# Petition for Writ of Certiorari — Holland v. First Virginia Banks, Inc. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1061%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1992 - **Citation:** 502 U.S. 1086 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_1061%3A1. Public record. Not legal advice.