Bernard v. Gulf Oil Company Reply Brief for Appellants on Rehearing En Banc

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 77-1502

WESLEY P. BERNARD, et al.,
Plaintiffs-Appellants,

vs.
GULF OIL COMPANY, et al.,

Defendants-Appellees.

On Appeal From The United States District Court 
For The Eastern District Of Texas

REPLY BRIEF FOR APPELLANTS 
ON REHEARING EN BANC

ULYSSES GENE THIBODEAUX 
425 Alamo Street 
Lake Charles, Louisiana 70501

CHARLES E. COTTON
Suite 500 - 348 Baronne Street 
New Orleans, Louisiana 70601

BARRY L. GOLDSTEIN
805 15th Street, N.W. 
Washington, D.C. 20005

JACK GREENBERG
PATRICK 0. PATTERSON 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-Appellants



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 77-1502

WESLEY P. BERNARD, et al.,
Plaint iffs-Appellants, 
vs.

GULF OIL COMPANY, et al.,
Defendants-Appellees.

On Appeal from The United States District Court 
for The Eastern District of Texas

CERTIFICATE REQUIRED BY LOCAL RULE 13.6.1

The undersigned, counsel of record for the plain­
tiff s-appellants , certifies that the following listed par­
ties have an interest in the outcome of this case. These 
representations are made in order that Judges of this Court 
may evaluate possible disqualification or recusal.

1. Wesley P. Bernard, Elton Hayes, Sr., Rodney 
Tizeno, Hence Brown, Jr., Willie Whitley, and Willie Johnson, 
plaintiffs.

i



2. The class of all black employees now employed 
or formerly employed by defendant, Gulf Oil Company, in Port 
Arthur, Texas, and all black applicants for employment at 
Gulf Oil Company who have been rejected for employment at 
said company.

3. Oil, Chemical and Atomic Workers International 
Union, and Local Union No. 4-23, Oil, Chemical and Atomic 
Workers International Union, defendants.

4. International Association of Machinists and 
Aerospace Workers, Port Arthur Lodge No. 823; International 
Association of Machinists and Aerospace Workers; International 
Brotherhood of Electrical Workers, Local Union No. 390; In­
ternational Brotherhood of Electrical Workers, AFL-CIO; United 
Transportation Local Union; International United Transportation 
Union; Bricklayers, Masons, and Plasterers International Union, 
Local 13; and International Bricklayers, Masons, and Plasterers 
Union: prospective defendants named in plaintiffs' motion
to join additional defendants and for leave to amend the 
complaint. This motion was pending when the district court 
granted summary judgment for the existing defendants.

5. Gulf Oil Corporation, Defendant-Appellee; 
Affiliates of Gulf Oil Corporation are as follows:

Afran Bahamas Limited; Afran Transport Company;
A-Jin Chemical Company, Ltd.; American Heavy Lift Shipping 
Company; Anaogas, S.A.; Argentine Gulf Oil Company; Australian 
Gulf Oil Company; Bahamas Gulf Oil Company; Belgulf Tankers N.V. 
Bio Research Center Company, Limited; Blackships, Inc. ; Bolivian



Gulf Oil Company; Brazilian Gulf Oil Company; Britama Tankers 
Limited; Bulk Petroleum Corporation; Burgan Pension Fund Trustees 
Limited; Cabinda Gulf Oil Company; Caribbean Gulf Refining Cor­
poration; China Gulf Oil Company Limited; China Gulf Plastics 
Corporation; Chinhae Chemical Company, Ltd.; Colombian Gulf Oil 
Company; Colonial Pipeline Company; Compania Ecuatoriana 
Texaco y Gulf, S.A.; Compania Maritima Rio Gulf, S.A.; Compania 
Petrolera Aguarico, S.A.; Coral Gulf Oil Company; County Airport 
Corporation; Dansk Olia-Import A/S; Det Gronlandske Olieaktieselskab; 
Dixie Pipeline Company; Eastern Gulf Oil Company Limited; Eastern 
Venezuela Gas Transport Company; Ecuadorian Gulf Oil Company;
Explorer Pipeline Company; Four Corners Pipe Line Company;
"400" Oil Co., The (A Division of Bulk Petroleum Corporation);
Frisia Minerallolien B.V.

• Gaelic Oil Company Limited, The; Global Energy 
Operations and Management Company-International (A Division 
of Transocean Gulf Oil Company); Global Energy Operations 
and Management Company, Ltd.; Global Energy Operations and 
Management Company-U.S. (A Division of Gulf Oil Corporation);
Grand Bay Co.; Gulf Agricultural Chemicals Company Limited;
Gulf Asian Investments Company Limited; Gulf Asian Services 
(A Division of Gulf Asian Investments Company Limited);
Gulf Benzin A/S; Gulf Chemicals International, Inc.; Gulf 
Computer Sciences Incorporated; Gulf Consumer Services Company 
(A Division of Gulf Oil Corporation); Gulf del Peru, S.A.;
Gulf Ecuatoriana de Petroleo, S.A.; Gulf Energy and Minerals 
Company (A Division of Gulf Oil Corporation); Gulf Energy and 
Minerals Company-International (a Division of Gulf Oil Corpora­
tion) ; Gulf Energy and Minerals Company-U.S. (A Division of 
Gulf Oil Corporation); Gulf Europe Company; Gulf-Gas (Norway)
A/S; Gulf-Gas (Sweden) Aktiebolag; Gulf International Company;
Gulf International Trading Company (A Division of Gulf Oil 
Corporation); Gulf International Trading Company (A Division 
of Gulf Oil Trading Company, Limited).

Gulf International Trading-Far East (A Division of 
Gulf Asian Investments Company Limited); Gulf Italia Production 
Company S.p.A.; Gulf Italiana S.p.A.; Gulf Kuwait Company;
Gulf Management Institute (A Division of Gulf Oil Corporation);
Gulf Marine and Services Company Limited; Gulf Marine Management 
Company (A Division of Afran Transport Company); Gulf Merchandis­
ing Company (A Division of Bulk Petroleum Corporation); Gulf 
Mineral Resources Co. (A Division of Gulf Oil Corporation);
Gulf Minerals Canada Limited; Gulf Oil (Antilles) Inc.; Gulf Oil 
(Belguim) S.A.; Gulf Oil Canada Limited; Gulf Oil Chemicals 
Company (A Division of Gulf Oil Corporation); Gulf Oil Chemicals 
Company Asia, Limited; Gulf Oil Communications Company, Inc.;
Gulf Oil Company-Asia; Gulf Oil Company-Eastern Hemisphere;

- i l l -



Gulf Oil Company (Hong Kong) Inc.; Gulf Oil Company-International 
(A Division of Gulf Oil Corporation); Gulf Oil Company-Japan (A 
Division of Gulf Oil Corporation); Gulf Oil Company-Korea (A 
Division of Gulf Oil Corporation); Gulf Oil Company-Latin 
America (A Division of Gulf Oil Corporation); Gulf Oil Company 
(Nigeria) Limited; Gulf Oil Company of Gabon; Gulf Oil Company 
(Portugal) Limitada; Gulf Oil Company-South Asia.

Gulf Oil Company-Thailand (A Division of Gulf Oil 
Corporation); Gulf Oil Company-U.S. (A Division of Gulf Oil 
Corporation); Gulf Oil European Company; Gulf Oil Financial 
Corporation; Gulf Oil Foundation of Delaware; Gulf Oil Germany, 
Inc.; Gulf Oil (Great Britain) Limited; Gulf Oil (Luxembourg) 
S.A.; Gulf Oil Marine Agency N.V.; Gulf Oil Middle East Trad­
ing Company (A Division of Gulf Oil Trading Company, Limited); 
Gulf Oil. (Nederland) B.V.; Gulf Oil Northern Development Com­
pany (A Division of Gulf Minerals Canada Limited); Gulf Oil 
Production Company; Gulf Oil Raffinaderij B.V.; Gulf Oil Real 
Estate Development Company; Gulf Oil Refining A/S; Gulf Oil 
Refining Limited; Gulf Oil Sales, Inc.; Gulf Oil Securities 
Company, Inc.; Gulf Oil Services, Inc.; Gulf Oil (Switzerland); 
Gulf Oil Terminals (Ireland) Limited; Gulf Oil Trading Company 
(A Division of Transocean Gulf Oil Company); Gulf Oil Trading 
(Far East) (A Division of Gulf Asian Investments Company Limited) 
Gulf Oil Trading Investments Limited; Gulf Oil Zaire S.A.R.L.; 
Gulf Overseas Trading, Inc.; Gulf Petroleum S.A.

Gulf Refining and Marketing Company (A Division of 
Gulf Oil Corporation); Gulf Refining Company; Gulf Research & 
Development Company; Gulf Research Racing Company; Gulf Reston, 
Inc.; Gulf Reston Properties, Inc.; Gulf Science and Technology 
Company (A Division of Gulf Oil Corporation); Gulf Supply and 
Distribution Company Limited; Gulf Technology Europe B.V.;
Gulf Tire & Supply Company; Gulf Trading and Transportation 
(A Division of Transocean Gulf Oil Company); Gulf Trading and 
Transportation Company (A Division of Gulf Oil Corporation);
Gulf Transport Company Aktiebolag; Gulf Travel Club, Inc.;
Gulf (U.K.) Offshore Investments Limited; Hagstrom & Knape 
Oljeaktiebolag; Hutchison-Hayes International, Inc.; Hydrant 
Servicing Company Limited; Iberian Gulf Oil Company; Indonesia 
Gulf Oil Company (A Division of Gulf Oil Corporation); In­
dustrial Asphalt (A Division of Gulf Oil Corporation); Insco 
Limited; Iranian Oil Participants Limited; Iranian Oil Services 
(Holdings) Limited; Java Gulf Limited; Keydril Company; Keydril 
Limited; Keydril U.S.A. (A Division of Gulf Oil Corporation)

Key International Drilling Company Limited; Korea 
Gulf Oil Company; Korea Lubricants Company, Ltd.; Korea Oil 
Corporation; Kupan Emirates Company Limited; Kupan Financial 
Company (Rotterdam B.V.; Kupan International Company; Kuwait



Oil Company Limited; Kuwait Oil Company Trustees Limited;
Laurel Pipe Line Company; Lost Hills Water Company; Mainline 
Pipelines Limited; Meme Grande Oil Company; Michigan Stations 
(A Division of Bulk Petroleum Corporation); Michigan Stations- 
Personnel Services (A Division of Bulk Petroleum Corporation); 
Midcaribbean Investments Limited; Mozambique Gulf Oil Company; 
National Butane Company; Nedgulf Tankers B.V.; A/S Nordisk 
Flaskegas; A/S Nordisk Flaskegas Holding Co.; Nordisk Gulf- 
Gas A/S; Norsk Gulf A/S; Northeast Stations & Services, Inc.; 
Norwegian Gulf Oil Production Company; Okan Pipeline Company; 
Okinawa Sekiyu Seisei Company, Ltd.; B. V. Olie Handelsvereeniging 
(Oil Trading Association); Pacific Gulf Oil Limited; Pennsylvania 
Oljeimport Aktiebolag; Petroleo Gulf do Brasil Limitada.

Petroleos Gulf de Guatemala, S.A.; Petroleos Gulf 
del Ecuador C.A.; Petroleum Products Storage and Transport 
Company S.A.; Petrosil Oil Company Limited; Pittsburg &
Midway Coal Mining Company, The; Productos Latinoamericanos,
S.A.; Propet Company, Limited; Refineria de Petroleos del 
Norte S .A . (Petronor); SARNI, S.p.A.; Shawinigan Products 
Corporation; Sociedad Anonima Espanola de Lubrificantes 
(SAFL); SOLVO Finance and Investment Corporation Ltd.;
South Pacific Gulf Oil Company; Spanish Gulf Oil Company;
Spencer Quimica Mexicana, S.A. de C.V.; Sunrise International 
Company, Limited; Svenska Aktiebolaget Alfred Olsen & Co.;
Svenska Gulf Oil AB; Taiwan VCM Industries Corporation;
Transocean Chemicals Company; Transocean Chemicals Company 
(Hong Kong) Limited; Transocean Gulf Oil Company; Transport 
Oil Company-Madison (A Division of Bulk Petroleum Corporation); 
Transport Oil Company-Milwaukee (A Division of Bulk Petroleum 
Corporation); United Petroleum Securities Corporation; Venezuela 
Gulf Refining Company; Venture Acceptance Corporation; Venture 
Out in America, Inc.; Veritas Oil Company Aktiebolag; Warren 
Petroleum Company (A Division of Gulf Oil Corporation); West 
Texas Gulf Pipeline Company; and Zaire Gulf Oil Company.

Patrick 0. Patterson 
Attorney of record for

Plaintiffs-Appellants



Table Of Contents

Page

Table of Citations..............................  vii
Argument ......................................... 1

I. EEOC's Two-Letter Procedure .........  2
II. L a c h e s ..............................  4
III. The Gag O r d e r s .....................  7

Conclusion ..................................... 12

-vi-



Table of Citations

Page
Cox v. Allied Chemical Corp., 538 F.2d 1094 

(5th Cir. 1976), rehrg. and rehrg. en 
banc denied, 551 F.2d 93 (1977), cert.
denied, 434 U.S. 1051 (1978) ...................  11

Hefner v. New Orleans Public Service, Inc.,
605 F .2d 893 (5th Cir. 1979) .................  3,5

NAACP v. Button, 371 U.S. 415 (1963).................  9
Page v. U.S. Industries, Inc., 556 F.2d 

346 (5th Cir. 1977), cert, denied,
434 U.S. 1045 (1978) ............................  3,4

In re Primus, 436 U.S. 412 (1978) ...................  10
United States v. Allegheny-Ludlum Industries,

Inc., 517 F .2d 826 (5th Cir. 1975),
cert, denied, 425 U.S. 944 (1976)...............  11

Watkins v. Scott Paper Co., 530 F.2d 1159
(5th Cir.), cert, denied, 429 U.S. 861
(1976)   11

Winfield v. St. Joe Paper Co., 20 FEP Cases
1103 (N.D. Fla. 1 9 7 9 ) ............................  12

Zambuto v. American Tel. & Tel. Co., 544
F .2d 1333 (5th Cir. 1977)   3

-vii-



IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 77-1502

WESLEY P. BERNARD, et al.,
plaintiffs-Appellants,

vs.

GULF OIL COMPANY, et al.,
Defendants-Appellees.

On Appeal From The United States District Court 
For The Eastern District of Texas

REPLY BRIEF FOR APPELLANTS 
ON REHEARING EN BANC

Plaintiffs-appellants submit this brief in reply to the 

Brief of Appellees on Rehearing En Banc (hereafter "Defendants'
i_yEn Banc Brief"). In our view, the legal arguments presented

1/ The briefs submitted to the Court on rehearing en banc 
are identified herein as "en banc briefs." All references 
to briefs not so designated relate to the briefs submitted 
by the parties and by amicus curiae prior to the decision 
of the panel in this case.



in defendants 1 lengthy brief do not require any further 
written response; with respect to those arguments, we 

rest on our prior briefs and on the briefs of the United 

States and the Equal Employment Opportunity Commission 

as amici curiae. However, defendants' brief contains 
serious factual errors and misstatements, some of which

2/
suggest nothing less than careless disregard of the facts. 

The necessary corrections are set forth below.

I. EEOC's Two-Letter Procedure

1. Defendants incorrectly assert that the February 

1975 EEOC letter to plaintiffs Bernard, Brown, and Johnson 

"in essence, stated that no further action was contemplated
3/

by the Commission" (Defendants' En Banc Brief at xviii).
In fact, this letter notified plaintiffs that the defendants 
did not wish to entertain conciliation discussions; it

2/ Defendants have declared that they are "in substantial 
agreement” (Defendants' Brief at xv) with plaintiffs' state­
ment of the facts (plaintiffs' Brief at 3-11). Yet, in both 
their initial brief and their brief on rehearing en banc, de­
fendants have made significant factual errors and misstatements 
of the record. A number of these errors and misstatements were 
corrected in plaintiffs' earlier reply brief but nonetheless 
have reappeared in defendants' brief on rehearing en banc. See 
nn. 3, 5, 7, 8, 9, infra.
3/ This is the second time defendants have made this misstate­
ment, and the second time plaintiffs have corrected it. See 
Plaintiffs' Reply Brief at 4-5 and n.5.

-2-



advised plaintiffs that they could request a "Notice of Right 

to Sue"; and it stated that "you will have ninety (90) days 
from the date of its receipt [i.e., receipt of the "Notice

4/of Right to Sue"] to file suit in Federal District Court."

This is precisely the sort of letter which this Court and 
the courts of several other circuits have repeatedly held 

to be inadequate notice to commence the statutory right-to- 
sue period. See EEOC En Banc Brief at 6-7.

2. Defendants claim that the record "clearly demon­
strates that [the plaintiffs were] not confused or misled 

by the EEOC's two-letter procedure" (Defendants' En Banc 

Brief at 5). The record contains no such evidence. On the 

contrary, under the controlling cases the February 1975 EEOC 
letter was so "patently misleading" that the plaintiffs were 

not required to make any further showing that they were misled. 
Zambuto v. American Tel. & Tel. Co.. 544 F.2d 1333, 1336 (5th 

Cir. 1977); Page v. U.S. Industries, Inc.. 556 F.2d 346, 351, 

355 (5th Cir. 1977), cert, denied.434 U.S. 1045 (1978). Cf. 
Hefner v. New Orleans Public Service. Inc.. 605 F.2d 893, 895- 
96 (5th Cir. 1979) .

4/ The full text of this letter appears in the Appendix at 
A. 84, 87, and 90, and it is reprinted in Plaintiffs' Reply 
Brief at 4-5 n.5.

-3-



3. Defendants erroneously state that the EEOC's

reasonable cause decision was issued on August 15, 1967, 
and that the EEOC "Notices of Right To Sue within 90 Days" 

were issued to plaintiffs Bernard and Brown on April 11,
5/

1976 (Defendants' En Banc Brief at xviii, xix). The re­

cord shows that the decision was issued on August 15, 1968

(A. 94, 98, 102), and that the notices were issued on June
6/11, 1976 (A. 73; Supp. App. 1A-2A).

II. Laches

1. Defendants suggest that plaintiffs were "aware ... 

of the right to bring a private action any time sixty days 

after filing charges with the EEOC" (Defendants' En Banc 
Brief at xxiii). Nothing in the record supports this asser­
tion. Indeed, the presumption is to the contrary; the plain­

tiffs are not presumed to have "carefully read Title VII with 
a prescience about forthcomingappellate decisions uncommon even 

among experienced civil rights lawyers." Page v. U.S. Industries, 
Inc., supra, 556 F.2d at 355.

5 / This is the second time defendants have made these errors, 
and the second time plaintiffs have corrected them. See Plain­
tiffs' Reply Brief at 3 n.4.

6/ Defendants also incorrectly state that the court below did 
not grant summary judgment until June 11, 1977 (Defendants' En

-4-



This is not a case in which a plaintiff has knowingly
delayed in filing a lawsuit until years after a consent 

decree was entered and years after the EEOC had informed 
him that his file was administratively closed. See Hefner 

v. New Orleans Public Service, Inc., supra. Nor is this a 
case in which a plaintiff has waited until years after the 

defendant entered into an EEOC conciliation agreement and 

then has filed a lawsuit asserting claims of which the de­

fendant was not previously aware. See Monsanto En Banc 
Brief at 4, 7-8. Rather, this is a case in which the de­
fendant has been fully on notice of the charges against it 

since 1967; in which the defendant concedes that it was en­

gaged for eight years in negotiations which culminated in a 

conciliation agreement with the EEOC in April 1976; and in 
which the plaintiffs filed their lawsuit only 34 days after 
the conciliation agreement was signed. See Plaintiffs' Brief 
at 29-30. In awaiting the conclusion of the EEOC's concilia­
tion efforts and then promptly filing a civil action when 

they found the resulting agreement unsatisfactory, plaintiffs 
did precisely what Congress intended. They should not be 

penalized for their faithful adherence to the congressional 

plan. Id. at 30-33.

6/ continued
Banc Brief at xvi). In fact, the court granted defendants' 
motion for summary judgment on January 11, 1977 (A. 181-85).

-5-



2. Gulf asserts that it was unaware of allegations of 

discrimination in its hiring practices and that it therefore 

was under no obligation to retain its records pertaining to 

those practices (Defendants' En Banc Brief at 24). However, 

the EEOC Commissioner's charge which was filed in 1967 alleged 

in plain language that one of Gulf's discriminatory practices 

was "[f]ailure to hire Negroes while hiring white employees" 

(EEOC Brief, Attachment C). Gulf might argue that it was en­
titled to ignore the other charges that were still pending 
and to destroy its records after the EEOC made a "no cause" 

determination in February 1975 with respect to the allegations 
of hiring discrimination (id., Attachment D at 2-3), or after 

Gulf entered into its conciliation agreement in April 1976 
with respect to other discriminatory practices. Gulf, however, 
did not wait for either of these events to occur. Instead, it 

destroyed all records associated with the hiring process for 
the period 1965 through 1971, and many records relevant to the 

other claims of discrimination, in accordance with a four year 

document retention schedule (A. 176, 178) —  i.e., Gulf began 

to destroy the records for this period in 1969. Therefore,

Gulf destroyed relevant evidence at a time when it was fully 

on notice of the claims against it and in direct violation of 

EEOC regulations. See Plaintiffs’ Brief at 34-36. The loss 

of this evidence is due not to any delay by plaintiffs, but to 

Gulf's own negligence and disregard of the law.
- 6 -



III. The Gag Orders

1. Defendants assert at one point that the gag order

of May 28, 1976 was entered "without formal objection by 

Bernard" (Defendants’ En Banc Brief at xx), and later that 

plaintiffs "did not oppose this motion" (id.at 32). The 

record shows that Gulf’s motion to limit communications 

with the class members was filed on May 27 (A. 14) and was
granted ex parte the following day (A. 30-31). After plain­
tiffs received notice of the order, they filed a memorandum 

of law in opposition to Gulf's motion (A. 1, Dkt. Entry No.
40). Plaintiffs repeatedly stated their opposition to the 

gag orders on the record in the district court (Id., Nos.

40, 99, 129, 135).

2. Defendants claim a number of times that the modi­
fied order of June 22, 1976, was entered only after the dis­

trict court had received "briefs and affidavits from the 

parties" and had held a "hearing" (Defendants’ En Banc Brief 

at 39; see also id. at xx, 49, 59). In fact, the only affi­

davits on this issue (A. 46-55) came from plaintiffs' counsel, 
not from defendants; and the district court did not hold an 

evidentiary hearing but merely heard the oral arguments of 

counsel. Gulf never produced one shred of evidence, in an 

affidavit or in any other form, to substantiate its attorneys'

-7-



unsworn allegation that an unidentified informant had reported 

that one of plaintiffs' counsel had made arguably improper 

statements. See Plaintiffs' Brief at 41 n.7. Indeed, de­

fendants presented no evidence of any kind, and the district 

court made no findings, that plaintiffs or their counsel 
either had engaged or were ever likely to engage in any 

improper or unethical conduct, or that they posed any threat 
whatever to the administration of justice.

3. Defendants assert that the order of June 22 prohibited 
"only those communications that had the purpose of solicitation 

and that tended to misrepresent the status, purposes and effects 

of the cause of action and that impeded the orderly administra-
V  'tion of justice" (Defendants' En Banc Brief at xx). The order 

in fact prohibits all communications concerning the action with 
any actual or potential class member unless the court has speci­
fically approved both the proposed communication and the proposed 

addressees (A. 56). The order then lists only three exceptions 
to its blanket prohibition (A. 57). It expressly states that 

the communications which are forbidden are not limited to those 

involving solicitation and misrepresentation (A. 56-57, 5 2),

7/ This is the second time defendants have made this mis­
statement, and the second time plaintiffs have corrected it. 
See Plaintiffs' Reply Brief at 7-8.

- 8-



and it provides that all communications not specifically- 

authorized in the order are strictly forbidden (A. 58, 5 8).

4. Defendants argue that two of the attorneys for 
plaintiffs were not "members of the Legal Defense Fund," 
and that plaintiffs did not present sufficient evidence

relating to the potential recovery of counsel fees by these
8/

attorneys (Defendants' En Banc Brief at 64-65). In fact, 
all attorneys for the plaintiffs in this action were either 

employed by the NAACP Legal Defense and Educational Fund, 

Inc., or associated with it for the purposes of this liti­

gation; as the record demonstrates, the Legal Defense Fund's 

assistance is "usually [provided] in conjunction with local 

counsel" (A. 47). See NAACP v. Button, 371 U.S. 415, 421 n.5 
(1963). Moreover, the record contains an uncontroverted 

affidavit of local counsel stating as follows;
... [N]either I nor any of the attorneys 

representing the plaintiffs accepted or expect 
any compensation from them, nor do we expect 
to receive any compensation from any additional 
named plaintiffs who may hereafter be added, or 
from any member of the plaintiff class. We expect 
to be compensated only by such attorney's fees as 
may eventually be awarded by the court. My entitle­
ment to an award of counsel fees by the court would 
not be affected by the number of individuals named 
as parties plaintiff since the fees are not paid 
by the clients but, rather, they are taxed as costs 
to the defendant (s) ... (A. 54).

8/ Defendants made similar erroneous statements in their 
initial brief. See Plaintiffs' Reply Brief at 8 n.9.

-9-



On this record, there is no basis for equating the work 

of Legal Defense Fund lawyers with that of attorneys whose 

primary purpose is to secure financial gain through the re­

covery of counsel fees. Cf. In re Primus. 436 U.S. 412, 
429-31 (1978) .

5. Defendants incorrectly state that plaintiffs'

July 6, 1976, motion to communicate with members of the 

proposed class (A. 62-65) "was denied as Appellants’ com­
munication tended to misrepresent the status, purposes and 
effects of the cause of action" (Defendants' En Banc Brief 

at xx). The district court made no such finding; instead, 

the court issued a one-sentence order denying the motion 
without any explanation or statement of reasons (A. 157). 
Moreover, this denial did not come before July 19 as sug­
gested by defendants (Defendants' En Banc Brief at xx-xxi); 
rather, the court waited until August 10, 1976 (A. 157), 

two days after the expiration of the time the court had al­

lowed for class members to consider Gulf's settlement offer 
under the conciliation agreement (see A. 60-61).

9/ This is the second time defendants have made this mis­
statement, and the second time plaintiffs have corrected it. 
See Plaintiffs' Reply Brief at 8 n.9.

- 10-



6. Although defendants at one point concede that 

any injunctive relief awarded in this lawsuit will benefit 

those class members who accepted payments under the concilia­
tion agreement as well as those who did not (Defendants' En 
Banc Brief at 36), elsewhere they contend that employees 

who accepted such payments are "ineligible for inclusion 

in the class" (Id. at 35; see also, id. at 48, 65). This 

contention ignores the fact that even those employees who 

signed Gulf's waiver form cannot be precluded from bringing 
suit to obtain full relief unless it is established that 

their relinquishment of their Title VII rights was knowing 

and voluntary. United States v. Alleqheny-Ludlum Industries. 
Inc., 517 F.2d 826 (5th Cir. 1975), cert, denied. 425 U.S.

944 (1976); Watkins v. Scott paper Co.. 530 F.2d 1159, 1172-73 
(5th Cir.), cert, denied. 429 U.S. 861 (1976); Cox v. Allied 
Chemical Corp.. 538 F.2d 1094, 1097-98 (5th Cir. 1976), rehrcr. 

and rehrg. en banc denied. 551 F.2d 93 (1977), cert, denied, 
434 U.S. 1051 (1978). In cutting off communications between 

the black employees and the plaintiffs and attorneys repre­
senting their interests in this lawsuit, the defendants and 
the district court virtually guaranteed that those employees 

would be unable to make a knowing and voluntary waiver of 

their civil rights. They therefore should be included as 

members of the class. Cf. Winfield v. St. joe paper Co.. 20

- 11 -



FEP Cases 1103, 1106-14 (N.D. Fla. 1979)

CONCLUSION

For the reasons stated in this brief, in plaintiffs' 

prior briefs and petition for rehearing, and in the briefs 
amicus curiae of the United States and the Equal Employment 

Opportunity Commission, the orders and judgment of the dis­
trict court should be reversed and the case should be re­
manded for further proceedings.

Respectfully submitted,

ULYSSES GENE THIBODEAUX 
425 Alamo Street 
Lake Charles, Louisiana 70601

CHARLES E. COTTON
Suite 500 - 348 Baronne Street 
New Orleans, Louisiana 70601

BARRY L. GOLDSTEIN
806 15th Street, N.W. 
Washington, D.C. 20005

JACK GREENBERG 
PATRICK 0. PATTERSON 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs- 
Appellants

- 12-



CERTIFICATE OF SERVICE

I hereby certify that on the 21st day of December, 1979,
copies of the foregoing Motion and Reply Brief for Appellants
on Rehearing En Banc were served on the following attorneys
by United States mail, postage prepaid, addressed to:

William G. Duck, Esq.
P.0. Box 3725 
Houston, Texas 77001
Carl Parker, Esq.
440 Stadium Road
Port Arthur, Texas 77640
Lutz Alexander Prager, Esq.
Susan Buckingham Reilly, Esq.
Equal Employment Opportunity 

Commission 
2401 E Street, N.W.
Washington, D.C. 20506
Brian K. Landsberg, Esq.
Carol E. Heckman, Esq.
United States Department of Justice 
Washington, D.C. 20530
R. Lawrence Ashe, Jr., Esq.
A. Stephens Clay, Esq.
Susan A. Cahoon, Esq.
James H. Coil III, Esq.
Kilpatrick & Cody 
3100 Equitable Building 
100 Peachtree Street 
Atlanta, Georgia 30303

Attorney for Plaintiff-Appellants