and issued a right-to-

sue letter. Therefore, even if the limited overlap were a

legitimate concern and a reason to grant the writ, the facts

of this case do not put the issue squarely before the Court.

E. This Case Is An Inappropriate Vehicle For Decid-

ing Whether Retaliation Claims Are Cognizable

Under Section 1981 Because Cracker Barrel For-

feited The Issue By Failing To Raise It Before

The District Court.

Finally, the Court should deny the writ because Cracker

Barrel forfeited the issue when it failed to argue in the

district court that retaliation claims are not cognizable

under section 1981." The Seventh Circuit acknowledged

* Mr. Humphries preserved this argument by timely presenting it

to the Seventh Circuit. Pet. App. 5a-7a.

21

that Cracker Barrel forfeited the section 1981 issue but

nevertheless chose to consider and resolve it “in the

interests of justice.” Pet. App. 7a. Justice, however, would

only be served if this Court denies review of the section

1981 issue because, based on Cracker Barrel’s inaction in

the district court, Mr. Humphries proceeded solely on his

section 1981 claims after the district court dismissed his

Title VII claims.

Contrary to Cracker Barrel’s implication (which was

echoed by Judge Easterbrook in his dissent below), Pet.

16, Pet. App. 4la, Mr. Humphries timely filed a charge of

discrimination and retaliation with the EEOC. He also

timely filed his pro se complaint in the district court,

raising claims under both Title VII and section 1981. The

district court dismissed the Title VII claims only, because

Mr. Humphries tried unsuccessfully to proceed in forma

pauperis and missed the ninety-day deadline for paying

his filing fee. After the district court’s denial of his IFP

application, Mr. Humphries - still proceeding pro se — filed

two amended IFP applications to clarify issues raised by

the district court. The court nevertheless denied both

amended applications and ordered Mr. Humphries to pay

the fee. Although Mr. Humphries paid the fee, the district

court dismissed the Title VII claims because more than

ninety days had passed since Mr. Humphries had received

his right-to-sue letter.

Despite having compelling arguments that the district

court abused its discretion in dismissing the Title VII

claims, Mr. Humphries did not appeal those dismissals

because he had viable claims under section 1981. Had

Cracker Barrel put Mr. Humphries on notice in the district

court that it was challenging the viability of his section

1981 retaliation claim, Mr. Humphries would have cer-

tainly appealed the dismissal of his Title VII retaliation

22

claim. Instead of raising the issue in the district court,

Cracker Barrel sandbagged Mr. Humphries by raising the

section 1981 issue only after it was too late to appeal the

dismissal of his Title VII retaliation claim. If the Court

were to grant review of this case, it would not only se-

verely prejudice Mr. Humphries, but it would encourage

such tactics and reward parties for failing to raise issues

in the lower courts. Therefore, in addition to the unanim-

ity in the circuits and controlling Supreme Court prece-

dent on the section 1981 issue, the Court should deny the

writ due to Cracker Barrel’s inaction in the district court.

S

CONCLUSION

Cracker Barrel has not established any reason for this

Court to grant its petition for a writ of certiorari. There-

fore, Mr. Humphries respectfully requests that the petition

be denied.

Respectfully submitted,

CYNTHIA H. HYNDMAN

Counsel of Record

ANGEL M. KRULL

ALEEZA M. STRUBEL

ROBINSON CURLEY & CLAYTON, P.C.

300 South Wacker Drive,

Suite 1700

Chicago, Illinois 60606

(312) 663-3100 (Telephone)

(312) 663-0303 (Fax)

Counsel for Respondent

Hedrick G. Humphries