Amicus Curiae Brief — Brown Group, Inc. v. Hicks

Iu the Supreme Court of the Unite?

OcToBER TERM, 1990 . meee

BROWN GROUP, INC. D/B/A BROWN SHOE COMPANY, INC.,

PETITIONER

v.

KENNETH O. HIcKs

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

KENNETH W. STARR

Solicitor General

JOHN R. DUNNE

Assistant Attorney General

JOHN G. ROBERTS, JR.

Deputy Solicitor General

ROGER CLEGG

Deputy Assistant Attorney General

Davip K. FLYNN

LOUISE A. LERNER

LESLIE A. SIMON

Attorneys

Department of Justice

Washington, D.C. 20530

(202) 514-2217

eee

7&

QUESTIONS PRESENTED

1. Whether the racially motivated discharge of an em-

ployee is actionable under 42 U.S.C. 1981.

2. Whether the instructions and special interrogatories

submitted to the jury allowed the jury to find a violation

of 42 U.S.C. 1981 in the absence of sufficient proof of

causation.

3. Whether the court of appeals erred in declining to

reverse the trial court’s finding of liability, since the

jury found that petitioner would have discharged re-

spondent even if race had not been a factor in the deci-

sion.

4. Whether the district court’s award of $1 in nominal

damages, following the jury’s determination that re-

spondent was not entitled to actual damages, violated pe-

titioner’s Seventh Amendment right to a jury trial.

(1)

——— ————

TABLE OF CONTENTS

Page

a cacbempsnonsesenvensiemoneouonmeons 1

oc pamedadecdenctivsomemasacinens 7

Neen sc imecscoeusnivaumusanvene 18

TABLE OF AUTHORITIES

Cases:

Bibbs v. Block, 778 F.2d 1318 (8th Cir. 1985) ........ 12

Burt v. Abel, 585 F.2d 613 (4th Cir. 1978) ............. 17

= Carey V. Piphus, 485 U.S. 247 (1978) .......002000000..... 6,17

Carter v. South Central Bell, 912 F.2d 832 (5th

GES RE ECS Sa 2 8

Chaffin Vv. Rheem Mfg. Co., 904 F.2d 1269 (8th Cir.

ES NSE 14

Courtney Vv. Canyon Television & Appliance

Rental, Inc., 899 F.2d 845 (9th Cir. 1990) ........ 8

Cummings V. Boston & M.R.R., 212 F.2d 133 (1st

Neen sccstnsinpeasonnie 16

Delaware State College v. Ricks, 449 U.S. 250

a sniubdineneonne 7

Dimick v. Schiedt, 293 U.S. 474 (1935) -.......0020..... 16

Edwards v. Jewish Hospital, 855 F.2d 1345 (8th

DE EE A 17

Estes v. Dick Smith Ford, Inc., 856 F.2d 1097 (8th

ESE RE Te 11, 13, 15

Goodman vy. Lukens Stee: Co., 482 U.S. 656

ESR 7

Gonzalez Vv. Home Insurance Co., 909 F.2d 716

TER TN eR 8

Hill v. Goodyear Tire & Rubber, Inc., 918 F.2d 877

I einen 8

Howard vy. International Molders & Allied Work-

ers Union, 779 F.2d 1546 (11th Cir.), cert. de-

a Se Eo | eee 17

Irby v. Sullivan, 737 F.2d 1118 (5th Cir. 1984) .... 17

Jett v. Dallas Independent School District, 109

GU sicseementnnnastnsenmnonsbane 7

IV

Cases—Continued: Page

Johnson V. Railway Express Agency, 421 U.S. 454

URE ill Eine RNs VRS ane Re PD 7

Lavender v. V & B Transmissions & Auto Repair,

897 F.2d 805 (5th Cir. 1990) ..............0000000000000... 8

Lytle v. Household Manufacturing, Inc., 110 S. Ct.

I paconuiineieeneaiinees 7,8

McDonald v. Santa Fe Trail Transp. Co., 427 U.S.

SEES PERRO ars iieee con Shawnee Ripe eee 7

McDonnell Douglas Corp. v. Green, 411 U.S. 792

Ns IEA Te SIE oar eh AOR 11

McKnight v. General Motors Corp., 908 F.2d 104

I ic en eteliieaiiamnign 8

Mt. Healthy City School District Bd. of Education

Fs Ge he CED acne 11,12

Patterson v. McLean Credit Union, 109 S. Ct.

en eaericomian 5, 11

Patterson v. Intercoast Mgmt. of Hartford, Inc.,

fhe &§ B- be A | Sunn 8

Prather v. Dayton Power & Light Co., 918 F.2d

/ %e % 3 lee eee 8

Price Waterhouse v. Hopkins, 109 S. Ct. 1775

a sechetdiimeadibtibaaianbinn 4,12

Reeves v. MCI Telecommunications Corp., 909

Se Aa a cemananepnale 8

Rocky Mountain Tool & Machine Co. v. Tecon

Corp., 371 F.2d 589 (10th Cir. 1966)... 16

Saint Francis College v. Al Khazraji, 481 U.S. 604

pet ll ec RN De IO? NO 2 PT OE Rn 7

Sofferin v. American Airlines, Inc., No. 89-2662

a i sane cepnemesnenenane 8

Spiller v. Ella Smithers Geriatric Center, 919 F.2d

i aipsatebaiamonsinnes 8

Taggart v. Jefferson County Child Support En-

forcement Unit, 915 F.2d 396 (8th Cir. 1990)... 9,18

Taylor v. Green, 868 F.2d 162 (5th Cir.), cert. de-

ee See es ee ee 17

Texas Dep’t of Community Affairs Vv. Burdine, 450

a ace ceeeircbinenenien 8, 11

Walker v. South Central Beli Telephone Co., 904

ef Ree 8

Cases—Continued : Page

Weaver Vv. Casa Gallardo, Inc., No. 89-3245 (11th

Re OE, one ee 8

Williams vy. First Union Nat’l Bank, 920 F.2d 232

Se OR, I ie plcodaseneniemnnnie 8

Constitution, statutes and regulations:

U.S. Const. : -

(EIRENE = EP ot DORR he aco E nN ESD TOE Noe He 11

Amend. VII...... =D Rape AERO ORI 3, 6, 14, 15, 16, 17

ET HI ai U1. s cennonttnccuniahendammaaemenmabias 11

Age Discrimination in Employment Act, 29 U.S.C.

eR RII RET SN SI etd LON NAP rs ON 1

Civil Rights Act of 1964, Tit. VII, 42 U.S.C. 2000e

I ciidet | acoincseeaictipiapnaxeiosvnaiieaksedceinn ee 4, 6,11, 14,17

a te aati cciravenctuticoscbaseecomacubecaneale: _..passim

II ich sn dateaccdeunccctenebsialaciudcamaiaaccemmmute ieee 17

Miscellaneous:

Black’s Law Dictionary (6th ed. 1990) _.................... 16

136 Cong. Rec. :

p. H9994 (daily ed. Oct. 17, 1990) _......000 0. 10

p. $1522 (daily ed. Feb. 22, 1990) 0.000. 10

p. $15,407 (daily ed. Oct. 16, 1990) ....00000000o.. 10

p. $16,418 (daily ed. Oct. 22,1990) —.....00000000.... 10

H.R. 1, 102d Cong., Ist Sess. (1991) .....00000000 cc oe.. 10

H.R. Conf. Rep. No. 856, 101st Cong., 2d Sess.

RIES ARRRERT Ri A ANS SSR dN Ae Cnc NO RT 10

6A Moore’s Federal Practice (2d ed. 1989) ........... 16-17

S. 2104, 101st Cong., 2d Sess. (1990) .....0000...-. ee. 10

S. 2166, 101st Cong., 2d Sess. (1990) ..........00000000000... 10

Ju the Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-324

BROWN GROUP, INC. D/B/A BROWN SHOE COMPANY, INC.,

PETITIONER

Vv.

KENNETH O. HICKS

ON PETITION FORA WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

This brief is submitted in response to the Court’s in-

vitation to the Solicitor General to file a brief expressing

the views of the United States.

STATEMENT

1. Respondent Kenneth Hicks, a white male, brought

this action under 42 U.S.C. 1981 and the Age Discrimi-

nation in Employment Act, 29 U.S.C. 621 et seg. He

claimed that his former employer, petitioner Brown

Group, Inc., had unlawfully discharged him because of

his race and age. See Pet. App. Al-A6. Petitioner de-

nied those allegations and presented evidence that it had

discharged respondent for legitimate, nondiscriminatory

reasons. Jd. at A3, A34-A35.

The case was tried before a jury in October 1988.

The presiding magistrate gave the jury the following

(1)

2

Instruction No. 9 on the issue of liability (Pet. App.

C1):

Plaintiff is required to prove that his race or his

age was either a determining factor or a discernible

or motivating factor in the defendant’s decision to

remove plaintiff from his position.

The term “determining factor” means a factor

which made a difference in determining whether or

not plaintiff was to be retained or terminated.

The term “discernible or motivating factor’? means

a factor which was among two or more factors that

played a part in, but did not necessarily control, the

decision whether or not to retain or to terminate

plaintiff.

Petitioner objected to this instruction on the ground that

the use of the phrase “discernible or motivating factor”

lessened the standard of proof required in a suit under

Section 1981. Pet. App. A37.

The magistrate also submitted the following Special

Interrogatories to the jury (Pet. App. C3-C4):

5. Do you, the jury, unanimously find by a pre-

ponderance of the evidence that defendant Brown

Group, Inc., intentionally discriminated against

plaintiff Kenneth Hicks on account of his race in

that his race was a determining factor in his termi-

nation from employment by defendant?

*% * * ” *

7. Do you, the jury, unanimously find by a pre-

ponderance of the evidence that defendant Brown

Group, Inc., intentionally discriminated against plain-

tiff Kenneth Hicks on account of his race in that his

race was a discernible or motivating factor in his

termination from employment by defendant?

* * * ~ *

10. Do you, the jury, unanimously find by a pre-

ponderance of the evidence that defendant Brown

Group, Inc., would have terminated plaintiff Kenneth

Hicks from employment, even had plaintiff’s race or

ee

3

age not been a discernible or motivating factor or a

determining factor in the decision to terminate?

The jury answered “yes” to each of these Interrogator-

ies. Pet. App. A44-A45, C3-C5. The jury also found

that petitioner had not discriminated against respondent

on the basis of age (Special Interrogatories Nos. 1 and

3), that respondent had not lost any back pay or benefits

as a result of the racial discrimination (Special Inter-

rogatory No. 6), and that respondent was entitled to

$10,000 in punitive damages (Special Interrogatory No.

9). Id. at C3-C4. The jury was not asked to consider

an award of nominal damages.

On October 26, 1988, the magistrate entered a judg-

ment in favor of respondent for $1 in nominal damages

and $10,000 in punitive damages. Pet. App. B1-B2.

2.a. Petitioner appealed the judgment, raising the

following arguments: (1) a cause of action does not lie

under 42 U.S.C. 1981 based on a discriminatory dis-

charge from employment; (2) the district court erred

in giving jury instructions and submitting special in-

terrogatories that, by using the phrase “discernible or

motivating factor,” permitted the jury to find a violation

of Section 1981 in the absence of sufficient proof that

respondent’s discharge was caused by intentional dis-

crimination; (3) the district court’s award of nominal

damages violated petitioner’s Seventh Amendment right

to a jury trial; and (4) the evidence presented at trial

was insufficient to support either the finding of liability

or the award of punitive damages. Pet. App. Al-A2.

Respondent filed a cross-appeal, contending that the

district court erred in denying his motion for reinstate-

ment and related equitable relief. Respondent argued

that he became entitled to such relief by virtue of the

jury’s finding (in response to Special Interrogatory No.

5) that his race was a determining factor in the dis-

charge decision. He further argued that the jury should

not have been allowed to answer Special Interrogatory

No. 10 (which asked whether petitioner would have made

4

the same decision even if race had not been a factor),

and that the jury’s affirmative answer to that Interroga-

tory should be disregarded as surplusage, since the jury

had already answered “yes” to Special Interrogatory No.

5. In the alternative, respondent requested a partial new

trial to enable the jury to determine, in light of its find-

ing that petitioner was motivated at least in part by

race, whether race actually made a difference in the

decision to discharge him. Pet. App. A44-A45.

b. On May 1, 1989, while the appeal and cross-appeal

were pending, this Court rendered its decision in Price

Waterhouse v. Hopkins, 109 S. Ct. 1775 (1989), which

involved a claim of gender discrimination in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C.

2000e et seg. The Court held that in a “mixed-motive”

case, a plaintiff must initially bear the burden of prov-

ing that an impermissible criterion such as gender was

a “motivating” or “substantial” factor in the employ-

ment decision; if the plaintiff carries that initial burden,

the defendant can avoid a finding of liability only by

proving by a preponderance of the evidence that it would

have made the same decision even in the absence of the

discriminatory motive. 109 S. Ct. at 1787-1788, 1790

(plurality opinion); id. at 1795 (White, J., concurring

in the judgment); id. at 1796, 1798 (O’Connor, J., con-

curring in the judgment). After Price Waterhouse was

decided, petitioner sought to raise a new issue in its

answering brief on respondent’s cross-appeal. Specifi-

cally, in answer to respondent’s contention that Special

Interrogatory No. 10 should be disregarded as super-

fluous, petitioner argued that the jury’s finding in re-

sponse to that interrogatory—that petitioner would have

made the same decision to discharge respondent even if

race had not been a factor—mandated entry of judg-

ment for petitioner under Price Waterhouse. Pet. App.

A45-A46.

ce. On June 15, 1989, while the appeal and cross-appeal

in the instant case were still pending, this Court ren-

5

dered its decision in Patterson v. McLean Credit Union,

109 S. Ct. 2363 (1989). In Patterson, the Court held

that 42 U.S.C. 1981, which guarantees all citizens “the

same right * * * to make and enforce contracts * * * as

is enjoyed by white citizens,” “cannot be construed as a

general proscription of racial discrimination in all as-

pects of contract relations,” but instead applies only to

“conduct at the initial formation of the contract and

conduct which impairs the right to enforce contract ob-

ligations through legal process.” 109 S. Ct. at 2372,

2374. The Court accordingly held that the racial harass-

ment Patterson allegedly suffered during her employ-

ment was not actionable under Section 1981, because it

was “postformation conduct by the employer relating to

the terms and conditions of continuing employment,” and

did not involve “impairment of her ability to enforce her

established contract rights.” Id. at 2374.

3.a. On April 16, 1990, a divided panel of the Eighth

Circuit affirmed the district court’s judgment in all re-

spects in this case. Pet. App. Al-A48. The court first

concluded that Patterson left open the question whether

42 U.S.C. 1981 covers racially motivated discharges. Pet.

App. A8-Al14. It then held that discriminatory discharge

claims continue to be cognizable under Section 1981. Pet.

App. A14-A33. The court reasoned that, unlike racial

harassment (at issue in Patterson) or discrimination in

other terms or conditions of employment, a discrimina-

tory discharge “totally deprives the victim of the funda-

mental benefit the right to make contracts was intended

to secure—the contractual relationship itself.” Jd. at

A17-A18. Thus, in the court’s view, “[i]n order to give

meaning to the right to make contracts free from dis-

crimination, the right to be free from discriminatory

discharge must be implied.” /d. at Al6. The court also

believed that its interpretation was supported by the con-

text in which Section 1981 was enacted, especially the

importance attached in several studies during the Recon-

struction period to establishing a “free contract labor

system” to replace slavery. Pet. App. A21-A33.

6

Turning to the other issues raised by petitioner’s ap-

peal, the court of appeals held that the jury instructions

and special interrogatories, “‘[c]onsidered as a whole,

* * * adequately instructed the jury that [respondent]

was required to prove intentional or purposeful discrim-

ination to establish a Section 1981 violation.” Pet. App.

A38; see id. at A37-A38. Next, the court found sufficient

evidence to support the jury’s finding of liability and its

award of punitive damages. Jd. at A33-A37, A43-A44.

Finally, it held that the district court’s award of nominal

damages did not violate the Seventh Amendment, because

the jury’s finding of liability automatically entitled re-

spondent to nominal damages. Jd. at A39-A43 (citing

Carey V. Piphus, 435 U.S. 247 (1978) ).

b. The court of appeals declined to consider the merits

of respondent’s cross-appeal, in which he argued that he

was entitled to reinstatement and other equitable relief

by virtue of the jury’s finding under Special Interrogatory

No. 5 that race was a determining factor, and that the

district court therefore should have disregarded the jury’s

finding under Special Interrogatory No. 10 that petitioner

would have made the same decision if race had not been a

factor. The court of appeals concluded that because re-

spondent had not objected at trial to the submission of

Special Interrogatory No. 10 to the jury, that issue had

not been preserved for appellate review. Pet. App. A46.

Consequently, the court declined to consider petitioner’s

answer to the cross-appeal—namely, that under Price

Waterhouse, the jury’s answer to Special Interrogatory

No. 10 mandated judgment in its favor. Instead, it left

“for another day the determination of the precise effect

(if any)” of Price Waterhouse’s allocation of the burden

of proof under Title VII on Eighth Circuit precedents

under Section 1981. Pet. App. A46.

ce. Judge Fagg dissented on the ground that Patterson

precluded an action under Section 1981 for a discrimina-

tory discharge from employment. Pet. App. A47-A48.

7

4. Both parties petitioned for rehearing en banc. On

June 4, 1990, both petitions were denied, with four

judges dissenting. Pet. App. D1.

DISCUSSION

1. Petitioner first contends (Pet. 8-12) that the court

of appeals’ holding that racially motivated discharges are

cognizable under 42 U.S.C. 1981 conflicts with this Court’s

decision in Patterson and with the post-Patterson de-

cisions of other courts of appeals.

a. The court below concluded that Patterson did not

foreclose a determination that a racially motivated dis-

charge from employment is actionable under Section 1981.

It noted that no claim of discriminatory discharge was

before the Court in Patterson and that the Court did not

specifically discuss the applicability of Section 1981 to

such claims, make any mention of the Court’s prior

rulings on other issues in Section 1981 cases involving

discriminatory discharges,’ or refer to the large number

of discharge cases under Section 1981 in the lower courts.

Pet. App. All-Al4. Moreover, as the court below also

observed, id. at All-Al2, two decisions of this Court

since Patterson support the view that the discriminatory

discharge issue remains open in this Court. In Jett v.

Dallas Independent School District, 109 S. Ct. 2702

(1989), decided one week after Patterson, it was “as-

sume|d|] for purposes of these cases, without deciding,

that petitioner’s rights under [Section] 1981 have been

violated by his removal” from his position. Jd. at 2710.

And in Lytle v. Household Manufacturing, Inc., 110 S. Ct.

1331 (1990), another discharge case, the majority de-

clined to apply the analysis in Patterson to the facts of

1See Pet. App. Al2 (citing Goodman v. Lukens Steel Co., 482

U.S. 656 (1987); Saint Francis College v. Al Khazraji, 481 U.S.

604 (1987); Delaware State College v. Ricks, 449 U.S. 250 (1980) ;

McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 276 (1976);

and Johnson V. Railway Express Agency, 421 U.S. 454, 459-460

(1975) (citing lower-court discharge cases) ).

8

that case without the benefit of a full record or lower

court determinations on the issue, id. at 1336 n.3, and

Justice O’Connor wrote separately to note the Court’s

acknowledgement that “the question whether petitioner

ha[d] stated a valid claim under [Section] 1981 re-

main[ed] open” on remand. 110 S. Ct. at 1338-1339.

Nonetheless, the seven other courts of appeals that have

addressed the question since Patterson have all under-

stood the Court’s reasoning in that case to foreclose

suits under Section 1981 based on an allegedly discrim-

inatory discharge from employment, concluding that a

discharge, like the harassment at issue in Patterson, is

postformation conduct that falls outside Section 1981’s

prohibition against discrimination in the making or en-

forcement of contracts. See, e.g., Gonzalez v. Home In-

surance Co., 909 F.2d 716, 722 (2d Cir. 1990) ;* Wil-

liams v. First Union Nat’l Bank, 920 F.2d 232, 233-234

(4th Cir. 1990) ; Carter v. South Central Bell, 912 F.2d

832, 839 (5th Cir. 1990);* Prather v. Dayton Power

& Light Co., 918 F.2d 1255, 1256-1258 (6th Cir. 1990) ;

McKnight v. General Motors Corp., 908 F.2d 104, 108-

109 (7th Cir. 1990) ;* Courtney v. Canyon Television &

Appliance Rental, Inc., 899 F.2d 845, 849 (9th Cir.

1990) ; Thompkins v. DeKalb County Hospital Authority,

916 F.2d 600, 601 (11th Cir. 1990) ;° ef. Hill v. Goodyear

Tire & Rubber, Inc., 918 F.2d 877 (10th Cir. 1990)

2See also Patterson vy. Intercoast Mgt. of Hartford, Inc., 918

F.2d 12, 13-14 (2d Cir. 1990).

3 See also Spiller v. Ella Smithers Geriatric Center, 919 F.2d 339,

344 (5th Cir. 1990); Reeves v. MCI Telecommunications Corp., 909

F.2d 144 (5th Cir. 1990) (per curiam); Walker v. South Central

Bell Telephone Co., 904 F.2d 275, 276-277 (5th Cir. 1990) ; Lavender

v. V & B Transmissions & Auto Repair, 897 F.2d 805, 807-808

(5th Cir. 1990).

4See also Sofferin v. American Airlines, Inc., No. 89-2662 (7th

Cir. Jan. 29, 1991), slip op. 17.

5 See also Weaver v. Casa Gallardo, Inc., No. 89-3245 (11th Cir.

Feb. 1, 1991), slip op. 1856-1857.

ee

9

(holding retaliatory discharge claim is not actionable

under 42 U.S.C. 1981, but declining to decide whether

discriminatory discharge claim is actionable). The Eighth

Circuit’s decision in this case is clearly in conflict with

these post-Patterson decisions of other courts of appeals.

b. Review by this Court ordinarily would be war-

ranted to resolve a circuit conflict on an issue of such

recurring importance. However, after the certiorari pe-

tition was filed in this case, and after the Court invited

the Solicitor General to express the views of the United

States, the Eighth Circuit granted rehearing en banc in

another case to address the same issue. Because the

Kighth Circuit—which stands alone—might eliminate the

circuit conflict without intervention by this Court, we

think that for the Court to grant plenary review in this

case for that purpose would be premature.

Following the Eighth Circuit’s denial of rehearing en

bane (over four dissents) in this case, another panel of

the same court expressed the view in Taggart v. Jef-

ferson County Child Support Enforcement Unit, 915 F.2d

396 (1990), that the decision below is wrong (id. at 397

(citations omitted) ) :

Absent the panel opinion in Brown Group, * * *,

we would affirm the district court. In our opinion,

the Supreme Court’s decision in Patterson precludes

section 1981 suits for discriminatory termination of

employment. * * * Although we disagree with the

Brown Group panel’s interpretation of Patterson,

“{a] decision of a panel of this court is the law of

the circuit and we are compelled to follow it.” Dud-

ley v. Dittmer, 795 F.2d 669, 673 (8th Cir. 1986).

Only the court en bane can disregard this precedent.

On December 11, 1990, the Eighth Circuit granted re-

hearing en bane in Taggart. The court ordered supple-

mental briefing on the question whether Section 1981

applies to discriminatory discharges, and oral argument

was held before the full court on February 1, 1991.

10

Thus, on the principal question presented, the petition

for a writ of certiorari seeks review of a panel decision

that is effectively being reconsidered by the en banc court

of appeals—and may be overruled—in another case, There

is no reason for this Court to grant plenary review of the

issue at this time.

Moreover, the last Congress passed a bill that, inter

alia, would have amended Section 1981 to make clear that

it covers termination of employment and other contracts.

S. 2104, 101st Cong., 2d Sess. § 12 (1990) ; see H.R. Conf.

Rep. No. 856, 101st Cong., 2d Sess. 8-9 (1990); 136 Cong.

Rec. $15,407 (daily ed. Oct. 16, 1990); id. at H9994

(daily ed. Oct. 17, 1990). Although the President vetoed

that bill, he did so for other reasons, and in fact the

President at the same time urged adoption of an alterna-

tive proposal that likewise would have expanded the cov-

erage of Section 1981 to cover the performance as well as

the making of contracts. Jd. at $16,418 (daily ed. Oct.

22, 1990). A bill has been introduced in the current

Congress that contains a similar provision to amend Sec-

tion 1981. H.R. 1, 102d Cong., Ist Sess. §12 (1991).

Thus, it is possible that action by the current Congress

will eliminate any continuing importance of the question

whether Section 1981, as now in effect, covers discrim-

inatory discharges.

For the foregoing reasons, we suggest that the Court

grant the petition for a writ of certiorari in this case,

vacate the judgment below, and remand the case to the

Eighth Circuit for further consideration in light of its

decision to rehear Taggart en banc. If the Court does so,

the Eighth Circuit could dispose of the instant case as

appropriate in light of whatever decision that court

renders in Taggart. If the en banc court holds in Tag-

gart that a discriminatory discharge is not actionable

6 The Administration previously had submitted a proposed bill

during the last Congress that would have made clear that Section

1981 covers discriminatory discharges. See S. 2166, 101st Cong.,

2d Sess. § 2 (1990) ; 186 Cong. Rec. $1522 (daily ed. Feb. 22, 1990).

11

under Section 1981, petitioner would prevail in this case,

the additional issues petitioner raises (see pages 11-17,

infra) would become moot, and the circuit conflict would

be eliminated. Conversely, if the en bane court reaches

the same conclusion in Taggart as the panel did in this

case, and if the panel below thereafter reinstates its af-

firmance of the district court’s judgment in favor of re-

spondent, petitioner could once again seek review in this

Court. Either way, subsequent legislative developments

might shed further light on the need for review by this

Court.

2. Petitioner also contends (Pet. 12-15) that the court

of appeals erred in sustaining a verdict based on a jury

instruction that permitted the jury to find liability if race

was a “discernible or motivating factor” in the decision to

discharge respondent. Petitioner is correct that the quoted

standard of liability is not equivalent to the standard

established by this Court in Mt. Healthy City School Dis-

trict Bd. of Education v. Doyle, 429 U.S. 274 (1977),

and Price Waterhouse.’ However, the posture of this

case and the context in which the instruction was given

render the issue largely academic in this case and of no

continuing importance generally.

In Mt. Healthy, the Court held that, in a challenge

under the First and Fourteenth Amendments to a de-

cision not to rehire a public employee, the plaintiff

initially bears the burden of proving that his constitu-

tionally protected conduct was a “substantial” or ‘“mo-

7 Although this Court has not stated whether the framework of

Mt. Healthy and Price Waterhouse should be applied in employment

discrimination cases under Section 1981, we see no reason why it

should not. Compare Patterson, 109 S. Ct. at 2377-2379 (applying

Title VII framework of McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973), and Texas Dep’t of Community Affairs v. Burdine,

450 U.S. 248 (1981), to claim of discriminatory denial of promotion

under Section 1981). We note as well that the Eighth Circuit held

(prior to Price Waterhouse) that the same “mixed-motive” analysis

should apply to claims under Title VII and Section 1981. See Estes

v. Dick Smith Ford, Inc., 856 F.2d 1097, 1102 n.2 (8th Cir. 1988).

12

tivating”’ factor in the decision. 429 U.S. at 287. The

burden then shifts to the defendant to prove that it would

have made the same decision even in the absence of the

protected conduct. Jbid. In Price Waterhouse, the Court

applied a similar analysis to a “mixed motive” sex dis-

crimination claim under Title VII, holding that if a

plaintiff proves that gender (or another impermissible

factor) played a “motivating” or ‘“‘substantial” part in

an adverse employment decision, the burden of proof

shifts to the defendant, who can then avoid a finding of

liability only by proving by a preponderance of the evi-

dence that it would have made the same decision even in

the absence of the discriminatory factor. 109 S. Ct. at

1787-1788, 1790, 1795 (plurality opinion) ; id. at 1795-

1796 (White, J., concurring in the judgment); see also

id. at 1798-1799, 1805 (O’Connor, J., concurring in the

judgment).* The Court declined to adopt the alternative

approach previously followed by several courts of appeals

(including the Eighth Circuit in Bibbs v. Block, 778 F.2d

1318, 1320-1324 (1985) (en banc)) that liability is es-

tablished if the plaintiff satisfies his or her initial burden,

described above, and that the employer’s burden goes to

the question of relief. 109 S. Ct. at 1784 n.2, 1787-1788

n.10 (plurality opinion) ; 7d. at 1796 (O’Connor, J., con-

curring in the judgment).

The trial in this case took place before Price Water-

house was decided, when Bibbs v. Block governed the

determination of liability in employment discrimination

cases in the Eighth Circuit. At that time, the Eighth

8 It is unclear to what extent one or both of the concurring opin-

ions in Price Waterhouse differed from the plurality opinion with

respect to the threshold showing the plaintiff must make to shift

the burden to the employer. See 109 S. Ct. at 1790 n.13 (plurality

opinion) ; id. at 1795 (White, J., concurring in the judgment) ; id.

at 1805 (O’Connor, J., concurring in the judgment). Any such

difference has no bearing on this case, because the jury’s finding

that respondent’s race was “a determining factor” (see pages 2-3,

supra, and page 13, infra) presumably would satisfy the threshold

standard under any of the three opinions in Price Waterhouse.

13

Circuit’s approach to mixed-motive cases was to require

a plaintiff to prove that race was either a “determining

factor” or a “discernible or motivating factor” in an

employment decision. Proof that race was a “determin-

ing factor” would establish liability and normally en-

title the plaintiff to reinstatement and back pay. Proof

that race was a “discernible or motivating factor” would

also establish liability, but if the trier of fact found that

the defendant would have made the same decision in the

absence of the illegitimate factor, the plaintiff would not

be entitled to reinstatement and back pay. See Estes v.

Dick Smith Ford, Inc., 856 F.2d 1097, 1102 (8th Cir.

1988).

In this case, the jury found in response to Special In-

terrogatory No. 5 that respondent’s race was a “deter-

mining factor” in the decision to discharge him, Pet. App.

C3, which, under the district court’s instructions, meant

that respondent’s race “‘made a difference” in that de-

cision. Jd. at Cl. Under then-prevailing Eighth Circuit

procedure, the jury should not have proceeded to answer

Special Interrogatory No. 7. See Estes, 856 F.2d at 1102.

But it did. Not surprisingly, the jury found in response

to that Interrogatory that respondent had also satisfied

the lesser burden of showing that his race was a “dis-

cernible or motivating factor” in the decision. That find-

ing, however, was unnecessary to the jury’s finding of

liability, since it had already found that race was a de-

termining factor. Thus, although the jury instructions

might have permitted a finding of liability under an in-

sufficient standard requiring nothing more than proof that

race was one “motivating” or “discernible” factor, that

did not happen in this case. Accordingly, any error in

the reference in the instructions and special interroga-

tories to whether race was a “motivating” or “discern-

ible” factor was of no moment even in this case. A for-

tiori, it does not present a question of broad importance

warranting review by this Court.

14

This issue is especially unworthy of review because the

district court’s instructions and special interrogatories

were given prior to Price Waterhouse, in the context of

what petitioner characterizes (Pet. 13) as the “unique

and confusing atmosphere” created by the special liabil-

ity and burden-shifting rules adopted by the Eighth Cir-

cuit in Bibbs and Estes, See Pet. 12-13. As the Eighth

Circuit has since acknowledged, Price Waterhouse will

now require that court to modify its approach to mixed-

motive cases under Title VII. See Chaffin v. Rheem Mfg.

Co., 904 F.2d 1269, 1274 (8th Cir. 1990). Presumably,

Price Waterhouse will also require the Eighth Circuit to

reevaluate its approach to mixed-motive cases under Sec-

tion 1981 as well (see note 7, supra), although the panel

below found it unnecessary to do so in this case. See

Pet. App. A46. Because the effect of Price Waterhouse

on Section 1981 cases was not decided below, and because

this case was tried under different principles prior to

Price Waterhouse, the instant case would not be an ap-

propriate vehicle for consideration of that issue by this

Court even if the issue otherwise warranted review.

3. Petitioner also contends (Pet. 15) that, under Price

Waterhouse, a jury finding (rendered here in answer to

Special Interrogatory No. 10) that the defendant would

have made the same employment decision irrespective of

considerations of race requires a verdict for defendant.

Petitioner’s argument is correct as a matter of law. But

the court below did not rule to the contrary; it did not

reach the question. Petitioner raised this argument in

its answer to respondent’s cross-appeal. Given the court

of appeals’ holding that respondent had not preserved

the issue he sought to raise on his cross-appeal because

he failed to object to the submission of Special Inter-

rogatory No. 10 to the jury, the court had no occasion

to reach petitioner’s counter-argument based on Speciai

Interrogatory No. 10. Pet. App. A46. There likewise

is no occasion for this Court to do so.

15

Moreover, by answering “yes” to Special Interrogatory

No. 5, the jury determined that race “made a difference”

in petitioner’s decision to discharge respondent. That

finding would appear to satisfy the requirements under

Price Waterhouse for finding an employer liable. Under

applicable Eighth Circuit precedent, the jury should not

then have been required te make a separate finding (here,

in response to Special Interrogatory No. 10) on whether

the employer would have made the same decision ir-

respective of considerations of race, just as the jury

should not have answered Special Interrogatory No. 7

(discussed at page 13, supra). See Estes, 856 F.2d at

1102. That the jury nevertheless did answer that in-

terrogatory, and gave a response that is seemingly in-

consistent with its answer to Special Interrogatory No.

5, does not raise any issue of general importance. Rather,

like petitioner’s other objections to the jury instructions

and interrogatories (discussed in point 2, supra), the

wording of and jury responses to the interrogatories at

issue here were tied directly to the Eighth Circuit’s pre-

Price Waterhouse precedents—and, indeed, to the district

court’s apparent failure to follow the procedure suggested

by those precedents. Needless to say, such questions do

not warrant review by this Court.

4. Finally, petitioner contends (Pet. 16-17) that the

district court’s award of $1 in nominal damages deprived

petitioner of its Seventh Amendment right to a jury

trial.” To begin with, the court of appeals’ characteriza-

® Petitioner contends (Pet. 16) that the award of nominal dam-

ages is of practical significance in this case because, under state

law, an award of at least nominal damages is a necessary predicate

for an award of punitive damages. The court of appeals, however,

concluded that the circumstances under which punitive damages

are available under 42,U.S.C. 1981 turns on federal, not state law,

and that under its prégledents and those of other courts of appeals,

respondent was entitled to nominal and punitive damages here.

(The court further observed that it was not convinced that respond-

ent would not be entitled to punitive damages even under Missouri

16

tion of the nominal damages award as “additur,” Pet.

App. A7, is somewhat misleading. The term “additur”

usually refers to a trial court’s denial of a motion for a

new trial, conditioned on the defendant’s consent to an

increase in the amount of damages awarded to the plain-

tiff by the jury. See Black’s Law Dictionary 38 (6th ed.

1990); 6A Moore’s Federal Practice { 59.08[8] (2d ed.

1989). This Court has held that that practice does indeed

violate the Seventh Amendment, since a court may not

“bring the constitutional right of the plaintiff to a jury

trial to an end in respect of a matter of fact which no

jury has ever passed upon either explicitly or by implica-

tion.” Dimick v. Schiedt, 293 U.S. 474, 486-487 (1935).

This case does not involve additur as traditionally de-

fined, but rather the entry of an award of nominal dam-

ages following a jury’s finding of liability in a civil rights

action. The Eighth Circuit’s approval of this procedure

does not conflict with the decision of any other court of

appeals. Lower courts have distinguished Dimick in a

variety of situations in which there is no factual dispute

as to the amount of damages to be awarded, see, e.g.,

Rocky Mountain Tool & Machine Co. v. Tecon Corp., 371

F.2d 589, 598 (10th Cir. 1966) (judge may increase dam-

age award where amount of damages is established by

law and jury has found liability) ; Cummings v. Boston

& M.R.R., 212 F.2d 133, 136-137 (1st Cir. 1954) (ap-

peals court may increase award where trial court errone-

ously instructed jury on legal consequences of a pay-

ment); 6A Moore’s Federal Practice { 59.08[7], at 59-

law.) Pet. App. A41-A43 & n.53. These subsidiary questions do not

warrant review.

Moreover, the jury’s verdict in this case establishes that the jury

not only found petitioner liable for an intentional violation of Sec-

tion 1981, but also believed that petitioner’s conduct warranted an

award of punitive damages in the amount of $10,000. There accord-

ingly is no reason to believe that the jury would have declined to

award $1 in nominal damages if it had been asked to consider that

question as a necessary predicate for its award of punitive damages.

17

200 to 59-201; id. 59.08[8], at 59-217, and here there

is no dispute as to the amount of nominal damages.

Lower courts have frequently awarded nominal dam-

ages in cases of racial discrimination. See, e.g., Edwards

V. Jewish Hospital, 855 F.2d 1345, 1350 (8th Cir. 1988)

(holding that nominal damages are available for violation

of Section 1981); Howard v. International Molders &

Allied Workers Union, 779 F.2d 1546, 1533 (11th Cir.)

(nominal damages presumed where liability found under

Title VII and Section 1981), cert. denied, 476 U.S. 1174

(1986) ; Irby v. Sullivan, 737 F.2d 1418, 1483 n.30 (5th

Cir. 1984) (plaintiff entitled to nominal damages in em-

ployment discrimination case under 42 U.S.C. 1983). Cf.

Carey V. Piphus, 435 U.S. 247, 266-267 (1978) (approv-

ing award of nominal damages in suit under 42 U.S.C.

1983 for procedural due process violation). The decision

below is consistent with a recent decision from the Fifth

Circuit, in which that court ordered an award of nom-

inal damages based on a jury finding of liability in a

suit under 42 U.S.C. 1983, observing that “[a]lthough

neither the district court nor [the appeals] court has the

power to add to the jury’s verdict, when the amount of

damages is not disputed and a party is entitled to dam-

ages under the verdict as a matter of law, [a court]

may award that undisputed amount.” Taylor v. Green,

868 F.2d 162, 165 (5th Cir.), cert. denied, 110 S. Ct. 127

(1989); cf. Burt v. Abel, 585 F.2d 613, 616 n.7 (4th

Cir. 1978) (Seventh Amendment does not require jury

trial where plaintiff’s allegations entitle him to nominal

damages only). Because the court of appeals’ affirmance

of the award of nominal damages on the basis of the

jury’s finding of liability in this case is consistent with

the decisions of other courts of appeals, it does not war-

rant review by this Court.

18

CONCLUSION

The petition for a writ of certiorari should be granted,

the judgment of the court of appeals should be vacated,

and the case should be remanded to the court of appeals

for further proceedings as appropriate in light of that

court’s order dated December 11, 1991, granting rehear-

ing en banc in Taggart v. Jefferson County Child Support

Enforcement Unit, 915 F.2d 396 (1990).

Respectfully submitted.

FEBRUARY 1991

KENNETH W. STARR

Solicitor General

JOHN R. DUNNE

Assistant Attorney General

JOHN G. ROBERTS, JR.

Deputy Solicitor General

ROGER CLEGG

Deputy Assistant Attorney General

DAVID K. FLYNN

LOUISE A. LERNER

LESLIE A. SIMON

Attorneys

wv. S. GOVERNMENT PRintiNG OFrice; 1991 262061 20403