Petition for Writ of Certiorari — Holland v. First Virginia Banks, Inc.

Supreme Court, U.S,

6 FILED

91° 974 DEC 13 jg9)

DERGE OF THE CLERK

91- oa

In The :

SUPREME COURT OF THE UNITED STATES

October Term, 1991

ROBERT LEE HOLLAND,

Petitioner,

Vv.

FIRST VIRGINIA BANKS, INC.

and

DONALD BRENNAN,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES CIRCUIT COURT OF APPEALS

FOR THE FOURTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

December 16,

1991

Victor M. Glasberg

Counsel of Record

Jeanne Goidberg

Victor M. Glasberg &

Associates

121 South Columbus Street

Alexandria, VA 22314

(703) 684-1100

Questions Presented

2. Should this Court remand this case

for reconsideration in light of the enactment

of the Civil Rights Act of 1991, which con-

firms petitioner's right to the jury verdict

he received for his claim under 42 U.S.C.

§1981 for discriminatory discharge from his

employment?

2 Have the courts of appeal system-

atically misapplied this Court's decision in

Patterson v. McLean Credit Union, 491 U.S. 164

(1989), to bar claims for racially discrimina-

tory discharge, thereby overruling settled law

on their own authority and injuring victims of

discriminatory discharges whose claims arose

between the time Patterson was decided and the

enactment of the Civil Rights Act of 1991?

Parties to the Proceeding

The names of all the parties appear in

the caption.

site

Table of Contents

Questions Presented ........... i

Parties to the Proceedings ....... ii

gg eg ES V

ee 1

ee 1

Statutory Provisions Involved ...... 2

Bememmens OF CTh@ Case . . 2. 2 6 6 tw ew et 3

Reasons for Granting the Writ ...... 9

Ze This Case Should Be Remanded

For Adjudication on the Basis

of the Governing Law........ 9

II. The Court Should Vindicate The

Rights of Victims of Racially

Discriminatory Discharges Injured

by the Systematic Misapplication

of this Court's Decision in

Patterson v. McLean Credit Union... 11

A. This Court Should Correct the

Misapplication of its Ruling

a 13

-1ii-

B. The Court Should Act to Preserve

the Integrity of Conventional

Rules of Statutory Construction

Nullified by the Proposition

that §1981 Did Not Prohibit

Discriminatory Discharge ...-.- 23

1. Rights Which Go To the

"Very Existence and Nature"

of a Right Expressly

Protected by Statute are

Also Protected .....-.+ + 24

2. Absent a Prohibition of

Discriminatory Breaches

of Contract, The Right to

"Enforce Contracts" is

Meaningless ....--+-+-+ + 27

Cc. Holding that §1981 Barred

Discriminatory Termination

of Employment Is Not Incon-

sistent with Patterson ..... 3l

Conclusion ...-+ +++ + e+ «© «© © © « 33

Appendix

Decision of the Court of Appeals .. .- Al

Opinion and Order of the District

Court .. +. « -«» a ee ee ee ee

Order Denying Reconsideration .....- Cl

Order Granting Extension of Time .. .- Dl

-~iv-

Table of Authorities

Cases:

Anderson v. Bessemer City,

S7w Use. BEG CAGROs « cs tw we wm te we we tel tl a

Blaauw v. Grand Trunk West. Ry. Co.,

eee Us. 20f Gapeer «© + wo ee te eh hhh Sl 11

Bradley v. Richmond School Bd.,

SiG U.8. GROG CeePel 2s st te tee et tt CU

Carroll v. Elliott Personnel Serv.,

52 Empl.Prac.Dec. (CCH) 939,508

at 60,288 (D.Md. 1989); ...... 15, 18

Courtney v. Canyon Television &

Appliance Rental, Inc.,

899 F.2d 845 (9th Cir. 1990) ..... 16

Gersman v. Group Health Ass'n, Inc.,

931 F.2d 1565 (D.C. Cir. 1991) se « « &6

Gonzalez v. Home Ins. Co.,

909 F.2G 716 (2@ Cir. 1990) ...+s..-s. i216

Hicks v. Brown Group, Inc.,

902 F.2d 630 (8th Cir. 1990),

vacated, 111 S. Ct. 1299 (1991) .. assim

Jett v. Dallas Indep. School Dist.,

Oa Ubi 708 Cee kc eee eke ee

LaCour v. Harris County,

No. 89-1532

(5.0. Text., Dec. 6, 1993) .« « « «+ «© we 0 « 8

Lavendar v. V & B Transmissions

& Auto Repair,

897 F.2d 805 (5th Cir. 1990) . bb) ee} 16

Lytle v. Household Mfg. Co.,

eee ©.8. S465 (1900) . 1 «6 © «© ww we we 692

McGinnis v. Ingram Equip. Corp.,

918 F.2d 1421 (11th Cir. 1990) 2 « is, is

McKnight v. General Motors Corp.,

908 F.2d 104 (7th Cir. 1990) s se & ss 16

Meritor Savings Bank v. Vinson,

See ee, OF TOROS 4 kl ks oles ss ee

Mojica v. Gannett Company, Inc.,

No. 90-C-3827

M.D. Ill. Nev. 27, 1992) . 2. 6 ss 3 9

New York v. Shore Realty Corp.,

759 F.2d 1032 (2d Cir. 1985) .* € ® «& 30

Padilla v. United Air Lines,

718 F.Supp. 485 (D. Colo. 1989) . . 15, 18

Patterson v. McLean Credit Union,

805 F.2d 1143 (4th Cir. 1986),

aff'd, 419 U.S. 164 (1989) . .« © + passim

Prather v. Dayton Power & Light Co.,

918 F.2d 1255 (6th Cir. 1990) ..... 16

Priaqgq v. Pennsylvania

41 U.S. (16 Pet.)

$39 (1642) . 2. we se we swe ves en s 28

ayia

Taggart v. Jefferson Co. Child Support

Enforcement Unit,

915 F.2d 396 (8th Cir. 1990), vacated,

935 F.2d 947 (8th Cir. 1991)

en fee a) be ek Se ey ae ee 16, 20

Thompkins v. DeKalb County Hosp. Auth.,

916 F.2d 600 (llth Cir. 1990) ..... 16

Trujillo v. Grand Junction Regional Center,

928 F.2d 973 (10th Cir. 1991) ..... 16

Van Meter v. Barr,

No. 91-0027-GAG

(D.D.C., argued Dec. 9, Beware es ee ete

Williams v. First Union Nat'l Bank,

920 F.2d 232 (4th Cir. 1990) » & @ 16, 18

Statutes:

428 U.S.C.

ae ae ae a ee a a ee ee ee ee

§1331 4

Opee & «+ & & & & &% KS > wow eee

4&2 U.S.C.

J ee ee ee a

-vVil-

Historical Studies:

N

Jordan, White Over Black (1968)

Davis, The Problem of Slavery in

Western Culture (1966) a a ae oe 32

N

Litwack, North of Slavery (1965) 7 oa 3

N

Foner, Reconstruction (1988) oy = ek 3

-vVill

Opinions Below

The opinion of the United States Court of

Appeals for the Fourth Circuit is unpublished.

It is reprinted as Appendix A. The memorandum

opinion of the United States District Court

for the Eastern District of Virginia on the

Title VII claims in the case is published as

Holland v. First Va. Banks, Inc., 744 F. Supp.

722 (E.D. Va. 1990). It is reprinted as

Appendix B.

Jurisdiction

The decision of the court of appeals ws

entered on July 12, 1991. On August 20, 1991,

the court of appeals handed down an order

denying petitioner's timely motion for recon-

Sideration in banc, construed as a motion for

reconsideration with suggestion for rehearing

in banc. The court's order is reprinted as

Appendix C. Petitioner filed a timely motion

for an extension of time within which to file

the instant petition, which was granted by

order of the Chief Justice dated October 29,

1991. This order appears herein as Appendix

D. Petitioner invokes this court's jurisdic-

tion under 28 U.S.C. §1254(1).'

Statutory Provisions Involved

As amended by the Civil Rights Act of

1991, 42 U.S.C. §1981 reads in its entirety as

follows:

‘On November 22, 1991, the day following

the enactment of the Civil Rights Act of 1991,

Mr. Holland filed a motion in the court of

appeals seeking recall of the mandate for the

purpose of obtaining the relief now sought

here. Thereafter, on November 27, 1991, Mr.

Holland filed an application with the Chief

Justice seeking an extension of time for the

filing of the instant petition pending the

Fourth Circuit's action on the motion to

recall mandate. This application was denied

on December 11, 1991. As of the time this

petition is being completed, the Fourth

Circuit has not acted on the petition to

recall mandate.

-2-

(a) All persons within the juris-

diction of the United States shall

have the same right in every State

and Territory to make and enforce

contracts, to sue, be parties, give

evidence, and to the full and equal

benefit of all laws and proceedings

for the security of persons and

property as is enjoyed by white

citizens, and shall be subject to

like punishment, pains, penalties,

taxes, licenses, and exactions of

every kind, and to no other.

(b) For purposes of this section,

the term "make and enforce con-

tracts" includes the making, per-

formance, modification and termina-

tion of contracts, and the enjoyment

of all benefits, privileges, terms

and conditions of the contractual

relationship.

(c) The rights protected by this

section are protected against im-

pairment by non-governmental dis-

crimination and impairment’ under

color of state law.

Statement of the Case

Petitioner Robert Lee Holland, an

African-American formerly employed by

respondent bank holding company as a main-

tenance man, was subjected by his supervisor

at work, respondent Donald Brennan, to long-

term racial harassment which the court of

appeals styled "reprehensible," A-6. Mr.

Holland went over Mr. Brennan's head to com-

plain and was fired as a result. He sought

his job back. Following consultation with the

corporation's chief executive officer, the

bank's senior vice president decided, for

racially discriminatory reasons, not to rehire

him.

Having exhausted his administrative reme-

dies, Mr. Holland sued the bank and Mr. Bren-

nan alleging racial harassment under Title VII

of the Civil Rights Act of 1964 and discrimi-

natory termination and refusal to rehire under

Title VII and 42 U.S.C. §1981. The court had

jurisdiction under 28 U.S.C. §§1331 and 1343.

The district court permitted only the

§1981 rehire claim to go to the jury, holding

-4-

the discharge claim not actionable under §1981

in light of Patterson v. McLean Credit Union,

419 U.S. 164 (1989). The court gave strict

instructions, upheld on appeal, expressly dis-

allowing an award of damages for harassment or

discriminatory discharge and permitting an

award of damages only for discriminatory fail-

ure to rehire.

The jury returned a verdict in favor of

Mr. Holland in the amount of $20,000 actual

damages, $1,000 punitive damages against Mr.

Brennan (who had played a minor role in the

rehire decision) and $500,000° punitive

damages against the bank, a $5.2 billion cor-

poration. One week later, the court entered

findings of fact and conclusions of law hold-

ing that the bank had violated Mr. Holland's

‘The reference to $50,000 in the appellate

opinion, A-3, is a typographical error.

aw & as

Y

rights under Title VII by the harassment, the

discharge, and the refusal to rehire.

As it happened, Mr. Holland had been

seriously injured at work at exactly the time

he was fired by Mr. Brennan. He remained

unable to work through trial, and remains dis-

abled and unemployable today. At trial, he

was thus unable to avail himself of reinstate-

ment or back pay as remedies under Title VII.

Accordingly, Mr. Holland confined his request

for Title VII relief to nominal damages and

declaratory relief, which the court awarded

him the week following trial.

The bank accepted the Title VII judgment

and appealed the §1981 decision only, seeking

expedited review which it obtained. The bank

argued that its refusal to rehire Mr. Holland

waS indistinguishable from his’ discharge,

which the district court had held did not give

rise to a claim under §1981. In opposition,

iii

Mr. Holland defended the integrity of the

jury's rehire verdict, and in the alternative

argued that the damage award could be upheld

as an award for the established (and unap-

pealed) discriminatory discharge, which the

bank asserted was indistinguishable from the

refusal to rehire.°

In its decision, the Fourth Circuit held

that Mr. Holland had not proved a failure to

rehire but only a termination, which the court

held was not actionable under §1981 in light

of Patterson. In so deciding, the court over-

ruled the decision of a jury which had been

expressly instructed to the effect that:

The Civil Rights Act, pursuant to

which the civil rights claim is

made, does not prohibit racial ha-

rassment on the job, or racially

“Since the bank had taken the position

that what Mr. Holland had proved at trial was

a discriminatory discharge, not a separate

refusal to rehire, granting a cause of action

for discharge would have sufficed to save Mr.

Holland's verdict on appeal.

oF=

motivated employment termination....

[I]t is only the alleged failure to

reinstate the plaintiff that can be

the subject of plaintiff's civil

rights claim.‘

Accordingly, in a decision violating the rule

of Anderson v. Bessemer City, 470 U.S. 564

(1985), the court reversed the jury's §1981

decision in Mr. Holland's favor.

On November 21, 1991, the President

Signed into law the Civil Rights Act of 1991,

returning §1981 jurisprudence to its pre-Pat-

terson status. Mr. Holland's case had been

adjudicated through an expedited appeal, how-

ever, shortly before this development. Mr.

Holland now seeks relief from this Court for

the reasons set forth below.

“The court of appeals expressly rejected

the bank's objections to the jury instruc-

tions.

-8-

|

Reasons for Granting the Writ

I. This Case Should be Remanded

for Adjudication on the Basis

of the Governing Law

This Court should grant certiorari for

the purpose of vacating the decision below and

remanding the case for reconsideration in

light of the Civil Rights Act of 1991, which

has already been held applicable to pending

cases. Mojica v. Gannett Company, Inc., No.

90-C-3827 (N.D. Ill. Nov. 27, 1991); LaCour v.

Harris County, No. 89-1532 (S.D. Tex., Dec. 6,

1991) .° Under the new law petitioner Holland

is absolutely entitled to the judgment he won

below.

Persons in Mr. Holland's position cur-

rently stand doubly victimized in a legal no-

*Another decision on the applicability

of §1981 to pending cases is anticipated

momentarily in the case of Van Meter v. Barr,

No. 91-0027-GAG (D.D.C., argued Dec. 9,

1991).

-9-

man's land, between an appe!’late jurisprudence

which denies them their judgments, and a new

statute whose application to their case they

cannot compel as a matter of right, but must

obtain by the grace of this Court. Barring

recall of the appellate mandate (which peti-

tioner has requested’) , only this Court's

decision to grant certiorari can vindicate

these rights.

The instant case, arising out of "repre-

hensible" discrimination, A-6, which = oc-

curred, legally, at the "wrong time" for

petitioner, is particularly appropriate for

reconsideration in light of the new law. In

Brown Group, Inc. v. Hicks, 111 S.Ct. 1299

(1991), this Court vacated and remanded an

Eighth Circuit panel decision regarding the

scope of §1981 for reconsideration in light of

°See supra n.i at 2.

-10-

nner

an anticipated in banc decision of the Eighth

Circuit addressing that subject. See also

Blaauw v. Grand Trunk West. Ry. Co., 380 U.S.

127 (1965) (vacating and remanding for recon-

sideration in light of an intervening state

court decision) The same result should obtain

here. As there is yet no "final decision" in

this case, Bradley v. Richmond School Bd., 416

U.S. 696, 71 n.14 (1974), this Court is free

to effectuate the purpose of the law and rec-

tify the damaging quirk of fate that has taken

away petitioner's judgment.

II. The Court Should Correct the

Systematic Misapplication

of its Decision in Patterson

v. McLean Credit Union

This Court should, alternatively, grant

certiorari in order to review systematic mis-

application of this Court's decision in Pat-

terson v. McLean Credit Union, 491 U.S. 164

-ll1l-

(1989), in the period prior to enactment of

the Civil Rights Act of 1991. Unlike all

Similar claimants for one quarter century

before that time and all such claimants there-

after, petitioner and those similarly situated

stand in the unique position of having had

important federal rights, long honored in this

Court, truncated at the appellate level with-

out mandate from this Court and against the

intent of Congress, all based on a misapplica-

tion of this Court's decision in Patterson.

This inappropriate result should be corrected

by this Court.

If this Court does not reach out to ad-

judicate whether discriminatory discharge

claims were actionable for two years prior to

the passage of the 1991 Civil Rights Act, the

dispositive word on the subject will have been

given, finally, unreviewably, and incorrectly,

-12-

EE

by an appellate judiciary visibly uncertain of

the propriety of its decisions.

A. This Court Should Correct the

Misapplication of its Ruling

in Patterson

In Patterson v. McLean Credit Union, 805

F.2d 1143, 1145 (4th Cir. 1986), aff'd, 491

U.S. 164 (1989), the Fourth Circuit held that

claims of racial harassment at work fell out-

Side the scope of §1981. In contrast, the

court observed:

Claims of racially discriminatory

hiring, firing, and promotion go to

the very existence and nature of the

employment contract and thus fall

easily within §1981's protection.

This Court affirmed. In so doing, this

Court did not have to address whether the

Fourth Circuit was correct in finding that

discriminatory discharges were actionable

under §1981 -- a settled proposition of law in

any regard. See generally, Hicks v. Brown

-13-

Group, Inc., 902 F.2d 630, 637-38 & n.18 (8th

Cir. 1990) (citing authority), vacated, 111 S.

Ct. 1299 (1991). While this Court used lan-

guage permitting an interpretation that no

conduct taking place after the initial forma-

tion of a contract was actionable under §1981,

it seems clear that what this Court had in

mind was precisely the distinction expressly

drawn by the Fourth Circuit in the case then

being affirmed: between actions like hiring

and termination, which "go to the very exis-

tence and nature of the employment contract,"

id., and actions regarding what comes in

between i.e., conditions of employment:

Such postformation conduct does not

involve the right to make a con-

tract, but rather implicates the

performance of established contract

obligations and the conditions of

continuing employment, matters more

naturally governed by state contract

law and Title VII.

Patterson, 491 U.S. at 177 (emphasis added).

—-14-

The broad "post contract formation" lan-

guage of this Court's Patterson opinion pro-

ceeded, however, to cause confusion within the

judiciary. A discharge is concededly "post-

formation conduct," although it does not inm-

plicate "the performance of established con-

tract obligations and the conditions of con-

tinuing employment," but rather addresses "the

very existence and nature" of the contractual

relationship. Accordingly, this Court's Pat-

terson decision could be, and was, interpreted

in one of two ways in discharge cases. Courts

focusing on the Fourth Circuit's opinion, af-

firmed by this Court, allowed discriminatory

discharge claims on the same basis as the

Fourth Circuit had done in its own Patterson

decision affirmed by this Court.’ Those

"See e.g., Hicks v. Brown Group, Inc., 902

F.2d 630 (8th Cir. 1990), remanded, 111 S. Ct.

1299 (1991); Carroll v. Elliott Personnel

Serv., 52 Empl.Prac.Dec. (CCH) 939,508 at

60,288 (D.Md. 1989); Padilla v. United Air

-15-

courts focussing on this Court's "postforma-

tion" terminology, on the other hand, rejected

. As of the time that the

such claims.

President signed the Civil Rights Act of 1991,

ending any prospective controversy on the

issue, every circuit to have reached the

Lines, 718 F.Supp. 485, 490 (D. Colo. 1989);

McGinnis v. Ingram Equip. Corp., 918 F.2d

1421, 1426 (11th Cir. 1990).

STaqgart v. Jefferson Co. Child Support

Enforcement Unit, 935 F.2d 947 (8th Cir.

1991); Gersman _v. Group Health Ass'n, Inc.,

931 F.2d 1565 (D.C. Cir. 1991); Trujillo v.

Grand Junction Regional Center, 928 F.2d 973,

976 (10th Cir. 1991); Williams v. First Union

Nat'l Bank, 920 F.2d 232, 233-34 (4th Cir.

1990), cert. denied, 111 S. Ct. 2259 (1991);

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

1255, 1256-58 (6th Cir. 1990), cert. denied,

111 S. Ct. 2889 (1991); Thompkins v. DeKalb

County Hosp. Auth., 916 F.2d 600, 601 (11th

Cir. 1990); Gonzalez v. Home Ins. Co., 909

F.2d 716, 722 (2d Cir. 1990); McKnight v. Gen-

eral Motors Corp., 908 F.2d 104, 108-09 (7th

Cir. 1990), cert. denied, 111 S. Ct. 1306

(1991); Courtney v. Canyon Television & Appli-

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

1990); Lavendar v. V & B Transmissions & Auto

Repair, 897 F.2d 805, 807-08 (5th Cir. 1990).

-16-

issue, finding itself bound by this Court's

language, had denied relief under §1981 for

claims of discriminatory termination.’

The circuit courts fell into line solely

on the basis of their unguided determination

that this Court's language elaborated in a

suit challenging conditions of employment must

be applied literally, including to conduct

terminating the contractual relationship it-

self. With no other analysis whatever, a

quarter century of settled law in each of the

circuits at issue was summarily reversed.

*For its part, this Court on at least two

occasions permitted post-Patterson discrim-

inatory discharge claims to proceed under

§1981, rather than remanding them for recon-

Sideration in light of that decision. Lytle

v. Household Mfg. Co., 494 U.S. 545 (1990);

Jett. v. Dallas Indep. School Dist., 491 U.S.

701 (1989). A third case, Brown Group, Inc.

v. Hicks, 111 S. Ct. 1299 (1991), was remanded

for reconsideration by the Eighth Circuit in

light of a pending decision regarding the

scope of §1981. See discussion supra at 10.

-l|7-

The Fourth Circuit, where Patterson ori-

ginated, is a case in point. Numerous courts

both within and outside the Fourth Circuit had

cited the Fourth Circuit's Patterson decision

as authority for the proposition that follow-

ing this Court's decision in that case, claims

of racially discriminatory termination re-

mained viable under §1981. See, e.q., McGin-

nis v. Ingram Equip. Corp., 918 F.2d 1421,

1426 (11th Cir. 1990); Hicks v. Brown Group,

Inc., 902 F.2d at 636; Padilla v. United Air

Lines, 718 F.Supp. 485, 490 (D. Colo. 1989);

Carroll _ v. Elliott Personnel Serv., 52

Empl.Prac.Dec. (CCH) §39,508 at 60,288 (D.Md.

1989). Nevertheless, in Williams v. First

Union Nat'l Bank, 920 F.2d. 232 (4th Cir.

1990), cert. denied, ill S. Ct. 2259 (1991),

a panel of the Fourth Circuit held, simply on

the basis of a head-count of reported post-

Patterson §1981 decisions, that discrimina-

-18-

tory discharge claims were not cognizable

under Patterson. So much for what shortly

before had been seen to "fall[{] easily within

§1981's protection."

The history of §1981 in the Eighth Cir-

cuit is equally instructive. In Hicks vy.

Brown Group, Inc., 902 F.2d 630 (8th Cir.

1990), an appellate panel upheld the viability

of a post-Patterson discriminatory discharge

claim under §1981. After the defendant peti-

tioned for a writ of certiorari, 59 U.S.L.W.

3167 (Aug. 21, 1990), this Court solicited the

views of the United States on the matter. 111

S. Ct. 578 (1990). In the meanwhile, the

question of whether §1981 barred discriminato-

ry discharge in light of Patterson had reached

a second panel of the Eighth Circuit. That

panel, properly considering itself bound by

the panel decision in Hicks, permitted the

claim even as it expressed its view that this

-1|19-

result was untenable in light of this Court's

language in Patterson. Taggart v. Jefferson

Co. Child Support Enforcement Unit, 915 F.2d

396 (8th Cir. 1990). The defendant in Taggart

sought in banc review of this decision, which

was granted. Following the Eighth Circuit's

grant of rehearing in banc, and before the de-

cision came down in that case, this Court

thereupon vacated the panel decision in Hicks

for reconsideration in light of the antici-

pated in banc decision in Taggart. 1115S. Ct.

1299 (1991). The Eighth Circuit finally de-

cided, in banc, that §1981 does not cover dis-

criminatory discharges. Taggart, 935 F.2d

947 (8th Cir. 1991).

The Eighth Circuit's opinion in this

matter is based expressly on a head-count of

other decisions so holding. In the court's

words following its string citation, 935 F.2d

at 948:

-2 O-

ee

Contrary to Judge McMillan's rea-

soned opinion in Brown Group, the

circuit courts of appeal have unani-

mously held Patterson forecloses

discriminatory discharge claims

under section 1981. If the Patter-

son precedent is to be revisited, it

is the prerogative of the Supreme

Court to do so, not the courts of

appeals.

On few if any other questions of federal

law has the appellate judiciary ever worked

such a rapid revolution in established legal

doctrine, without express mandate from this

Court, as it did during the months between

this Court's Patterson decision and the enact-

ment of the 1991 Civil Rights Act on the issue

of whether §1981 does or does not prohibit

racially discriminatory discharges. What is

remarkable about the debate, as memorialized

in the opinions antedating the eventual unani-

mity among the circuits, is the lack of parity

between the sources used by the debaters. De-

cisions finding a cause of action for dis-

-21-

charge appeal to historical analysis, records

of Congressional debates and hearings,”

ordinary rules of statutory construction, com-

mon sense, and decades of settled jurispru-

dence in this Court and below. See, e.g.,

Hicks, 902 F.2d 630. Decisions denying the

claim rest exclusively on broad language from

Patterson not addressing the point at issue,

and a head-count of decisions denying the

claim for the same reason and no other. See

cases cited supra at 16 n.8.

As an alternative to remanding this case

to the Fourtn Circuit for reconsideration in

light of the new act, this Court, as the final

arbiter of federal law, should grant certior-

ari for the purpose of retrieving from the

"These sources may be contrasted with

contemporary "legislative histories" created

after-the-fact by competing partisans for the

purpose of swaying the judiciary in subsequent

cases.

-22-

eee

circuit courts the last word on this important

subject, which as currently stated is both

wrong and unreviewable as a matter of right.

The court should correctly state the law and

thereby vindicate the rights of persons dis-

criminatorily discharged at the legally

"wrong" time, whose rights have been improp-

erly cut off, in derogation of the will of

Congress and without mandate from this Court.

B. The Court Should Act to Preserve

the Integrity of Conventional

Rules of Statutory Construction

Nullified by the Proposition

that §1981 Did Not Prohibit

Discriminatory Discharge

Pre-amendment §1981 provided, in perti-

nent part, that:

All persons within the jurisdiction

of the United States shall have the

same right in every State and Terri-

tory to make and enforce contracts,

to sue, be parties, give evidence,

and to the full and equal benefit of

all laws and proceedings for the

security of persons and property as

is enjoyed by white citizens....

-23-

The determination that this language did

not prohibit racially discriminatory breach of

contract and merely guaranteed equal access to

the courts for contract claims makes a trav-

esty of ordinary principles of statutory con-

struction. The literalist approach which

gives rise to it suggests the prospect of

judicial nullification of untold other statu-

tory protections which, while manifestly im-

plied, are not stated in so many words.

1. Rights Which Go To The "Very

Existence and Nature" of a Right

Expressly Protected by Statute

are Also Protected

A statute granting certain rights bars

not merely expressly proscribed interference

therewith, but also unspecified conduct that

necessarily nullifies exercise of the express-

ly protected right. Otherwise, one ends up

with the equivalent of Shylock's illusory

right to his pound of flesh on the condition

that he spill no blood getting it. In the

Fourth Circuit's words in a decision affirmed

by this Court, the law protects what goes "to

the very existence and nature" of the express-

ly protected right. Patterson, 805 F.2d at

1145.

Numerous forms of discriminatory behavior

were and remain plainly prohibited by §1981

although they are not specifically mentioned

in the law. Thus, the statute does not ex-

pressly protect against having suits, once

brought, dismissed if brought by non-whites

against white persons. Such conduct is never-

theless plainly prohibited as part of the pro-

tection of the right of non-whites "to sue"

-- a right that would be meaningless if con-

strued to protect merely the right to file a

lawsuit, and not the right to maintain a suit,

once brought. Likewise, §1981 does not ex-

-25-

a

pressly prohibit jury instructions that the

word of a white person must be accepted over

that of a non-white. Clearly, however, such

instructions would be impermissible given the

express grant of the right "to give evidence."

The latter includes the former by necessary

implication.

In these cases, it is of no moment that

prohibition of the discriminatory conduct at

issue is not expressly identified. The un-

named action goes "to the very existence and

nature" of the expressly protected right, Pat-

terson, 805 F.2d at 1145, and is necessarily

included as part of it.

There is no reason to view the pre-amend-

ment grant of the right "to make and enforce

contracts" differently, as the Fourth Circuit

held in its Patterson opinion, affirmed by

this Court. Nevertheless, the appellate judi-

ciary proceeded to abrogate the right under

-26-

§1981 not to suffer a discriminatory dis-

charge, in light of broad language in this

Court's Patterson opinion unnecessary to its

holding. The courts of appeals thereby evis-

cerated the right to maintain the very employ-

ment, the right to obtain which had been es-

tablished by the same statute.'' This makes

no sense.

One hundred fifty years ago, This Court

observed as follows, in upholding the right of

Slaveholders to regain their human property in

free states:

If by one mode of interpretation the

right must become shadowy and unsub-

stantial, and without any remedial

power adequate to the end, and by

another mode it will attain its just

end and secure its manifest purpose,

it would seem, upon principles of

reasoning, absolutely irresistible

that the latter ought to prevail.

“under the appellate construction of

§1981, an employer seeking to avoid liability

under the statute for discriminatory refusal

to hire could hire an employee on day one and

fire him on day two.

=~27=

No Court of justice can be author-

ized so as to construe any clause of

the Constitution as to defeat its

obvious ends, when another construc-

tion, equally accordant with the

words and sense thereof, will en-

force and protect them.

Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539,

612 (1842). This apt analysis, offered by the

Court in regard to an unjust law, should con-

trol its construction of the beneficent law

here at bar.

2. Absent a Prohibition of Discrimi-

natory Breaches of Contract, The

Right to "Enforce Contracts"

is Meaningless

In post-civil war America as now, most

employees, including the freed slaves, were

employed at will. Absent a term labor con-

tract, which was not the rule, termination of

employment of a freed slave or any other em-

ployee was not actionable by the employee. An

employee who was unfairly discharged had a

contract terminated but did not have it

-28-

breached. The employee had no legal claim

against the employer for such an event.

Furthermore, absent a prohibition on

racially discriminatory contract termination,

the right to benefit from contracts, once

made, free from racial discrimination could

not be enforced merely by the new right "to

sue." For there would be no cause of action

on which to bring suit. Under the current

appellate construction of pre-amendment §1981,

the right of a victim of a discriminatory dis-

charge to “enforce" a contract thus emerges as

meaningless. So too does the new right "to

sue," as regards discriminatory discharge.

One could file a suit, but it would state no

claim upon which relief might be granted.

The limited construction of pre-amendment

§1981 also yields the anomalous result that

the extension of the right to "enforce con-

tracts" is surplusage which carries no legal

-29-

consequence. For if by "enforcement" is meant

simply enforcement in court, it amounts to

exactiy the same thing as "suing," which is

separately provided for in the law.

It is not to be presumed that any of the

various provisions of a statute are irrelevan-

cies or redundancies, safely ignored. See New

York v. Shore Realty Corp., 759 F.2d 1032,

1044 (2d Cir. 1985). Indeed, the 39th Con-

gress was struggling to make critical federal

policy in the midst of a national crisis and

in the face of overt presidential hostility.”

It is not to be lightly assumed that Congress

was not exquisitely mindful of the language it

chose to enact into law.

Lower court construction of pre-amendment

§1981 has created a substantial, albeit dis-

"the Civil Rights Bill of 1866 was

passed over the veto of President Andrew

Johnson.

-30-

crete, body of incorrect law with reference to

one of the most litigated federal statutes.

This body of law, nullifying settled jurispru-

dence and basic principles of statutory con-

struction, warrants review and correction by

this Court.

Ci Holding that §1981 Barred

Discriminatory Termination of

Employment Is Not Inconsistent

with Patterson

This Court's holding in Patterson is not

implicated here. Racial harassment, however

obnoxious, does not subvert the exercise of

the right to enter into and enforce contracts

conferred by Congress in 1866. This is, of

course, precisely what the Fourth Circuit held

in its Patterson opinion affirmed by this

Court.

Congress was not concerned in 1866 with

behavior that, over one hundred years later,

the law has held actionable workplace harass-

-31-

ment. Meritor Savings Bank v. Vinson, 477

7.8. 3? (1986)." Racist behavior was common-

place in the workplace (and society in gener-

al) well into the twentieth century. It is

inappropriate to project current American sen-

sibilities onto persons living one hundred

thirty years earlier, in the very era when the

slaves were being freed from their chains.

Nor would permitting discharge claims

under §1981 subvert the mediation and concil-

iation procedures of Title VII. Noting, in

Sit isa commonplace of historical

scholarship that white champions of African-

American rights shared prevailing negative

attitudes towards those whose rights’ they

sought to secure. This juxtaposition of high

principles with prejudiced attitudes and

actions, from a Jefferson or Lincoln to the

most modest citizen concerned with the fate of

the freed slaves, is a major theme of American

social and intellectual history. The

literature on this subject is vast. See, e.g.

Jordan, White Over Black (1968); Davis, The

Problem of Slavery in Western Culture (1966) ;

Litwack, North of Slavery (1965); Foner,

Reconstruction (1988).

-32-

Patterson, that racially-based refusal to con-

tract continued to be actionable under §1981

and Title VII, this Court was not troubled by

the overlap since Title VII's remedial proce-

dures lose significance where an employment

relationship does not exist. Patterson, 491

U.S. at 182. Unlike a claim of harassment, a

claim of discriminatory discharge arises, sim-

liarly, when an employment relationship no

longer exists, and as a practical matter is

probably less "salvageable," id., than an

employment relationship which never existed in

the first place.

Conclusion

The Court should issue a writ of certio-

rari for the purpose of remanding this case to

the court of appeals for reconsideration in

light of §1981 as it now reads. Alternative-

ly, this Court should grant certiorari in

-33-

ope ne ee

order to close the window of inequity regard-

ing discriminatory discharges which was tempo-

rarily opened, against the will of Congress

and without mandate from this Court, by the

lower federal judiciary.

Respectfully submitted,

Victor M. Glasberg

Counsel of Record

Jeanne Goldberg

Victor M. Glasberg &

Associates

121 S. Columbus Street

Alexandria, VA 22314

(703) 684-1100

Counsel for Petitioner

Dated: December 16, 1991

—-34-

es

A P PEN DIX

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

Rosert L. HOoL_anp,

Plaintiff-Appellee,

' > No. 90-2203

First VIRGINIA BANKS,

INCORPORATED: DoNALD D. BRENNAN,

Defendants-Appellants.

Appeal from the United States Distnct Court

for the Eastern District of Virginia, at Alexandria.

Albert V. Bryan, Jr., Chief District Judge.

(CA-90-64-A)

Argued: March 4, 1991

Decided: July 12, 1991

Before ERVIN, Chief Judge, NIEMEYER, Circuit Judge, and

RESTANI., Judge, United States Court of International Trade,

sitting by designation.

Reversed by unpublished per curiam opinion.

COUNSEL

ARGUED: Gerald S. Hartman, ANDERSON, KILL, OLICK &

OSHINSKY, Washington, D.C., for Appellants. Victor Michael Glas-

berg, VICTOR M. GLASBERG & ASSOCIATES, Alexandria, Vir-

ginia, for Appellee. ON BRIEF: Gregory W. Homer, ANDERSON,

KILL, OLICK & OSHINSKY, Washington, D.C.; Kathleen T. Bar-

A-1l

? HOLLAND V. First VIRGINIA BANKS

low, Falls Church. Virginia, for Appellants. Jeanne Goldberg, VIC-

TOR M. GLASBERG & ASSOCIATES, Alexandria, Virginia, for

Appellee.

Unpublished opinions are not binding precedent in this circuit. See

1.0.P. 36.5 and 36.6.

OPINION

PER CURIAM:

Robert L. Holland filed suit in the United States District Court for

the Eastern District of Virginia in January 1990 against his former

employer, First Virginia Banks, Inc. (the Bank), and his former super-

visor, Donald Brennan. The complaint alleged violations of Holland’s

rights under 42 U.S.C. § 1981; Title VII of the Civil Rights Act of

1964, 42 U.S.C. §§ 2000 ef seq.; and Virginia common law, predi-

cated on Holland’s having been the vicum of racial harassment at

work, discharged in retaliation for filing an EEOC claim on this

account, and subsequently denied re-employment for the same reason.

The Bank filed a motion to dismiss Holland's claim in its entirety,

arguing that the complaint failed to state a claim for relief under Sec-

ton 1981 in light of the Supreme Court's pronouncements in

Patterson v. McLean Credit Union, 491 U.S. 164 (1989). In that case

the Court held that employer conduct subsequent to the formation of

the employment contract is no longer actionable under Section 1981.

The district court denied the Bank’s motion.

Holland’s Secuon 1981 claims and state law claims then went to

jury mal, followed by a bench tal on the Title VII claims. Respond-

ing to the Bank’s motion for a directed verdict, the district court ruled

that under Patterson Holland’s claims of racial harassment and dis-

criminatory discharge should not go to the jury, but that there was

sufficient evidence to send the failure to rehire claim to the jury on

the ground that the claim alleged the Bank’s refusal to make a new

contract with Holland.

A-2

HOLLAND V. First VIRGINIA BANKS 3

The jury found for the Bank and Brennan on the state law emo-

tional distress claim and for Holland on the Section 1981 claim. The

jury awarded Holland $20,000 actual damages, $1,000 punitive dam-

ages against Brennan, and $504000 punitive damages against the

Bank. Subsequently, the district court entered findings of fact and

conclusions of law in favor of Holland on his Title VII claims, and

awarded Holland a total of $87,388.13 in costs and attorneys’ fees.

This figure included a 75 per cent multiplier of the lodestar amount

of attorneys’ fees as an enhancement for the "exceptional result’

obtained.

The Bank filed post-trial motions, all denied by the district court,

to obtain a judgment notwithstanding the verdict or a new trial, and

to vacate the award of punitive damages or grant remittitur. This

appeal followed.

I.

Holland went to work for the Bank as a maintenance employee in

September 1988 after having served in the United States Army from

July 1967 to January 1988. Holland’s immediate supervisor at the

Bank was Donald Brennan, who was responsible for the maintenance

of the Bank’s facilities in the Northern Virginia area and was given

the power to hire and fire maintenance employees. During his ten-

month employment with the Bank, Holland received good perfor-

mance evaluations and a seven per cent raise.

Holland worked out of the same office as did Brennan, who super-

vised Holland’s daily work. Holland was the first black employee in

that particular facility, and early in his employment he was warned by

a fellow-employee that he should be careful on that account. Within

two months after Holland began work at the Bank, Brennan began to

refer to Holland by racially derogatory terms such as "Chicken Little,"

"Watermelon Man," and "Boy." Other employees also used such

terms to refer to Holland in Brennan’s presence without reprimand.

A sign entitled "Chicken Little" or "Love that Chicken" was placed

on Holland’s in-box in the office. The sign was not removed until

A-3

4 HOLLAND V. First VIRGINIA BANKS

some three weeks atter Holland complained to one Ambrosi, a Bank

vice-president.’

Holland and fellow employees interpreted this name-calling

as evidencing stereotyped concepts of the eating habits of black peo-

ple. Although Holland felt demeaned and humiliated by this conduct,

he did not immediately complain because he thought that this might

be a form of new employee hazing which would soon cease. The

offensive conduct continued, however, and was expanded to include

the use of the word "nigger" in reference to Holland out of his pres-

ence. In March 1989 Holland finally complained to Brennan about the

name-calling. Brennan responded that Holland was ''too sensitive"

and laughed off his complaint. The name-calling persisted until June

1989, when Holland complained to Shirley Beavers, a senior Bank

vice-president. Beavers then questioned Brennan, who claimed he

was only "kidding." Beavers instructed Brennan that the conduct Hol-

land complained of should cease.

On June 28 a meeting was held which was attended by, among oth-

ers, Holland, Brennan, and Beavers. As a result of this meeting, all

parties indicated that the problems had been resolved, and Holland

expressed his satisfaction with the resolution of the matter.

Shortly thereafter, the co-worker who had wamed Holland to be

careful on account of his race was fired. Another fellow-employee

told Holland that his days were numbered at the Bank and that Bren-

nan would not forgive him for having gone over his head to Beavers.

Holland, frightened by these events, submitted an application to the

Marriott Corporation for part-time work. Holland advised Brennan of

his application to Marriott, as was required by the Bank's personnel

policy. Holland never obtained this employment because funding

problems prevented Marriott from hiring part-time employees for sev-

eral months during that period.

On July 20, 1989, Holland was injured on the job. The extent of

his injury’s effects was not immediately apparent.’ On July 25, Bren-

‘Ambrosi testified that he would not have removed the sign even if it had

said, Bob Holland is a no good black son-of-a-bitch."

7Eventually it became clear that the injury was more serious than first

appeared. As a result Holland was unable to return to the type of work he

had done at the Bank.

HOLLAND V. FIRST VIRGINIA BANKS 5

nan called Holland at home and told him that the Bank had "accepted

his resignation.’ Holland replied to Brennan that he had never

resigned. Brennan then sent Holland a letter conveying the same mes-

sage he had communicated in the phone call. Holland responded in

a letter dated August 1, 1989, denying that he had resigned and

requesting a thorough explanation of Brennan’s intentons regarding

Holland’s employment with the Bank. This letter was copied to the

Bank’s CEO Robert Zalokar, to Beavers, and to the Virginia Equal

Employment Opportunity Commission (EEOC). Beavers, whom

Zalokar designated to respond to Holland's letter, intormed Holland

by letter of August 7 that the Bank considered that Holland had

resigned.

I].

The Bank does not challenge the district court's judgment in favor

of Holland's claims of racial harassment and discriminatory discharge

under Title VII of the Civil Rights Act of 1964. This appeal primarily

focusses on the district court’s allegedly erroneous interpretation of

Parrerson v. McLean Credit Union, 491 U.S. 164 (1989), as allowing.

Holland's claim of retaliatory refusal to rehire to go to the jury under

42 U.S.C. § 1981. We review the district court’s conclusions of law

concerning the scope of Section 1981 de novo.

Secuon 1981, enacted as part of the Civil Rights Act of 1866, pro-

vides as follows:

All persons within the jurisdiction of the United States shall

have the same right in every State and Ternitory to make and

enforce contracts, to sue, be parties, give evidence, and to

the full and equal benefit of all laws and proceedings for the

security of persons and property as is enjoyed by white citi-

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

ties, taxes, licenses, and exactions of every kind, and to no

other.

42 U.S.C.A. § 1981 (1981). In Patterson the Supreme Court reaf-

firmed its holding in Runyon v. McCrary, 427 U.S. 160 (1976), that

Section 1981 prohibits racial discrimination in the making and

enforcement of private contracts. Patterson, supra, 491 U.S. at 170.

A=-5

6 HOLLAND V. First VIRGINIA BANKS

On the facts presented in Patterson, however, the Court narrowed the

coverage of Section 1981, holding that Section 1981 does not apply

to conduct, such as the racial harassment alleged by Patterson, which

occurs after the formation of a contract and which does not interfere

with the right to enforce established contract obligations. /d., 491 U.S.

at 179. The Court found that Patterson's racial harassment claim con-

cerned the terms and conditions of her employment and did not impli-

cate the making or enforcing of an employment contract. /d., 491 U.S.

at 171.

As to Holland’s refusal to rehire claim, the district coun reasoned

that two separate contracts were involved: the contract terminated by

Brennan’s letter to Holland, and the subsequent contract the Bank

refused to make with Holland for his rehire. The court thus found that

this claim remained within the coverage of Section 1981, as long as

there was evidence from which the jury could find (1) a refusal to

make a new employment contract (2) that was motivated by racially

discriminatory retaliation.

Our understanding of Patterson as seen in the light of the circum-

stances surrounding Holland’s termination leads us to a different

result. While we do not assert that Patterson bars all refusal to rehire

claims from the reach of Section 1981, we conclude that on the facts

of this case, the district court’s decision to submit Holland's refusal

to rehire claim to the jury under Section 1981 was reversible error.*

Moreover, reprehensible as the Bank's conduct here may be, the

°Of the several federal courts which have considered the discriminatory

refusal to rehire issue in light of Patterson, several have held that the dis-

criminatory refusal to rehire an employee is precisely the sort of refusal to

make a contract that the Supreme Court found to be actionable under Section

1981 in Patterson. Williams v. Avco Lycoming, 755 F. Supp. 47, 51 (D.

Conn. 1991); Tillman v. Beaver Express Service, Inc., 1991 WL 26936 at 2

(D. Kan. 1991); Padilla v. United Air Lines, 716 F. Supp. 485, 490 (D. Colo.

1989). Others, analogizing from the language in Patterson concerning pro-

motions, have found that rehiring an employee into the same position from

which he was discharged was not what the Court contemplated as a "new

and distinct relation."" Smith v. Continental Ins. Corp., 747 F. Supp. 275, 282

(D.NJ. 1990); Carter v. O'Hare Hotel Investors, 736 F. Supp. 158, 160

(N.D. Ill. 1989); Eklof v. Bramalea Ltd., 733 F. Supp. 935, 937 (E.D. Pa.

1989).

i a |

HOLLAND V. FiRST VIRGINIA BANKS 7

jury's verdict tor Holland on this claim must be reversed, for the evi-

dence is insufficient to permit a reasonable jury to find that the Bank

refused to enter into a new employment contract with Holland. Fed.

R. Civ. P. 52(a): Anderson v. Bessemer City, 470 U.S. 564, 573-74

(1985).

There is no question that Holland’s employment contract with the

Bank was terminated—whether by the Bank or by Holland himself, if

the Bank's resignation theory is accepted. The letters exchanged

between Holland and the Bank regarding that termination, however,

do not support a finding that a new contract to rehire Holland was

proposed and rejected. Rather, both the phrasing of Holland’s August

1 letter and its timing close on the heels of the Bank’s notification of

Holland's termination indicate that its purpose was not to request re-

employment but to clarify Holland’s understanding of the Bank’s

actions. In the letter, Holland asked only for "a thorough explanation

of your [the Bank's] intentions regarding my employment with First

Virginia Banks."

Even if Holland's letter could reasonably be construed as a request

for re-employment which the Bank then refused, we think that the

close timing of the letters to the termination prevents us from constru-

ing the letters as initiating a contract whose formation would be con-

templated by Patterson. To find otherwise would permit discharged

employees, whose discharge is rendered not actionable under Section

1981 by Patterson, to sidestep Patterson and obtain Section 1981

coverage by immediately requesting re-employment.

Ill.

The Bank also alleges on appeal that the district court erroneously

instructed the jury on the proper causation standard to be applied in

Section 1981 cases, in that the court failed to tell the jury that a plain-

tuff under Section 1981 is required to demonstrate that discrimination

was a "but for'' cause of the adverse employment action at issue.

McDonald v. Santa Fe Trail Transportation Co., 427 U.S. 273, 282

n.10 (1976). The Bank claims that this omission constitutes prejudi-

cial error. citing Ross v. Communications Satellite Corp., 759 F.2d

355 (4th Cir. 1985).

—_—

* HOLLAND V. First VirGINIA BANKS

We find that the Bank did not adequately articulate to the district

court its objection to the causation instruction, and that therefore the

right to raise this issue on appeal was waived. Were we to rule on the

matter, however, we would find dispositive the Supreme Court's

recent statement in Price Waterhouse v. Hopkins, 490 U.S. 228

(1989). There the Court. in considering a Title VII gender discrimina-

tion claim, stated that the "but for" language of McDonald does not

indicate that the plaintiff must show "but for'' causation in order to

prevail. Rather, the Court construed this language to mean only that,

if the plaintiff does meet that standard, he will prevail. 490 U.S. at

240 n.6. Thus, any eiror the district court committed in failing to

instruct the jury concerning "but for’ causation was harmless.

The Bank further appeals the district court's award of punitive

damages and its enhancement of the attorneys’ fees awarded. Because

we reverse the jury's verdict the punitive damage award is vacated

and we need not discuss the matter here. We vacate the award of

attorneys’ fees and remand to the district court for further consideration.“

The district court's submission of Holland's Section 1981 claim to

the jury, and the subsequent jury verdict, are hereby

REVERSED.

“We call to the district court’s attention that the "exceptional result

obtained" generaliy should not be used to provide an independent basis for

increasing the attorneys’ fee award. Blum vy. Stenson, 465 U.S. 886, 897

(1984); see also Barber v. Kimbrell’s, Inc., 577 F.2d 216, 226 n.28 (4th Cir.

191) ("result obtained" factor is included among factors which comprise

the lodestar figure). An enhancement of this type is proper only if supported

by both specific evidence on the record and detailed findings. Pennsylvania

v. Delaware Valley Citizens’ Council for Clean Air (Delaware Valley I), 478

U.S. 546, 565 (1986).

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

ROBERT L. HOLLAND,

Plaintiff,

C.A. #90-64-A

Vv.

FIRST VIRGINIA BANKS,

InG., O& Ai,

Defendants.

MEMORANDUM OPINION

This action is brought pursuant to Title

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

§§2000e et seq.’ Testimony in the case was

adduced on July 10 and 11, 1990.

‘The complaint also sought recovery pur-

suant to 42 U.S.C. §1981 and a state law

claim for intentional infliction of emotional

distress. These claims were tried to a jury

at the same time the court heard the Title

VII aspect of the complaint. The jury found

in favor of the defendant on the intentional

infliction of emotional distress claim and in

favor of the plaintiff on the §1981 claim.

The jury awarded the plaintiff on that claim

$20,000 in compensatory damages against both

defendants, $1,000 in punitive damages

against the defendant Brennan, and $500,000

in punitive damages against the defendant

First Virginia Banks, Inc.

pd

Findings of Fact

1. The plaintiff is a 46 year old black

male who went to work for the defendant, First

Virginia Banks, Inc., on September 18, 1988.

He had previously served in the United States

Army from July, 1967 until January, 1988. He

worked for First Virginia as a maintenance

employee and his immediate supervisor was the

defendant, Donald Brennan, who is responsible

for the maintenance of all the bank's approxi-

mately twenty-one facilities in this area.

Although he is not an officer of the bank,

Brennan had the power to hire and fire mainte-

nance employees, including the plaintiff.

2. The plaintiff performed his duties in

a satisfactory manner for the bank. He re-

ceived good performance evaluations and a 7%

raise during his period of employment.

3 The plaintiff was the first black

employee in the particular maintenance section

B-2

where he worked, although there were other

black employees in other facilities supervised

by Brennan. The plaintiff was in the same

office with Brennan and Brennan supervised his

day-to-day operation. When the plaintiff

first went to work in Brennan's office, he was

told by a fellow-employee he should be careful

Since he was the first black employee in the

office.

4. Within approximately forty-five days

after the plaintiff began his employment,

Brennan began to refer to the plaintiff as

"Chicken Little," "Chicken George," "Sparerib

Kid," “Watermelon Man," or “Watermelon Kid."

He referred to the plaintiff as "Boy," or "his

Boy." In some instances the plaintiff was

referred to in these terms by other employees

in the presence of Brennan. Brennan also told

the plaintiff in the presence of some of his

fellow-employees that he had seen a dead coon

a

in the road and suggested that the plaintiff

take it home and make stew for his family. In

another instance, when there were donuts in

the office, Brennan told the plaintiff that he

couldn't have them because they had not been

fried in chicken fat or chicken grease. A

sign entitled "Chicken Little," or "Love that

Chicken," was placed on the plaintiff's "IN"

box in the office. The plaintiff complained

to Ambrosie, a vice-president of the company,

that this was offensive to him, but nothing

was done by Ambrosie to see to its removal.

The sign stayed up approximately three weeks.

5. The plaintiff's fellow-employees, as

well as the plaintiff, interpreted this name-

calling as evidencing stereotyped concepts of

the eating habits of black people.

6. This conduct on behalf of Brennan was

demeaning and humiliating to the plaintiff.

He felt he was being put down as an individual

B-4

and as a black man. He deferred, however,

making an immediate complaint concerning the

conduct because he had been counselled while

still in the military that as a recent convert

from military to civilian life, there were

changes he would have to accept and he felt

perhaps this was a "hazing" of a new employee

which would cease. It did not.

T+ In March of 1989, the plaintiff

decided to do something about the situation

and he told Brennan that he was "fed up."

Brennan replied that the plaintiff was too

sensitive; he laughed it off; and he stated

that "sticks and stones will breal my bones,

but words will never hurt me," or words to

that effect. The name calling continued after

the piaintiff's complaint to Brennan, and

continued until June of 1989 when the plain-

tiff went to see Beavers, a senior vice-presi-

dent of the defendant. To Beavers he com-

aca

plained of the racially oriented name calling

and various other matters concerning his work

assignment and sick leave. This frst meeting

occurred while Brennan had already left ona

there or four day trip, and Beavers promised

to fully investigate the plaintiff's com-

plaints when he, Beavers, returned from a trip

he also was planning.

8. Upon Beavers' return, he discussed

the matter with Brennan. Brennan admitted

calling the plaintiff Chicken Little and

Watermelon Man; however, he contended that it

was only kidding. Beavers instructed Brennan

that the name calling and kidding should

cease. Brennan was upset when told that the

plaintiff had complained to Beavers.

9. At a meeting on June 28, 1989, at-

tended by the sigaieiee. Beavers, Cook, Bren-

nan and Wilson, all parties felt the matter

had been resolved and the plaintiff proffered

B-6

——

his satisfaction with the resolution of the

matter. At or about this time the plaintiff's

fellow-employee, Tolly, who had suggested to

the plaintiff that the plaintiff complain to

Beavers, was fired. Another fellow-employee,

Ceeba, told the plaintiff his days were num-

bered at the bank and that Brennan would not

forgive him for going over his head to

Beavers. The plaintiff became "scared" and

submitted an application to Marriott for part-

time work. He advised Brennan of this on July

10. He never obtained employment for full or

part-time work since there was no job avail-

able with Marriott for 8-10 months because of

lack of funding.

10. On July 20, 1989, the plaintiff was

injured on the job and on July 25, 1989,

Brennan called the plaintiff at home and told

him they had accepted his resignation. The

plaintiff denied that he had ever resigned and

B-7/

a

Brennan said he would send the plaintiff a

letter concerning this. That letter (PX-17)

‘ @ueckes and surprised the plaintiff, and he

responded in a letter (PX-18) expressing this

shock and surprise, denying that he had re-

signed, and, in effect, asked for his job

back.

ii. The court rejects the defendant's

assertion that the plaintiff resigned on July

10, 1989. Both Cook, who was also one of the

plaintiff's supervisors, and Beavers were told

by Brennan that the plaintiff had resigned.

Beavers was surprised.

12. The court also rejects the asser-

tions that the name calling was only meant in

fun, and that no intimidation or references to

chicken were motivated by the plaintiff's

obsessive appetite for chicken. The very

making of the argument that such remarks can

be considered "fun" or "joking" is the same

mind-set that finds it acceptable, as Brennan

testified, to call his fellow-employee Schlan-

densky a Pollack, and to argue that because

the plaintiff allegedly referred to himself on

several occasions as a "nigger," this somehow

makes benign the application of names to him

which are racial stereotypes. The insensitiv-

ity that prompts such assertions has helped

proved the plaintiff's case.

The defendants are not entirely guile-

less, moreover. Their first reaction was to

deny that the name-calling occurred (See Ans.

to Interrogatories Nos. 5 and 10). When it

became apparent that such a denial was spuri-

ous, they resorted to a belittlement of the

claim by characterizing the conduct as the

type of kidding and joking that normally goes

on in the workplace; not to be taken serious-

ly; and a suggestion that the brunt of the

name-calling was being overly sensitive. The

B-9

defendants have still, to this day, not ac-

knowledged or apparently even recognized, the

humiliation that such conduct inflicts.

13. The court finds that the name-call-

ing constituted racial harassment; that the

plaintiff's termination and the defendant's

refusal to re-hire him were in retaliation for

the plaintiff's complaints to Beavers concern-

ing the racial harassment by Brennan; and that

this conduct constitutes discrimination on

account of race in violation of Title VII of

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

§§2000e et seq.

Liability of Brennan

The defendants assert because Brennan was

not a named respondent in the plaintiff's

E.E.0.C. complaint he must be dismissed from

the plaintiff's Title VII claim. Defendant

relies on Dickey v. Greene, 710 F.2d 1003 (4th

Cir. 1983). The decision in that case was

_

vacated and is not binding precedent. Dickey

v. Greene, 729 F.2d 957 (4th Cir. 19840.

Moreover, the court finds that the E.E.0O.C.

complaint, as amended, clearly put both de-

fendants on notice of the plaintiff's claim

against Brennan.

Statute of Limitations

Defendants claim that the failure of the

plaintiff to file his claim with the E.E.0.C.

within 180 days of the alleged unlawful en-

ployment practice as required by 42 U.S.C.

§2000e-5(e) bars his claim. Virginia, how-

ever, is a so-called "deferral state," and

consequently the plaintiff had a 300 day

filing period. E.E.0O.C. v. Hansa Products,

Inc., 844 F2d 191 (4th Cir. 1988). Plain-

tiff's Title VII claim is accordingly not time

barred.

|

Relief

During trial the plaintiff withdrew any

claim for back wages or reinstatement, re-

questing only declaratory relief and nominal

damages insofar as his Title VII claim was

concerned. The court finds that such declara-

tory relief is appropriate, as are nominal

damages. The declaration should act as a

deterrent. The court will, therefore, enter

an order declaring that the plaintiff's rights

under Title VII have been violated by the

racial harassment on the job and by a termina-

tion and failure to re-hire in retaliation for

his complaints of racial harassment on the

job. Nominal damages in the amount of $100.00

will be awarded together with costs, including

attorney's fees.

LS/

United States

District Judge

Alexandria, Virginia

July 20th, 1990

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF VIRGINIA

Alexandria Division

ROBERT L. HOLLAND,

Plaintiff,

Vv. C.A. #90-64-A

FIRST VIRGINIA BANKS,

INC., et al.,

Defendants.

ee ee eee ee ee

O R DER

For the reasons set forth in the Memoran-

dum Opinion this day filed, it is hereby

ORDERED and DECLARED that:

. The conduct of the defendants vio-

lates Title VII of the Civil Rights Act of

1964, 42 U.S.C. §2000e, et seg.,

2. Damages in the amount of $100.00 are

awarded against the defendants First Virginia

Banks, Inc., and Donald G. Brennan, jointly

i es.

and severally.

3. Attorney's fees and costs are awarded

to the plaintiff, and the court will consider

the amount thereof after submission by counsel

for the plaintiff his request therefor within

thirty days from July 12, 1990, and after a

twenty day response period for the defendants,

as directed with regard to the claim pursuant

to 42 U.S.C. §1981.

LS/

United States

District Judge

Alexandria, Virginia

July 20th, 1990

——

EEE

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FILED

August 20, 1991

No. 90-2203

ROBERT L. HOLLAND,

Plaintiff-Appellee,

Vv.

FIRST VIRGINIA BANKS, INC.,

et al.,

Defendants~-Appellants.

On Petition for Rehearing with

Suggestion for Rehearing in Banc

The appellee filed a petition for rehear-

ing with suggestion for rehearing in banc. No

member of the Court requested a poll on the

suggestion for rehearing in banc, and the

Original judicial panel voted to deny the

petition for rehearing.

The Court denies the petition for rehear-

ing with suggestion for rehearing in banc.

Entered at the direction of Judge Ervin,

with the concurrence of Judge Niemeyer and

Judge Restani.

For the Court,

LS/

Clerk

———EE7*~

SUPREME COURT OF THE UNITED STATES

No. A-295

Robert L. Holland,

Petitioner

Vv.

First Virginia Banks, Inc. and Donald Brennan

ORDER

UPON CONSIDERATION of the application of

counsel for the petitioner,

IT IS ORDERED, that the time for filing

a petition for a writ of certiorari in the

above-entitled case, be and the same is here-

by, extended to and including December 16,

1991.

/S/ William H. Rehnquist

Chief Justice of the

United States

| Dated this 29th

day of October, 1991.

D-1