# Opposition Brief — CBOCS West, Inc. v. Humphries

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2008
- **Citation:** 553 U.S. 442

## Text

(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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385016_0536%3A03. Public record. Not legal advice.