MCDONALD v. SANTA FE TRAIL TRANSP. CO.

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Argument of Henry M. Rosenblum

Chief Justice Warren E. Burger: We will hear arguments next in 75-260 McDonald against Santa Fe.

Mr. Rosenblum.

Mr. Henry M. Rosenblum: Mr. Chief Justice may it please the Court.

The petitioners here seek and have sought redress under Title VII of the Civil Rights Act of 1964 and under Section 1981 of 42 United States Code, the codification of the Section 1 of the Civil Rights Act of 1866, for private racial discrimination in employment.

In all substantial respects there is no particular difference in this case than in the legion numbers of cases that is presently pending in the Federal District Courts around the country except that in this case the petitioners who seek to redress the grievance of private discrimination based on race in their employment are white.

Basically, the two petitioners, Mr. McDonald and Mr. Laird were accused by their employer Santa Fe of misappropriating company property.

Along with them stood accused a black co-worker.

As result of the accusations, the two petitioners were discharged, their black co-worker was not.

Because disparate disciplinary treatment so often smacks of illegal motive in a racial context, the petitioners concluded that they have been discriminated against because of their race and accordingly instituted an action in the Federal District Court in the State -- Southern District of Texas, alleging that the race was a factor in their discharge.

More clearly stated, the petitioners concluded and urge that, but for the immutable characteristic of the color of their skin that they would have received the favored treatment accorded to their black co-worker.

In many respects this is no different than a fact situation recently before the Court in Franks versus Bowman where it would be one way of describing the circumstances in that case would be to say that the black employees had been excluded from the over the road driving classification.

Another way would have been to say that the white employees of Bowman Transportation were accorded the preference and this is precisely and only what these petitioners have alleged.

The District Court dismissed the cause of action, stating that a white employee charged with misappropriating company property and dismissed cannot complain of racial discrimination where a similarly charged black employee is not dismissed.

It also dismissed, stating that Section 1981 confers no actionable rights upon a white person.

The Fifth Circuit affirmed, adopting an apparent finding of the District Court that the petitioners had failed to deny the allegations of the complaint of the misappropriation on their complaint.

None of the respondents -- neither of the respondents and none of the amicus have seriously disputed that Title VII embraces by its language, discrimination against white persons.

This is supported by all of the many of the EEOC decisions which are entitled the great deference as the body charged with the administration of the Act.

It is supported by the language in Griggs v. Duke Power Company wherein the Court stated that preferences, whether for majority or minority are all the Congress intended to prescribe and it is supported by the legislative history.

Assuming then that Title VII may be invoked by white persons, we turn to the question of whether these petitioners have stated the claim under which relief can be granted.

For the purposes of this consideration, it is not necessary that the Court consider the color of the petitioner’s skin, but only whether racial motivation was a factor or race was a factor in the framework of Section 703 (a) (1) in their discharge or in the discipline accorded them.

That of course is the gravamen of any Title VII or Section 1981 employment discrimination complaint.

Justice Potter Stewart: This complaint could not even -- could not conceivably or even arguably have been made -- had been lodged, could it, if all three employees had been of the same race and then two were discharged?

Mr. Henry M. Rosenblum: Well, the gravamen of racial disparity would not be present so, if their were disparate --

Justice Potter Stewart: Conceivably have been --

Mr. Henry M. Rosenblum: I have thought about a lot and I do not believe that it could have been, no sir.

We do not -- it is important that we point out, we do not urge that any employer is without the right to discipline within his discretion, those who commit unlawful acts and those who commit wrongdoings within the employment of their employer.

However, what we do urge is that when an employer discharges employees for such wrongdoings that the criteria for such discharges must be evenly applied.

That is not to say that you cannot discipline a black person differently than a white person.

It is to say that the reason for the different discipline cannot be founded or even touched by a racial factor.

There maybe no racial motivation between the difference in discipline accorded to the different races.

In any event the petitioners did allege that the difference in discipline accorded them was because of their race and we are told in McDonnell Douglas versus Green as well as other cases that an injured party, black or white will make such an allegation has stated the claim under Title VII.

The fact that the petitioners are accused of a theft should be no impediment to such a holding.

Clearly there was no impediment in the McDonnell Douglas v. Green case where the -- was the respondent in that case Mr. Green was a convicted misdemeanant and here all we have is mere allegations of a wrongdoing.

The Fifth Circuit seem to bottom its affirmation on the fact that the District Court had observed that the petitioners had not denied in their complaint that they were guilty of misappropriation as alleged.

It appears to me to be a fundamental error in the proposition that the Fifth Circuit bottomed its decision on and that is for one the petition on its face says that the petitioners were discharged without cause, and therefore, whatever reasons were ascribed, even though they suggest they were protectoral reasons, but whatever the reason that had been advanced is denied by the pleading.

Secondly, in assuming arguendo that they had failed to deny the truth of the allegation or the reason advanced for the discharge on their complaint, it really would make no difference at all.

The petitioners alleged and the District Court considered in dismissing, pursuant to Rule 12 (b) (6) that the three parties, that is the two petitioners and Mr. Jackson, their black co-worker were equally charged and equally culpable when it dismissed the decision, the petition.

The Court has again reiterated in a recent decision, treating and touching on this case that given the same opportunity, it would hold the same way that the failure to deny the allegations of misappropriation take a complainant, black or white, out of the embrace of Title VII and we submit that is simply wrong.

Chief Justice Warren E. Burger: Your point of view is this something like prisoners who are all in the same prison, but people of one race complaining that they were habitually given sentences twice as long as the other on the count of race, where there is no argument about the fact that they belong in confinement, but they have received disparate treatment?

Mr. Henry M. Rosenblum: Well, not precisely, but it is analogous.

The argument of the persons receiving the more severe punishment would be that, were I of a different color, I would be getting to preferred or shorter sentence and no, to the second part of your question, these were simply mere bare bones allegations.

Yes sir, --

Chief Justice Warren E. Burger: I think that the guilt of the innocents from your point of view does not enter into this at all?

Mr. Henry M. Rosenblum: That would be correct.

Chief Justice Warren E. Burger: Your people?

Justice Thurgood Marshall: Was that prevalent any question as to whether they were enumerating circumstances as to the Negro, yes or no?

Mr. Henry M. Rosenblum: It was -- well, no.

There was non-advanced by the company in the sense that perhaps the employee had -- well no Mr. Justice Marshall.

Justice Thurgood Marshall: Well, you fire the ring leader and you do not fire the other?

Mr. Henry M. Rosenblum: Well, in this particular instance, it was a dismissal under Rule 12 (b) (6), there was never any testimony taken.

Justice Thurgood Marshall: I am talking about your pleading.

Did you alleged that that there were no reasons why different treatment was given except race?

Mr. Henry M. Rosenblum: That is the gravamen of the complaint and race was not advanced as a reason for the discharge.

It was simply that they had not been accorded to preferred treatment or alternatively they have been treated differently and because of the disparate treatment they could only conclude that race was a factor and that is impermissible under 703 (a) (1).

They were entitled to make that showing.

They were, for example in McDonnell Douglas this Court carefully articulated the proper allocations and burdens of proof.

Had the case not been dismissed pursuant to rule 12 (b) (6), petitioners would have gone forward with their proof that they were discharged and their similarly situated black employee was not discharged, then the company would properly have advanced, they stole, for example, and the burden would then and this is where the Court took the next step in McDonnell Douglas would allow the petitioners to show that for example in this case the reason for the discharge advanced was protectoral and the cover up and to a preferred treatment which is violative of 703 (j) and prohibited significant to that type of showing would be that the black was equally culpable, that the company knew of the equal culpability and retained the black employee while discharging the white.

That the book --

Justice Thurgood Marshall: Equally culpable because I do not know if that that means.

Suppose one of them stole $1.75 worth of stuff and other one stole $14 million worth of stuff, would they be equally be culpable of stealing?

Mr. Henry M. Rosenblum: I can answer that question for you Mr. Justice Marshall.

On page 94 of the appendix, the Court says, “I am considering these men equally charged and equally culpable and I am dismissing.”

There may well be ameliorating circumstances, but not in the court's eye.

Justice Thurgood Marshall: Let me try again.

Mr. Henry M. Rosenblum: Yes sir.

Justice Thurgood Marshall: In a hypothetical case, one man is charged with stealing $1.75 from the company and the other man is guilty of stealing a million and half dollars from the company, are they equally culpable of stealing?

Mr. Henry M. Rosenblum: That -- if well, yes.

Justice Thurgood Marshall: How could they be?

Mr. Henry M. Rosenblum: It would be a matter of the mind -- of what was in the mind the person discharging them and whether race was a factor in the decision not to discharge.

Justice Thurgood Marshall: As to whether or not, you do not need a little more than culpable?

Mr. Henry M. Rosenblum: Well, it never became --

Justice Thurgood Marshall: I mean you could have alleged more?

Mr. Henry M. Rosenblum: I understand.

There never was a criterion in this case.

In any event we submit that discrimination, this discrimination did not occur against a backdrop of a pattern of discrimination work for hundreds of years against white persons.

We do submit that the racial preference granted in this case, a minority violates the standards set down in Griggs versus Duke Power and we further submit that the allegation of theft is no impediment to the entitlement of the petitioners to make their proof.

We then turn to an inquiry regarding Section 1981.

We may not stop with Title VII because quite candidly the petitioners in this instance may have a timely filing problem under Title VII.

They do not have a problem in the Fifth Circuit, but we are advised of the Guy versus Robinson Mayer decision in the Sixth Circuit which is presently pending on petition in this Court.

Chief Justice Warren E. Burger: I am a little puzzled.

Now, what the District Judge said at page 94 to which you refer to is, in parenthesis he wrote, (This Court assumes for purposes for present purposes that the Negro employee had a similar work record and a similar degree of culpability in the offense) and then he goes on, this point has received inadequate attention in the pleadings filed by the parties and has not been briefed to whom is the judge directing that observation, to your pleadings and brief or --?

Mr. Henry M. Rosenblum: Mr. Chief Justice, he was addressing it to counsel, I assumed for both sides.

I did not represent the petitioner in the lower courts, the petitioners.

There was not adequate briefing, but it was asked to both parties by my recollection of the reading of the record.

Chief Justice Warren E. Burger: Clearly statements that he is proceeding on an assumption that they were equally culpable and by implication, at least quite clear implication that there are no extenuating circumstances for one or the other would appear to make the briefing, the lack of adequate briefing irrelevant?

Mr. Henry M. Rosenblum: I would think so and it would be -- it would make the prima facieness of our case until such time as, Mr. Justice Marshall, the company came forward and showed that there might be differences that one person, that the black man had stolen $1.24 and the white petitioners had stolen a million dollars worth of goods.

But the petition was dismissed on the assumption that they were equally charged and equally culpable and had similar work records which is precisely what caused the petitioners to conclude that race was a factor in their discharge.

In any event, if I may, with regard to Section 1981 because it maybe very vital to these petitioners if remand occurred, we would ask of the court to consider the briefs and the amicus which have abundantly demonstrated that the legislative history, if not the plain meaning of the statute itself, thus indeed embrace white persons.

The problem producing language as is enjoyed by white citizens, we submit and we believe have adequately addressed, is a quantitative yardstick by which the rights of all citizens must be measured.

We submit that it is not ambiguous.

In addition, the legislative history, if the Court felt it was ambiguous, plainly supports the propositions that we advance that white persons may state a claim under Section 1981.

Justice Potter Stewart: You suppose that legislation was enacted by virtue of Congress’ power under the Thirteenth Amendment or the Fourteenth Amendment?

Mr. Henry M. Rosenblum: It was under the power of the Thirteenth Amendment, but re-codified subsequent, two years subsequent to the enactment of the Fourteenth Amendment and must reflect their thinking of the quality guaranteed by the Fourteenth Amendment to remain constitutional, to give it an all black construction makes it fly in the face in my opinion.

Justice Potter Stewart: (Voice Overlap) Fifteenth Amendment was concerned of course with the elimination of slavery and all of its badges and white people were not a slave in this country?

Mr. Henry M. Rosenblum: Well, and also the protection of the abolitionist who were suffering at the hands of their anti-abolitionist white neighbors were directly spoken to and protected by the Thirteenth Amendment in its history.

Justice Thurgood Marshall: It was readopted after the Fourteenth Amendment out of an abundance of caution?

Mr. Henry M. Rosenblum: That it would be misconstrued.

Justice Thurgood Marshall: They were relying on the Fourteenth Amendment the second time, it cannot just moved Fourteenth (Inaudible)?

Mr. Henry M. Rosenblum: I could not agree more and to give it in all black construction flies in the face of Fourteenth Amendment.

My time is running short and I am trying to reserve some of it.

I can see or fathom no compelling State or Governmental, in this case, interest in giving a construction to Section 1981 that would exclude white persons.

Beyond that I would ask the Court not be troubled by the absence of a background of racial discrimination against whites.

It is perhaps too a simple statement to make, but simply true that had the petitioners here had been black, neither of the lower c courts would have had any trouble finding a cause of action.

Thank you.

Chief Justice Warren E. Burger: Very well Mr. Rosenblum.

Mr. Attorney General.

Argument of Pottinger

Mr. Pottinger: Mr. Chief Justice and may it please the Court.

In the view of the United States the central issue in the case is both basic and uncomplicated and that is should a person, any person who alleges that he or she has been a victim of racial discrimination in employment have an opportunity to have those allegations be heard and tested in the atmosphere of an evidentiary hearing and we think the answer to this question is yes, both as to Title VII of the Civil Rights Act of 1964 and Section 1981.

It seems to us that the Courts below have misunderstood, particularly in light of the question raced by Mr. Justice Powell --Mr. Justice Stewart, that the allegation, the mere facial allegation of some form of wrongdoing in this case, theft could supersede an allegation of racial discrimination.

Simply put, we believe that McDonnell Douglas and the Griggs decision make clear that that particular allegation must be tested beyond the phase of the pleadings.

That to rely upon it outside the pleadings and indeed there was no summary judgment motion in this case is a mistake because it assumes a burden that should be shifted at least in some evidentiary fashion to the employer.

In the McDonnell case, McDonnell Douglas case, the Court set a four-prong test in that case stating that if a person made out a prima facie case of racial discrimination by being a member of a minority group, by having been qualified for the job, but rejected and by having others accepted for the position, the burden did shift and in some evidentiary fashion those allegations would have to be tested.

We believe that the same essential ingredients are in this case, even though the complainants were white because in this particular case they have met the burden of the first test of McDonnell Douglas by indicating that not only was racial discrimination practiced, but that three people, two of which were white one of which is black similarly situated were indeed of equal culpability on the face of the pleadings.

Now, we would concur with the implication of Justice Marshall’s question that should upon an evidentiary hearing, facts be developed that would indicate a greater culpability or a different culpability on the part of the white complainants as opposed to the black that those factors, assuming they were not racial in nature, ought to be able to be controlling factors, we do not disagree with that.

But on the course of the pleadings, on the face of the pleadings, those allegations simply do not appear and to dismiss the case entirely simply because of an alleged lack of standing and we believe makes a gross error and is a basic misconstruction of Griggs and McDonnell Douglas.

With regard to the 1981 claim, it is our view that the Thirteenth Amendment in answer to the questions presented here is an inadequate basis for the statute and that the reenactment of the statute subsequent to the passage of the Fourteenth Amendment does impart a sense of equal protection concept and which is not a racially preferential concept into the statute itself.

The Thirteenth Amendment on the face of it is not a racially preferential statute as Senator Trumbull said when, who is one of the authors of the statute.

The statute was passed to protect those who needed the benefits of it and clearly in 1866, that was the black race and to protect freedmen after that through the passage of the 1866 statute.

But never on the face of the statute nor in the legislative history surrounding its passage did the debate supposed that it was only for black persons.

Indeed there is a great deal of legislative history that made clear that in eliminating all badges of slavery and in insuring no involuntary servitude, there were effects of the institution of slavery that might spill over to adversely affect whites and thereby protect them.

In other words, the statement was made that all discrimination between blacks and whites should be eliminated and that was the purpose of the Thirteenth Amendment.

This position was also adopted, I think to a lesser extent under the Fourteenth Amendment in 1897 case in which the Court stated that the implications of equal protection clause in Fourteenth Amendment had a gloss on the 1981 statute.

We think in other words, that what has happened in this case is that the Court has misconstrued the nature of the allegation of theft at too early stage, at least before it could be clearly developed in evidentiary hearing.

In effect, what the Court has also done and this is partially known to as out of having the benefit of respondent's briefings is virtually to invite us to believe that racial discrimination did play a part in this case.

For in the case, not only do the allegations make clear that the complainants in this case and Mr. Jackson, the black were equally culpable as a matter of allegation, but that in addition to that they were no other factors presented.

In addition to that, in the respondent's brief they acknowledged at page 4 that by definition it, in this case affirm of an action, involves at least some measure of preference for advantage for blacks and other racial minorities in connection with employment decisions.

And they go on at least in a hypothetical fashion to suggest that as an abstract idea perhaps every employment or personnel decision should be colorblind, but this is a practical world and few parts of it are more practical than employment decisions.

We submit that absolute racial equality under every conceivable circumstance would be counter productive.

And finally at page 16 they invite us to assume racial discrimination may have played a factor further, by saying that assuming for the moment that the local manager had been influenced to some slight degree by Mr. Jackson’s race, perhaps thinking to himself “Jackson is black, all things considered will give him a break,” we cannot believe that we thus run afoul of the intent of Congress expressed in Title VII.

But to assume that those positions, if indeed they were developed upon an evidentiary hearing, to bear out those positions would indeed to be assume that the statement by the Court in Griggs was wrong in which the Court said that discriminatory preference for any group, minority or majority, is precisely and only what the Congress has proscribed.

So, our strong belief is that the case does not reach the questions of what constitutes affirmative action, especially since it compares individuals in this particular case, not groups or classes of protected persons.

But in that context an evidentiary hearing must be granted in order to develop those facts.

Thank you.

Chief Justice Warren E. Burger: Mr. Niebank.

Argument of C. George Niebank, Jr

Mr. C. George Niebank, Jr: Mr. Chief Justice and may it please the Court.

As this case has proceeded from the District Court through the Court of Appeals to this Court, it has taken on a false, we believe, factual facade.

As you have heard the way it is presented to you is that there were two whites and a black who were similarly situated.

They talk about equally culpable.

I invite your attention if I may to page 38 of the printed appendix which includes paragraph six of the second amended complaint filed by the petitioners in the District Court.

You will notice there that the petitioners allege that there was an investigation.

They next go on to allege that as a result of that investigation, they were discharged, but their black co-worker, Mr. Jackson was not.

I submit to you that that complain and after all we must bear in mind that this was the complaint which was dismissed, that complaint does not allege that these three men were similarly situated.

It does not allege that they were equally culpable.

As a consequence, it does no more than draw a conclusion that as a result of an investigation, they were discharged and the black man was not, but we have not the slightest knowledge based on this complaint.

Justice John Paul Stevens: Mr. Niebank, is that a fair reading if they allege in words, the defendant imposed the more severe disciplinary sanction against them because of their race?

Caucasian then against their Negro counterpart, is it not a (Voice Overlap)

Mr. C. George Niebank, Jr: Well, Mr. Justice that is a conclusion, but you do not know, they do not allege sir that Jackson, the black man was equally culpable and I do not think --

Justice John Paul Stevens: Even if they were not precisely equally culpable, would in not still state a cause of action at least under classic terms, if they allege that race was a factor in the decision and they do allege that?

Mr. C. George Niebank, Jr: They allege that, but they do not -- the case as been presented is that they were equally culpable and that (Voice Overlap)

Justice John Paul Stevens: That is essential ingredient of a cause of action that they really like, I say is equal culpability an essential ingredient to the cause of action or is it merely enough to allege that race was a factor in the discharge decision?

Mr. C. George Niebank, Jr: Well, the way the case has been presented --

Justice John Paul Stevens: I understand that, but that does not answer my question.

Mr. C. George Niebank, Jr: Well, yes.

The -- is equally culpable important or essential, I believe it probably is.

Chief Justice Warren E. Burger: Did the District Judge read it that way?

Mr. C. George Niebank, Jr: He assumed that, as Your Honor was talking with Mr. Rosenblum, you read that portion of what he assumed for the sake of argument that they were equally culpable.

Now, what I am suggesting here this afternoon is that that is the beginning of where this case started to acquire this mistaken factual veneer that there was in fact discrimination.

Justice Byron R. White: (Inaudible)

Mr. C. George Niebank, Jr: I beg your pardon.

Justice Byron R. White: Are you defending the right (Inaudible)?

Mr. C. George Niebank, Jr: Yes.

(Voice Overlap) Well, I am defending the result Mr. Justice.

Justice Byron R. White: But not the -- you disown the reasoning?

Mr. C. George Niebank, Jr: No, I do not.

I will go on to that in a moment.

I am saying that there was this -- there is this disparity between the way the case is presented in the way it was actually pleaded.

Justice William H. Rehnquist: Let me ask you a question Mr. Niebank, if I may, about the paragraph of the complaint that Justice Stevens just asked you about.

Supposing that the employer has a policy that anybody it believes to be guilty of a felony is to be fired and it concludes with respect to these three employees that the two whites were guilty of first degree burglary and the black was guilty of second degree burglary, but decides that because the black is a black, we would not fire him.

Now, they are not equally culpable and yet that is a decision based on race, is it not?

Mr. C. George Niebank, Jr: It is a certainly a decision affected by race and as I get to in a moment, we will would turn to it right now.

The --

Justice Lewis F. Powell: I am looking at the paragraph that precedes the one that has been commented on, this is paragraph B on 38 which states that all three of these individuals were charged jointly and severally with the same offense.

How do you square that with your arguments?

Mr. C. George Niebank, Jr: I am sorry Mr. Justice --

Justice Lewis F. Powell: Look at B, page 38, 6B, on that September 26, plaintiffs along with one Negro employee, Charles Jackson were all charged jointly and severally --

Mr. C. George Niebank, Jr: But the unspoken conclusion --

Justice Lewis F. Powell: -- with misappropriation?

Mr. C. George Niebank, Jr: Excuse me.

Justice Lewis F. Powell: Well.

Mr. C. George Niebank, Jr: The unspoken conclusion is that there were all three found guilty and in a fact that is not alleged, but --

Unknown Speaker: (Inaudible) is it not?(Voice overlap)

Rebuttal of Pottinger

Mr. Pottinger: But what I am suggesting is that absent that the complaint was properly dismissed.

But even if --

Chief Justice Warren E. Burger: (Voice Overlap) You make that wash, you have got to say this does not allege a racial discriminatory motivation?

Justice Harry A. Blackmun: Mr. Niebank (Inaudible) it certainly says that plaintiff’s allege that they were discharged because of their race?

Rebuttal of C. George Niebank, Jr

Mr. C. George Niebank, Jr: That is what they alleged, yes.

Now, as was averted to earlier in a subsequent case Judge Beau (ph) had an occasion to comment on his decision in McDonald and Laird, in Spiess v. C. Itoh & Company was decided on the 29th of January and in that case he is talking about Laird and McDonald.

He said in that case this Court could find no allegation of racial discrimination on the face of the complaint.

Now, that is (Inaudible).

Chief Justice Warren E. Burger: His reference there was to this complaint that you have been reading to?

Mr. C. George Niebank, Jr: Yes Sir.

Chief Justice Warren E. Burger: Well, then we have to read the complaint and determine whether that is correct?

Mr. C. George Niebank, Jr: Well, in view of the fact that the motion to dismiss this complaint was granted, I think it is incumbent on this Court to take a look at the complaint.

Chief Justice Warren E. Burger: Most favorably (Voice Overlap).

Mr. C. George Niebank, Jr: Construed most favorably to the petitioners, correct.

Chief Justice Warren E. Burger: What do you suggest as a hypothesis that they needed to allege here to survive the motion which is not alleged?

Mr. C. George Niebank, Jr: Well, I believe they should have or should be required to allege that they were equally culpable and this is an order to sustain the conclusion that there was desperate disciplinary treatment.

That they were -- the black man was just a guilty as they were, but he was not fired and they were.

Chief Justice Warren E. Burger: But surely can you not read this complaint fairly as stating they engaged in a giant enterprise as Mr. Justice Powell has just pointed out, that they all did the same thing (Voice Overlap) in detail.

Mr. C. George Niebank, Jr: Well, the fact (Voice Overlap) the point that came up before was that they were charged jointly with this theft.

Chief Justice Warren E. Burger: Well, only in the allegation stages here?

Mr. C. George Niebank, Jr: Well I know, but that is the point at which they have got to file a complaint which states a cause of action and the courts below found that they did not and I think properly so.

Justice William H. Rehnquist: (Inaudible) are pleading under the Federal Rules, Mr. Niebank, not under Cheddies (ph) rules?

Mr. C. George Niebank, Jr: That is correct Mr. Justice, but still given notice to pleading we are entitled I believe to a more specificity than they have here.

If however, you go ahead and assume as the District Court did that they were in fact similarly situated, still we believe that the Court properly dismissed the claim for failure to state -- dismissed the complaint for failure to state a claim upon which relief could be granted under Title VII because and here I would refer the Court --

Justice Thurgood Marshall: Full answer?

Mr. C. George Niebank, Jr: I beg your pardon.

Justice Thurgood Marshall: You filed a full answer?

Mr. C. George Niebank, Jr: I am sorry I could not --

Justice Thurgood Marshall: You filed a full answer?

Mr. C. George Niebank, Jr: Yes sir, we did.

Justice Thurgood Marshall: In the answer you did not voluntary any fact that one of them was guilty and another was not, did you?

Mr. C. George Niebank, Jr: Now in the answer to the complaint, no we said that we denied that Jackson was even charged like we denied that Laird was discharged for his participation in the theft.

We said in our answer that he was discharged because he was a poor supervisor and he had violated company rules, but --

Chief Justice Warren E. Burger: (Inaudible) is it not?

The issue is joined and you are ready to go to trial?

Mr. C. George Niebank, Jr: Except that they were still required in the District Court to state a claim upon which relief could be granted in their complaint even though we had filed the answer.

We filed a motion to dismiss under Rule 12 (b) (6).

Now, if you assume that they were in fact similarly situated, still we believe that the complaint was properly dismissed.

Here referring to McDonnell Douglas against Green where they talk about the essentials of a cause of action in a case of this kind, the plaintiffs or the petitioners in this case to the -- when they alleged that they have been discharged for theft, they in a fact met the burden which might otherwise be placed upon us of coming back with our answer and saying they were just dismissed for theft and then the burden would shift back to them, even though we had answered the fact, answer to that effect.

They met our burden and then it was incumbent upon them to allege something more and that something might have been a pattern in practice, pretext, they at one point did allege pattern in practice, but they abandoned that when it became obvious that they could never make it stick.

And you have heard some talk today about pretext?

Well, that is an afterthought because they never alleged pretext in their complaint that the theft was a pretext, discharged them because of their race.

Also I want to emphasize that our action in this case grew out of an exercise of management’s discretion in discipline.

A management must have considerable degree of discretion in administering discipline the same way Courts do in administering sentences in criminal cases.

What the petitioners would have this Court do is say that there must be a uniform sentence no matter what when you have got three people involved in the same transaction.

I submit to you that that is not so.

That management has a right to be lenient, if it chooses and that it would not thereby run afoul of the law.

I would like to touch very briefly on the 1981 point which the Court below held that whites are not entitled to claim that relief.

And there it seems to me that the parties of not starting at the right point.

I think you have to start with the Thirteenth Amendment and which of course was to -- the purpose of which to us to abolish slavery.

And Section 1981 being part of The Civil Rights Act of 1866 was intended to implement that and if you read it, all persons shall enjoy the same rights are white citizens.

If you read it to mean all white shall have the same rights as white citizens I submit that that is redundant.

Now, there is legislative history of course on both sides and the courts are divided, but we believe that the best reading is one which would restrict 1981 relief to blacks and other minorities.

If 1981 is read to confer or to require or to confer cause of action on whites then you are going to open the gates to suits such as the Sears, Roebuck case, Hollander v. Sears, Roebuck in which Sears set up a Summer Internship Program for the benefit of blacks, a young white man applied and was of course rejected, so he sued.

Now, that will have a very serious impact on the affirmative action programs which are the policy of the United States intended to assist the black men and other minorities.

Thank you.

Chief Justice Warren E. Burger: Very well Mr. Niebank.

Mr. Dixie.

Argument of Chris Dixie

Mr. Chris Dixie: If the Court please, both lower courts assumed that the two people -- the three people who were guilty of theft and he had gone into various allegations in pretrial hearings and it was before the District Court that the theft concerned 60 cases of anti-freeze then in transit in the possession of a common carrier, that is a crime under state law of felony and it is also a crime under Federal Law.

Both courts held that if it is serious crime it is outside of the purview of Title VII.

I would like to refer this Court to a line of cases by the lower courts that hold that the under National Labor Relations Act if serious theft on the job is involved, the entire case is outside of the purview even if the discharge was motivated by prohibited reasons.

Please see NLRB vs. Magnuson, 523 Federal Second 643 which collates the decisions Seven Circuits to the same effect.

I mention this point because in one if the briefs, that is the rejected brief, the point is made that you do the same thing under this statute that we do under the Labor Act because it was model for this statute, Title VII and I want the Court to please examine this line of cases.

The theory of the lower courts is that when you get down to the question of serious theft on the job, it does not effectuate the purposes of the statute and it also demeans the Court to reinstate and provide back pay for someone who is demonstrated to be guilty of that kind of conduct.

So here the Court must decide, I think whether in your judgment it is necessary to provide equality in punishment for serious theft on the job as a means of defective enforcement of Title VII or whether as was done under the Labor Act, you leave theft outside the purview of the statute.

Now, that is what this Court did in the ancient case of Fansteel which was cited in the McDonnell Douglas versus Green.

In Fansteel, the sit-down strikers were not reinstated, even though mini sit-down strikers were reinstated.

The Supreme Court said that kind of conduct puts them beyond the purview of the statute and that is what we think is the issue in this case.

Under 1981, we joined issue with the other parties.

We say that the face of the statute does not accommodate this case.

Justice Byron R. White: What would you say if an employer found his business falling off, he did not have any – he was not presented – he did not – he was not organized and he is going to have to cut down 10 employees and he discharged 10 white employees and they brought a suit alleging that they were discharged because of their race?

Mr. Chris Dixie: It would seem to me that they have an ideal cause of action.

No one has disputed in this case that Title VII applies and protects to white people.

As a matter of fact it does.

White people can file charges before EEOC.

Justice Byron R. White: What about 1981?

Mr. Chris Dixie: That was what I was going to get to.

I might say that white people can even intervene in appending proceeding under Title VII in Federal Court.

Justice Byron R. White: So you agree that both Titles, at least Title VII protects the whites as well as the black?

Mr. Chris Dixie: Right.

I am not only agreeing to it, but I protest in the implication to the contrary that (Voice Overlap).

Justice Byron R. White: And if the black were the plaintiff here making the same allegations as the white person is making here, you would be arguing the same way?

Mr. Chris Dixie: Certainly.

All races, colors, national origins, religions and sexes have a cause of action under Title VII and in case there is a misunderstanding in the public and I think there may be, this seems to be an ideal occasion for the Court to speak loud and clear on that subject.

I must say to you that a lot of misfortune has been visited upon white workers under Title VII without their presence before the Court.

I think we have to recognize that, but the remedy for that is not to stretch 1981.

It is to point out the fact that they have ideal protection under Title VII in the same forum and under the same substantive and procedural rules.

Please let me go to 19 --

Justice Byron R. White: (Inaudible) Are you going to 1981?

Mr. Chris Dixie: Right now.

Your Honor the 1886 Act as it was passed provided, first, all persons born here are citizens and second all citizens shall posses certain rights to the same degree as white citizens.

Now, is it not interesting that no one on the other side, no brief comes to grip with that phrase the same rights as are enjoyed by white citizens.

Now, in making that language, Congress thus established the rights possessed by white citizens as the yardstick for measuring the rights of all citizens.

And this case does not fit the statute for the simple reason that they require the Court to say now that we are going to take the yardstick of black citizens in a single isolated episode of theft to provide a converse or reciprocal cause of action for white people.

Now, the legislative history does not require that or does not even permit it as we see it.

Now, do not confuse Jones versus Alfred Mayer.

In that case the face of the statute supported the plaintiffs and the inquiry of the Court was whether there was something in the legislative history that required the Court to go contrary to the face of the statute, but in this case the face of the statute supports the respondent and the burden is heavier.

Justice John Paul Stevens: Mr. Dixie, can I test that proposition with you sir?

Supposing a community had an ordinance.

It said white citizen shall be permitted to ride in the front of the bus, black citizens shall not be permitted to ride in the front of the bus and neither shall people named Dixie.

Now would Mr. Dixie have a cause of action?

Mr. Chris Dixie: Yes, I think all persons --

Justice John Paul Stevens: Even though he was white?

Mr. Chris Dixie: All persons, yes.

I really think so.

Justice John Paul Stevens: So it would be conceivable for a white person to have a cause of action?

Mr. Chris Dixie: I think that is right and the statute even covers white aliens because alien which is a disability that Congress wanted to overcome, but the ultimate thing we must get to in this case if we are going to be true to what that reconstruction Congress enacted is the adoption of a yardstick of white citizens' rights whatever they are and the granting of those rights to all citizens and that is the place where the statute does not fit the case and vice versa.

Justice Byron R. White: If you decide that white citizens generally have a certain right and then a certain white citizen is denied it, why does he not have a cause of action?

Mr. Chris Dixie: They are not asking for the rights of white citizens in this case.

They would have such an insurmountable burden of proof there that it would be futile to file such a case.

While these plaintiffs are not asking for the rights of white citizens, these plaintiffs are asking for the rights of black citizens and they are asking the Court to perform plastic surgery upon the statute and do something that the reconstruction Congress did not do and they ask this they --

Justice John Paul Stevens: The right Mr. Dixie involved here is the right not to be discriminated against on account of race which most whites had in 1866, but maybe some whites do not have?

Mr. Chris Dixie: Well, that is not what is involved here Your Honor.

In the post slavery period, in the implementation of the Thirteenth Amendment, Congress was interested in elevating and protecting the position of freedmen.

They were not interested in protecting the rights of white people.

It is not incumbent on Congress to come up with a solution that is perfectly rectangular or perfectly square in every situation.

The Congress may address itself to the evil at hand and in this connection, I would like to cite Williamson versus Lee Optical Company, the 1955 term of Court, 348 U.S. 483 which collated all the cases up to that time and has been cited many times by this Court for the proposition that Congress may address itself to the evil that it perceives and that Congress understood that the white population had their feet on the necks of the black population and what they were trying to do was to elevate all non-whites, if you please, to the status of whites in each state, whatever that status was.

And so in asking for this plastic surgery, they do not give, they do not reach, I do not believe the legislative history, but I am not going to burden you with that except to say to Your Honors that the legislative history after the Bill took its final form, not the early stages of it, made a clear demonstration that the Senators and the Congressmen understood the structure and thrust of this statute is to provide relief for the freedmen and to deprived people and elevate them to the level of white citizens.

They understood that and they articulated that.

President Johnson said that in his veto message and Senator Trumbull, the principal sponsor of the Bill said that, after President Johnson vetoed.

President Johnson said this thing is discriminatory.

Senator Trumbull said with what truth can this be said of a Bill which declares that the Civil Rights and Punishments of all races, including of course the colored shall be the same as those of the white persons.

He did not say that this gives a cause of action to white people too.

Now, the last thing I want to say that the Court because and I have observed (Voice Overlap).

Justice William H. Rehnquist: Mr. Dixie, is it your submission that no white person can make out a cause of action under this Section even though he asserts he was denied the rights accorded to white people?

Mr. Chris Dixie: No, that is not my position because there are lots of white people as we speak.

White people under the statute mean something else.

For example, there is no doubt in my mind that Mexican-Americans can reach under this statute.

There is a very, very lengthy Law Review Article in 63, Colorado -- California Law Review demonstrating why they are an unidentifiable ethnic group.

Justice William H. Rehnquist: How about a straight Caucasian?

Can he ever make out a claim simply showing that he is not being given the rights that “white people are being given?”

Mr. Chris Dixie: Well, can who ever make out a claim Your Honor?

Justice William H. Rehnquist: Well, a straight Caucasian or not so straight Caucasian?[Laughter]

Mr. Chris Dixie: A straight Caucasian, well, I do not know exactly what a straight Caucasian is, but I believe that theoretically he could.

I just believe he would have a terrible burden of proof at that question while theoretically penetrating is not a very serious practical problem Your Honor, but there are other groups who are put upon in this nation who could possibly invoke the rights of non-whites ,but in every case they must reach for the yardstick of white people.

Now, no one in this case has given the Court any reason why you should perform this plastic surgery.

Title VII is entirely adequate in the employment field.

No one has said what is the use of doing this, except the brief filed by the US Chamber of Commerce and upon my word they say right in there what we are worried about and that is that this kind of a cause of action invested in white persons under 1981 becomes a useful tool to contest against affirmative action programs which might be undertaken in the implementation of Title VII and if that red light does not go on, I will give you an illustration.

In Griggs versus Duke Power Company this Court held that tests which disproportionedally effect affect black people, are not lawful unless they are job related.

But if they are job related the test can be as difficult.

I mean if they do not disproportion -- yes if they are job related they can be as difficult as they need to be.

Let us suppose an employer determines that his tests are not lawful and it gets rid of him, he transfers blacks to other departments ,he gives some plant-wide seniority for a remedial purpose and he has complied with Title VII.

What stops a white worker from suing under 1981 to say that they have applied a different standard to a black than they do to me?

That black did not have to pass that test.

That black now has plant-wide seniority and I have been fighting for 20 years to get plant-wide seniority.

Unknown Speaker: (Inaudible)

Mr. Chris Dixie: Certainly, but if he wants to --

Unknown Speaker: (Inaudible)

Mr. Chris Dixie: If he wants to stay away from the Equity Court and if he wants to invoke a jury, he will sue under 1981 and he will present issues of fact for the determination of a jury in a different forum under a different statute of limitations Your Honor and have jury pass upon whether or not that test which was discarded by the employer was in fact job related or not job related.

Well, my time is up.

In other words, it may be appealing to perform this plastic surgery, but it might lead to trouble.

I think it will and we ask the Court to consider that.

Unknown Speaker: (Inaudible)

Mr. Chris Dixie: Yes your honor.

Justice Lewis F. Powell: (Inaudible) Title VII.

Your position as I understand it is that Title VII does not apply to any employee who has committed a serious crime?

Mr. Chris Dixie: On the job?

Justice Lewis F. Powell: On the job.

Mr. Chris Dixie: Right.

Justice Lewis F. Powell: I would like to put a hypothetical to you having in mind that you cited in defense to your case that a sit-down strike.

Mr. Chris Dixie: And Your Honor cited defense to your case no matter picked on (Voice Overlap)

Justice Lewis F. Powell: That is right in McDonald, but in --

Mr. Chris Dixie: That is where the lower courts got it.

Justice Lewis F. Powell: I did not cite it to the same proposition you do, but let me say and let me put this case.

Let us assume a company that had 100 employees.

Fifty of whom were Negro and 50 were whites.

All 100 went on a sit-down strike and undertook jointly and said that they will break up all the machinery in the plant.

Management then said this is a great opportunity to get rid of all the Negro employees, so management fired the 50 Negro employees, retained the 50 white.

Is it your position that Title VII would not apply?

Mr. Chris Dixie: No.

I really believe that that practice would be wide spread enough to where a court would have to make a further choice, but this is an isolated case of a single theft.

This is one stealing of 60 cases of heavy freeze.

The Chief Justice asked the question earlier Your Honor, would be people in the penitentiary be able to complain that habitually whites get shorter sentences than blacks.

I think that they really should be allow that, but this is not a case of habitually complain of habitual practice.

This is an isolated case and --

Unknown Speaker: (Inaudible)

Mr. Chris Dixie: Absolutely not Your Honor.

Unknown Speaker: (Inaudible)

Mr. Chris Dixie: Why of course, a crime committed on the job is a sui generis situation.

That is not a part of condition of employment to be able to demand an equal punishment after you have stolen seriously from the employer, my position is limited and so are the authorities are cited, then limited to the question of serious crime.

Unknown Speaker: (Inaudible)

Mr. Chris Dixie: That is right, serious crime and I do not think you are going to damage Title VII by accepting that.

On the other hand I do not think you are going to help either Title VII or the deprived races by getting the courts into the question of adjudicating individual punishments without any pattern or practice conduct, individual punishment for serious crime.

Thank you.

Chief Justice Warren E. Burger: Mr. Rosenblum you have anything that you left?

Rebuttal of Henry M. Rosenblum

Mr. Henry M. Rosenblum: First, I would like to make the observation that the petitioners have simply never been convicted of any crime, theft or otherwise.

There has been an allegation that there were 26 cans of anti freeze misappropriated and I remind the Court that in the McDonnell case, the Green, we had a convicted confessed misdemeanant, so I simply reject Mr. Dixie’s proposition plus if we talk of flood gates then a criteria is created where the mere allegation of wrongdoing constitutes the basis for discharge without the embrace of Title VII or 1981, it is likely the 10 years of ameliorating judicial interpretation of Title VII will go out the window.

This is precisely what happened in the hundreds of cases upon which Title VII claims were based.

Mr. Dixie asks for reasons why we should have 1981 and why we should only worry about two people here.

One of the reasons is precisely that these petitioners and in particular Mr. Laird, he never filed a Title VII charge at the EEOC, so it is all together possible depending on constructions placed on his failure to file that 1981 is his only avenue of relief.

Furthermore, many hypotheticals have been tossed around.

If it turned out for example that this employer had less than 15 employees, 1981 is a necessary vehicle for redeeming discrimination if it occurs whether preferences are for the majority or minority.

We have heard much of the legislative history.

I do not intend to burden the Court overly, but I cannot resist reading from the brief of the respondent prepared by me.

Chief Justice Warren E. Burger: Alright we will read it.

Your time is up now Thank you Mister Rosenblum.

Mr. Henry M. Rosenblum: Thank you.

Chief Justice Warren E. Burger: Thank you gentlemen.

The case is submitted.