Culpepper v. Reynolds Metals Company Judgment

    IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

N o .  2 7 5 4 7

SAMUEL CULPEPPER,
Plaintiff-Appellant-Cross Appellee,

versus

REYNOLDS METALS COMPANY,
Defendant-Appellee-Cross Appellant.

Appeals from the United States District Court for the
Northern District of Georgia

(January 8, 1970)

Before TUTTLE, COLEMAN and SIMPSON, 
Circuit Judges.

TUTTLE, Circuit Judge: Appellant, Samuel Cul­
pepper, filed an action on October 24, 1968, in the United 
States District Court for the Northern District of Geor­
gia, pursuant to 42 U.S.C.A. §1981 and Title VII of 
the Civil Rights Act of 1964, 42 U.S.C.A. §2000(e) et 
seq. alleging racial discrimination in the employment 
practices of appellee, Reynolds Metals Company, and



2 CU LPEPPER v. REYNOLDS METALS CO.

specifically in the denial of a promotion to the position 
of relief slitter operator.

Samuel Culpepper, a 48-year old Negro, was original­
ly employed at Reynolds’ Atlanta Colorweld plant in 
1955. The plant is primarily concerned with the cutting, 
shaping and painting of aluminum siding produced by 
its Alabama plant and is the final processing before 
delivery to the customer. Culpepper was initially em­
ployed in the receiving department. He later moved 
into fabrication and is now a decoder operator in that 
department, earning $2.62 per hour. This job classifi­
cation is the highest wage rate within the fabrication 
department other than a slitter operator which carries 
a pay rate of fifteen cents per hour more. It is this 
job for which appellant applied and the denial of which 
he alleges was based on race.

Reynold’s Atlanta plant is a union plant and has 
been since 1956. The union agreement gives each em­
ployee plant seniority and departmental seniority with 
each new job opening filled on the principle of qualifi­
cation and seniority. Each new job or vacancy in an 
existing job is posted by management for a period 
of twenty-four hours, and interested employees bid the 
job by signing the bulletin. Priority for the job opening 
is based first on departmental seniority and qualifica­
tions. Failure lof an applicant with departmental se­
niority to qualify opens the bid to employees in the 
other departments based on plant seniority and quali­
fications. The senior bidder is granted a twenty-day 
trial period to qualify. If he does, he is promoted; 
if not, the next senior bidder is granted the trial period.



CU LPEPPER v. REYNOLDS M ETALS CO. 3

Culpepper unsuccessfully bid the job for the first 
time in the fall of 1962. The job was awarded to a 
white employee with less seniority. Culpepper made 
a grievance complaining of the awarding of the job 
to the less senior white employee. In April 1963 the 
job was again posted and Culpepper again bid. He 
was given a trial period but was found not qualified 
(There is some question concerning the conditions and 
circumstances under which Culpepper was trained and 
eventually determined not qualified. However, we do 
not reach this issue, since the case is before us in 
a preliminary posture.) On March 20, 1967, the job 
of relief slitter operator was posted. Appellant, being 
the most senior employee, bid again. The job was a- 
warded to a white employee with less seniority on 
March 28, 1967, because of Culpepper’s not having qual­
ified on a different but similar machine in 1963.1

Culpepper filed a complaint with the union pursuant 
to his contractual remedies on April 4, 1967. On May 
5, 1967, appellee offered Culpepper a 90-day position 
as slitter helper at helper rates ($.25 per hour less 
than his present earnings) with the opportunity to bid

’ It must be noted here that if appellant can show that racial reasons 
led to his disqualification in 1963, any consideration of this dis­
qualification after the effective date of Title VII would be pro­
hibited. An employer cannot give present effect to acts which 
are prohibited by Title VII, although not unlawful when com­
mitted. Quarles v. Philip Morris, Inc., 279 F.Supp. 505 (E.D.Va.
1968) , United States v. Local 189, United Papermakers & Paper-
workers, 282 F.Supp’. 39 (E.D.La.1968), aff’d 5 Cir., 1969, __ ___
F. 2 d --------, United States v. Hayes International (5 Cir., 1969)
-------- F. 2d -------- , Local 53 International Association of Heat
and Frost Insulators and Asbestos Workers v. Vogler (5 Cir.,
1969) , _____ F. 2 d ______



4 CU LPEPPER v. REYNOLDS METALS CO.

should there be a future opening (a right which he 
presently had under the union-management contract). 
On July 15, 1967, Culpepper filed his formal charge 
with the Equal Employment Opportunity Commission 
as provided by the Act, 42 U.S.C.A. §2000(e)-5(a). A 
“suit letter,” which amounts to a determination by 
the Commission that probable cause exists, was issued 
to Culpepper on September 26, 1968, and this action 
was filed 30 days thereafter.

The district court held that (1) under Title VII, ap­
pellant’s claim must be dismissed for failure to file 
timely charges with the Equal Employment Opportuni­
ty Commission (EEOC); (2) that under Title VII, the 
court does not have the power to grant a preliminary 
injunction to an individual litigant and (3) that a claim 
for relief against purely private racial discrimination 
in employment could not be predicated on 42 U.S.C.A. 
§1981. This appeal followed.

Racial discrimination in employment is one of the 
most deplorable forms of discrimination known to our 
society, for it deals not with just an individual’s sharing 
in the “outer benefits” of being an American citizen, 
but rather the ability to provide decently for one’s 
family in a job or profession for which he qualifies 
and chooses. Title VII of the 1964 Civil Rights Act 
provides us with a clear mandate from Congress that 
no longer will the United States tolerate this form of 
discrimination,. It is, therefore, the duty of the courts 
to make sure that the Act works, and the intent of 
Congress is not hampered by a combination of a strict



CU LPEPPER v. REYNOLDS METALS CO. 5

construction of the statute and a battle with seman­
tics.2

This court has held many times that Title VII should 
receive a liberal construction while at all times bearing 
in mind that the central theme of Title VII is “private 
settlement” as an effective end to employment dis­
crimination. In Otis v. Crown Zellerbach (5 Cir., 1968) 
398 F. 2d 496, this court held that:

“It is thus clear that there is great emphasis 
in Title VII on private settlement and the elim­
ination of unfair practices without litigation

This view was again voiced in Jenkins v. United Gas 
Corporation (5 Cir., 1969) 400 F. 2d 28, where this court 
stated that:

“. . . EEOC’s function is to effectuate the
Act’s policy of voluntary conference, persua­
sion and conciliation as the principal tools of 
enforcement.”

It would, therefore, be an improper reading of the

^Honorable Griffin B. Bell, of the Court of Appeals for the Fifth 
Circuit, in a speech before a lawyers seminar on Title VII 
stated that:

“We think that the statute as enacted by Congress is 
designed to eliminate an unfortunate chapter in our 
history, when persons have been denied jobs simply by 
reasons of their race. Therefore, we approach the 
statute in a generous way. We want to make it work.
We want to fill in these gaps, and we want to stay 
within the intent of Congress in making it work.”



6 CU LPEPPER v. REYNOLDS METALS CO.

purpose of Title VII if we were to construe the statute 
as did the district court to permit the short statute 
of limitations to penalize a common employee, who, 
at no time resting on his rights, attempts first in good 
faith to reach a private settlement without litigation 
in the elimination of what he believes to be an unfair, 
as well as an unlawful, practice. We, therefore, hold 
that the statute of limitations, which has been held 
to be a jurisdictional requirement, is tolled once an 
employee invokes his contractual grievance remedies 
in a constructive effort to seek a “private settlement 
of his complaint.”3 Culpepper also sought to settle his 
complaint in 1983 through the grievance procedures. 
We do not think that Congress intended for a result 
which would require an employee, thoroughly familiar 
with the rules of the shop, to proceed solely with his 
Title VII remedies for fear that he will waive these 
remedies if he follows the rules of the shop or to do 
both simultaneously, thereby frustrating the grievance 
procedure.

In Burnett v. New York Central Railroad Co., 380 
U.S. 424 (1985), the Court, in holding that the FELA 
limitations period is not totally inflexible, stated that 
the basic inquiry is whether congressional purpose is 
effectuated by tolling the statute of limitations in given 
circumstances. The Court also held that in order to 
determine congressional intent, the Court must exam­
ine the purposes and policies underlying the limitation

sBased on the facts presented here, there is* no need for a determina­
tion as to how long the statute is tolled in cojunction with 42 
U.S.C.A. §2000(e)-5(d). Circumstances will dictate as the cases 
may present other facts.



CU LPEPPER v. REYNOLDS METALS CO. 7

provision, the act itself and the remedial scheme de­
veloped for the enforcement of the rights given by 
the Act. See Minnesota Mining v. N.J. Wood Co., 381 
U.S.311 (1964).

“Statutes of limitations are primarily designed to 
assure fairness to defendants. Such statutes promote 
justice by preventing surprises and revival of claims 
that have been allowed to slumber until evidence has 
been lost, memories faded . . . ” Burnett v. New York 
Central RR Co., supra, at 428. Congress, in placing 
the various time limitations in Title VII, was attempt­
ing to eliminate the problem of “second thought com­
plaints, ” stale complaints and the hampering effect 
that they can have on our labor market. However, 
the time limitation is meant to penalize only those 
who sleep on their rights and remedies, not one1 who 
actively attempts to settle his complaint by following 
the “rules of the shop.” Moreover, “the policy behind 
statutes of limitations is outweighed when the inter­
ests of justice require vindication of the plaintiff 
rights.” Burnett v. New York Central RR, supra, at 
428. This is the only consistent reading of a “humane 
and remedial Act.” Burnett v. New York Central RR 
Co., supra, at 427.

In Dewey v. Reynolds Metal Company, 291 F. Supp. 
488, the plaintiff Dewey, a member of the Reformed 
Church, brought an action under Title VII alleging 
that he had been discharged because of his religious 
beliefs. This charge was brought after Dewey had ex­
hausted his contractual remedies including a hearing 
by an arbitrator and after he had exhausted his state 
remedies under Michigan law. Dewey’s charge was



8 CU LPEPPER v. REYNOLDS METALS CO.

filed with the Michigan State Civil Rights Commission 
more than nine months and seventeen days after the 
alleged discriminatory act had occurred — his dis­
charge on September 12, 1966. The specific question 
before the court was whether Dewey’s election to travel 
the contractual remedies route barred him from his 
Title VII rights. The court, in answering and by in­
ference treating the statute as if it had been tolled, 
stated that:

“It is understandable that any union member 
would first proceed to raise any rights he felt 
were due him under the contract. Proceeding 
first therefore through arbitration is in accord 
with Federal labor law. Republic Steel Corp. 
v. Maddox, 379 U.S. 650 (1965), United Steel­
workers v. Warrior & Gulf Nev. Co., 363 U.S.
574 (1960). Plaintiff should not be penalized 
for first proceeding with his contractual reme­
dies.”

In King v. Georgia Power Co., 295 F. Supp. 943 (N.D. 
Ga., 1968), as in other cases, it was held that con­
tractual grievance procedures need not be exhausted 
prior to the filing of a complaint with the Equal Em­
ployment Opportunity Commission. The court only said 
there that Title VII remedies are independent of con­
tractual remedies and therefore there is no prerequi­
site that an employee exhaust his contractual remedies 
before he files his charge with EEOC. The position 
which we take here is not inconsistent with this, for 
in Georgia Power, the court did not deal with the ques­
tion of what happens if the employee invokes his con­
tractual remedies. There is nothing inconsistent with



CU LPEPPER v. REYNOLDS METALS CO. 9

stating that the employee need only follow the proce­
dures for relief provided in Title YII and if he follows 
first his contractual remedies, he is not barred from 
proceeding under Title VII even if processing his con­
tractual remedies takes more than 90 days.

There is nothing discriminatory about this result, 
as contended by appellee — that is between those with­
out contractual grievance procedures having to file 
within 90 days as against those with contractual griev­
ance procedures having to file within 90 days after 
the grievance procedure has been exhausted, abandon­
ed, or the time for filing the grievance has expired. 
This is made clear by the inclusion of 42 U.S.C.A. 
§2000(e)-5(b), which manifests the importance of local 
and private settlements by providing a different time­
table for filing a charge with EEOC if there is a state 
or local fair employment practice committee. In short, 
some employees have local FEPCs and some do not, 
thereby receiving a “difference” in treatment under 
the statute. It is therefore not unreasonable that a 
similar difference in treatment is permissible under 
the statute with respect to employees with established 
contractual remedies who timely invoke those reme­
dies. Merely because the statute does not specifically 
provide an allowance for contractual remedies does 
■not mean that allowances are prohibited.4

^Appellant argues that this, discriminatory act involved here was a 
non-final act, until Culpepper abandoned the grievance proce­
dure, for as long as' the grievance procedure was ongoing, the 
denial of his claim to the job of relief slitter was not a final 
act so as to require the filing of an administrative charge under 
§706(d). We do' not reach that issue based on our disposition 
of this case on the tolling of the statute feature.



10 CU LPEPPER V. REYNOLDS METALS CO.

The district court held that Culpepper was not en­
titled to a temporary injunction for under the Act inso­
far as individual relief is concerned, the powers of 
the court are explicit,3 and the explicit remedies avail­
able to an individual under 42 U.S.C.A. §2000e-5(g) 
are not available until a final determination of the 
merits of the claim thereby barring temporary relief 
since it is not specifically mentioned. However, the 
district court held that preliminary injunctive relief 
is available in a class-type action under 42 U.S.C.A. 
2Q00e-5(g), the same statute, with the only difference 
being the practicality and appropriateness of the re­
lief.6 Not only is there no basis for distinguishing be-

s42 U.S.C.A. 2000e-5(g). If the court finds that the respondent has 
intentionally engaged in or is intentionally engaged in an un­
lawful employment practice charged in the complaint, the 
court may enjoin the respondent from engaging in such unlaw­
ful employment practice and order such affirmative action as 
may be appropriate, which may include reinstatement or hiring 
of employees, with or without back pay (payable by the em­
ployer, employment agency, or labor organization, as the case 
may be, responsible for the unlawful employment practice.) In­
terim. earnings or amounts earnable with reasonable diligence 
by the person or persons discriminated against shall operate to 
reduce the back pay otherwise allowable. No order of the court 
shall require the admission or reinstatement of an individual 
or a member of a union or the hiring, reinstatement or promo­
tion of an individual as an employee, or the payment to him 
of any back pay, if such individual was refused admission, 
suspended or expelled or was refused employment or advance­
ment or was suspended or discharged for any reasons other 
than discrimination on account of race, color, religion, sex or 
national origin or in violation of §2000e-3(a) of this title. (Em­
phasis added).

sin United States Gypsum Co. v. United Steelworkers of America, 
(5 Cir., 1967) 384 F. 2d 38 45-46 cert. den. 389 U.S. 1042 (1968) 
we held:

“Nationwide activity can grind to a halt over the 
question of who is to throw a switch. Problems which, 
to the outsider seem petty are thought by the adver­
saries to be matters of great principle, if not principal.”



CU LPEPPER v, REYNOLDS M ETALS CO. 11

tween the powers granted under this section to an in­
dividual and those granted in form of a class, but 
such a reading of 42 U.S.C.A. 2000e-5(e) is too narrow 
a reading and not the “generous” interpretation which 
a humane and remedial statute should receive.

The language in 2000-e 5(g) “if the court finds” does 
not mean only that if the court finds upon a full hearing 
on the merits. It can also mean if the court finds upon 
a hearing on the issue of a temporary injunction, the 
court may temporarily enjoin the employer and grant 
temporary affirmative relief.

In Jenkins v. United Gas Corp., (5 Cir. 1968) 400 
F.2d 28, where a suit was filed in the form of a class 
action by a Negro employee who was denied a promo­
tion because of his race, this court said:

“The suit is therefore more than a private 
claim by the employee seeking the particular 
job . . .  that individual often obscure, takes on 
the mantle of sovereign ...  If he obtains an 
injunction, he does so not for himself alone 
but also as a “private attorney general” vin­
dicating a policy that Congress considered of 
the highest priority.”

In Asbestos Workers, Local 53 v. Vogler, (5 Cir., 1969) 
407 F,2d 1047, 1052 this court held that in formulating 
relief from such parties, the courts are not limited 
to simply parroting the Act’s prohibitions but are per­
mitted, if not required, to order such affirmative ac­
tion as may be appropriate.



12 CU LPEPPER v. REYNOLDS METALS CO.

Federal courts have an inherent power to grant ap­
propriate relief. Of course, the Norris-LaGuardia Act 
(29 U.S.C.A. §101 et. seq.) restricts the injunctive 
power of the federal courts in the area of labor dis­
putes. Absent such generally expressed prohibition the 
inherent power remains. There is no expressed pro­
hibition in Title VII. To the contrary, 42 U.S.C.A. 2000e- 
5(b) states that the Norris-LaGuardia provision in Sec­
tions 101-115 of Title 29 shall not apply with respect 
to civil actions brought by private persons. It would, 
therefore, seem that it was the purpose of Congress 
in enacting 2000e-5(b) to make it clear that federal 
courts have power to grant injunctive relief including 
preliminary injunctions and temporary restraining or­
ders in actions brought by private individuals.

Section 2000e-5(b) (withdrawing this prohibition of 
the Norris-LaGuardia. Act) would be merely super­
fluous if it meant only that the federal court could issue 
a permanent injunction, since §2000e-5(a) immediately 
preceding it explicitly grants this right even under 
the district court’s approach to the statute.

Hicks v. Crown Zellerbach Corp., (E.D. La. 1968)
------ F-Supp-------- is factually similar. There Hicks filed
a motion for preliminary injunction and the court held 
that Hicks was entitled to the preliminary injunction, 
it appearing that unless immediately restrained, 
Crown Zellerbach would fill a single relief slitterman 
position with a white employee. See Clark, et al v.
American Marine Corp., __ F. Supp.____(E.D. La.,
1969).



CU LPEPPER v. REYNOLDS METALS CO. 13

If the need exists, we find little distinction in the 
issuance of a preliminary injunction in a class action 
under Title VII and in an action by an individual. Such 
a distinction based on numbers alone is artificial and 
does not lend itself to the ultimate aim of the statute 
— full enjoyment of employment rights to all (and 
each) employees. The mere fact that monetary remun­
eration is available is not always a substitute for in­
junctive relief. “The ethic which permeates the Ameri­
can dream [and Title VII] is that a person may ad­
vance as far as his talents and his merit would carry 
him.” Miller v. International Paper Co., (5 Cir., 1969) 
408 F.2d 283, 294. In United States v. Hayes Interna­
tional Corp., et al, 5 Cir., 1969, No. 2689, dec. August 
19, 1969, we held that where the statutory rights of 
employees are involved and an injunction is authorized 
by statute, the usual prerequisite of irreparable injury 
need not be established before obtaining an injunction 
because irreparable injury should be presumed from 
the very fact that the statute has been violated.

Appellant also contends that the district court had 
jurisdiction under 42 U.S.C.A. 1981. We do not reach 
that issue here because we hold that the court does
have jurisdiction under Title VII.7

The judgment is REVERSED and this case is RE­
MANDED for further proceedings not inconsistent with 
this opinion.

zSee Alex Clark, John T. Magee and Robert Turner v. American 
Marine Corp,, —  F.Supp.--------(E, D. La., 1969).



14 CU LPEPPER v. REYNOLDS METALS CO.

COLEMAN, Circuit judge, concurring:

I agree that the statute of limitations here in issue 
is tolled “once an employee invokes his contractual 
grievance remedies in a constructive effort to seek 
a ‘private settlement of his complaint’. In this con­
nection I would emphasize the presence of the word 
“ constructive”. I also agree that the District Court 
could grant appropriate relief preliminarily. There­
fore, as to the merits of this litigation, the opinion 
is unanimous.

I feel constrained to say, however, that I respect­
fully disagree with the statement appearing at Page 
4 of the opinion that it is “the duty of the courts to 
make sure the Act works”. In the interpretation of 
statutes the courts are required to give due considera­
tion to the intent of Congress, and not to frustrate 
that intent. In my view it is never the duty or the 
concern of the courts “'to1 make sure the Act works”. 
Under our Constitutionally ordained form of govern­
ment, whether an Act works or fails is the concern 
of the Executive or of the Legislature, or both ■— not 
the courts. I, therefore, agree to- the interpretations 
herein given because I think they are legally correct, 
not because there is any judicial duty to rescue an 
Act of Congress from some lack of utility which Con­
gress, if it so desires, has the clear power to correct.

Adm. Office, U.S. Courts—Scofields’ Quality Printers, Inc., N. O., La.