Alpha Portland Cement Company v. Reese Brief for Appellant Alpha Portland Cement Company

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BRIEF FOR APPELLANT ALPHA PORTLAND CEMENT COMPANY

William F. Gardner 
Sydney F. Frazier, Jr.
Cabaniss, Johnston, Gardner, Dumas & O'Neal 
1900 First National-Southern Natural Bldg. 
Birmingham, Alabama 35203
Attorneys for Appellant Alpha Portland Cement Company

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STATEMENT OF THE ISSUE

The question presented by this interlocutory appeal 
is as follows: By adding an allegation of jurisdiction 
under the Civil Rights Act of 1866 to a complaint which is 
filed under Title VII of the Civil Rights Act of 1964/ is a 
plaintiff given the "completely independent right" to use the 
1866 statute to litigate class action claims which have not 
been investigated or considered by the Equal Employment Opportunity 
Commission and cannot be maintained under Title VII because they 
are not like or related to the case as filed with the Commission? 

Through the present case, this Circuit will become
j l u  >  jc  J  i  — jg  » .  — — i  — » —  —    i . i  • • •
u u c  4.HOU w a x .  u wo. n p j j c a x o  uo a u o w c i  u i l o  411Gb t i u u .



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STATEMENT OF THE CASE
A. Nature of the Case:

This case is a class action suit brought under Title 
VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e et seq.), 
with an alternative allegation of jurisdiction under the Civil 
Rights Act of 1866 (42 U.S.C. §1981). It comes before the Court 
on interlocutory appeal from the opinion and order entered 
by Judge J. Foy Guin, Jr. on November 14, 1973. (R. 19-28). Our
petition for leave to appeal from this ruling was granted by 
the Court of Appeals on February 1, 1974. (R.36).

The parties will be referred to in this brief by their
no <3 •? -I—i rm <3 3 c nisi rit-i Ft and rlofonrlant; the District Court .

B. Statement of Facts:
The facts relevant to the issue were stipulated by 

counsel for purposes of the District Court's decision. These 
facts, as set forth in the District Court's opinion, are as 
follows:

"(1) The plaintiff, Willie C. Reese, was hired 
by the Company on May 21, 1969. As is generally true of indus­
trial plants, new employees are on a probationary trial period 
for a specified length of time so the Company can evaluate them 
and decide whether or not to retain them as regular employees.



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The probationary period at the Company was 260 hours. The 
plaintiff was allegedly judged lacking in effort ana initiative 
and was therefore terminated during his probationary period on 
June 6, 1969; __

(2) He thereafter filed a charge with the Equal Employ­
ment Opportunity Commission. The sole claim raised by the plaintiff's 
charge was "Discharge because of race." (See Appendix EEOC Decision 
in Case No. YBIO-119);

(3) After the case had remained with the Commission
for more than four years, this suit was filed in June of 1973 under 
Title VII of the Civil Rights Act of 1964 (42 U.S.C. §2000e et 
seq.) and the Civil Rights Act of 1866 (42 U.S.C. §1981). The 
complaint: asserts not only tne claim relating to the plaintiff's 
termination in 1969 but also seeks to litigate class action claims 
relating to job classifications and job assignments." (R. 19-20).

C. Proceedings and Disposition in the District Court;
1. The proceedings in this case began on June 10,

1969 when the plaintiff filed a charge under Title VII with 
the Equal Employment Opportunity Commission. The charge, which 
is contained in the appendix to the District Court's opinion, 
raised only the following claim - "Discharge because of race".
(R. 29). The Commission's decision in the case, which is also con­
tained in the appendix to the District Court's opinion, was

A



4

similarly concerned only with the plaintiff's discharge claim.
(R. 30-31).

2. Following the issuance by the Commission of the 
right-to-sue notice, the plaintiff filed the present suit. The 
complaint contains the following allegations which are relevant 
to the question presented by this appeal:

(a) The complaint contains the stock-form allegation
of jurisdiction under Title VII of the Civil Rights Act of 
1964, with an alternative allegation of jurisdiction under the 
Civil Rights Act of 1866. (R. 3).

(b) The complaint asserts the claim that the plaintiff 
was unlawfully discharged. (R. 4). There was and is no 
dispute with the plaintiff's right to litigate this claim,
both under Title VII and under the 1866 statute. In 
addition, however, the complaint further asserts class action 
claims regarding job assignments and job classifications. (R. 4). 
There is no dispute with the fact that these class action claims 
were not raised when the case was before the Commission and 
were not subject to any investigation, decision, or conciliation 
by the Commission.

3. This Court has adopted the principle that in order 
for a claim to be maintained in a Title VII action, it must at 
least be like or related to the issues considered by the Commission.



5.

Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970).
The defendant accordingly took the position that the class 
action claims concerning job assignments and job classifications 
could not properly be maintained. The plaintiff took the 
position that he had the "completely independent right" to maintain 
these claims under the Civil Rights Act of 1866.

4. This issue was heard before Judge Guin on October 
17, 1973 on the stipulation of facts and on briefs and arguments.

5. On November 14, 1973, Judge Guin entered an 
opinion and order accepting the plaintiff's position. (R. 19-28). 
In so holding, the Court expressed the opinion that the tactic
of including an allegation of alternative jurisdiction under
the 1866 statute so as to litigate class action issues which
have not been considered by the Commission is incompatible
with the intended purpose of Title VII, but nevertheless concluded
that it was compelled to allow this result because of this Court's
decision in Hill v. American Airlines, Inc.,479 F.2d 1057 (5th
Cir. 1973). The essence of the District Court's holding was
expressed in the following passage of the Court's opinion:

"[T]he Court feels bound by the 'completely 
independent remedy' theory of Hill, since this is 
the more recent word on this matter, and until further 
light is shed on this question by the Fifth Circuit.



6.

"The mere allegation of alternative grounds 
of jurisdiction under §1981 allows the plaintiff 
to completely by-pass the conciliatory procedures 
under Title VII and allows the plaintiff to frustrate 
the statutory scheme under Title VII favoring informal 
persuasion and voluntary compliance. The 'completely 
independent remedy' theory of Hill compels this 
Court to allow an^across-the-board attack on charges of racially discriminatory job assignments and 
classification where the EEOC has not been requested 
to investigate these charges nor any like or related charge." (R. 26).



7.

THE PRINCIPLES WHICH HAVE THUSFAR BEEN ESTABLISHED

The question now before the Court stands at the juncture 
of divergent principles which the Courts have developed during 
the past several years, and analysis of this question may therefore 
be brought into sharper focus by reviewing these principles.
A. The principle that suit may not be brought under Title VII 
unless the plaintiff has filed a charge with the Commission;

One of the earliest principles which the Courts 
adopted in the judicial development of Title VII was that a 
suit cannot be brought under this statute unless the plaintiff 
has first filed a charge with the Commission in order that the 
Commission may be provided with at least the opportunity to 
resolve it through conciliation.

The Fifth Circuit first expressed this principle 
in Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th Cir. 1968) , 
which is referred to as "the leading case on class actions 
under Title VII."1 Through Judges Bell, Ainsworth, and Godbold,

1• Developments in the Law - Employment Discrimination and 
Title VII of the Civil Rights Act of 1964, 84 Harv. L. Rev. 1109. T2T9" (19 71) : ---------------

"In Oatis v. Crown Zellerbach Corp., the leading 
case on class actions under Title VII, the Court of 
Appeals for the Fifth Circuit laid down two requirements 
for the maintenance of a class action: 1) the action 
must meet the requisites of Rules 23(a) and 23(b) 
of the Federal Rules of Civil Procedure; and 2) the 
issues raised must previously have been raised before the EEOC."



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the Court began by expressing the proposition that the filing
of a charge with the Commission is a prerequisite to the institution
of the civil action. As the Court said:

"The filing of such a charge is a condition 
precedent to seeking judicial relief. See § 706(e).
It is thus clear that there is great emphasis in 
Title VII on private settlement and the elimination 
of unfair practices without litigation."
(398 F.2d at 497-498).
The Court then expressed the standards for determining

the propriety of class actions in Title VII cases:
"We thus hold that a class action is permissible 

under Title VII of the Civil Rights Act of 1964 
within the following limits. First, the class action 
must, as it does here, meet the requirements of Rule 
23(a) and (b) (2). Next, the issues that may be
raised by plaintiff in such a class action are those 
issues that he has standing to raise (i.e., the 
issues as to which he is aggrieved, see § 706(a), 
supra), and that he has raised in the charge filed 
with the EEOC pursuant to § 706(a)." (398 F.2d at
499)

2. Judge Bell, the author of the Court's opinion in the Oatis 
case, said of the decision in speaking at a Title VII seminar that 
"What we ruled in that case was that it could be a class action, 
but the issue would be within the periphery of what the one 
grievant raised before the EEOC. In other words, the co-plaintiff 
could not come in and bring in issues which were not before the 
EEOC." Speech by Honorable Griffin B. Bell at Lawyers Seminar 
on Title VII (1969), CCH Employment Practices 118082.



9.

The Court reiterated this principle in Miller v. 
International Paper Co., 408 F.2d 283 (5th Cir. 1969), where the 
Court emphasized through Judges Gewin and Bell and District 
Judge Bootle that:

"This court was quite clear in the Oatis
case and in Jenkins v. United Gas Corp.
that a complainant under Title VII cannot
bypass the EEOC. The effect of a contrary holding
would be virtually to eliminate the commission
established by Congress to encourage fair employmentpractices." (408 F.2d at 285).

* * *

"This circuit has already made clear - and we 
have reiterated in this opinion - that charging 
parties cannot bypass the EEOC." (408 F.2d at 291).
The Court also reiterated the standards governing the use 

of class actions in pointing out that:
"The court in Oatis indicated that a Title 

VII class action is subject to two basic limitations:
"First, the class action must . . . meet the requirements of Rule 23(a) and (b) (2). Next,

the issues that may be raised by plaintiff in 
such a class action are those issues that he has 
standing to raise (i.e., the issues as to which 
he is aggrieved, see § 706(a). . .), and that he 
has raised in the charge filed with the EEOC pursuant to § 706(a)." (408 F.2d at 284, n. 5).
The principle that a civil action may not be instituted 

under Title VII unless the plaintiff has filed a charge with 
the Commission was again expressed by the Court in Beverly v.
Lone Star Lead Construction Co.,437 F.2d 1136 (5th Cir. 1971). 
Speaking through Judges Gewin and Morgan and Judge Lewis of 
the Third Circuit, the Court explained the principle and the



10

considerations on which it is based as follows:
"[T]he EEOC was intended to, and does, play an 
important role in the legislative scheme. Potential 
litigants are absolutely required to take a step 
which affords them at least an opportunity to 
reach a more amicable conciliation out of court.

"We do not think the parties should be allowed to 
bypass this requirement. It is our interpretation 
of Title VII that there exists an absolute right 
in each complainant to bring a civil action in federal 
court. This right, however, is subject to one important 
proviso: The complainant must comply with the minimum 
jurisdictional requirements necessary to allow the 
opportunity for conciliation to mature. The purpose 
of the Act would indeed be frustrated if the Commission 
could be avoided entirely or if a party's right to 
proceed in federal court could be erased by a quasi-judicial determination of the EEOC.

"We conclude therefore, that the adminis­
trative remedies available fiom the EEOC must be 
'exhausted* in the traditional sense of the term 
as a prerequisite to federal suit." (437 F.2d at 1139).
The Supreme Court has similarly expressed agreement with

this principle. In Love v. Pullman Co., 404 U.S. 522 (1972),
the Court started its opinion with the premise that:

"A person claiming to be aggrieved by a violation 
of Title VII of the Civil Rights Act of 1964 
may not maintain a suit for redress in Federal 
District Court until he has first unsuccessfully 
pursued certain avenues of potential administrative relief." (404 U.S. at 523).



11.

B. The principle that a claim may not be litigated unless it is 
at least like or related to the claim before the Commission:

With the establishment of the principle that a civil 
action may not be instituted without the prior filing of a charge 
with the Commission, the next step was the delineation of the 
scope of the claims which could be litigated in the civil action 
after a charge has been filed. Applying the same policy consideration 
which requires the filing of a charge before the filing of a 
suit, the Courts have adopted the principle that in order for 
a claim to be litigated, it must at the least be like or related 
to the claims before the Commission. "A less exacting rule", 
as this Court has said in explaining the rationale of the principle, 
"would also circumvent the statutory scneme, since Title VII 
clearly contemplates that no issue will be the subject of a 
civil action until the EEOC has first had the opportunity to 
attempt to obtain voluntary compliance." Sanchez v. Standard Brands, 
Inc., 431 F.2d 455, 467 (5th Cir. 1970).

This "like or related" principle, which was formulated 
by the Commission, was first adopted by Judge Smith in King v.
Georgia Power Co., 295 F.Supp. 943 (N.D. Ga. 1968). Agreeing with 
the position taken by the Commission as amicus in the case, the
Court stated that:



12.

"The correct rule is that the complaint, in 
the civil action is confined to those issues the 
original complaint has standing to raise, but 
may properly encompass any such discrimination like or reasonably related to the allegations 
of the charge and growing out of such allegations 
during the pendency of the case before the Commission.

"This rule, broadly speaking, in effect limits 
the civil action to that range of issues that 
would have been the subject matter of the conciliation 
efforts between EEOC and the employer. If the civil 
action were not so limited, then the primary emphasis 
of this Title would be circumvented, i.e., an emphasis 
upon voluntary settlement of all issues without an 
action in the District Court. Therefore, it must be 
emphasized that this Court's holding as to the scope 
of this action is not based on analogies to NLRB 
proceedings nor to any deference to the expertise of 
the Commission but is based on the inherent logic of 
the stated rule within the statutory scheme heretofore described." (295 F.Supp. at 947).
This Court adopted the like or related principle as

the correct standard for measuring the allowable scope of the
civil action in Sanchez v. Standard Brands, Inc., 431 F.2d 455
(5th Cir. 1970). Phrasing the issue before it as being "the
more precise question of what standard is to be utilized in
measuring the proper scope of a complaint", the Court answered
it as follows through Judges Goldberg, Rives, and Godbold:

"This circuit has never before considered this 
precise question. At least one district court in 
this circuit has addressed itself to the question, 
however, and in our judgment it responded to the 
question by giving the correct answer. In King v.



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Georgia Power Co., N.D. Ga. 1968, 295 F.Supp. 943,
Judge Smith held that the allegations in a judicial 
complaint filed pursuant to Title VII ’may encompass 
any kind of discrimination like or related to allegations 
contained in the charge and growing out of such 
allegations during the pendency of the case before 
the Commission.1 295 F.Supp. at 947. In other 
words, the 'scope' of the judicial complaint is 
limited to the 'scope' of the EEOC investigation which 
can reasonably be expected to grow out of the charge 
of discrimination." (431 F.2d at 466).
Having so held, the Court explained the reason for

not allowing the litigation of claims which are not like or
related to the claim raised by the charge:

"Within this statutory scheme, it is only logical 
to limit the permissible scope of the civil action 
to the scope of the EEOC investigation which can 
reasonably be expected to grow out of the charge 
of discrimination --

"A less exacting rule vjnnld al^n ci.rcv,Tm',er>t 
the statutory scheme, since Title VII clearly 
contemplates that no issue will be the subject of 
a civil action until the EEOC has first had the 
opportunity to attempt to obtain voluntary com­
pliance. As Judge Smith wrote in King:

'This rule, broadly speaking, in effect 
limits the civil action to that range of 
issues that would have been the subject 
matter of the conciliation efforts between 
[the] EEOC and the employer. If the 
civil action were not so limited, then the 
primary emphasis of Title VII would be 
circumvented, i.e., an emphasis upon voluntary 
settlement of all issues without an action in 
the District Court.' 295 F.Supp. at 947.

"Thus we agree with Judge Smith that our holding 
with respect to the permissible scope of a Title VII

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judicial complaint 'is based on the inherent logic 
of the stated rule within the statutory scheme.'"
(431 F.2d at 466-467).
The Court reiterated that the like or related principle 

is the appropriate standard to be applied in determining the 
proper scope of the issues in these cases in Danner v. Phillips 
Petroleum Co., 447 F.2d 159 (5th Cir. 1971). In that case, the 
Court stated through Judges Thornberry, Tuttle, and Ingraham 
that:

"The correct rule to follow in construing EEOC 
charges for purposes of delineating the proper scope 
of a subsequent judicial inquiry is that 
the complaint in the civil action . . . may 
properly encompass any . . . discrimination 
like or reasonably related to the allegations
of the charge and grov/ing out of such allegations-- . "(447 F.2d at 162).
The C o u r t  a n s i n  annl i orl f  hi  r- i V, 1 „ -• — c — a-1- --^  X. i.    *■*  — --«*- —  XT'- ^  '—  JL.AA fc-'AlLO. U U  V  •

Delta Air Lines, 486 F.2d 512 (5th Cir. 1973), where, as here, 
the charge filed with the Commission consisted of an unlawful discharge 
claim but the complaint in the civil action invoked jurisdiction 
both under Title VII and the 1866 statute and asserted class 
action allegations regarding jobs, hiring, and promotions. Through 
Judges Tuttle, Morgan, and Roney, the Court held that the District 
Court should determine the allowable scope of the class action issues 
by aPPlying the like or related principle.

This principle has also been consistently followed by the 
Federal Courts, as illustrated by these examples:



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- In Phillips v, Columbia Gas of West Virginia, Inc.,
347 F.Supp. 533 (S.D. W. Va. 1972), aff'd, 474 F.2d 1342 (4th Cir. 
1973), which was an action brought under Title VII and the
1866 statute, the Court stated as follows in applying the like or 
related principle:

"Certainly it is true that 'common-law pleading 
niceties' are not to be required of laymen filing 
charges with the Equal Employment Opportunity
Commission --  nevertheless, the complaint in the
district court should bear some resemblance to the 
charge filed with the Equal Employment Opportunity 
Commission. Stated more positively, a complaint 
in a civil action asserting jurisdiction under 
Section 706(f) of the Civil Rights Act of 1964,
42 U.S.C. §2000e-5(f), is limited 'to that range of 
issues that would have been the subject matter of 
conciliation efforts between EEOC and the employer.
If the civil action were not so limited, then the 
primary emphasis of this Title would be circumvented,
i.e., an emphasis upon voluntary settlement of all 
issues without an action in the District Court.'
King v. Georgia Power Company, 295 F.Supp. 943, 947,
(N.D. Ga. 1968). See also Sanchez v. Standard Brands, 
Inc., 431 F.2d 455, 467 (5th Cir. 1970); Sciaraffa 
v. Oxford Paper Company, 310 F.Supp. 891, 898 (D.C.
Maine 1970)." (347 F.Supp. at 538-539).
- In Barnes v. Lerner Shops of Texas, Inc., 323 F.Supp. 

617 (S.D. Texas 1971), the charge filed with the Commission 
raised the claims that the plaintiff had been paid less than 
white employees and was unlawfully discharged. When the plaintiff 
sought to expand the scope of the civil action to include the 
claim that the defendant "discriminated against all of defendant's



16.
Negro employees with respect to their compensation, terms and
conditions of employment and opportunities for promotion,” the
Court held that under this Court's decision in Sanchez v. Standard
Brands, the action could not be expanded to this claim and
analyzed the issue as follows:

"In the Sanchez decision the permissible scope of 
a complaint was stated to be limited 'to the scope of 
the EEOC investigation which can reasonably be 
expected to grow out of the charge of discrimination.'431 F.2d at 466. It is this Court's conclusion that 
the above standard requires a reasonable relevancy 
between the EEOC investigation and the scope of 
the civil action. Here, the scope must be limited 
to issues of whether plaintiff was discriminatorily 
discharged and whether plaintiff or other Negro 
employees received less pay them white employees 
for comparable work." (323 F.Supp. at 619-620).
- In Fix v. Swinerton & Walberg Co., 320 F.Supp. 58

(D. Colo. 1970). the Court held t-h f- a T.̂h a ch vTd.c not
raised before the Commission and was not like or related to the 
claim raised before the Commission could not be maintained in the 
civil action because:

"The purposes of the act cannot be served if the 
plaintiff alleges a ground of discrimination for the 
first time in the Federal District Court. The obvious 
purpose of the Act is to give the Federal Commission 
an opportunity to investigate the charges of discrimina­
tion and if discrimination exists, to eliminate it if possible." (320 F.Supp. at 59).
- Sciaraffa v̂ _ Oxford Paper Co. , 310 F.Supp. 891 (D. Maine

1970), where the Court pointed out that:



17.

"To permit a civil action based upon allegations 
other than those presented to the Commission would 
permit a plaintiff to bypass the conciliation procedures 
of the Act and thereby to frustrate its purpose. 
Accordingly, the courts have required that the complaint 
in a court suit cannot be based upon wholly new 
derelictions which were not presented to or considered 
by the Commission." (310 F.Supp. at 897-898).
- In Wilkins v. Electron Corp., 4 EPD 1(7804 (D. Colo.

1972), the charge filed by the plaintiff raised the claim that
he had been unlawfully discharged. The complaint in the civil
action raised not only this discharge claim but also additional
claims. Citing the like or related principle, the Court held
that:

"Applying the foregoing principles to this 
action, we must conclude that the allegations of 
plaintiffs' s^oond claim for relief do materiollrT vs” ' 
from the charges filed with the EEOC. --

"Plaintiffs have thus bypassed the Commission 
and have failed to comply with the statutory pre­
requisites to suit. In these circumstances, we do 
not have jurisdiction over the subject matter of 
their second claim for relief and defendant's motion to dismiss should be granted."

C. Right of action under the Civil Rights Act of 1866:
Up to this point, all is calm and clear. The principles 

governing the proper scope of a class action under Title VII 
are firmly established, they have been consistently applied, and 
they provide definite and certain guidance to the District Courts in



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delineating the proper scope of class actions. But then the 
1866 statute enters the scene.

"The quickening of this statutory Lazarus", as the 
Court characterized it, was accomplished in this Circuit in Sanders 
v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970), cert, denied,
401 U.S. 948 (1971). In that case, the plaintiff filed suit under 
Title VII alleging that she had been unlawfully discharged. When 
the defendant moved to dismiss the complaint because it had 
not been filed within the 30 day period provided for by Title 
VII, the plaintiff amended to assert jurisdiction under the 
1866 statute in order to rescue the case from dismissal. Agreeing 
with the Seventh Circuit's decision in Waters v. Wisconsin Steel Works, 
427 F.2d 476 (7th Cir. 1970), cert, denied, 400 U.S. 911 (1970), 
this Court held that the Civil Rights Act of 1866 provides a right 
of action for alleged racial discrimination in private employment.

The next stage in the development of the law was whether 
a plaintiff was entitled to bypass the Commission altogether 
and bring suit under the 1866 law. The law on the point rapidly 
became subject to differences of opinion.

The view which was adopted by the Seventh Circuit, 
and with which this Circuit initially agreed, was that a plaintiff 
should not be allowed to use the 1866 statute to bypass the

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Commission unless he had a reasonable excuse for not invoking 
the Commission's procedures. In Waters v. Wisconsin Steel Works, 
supra, the Seventh Circuit held that:

"Because of the strong emphasis which Congress placed upon conciliation, we do 
not think that aggrieved persons should be 
allowed intentionally to by-pass the Commission 
without good reason. We hold, therefore, that 
an aggrieved person may sue directly under section 
1981 if he pleads a reasonable excuse for his 
failure to exhaust EEOC remedies." (427F.2d at 487) .r i
The initial position which this Circuit expressed 

on the point was agreement with the Seventh Circuit's "reasonable 
excuse" theory. Beverly v^ Lone Star Lead Construction Co.,
427 F.2d 1136 (5LL Cxjl. 1971). Afrer reiterating the principle 
that "Potential litigants are absolutely required to take ar. ;
step which affords them at least an opportunity to reach a more 

i amicable conciliation out of court" and that "We do not thinkI ; ■
the parties should be allowed to bypass this requirement", the 
Court addressed itself to the accommodation of suits under Title
VII and the 1866 law as follows:

r?
; j "The Waters case requires that a party who

complains of a racially discriminatory hiring policy 
be required to exhaust administrative remedies 

m  available under Title VII unless a reasonable excusefor failure to do so is shown.
Although it is readily apparent that Congress 

Li n°t have §1981 in mind when Title VII was enacted,the two statutes are not in irreconcilable conflict; 
repeal by implication, therefore, is not appropriate.

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Doubtless the two acts are not in entire agreement.
We think, nevertheless, that the differences which 
arise may appropriately be resolved on a case by case 
basis. Waters, supra. One such conflict has already 
been resolved satisfactorily in Waters. Because of 
the strong emphasis on conciliation, complainants 
may not be allowed to bypass the Commission without 
good reason. Thus a §1981 plaintiff must first exhaust 
his Title VII remedies or plead a reasonable excuse for 
failure to do so." (437 F.2d at 1141, n. 22).
The Court subsequently expressed a different view

in Caldwell v. National Brewing Co., 443 F.2d 1044 (5th Cir.
1971), cert, denied, 405 U.S. 916 (1972). That was a case where
the plaintiff filed no charge at all with the Commission and
instead brought suit under the 1866 law alleging that he had
been unlawfully discharged. The Court held that the plaintiff
nad "an independent remedy under §iy8l without respect to
exhaustion under Title VII."

Then came the decision which the District Court regarded 
as compelling the result which it reached in this case. In 
Hill v. American Airlines, Inc., 479 F.2d 1057 (5th Cir. 1973), 
the plaintiff filed a charge with the Commission complaining 
of a disciplinary suspension, a poor merit rating, and loss 
of tips. He thereafter filed suit under Title VII and the 1866 
statute. The District Court dismissed the class action aspects 
of the complaint, and this Court affirmed the dismissal of the 
class action aspects of the case. The remaining issue in the case 
was whether the plaintiff could litigate his individual claims



21 .

regarding vacation policy, testing, and pay increases, and the 
Court held that the plaintiff could litigate these claims under 
the 1866 statute because "even if we assume that none of these 
charges was even remotely related to those pressed before the 
EEOC, Hill still is entitled to pursue his completely independent 
remedy under section 1981 without first negotiating the EEOC 
administrative channels."

D. Summary:
To summarize the principles which have been established 

by the Courts, they are the following:
1. A civil action may not be filed under Title VII unless 

the plaintiff has first filed a charge with the Commission.
2. The civil action in a Title VII case may not extend

to claims which are not like or related to the issues before the 
Commission, since "A less exacting rule would --  circumvent
the statutory scheme", as the Court said in Sanchez v. Standard 
Brands, supra.

3. A plaintiff has the completely independent right
, 3to litigate his individual claims under the 1866 statute.

3. While this would seem to be the result of the Caldwell and 
Hill cases, it may be that this question is not settled. The Court's 
most recent statement on the subject was expressed through Chief Judge 
Brown and Judges Rives and Clark in Burns v. Thikol Chemical Corp.,
483 F.2d 300 (5th Cir. 1973), which dealt with the scope of dis­
covery in these cases. In the course of the opinion in that case, 
the Court cited the Seventh Circuit's decision in Waters v. Wisconsin 
Steel Works (which adopted the "reasonable excuse" theory) and 
referred to it as being in accord with the decision in Sanders v.
Dobbs Houses, Inc.



2 2 .

SUMMARY OF ARGUMENT

With the principles which have been established to 
this point in time having been analyzed, it is appropriate 
now to outline the questions which are not in dispute in this 
case:

On the one hand, this case does not involve any question 
regarding the suitability of the Civil Rights Act of 1866 as 
a statutory vehicle for the maintenance of class actions. ‘'There 
is no doubt that class actions can be maintained under this 
statute, but that is not the issue here.

On the other hand, there is no doubt that under this 
Court's decisions in Oatis v. Crown Zellerbach Corp. and in Sanchez 
v• Standard Brands, the class action issues concerning job 
assignments and job classifications are not ripe for adjudication 
under Title VII. They without dispute were not raised in the 
charge, they are not like or related to the discharge issue which 
was considered by the Commission, and they could not be litigated 
under Title VII in this case.

The point of the case is that the District Court 
believed itself compelled to accept the contention that any 
plaintiff has a "completely independent right" to litigate class 
action allegations through an allegation of alternative jurisdiction



23.
under the Civil Rights Act of 1866, even though they concedely 
could not be litigated under Title VII consistent with the 
standards set forth in Oatis and Sanchez and the decisions 
following and applying these standards. The result is that 
the principles established by the Oatis and Sanchez cases are 
avoided by simply adding to the complaint an allegation of 
alternative jurisdiction under the Civil Rights Act of 1866.
It is our position that this is a substantial error which deserves 
to be rejected and that this Court should correct this error, 
not only for this case but for all future cases within this 
Circuit.



24.

ARGUMENT

It is rare that a District Judge expresses a desire 
to be reversed by the Court of Appeals, and it is evident that 
this is such a case. In the opinion which the Court expressed 
regarding the illogic of the plaintiff's position, the Court 
was absolutely right. But the result which the Court thought 
itself compelled to reach is both wrong and a serious mistake 
which will achieve nothing more than the creation of adverse 
consequences affecting the rights of the class, the burdening 
of the Federal Courts with expansive class action claims which 
have never been considered, investigated, or conciliated by

Prvwmt C  r* i JL-1___ _ X T____j-j.uoux.auxoil oi one procedure wnxcii
Congress intended and most recently expressed in amending Title 
VII in 1972.

The correct and reasonable answer to the question before 
the Court is that an allegation of jurisdiction under the 1866 
statute does not create a completely independent right to 
litigate class action claims which are not ripe for litigation 
under Title VII. The reasons which substantiate this view are 
the following:

' • T



25.
A. A PLAINTIFF'S RIGHT TO SUE ON HIS INDIVIDUAL CLAIMS UNDER
THE 1866 STATUTE DOES NOT ESTABLISH A CORRELATIVE RIGHT TO 
MAINTAIN CLASS ACTION CLAIMS:

The contention which the plaintiff asserted and the 
District Judge accepted is that under this Court's decision in Hill 
American Airlines, ̂ a plaintiff has a "completely independent right" 
to maintain class action claims under the 1866 statute without 
regard to the fact that they have no relation to the issues 
considered by the Commission. As Judge Guin said, "The 'completely 
independent remedy' theory of Hill compels this Court to allow 
an across-the-board attack on charges of racially discriminatory 
job assignments and classification where the EEOC has not been 
requested to investigate these charges nor any like or related
r*Vl y-na " ( TJ O C \

------^  -  X V  / t

The District Court was erroneously led by the plaintiff 
to extend the "independent remedy" theory to class action issues. 
With the exception of the District Court decision in the present 
case, no Court has ever said that a plaintiff has a "completely 
independent right" compelling a Court to allow the maintenance 
of class action claims. All that the Courts have said is that 
a plaintiff has the right to bring suit under the 1866 statute 
on his individual claims. The Hill case,5 for one, held that 
the plaintiff could maintain his individual claims under the 
1866 statute. The decision could not be authority for the idea 
that this "completely independent right" extends to class action 
claims, for the fact is that the District Court had dismissed

4. 479 F.2d 1057 (5th Cir. 1973).
5. Hill y. American Airlines. Inc., supra.



26.

tJ

r ■.

the class action claims, and this Court affirmed the ruling 
dismissing the class action claims. (479 F.2d at 1059). Similarly, 
both the Sanders case^ and the Caldwell case^ held that the 
plaintiffs were entitled to sue under the 1866 statute on their 
individual claims that they had been unlawfully discharged.
Neither case was a class action.

That is not the issue here. In this case, there has
never been any dispute with the plaintiff's right to maintain his
individual claim under both Title VII and the 1866 statute.
Moreover, the plaintiff would further be entitled to maintain
a class action allegation regarding discharge or discipline
since this issue has been filed with thp> rrvmm l ccinn
appropriate for class action treatment under this Court's decision
in Oatis v. Crown Zellerbach Corp., supra. The question, however,
is whether the plaintiff has the completely independent right
to maintain class action claims which were not considered by
the Commission and which could not be maintained under Title
VII consistent with the like or related principle adopted by

8this Court in the Sanchez case.
The plaintiff has argued the syllogism that a 

plaintiff's right to use the 1866 statute to litigate his individual
f i  •
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n
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n

6 .

7.
Sanders v. Dobbs Houses, Inc., supra page 18. 
Caldwell v. National Brewing Co., supra page 20 . 
Sanchez v. Standard Brands, Inc., supra page 12 .8



27.

claims means by necessary implication that he must also be allowed 
to litigate class action claims even though they could not be 
litigated under Title VII. But that does not follow at all.
There is a vast difference between individual claims and class 
action claims. It is one thing to say that a plaintiff has a 
completely independent right to litigate his individual claims.
If the decision on the merits is adverse to him, he and he alone 
is the loser. He does not drag anyone else down with him. It 
is quite another matter altogether when the question is one 
of adjudicating the rights of a class. ^The decision on the 
merits in a class action does not involve only the plaintiff.
It determines the rights of each person in the class, and it
e S  Lob l x  S h e a  a  i c a  j u u x O a l a  L a i  L<-> Lilt: l e i i L i y d i —loh u j l  t h e t j e

issues by any member of the class. It is for these reasons 
that Rule 23 specifies the standards which must be satisfied 
in order for a case to proceed as a class action, and a plaintiff's 
right to have a Court hear and decide class action claims depends, 
not on his standing to sue on his personal individual grievances, 
but rather on whether the case meets the class action prerequisites 
set forth in Rule 23. Indeed, in Hill v. American Airlines 
itself, the Court pointed out in affirming the District Court's 
ruling that the case was not an appropriate class action that:



I

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28.
"Class actions are permissible, indeed often 
preferable, in actions under Title VII if the 
requirements of Rule 23(a) and (b)(2), Fed. R.Civ.P. 
are satisfied, see Oatis v. Crown Zellerbach Corp.,
5 Cir. 1968, 398 F.2d 496, but when no such satis­
faction occurs, the class action portion of a complaint should be dismissed." (479 F.2d at 1059).
The error resulting from the District Court's acceptance

of the "completely independent right" theory argued by
the plaintiff is emphasized by comparing the ruling in this
case with the recent en banc decision of this Court in Huff v. N. D.
Cass Co., 485 F.2d 710 (5th Cir. 1973). The Court there held
that the right to maintain a class action under Title VII is
controlled by the Rule 23 standards and not by whether the
plaintiff can prevail on his individual claim. The inconsistency
between the decision in the Huff case.and the ruling in the
present case is substantial. It cannot rationally be said that
while the failure of a plaintiff to prevail on his own claim
does not necessarily mean he cannot maintain class action claims,
the right of a plaintiff to sue under the 1866 statute necessarily
means that he must be allowed to maintain class action claims.
One extreme is just as erroneous as the other.

Accordingly, the accurate view of the matter is that 
the reliance which the plaintiff placed on this Court's decision 
in the Hill case erroneously led Judge Guin to acceptance of the 
contention that the completely independent right theory had 
to be applied to class action claims as well as to individual 
claims.



29.

B. THE RESULT REACHED BY THE DISTRICT COURT IS CONTRARY TO 
THE COURT DECISIONS IN POINT:

The plaintiff's position, as Judge Guin noted,9 
is that the like or related principle adopted by this Court 
in Sanchez v. Standard Brands10 can be applied only to Title 
VII and that it cannot be applied where the plaintiff is asserting 
the class action claims under the 1866 statute. Accordingly, 
the practical effect of the plaintiff's argument is that the 
like or related principle was developed by the Courts in Title 
VII cases and has no application to the Civil Rights Act of 
1866 because this statute gives a plaintiff the completely 
independent right to maintain any and all claims, limited only 
by the imagination of the attornev whr> 4-V% /-\ — - — jl.•a ‘ v * - — j» — —iT — * v- c

This reasoning deserves to be rejected as a matter of 
policy. With every Title VII complaint including the stock-form 
allegation of alternative jurisdiction under the 1866 statute, 
the result of the plaintiff's position would be to erase the like 
or related principle as a viable legal principle. All that would 
be needed to avoid this principle is a simple allegation of juris­
diction under the 1866 statute, and then any plaintiff could 
litigate all the class action issues that occur to the pleader.

9. R. 23.
10. Supra, page 12 .



30.

Furthermore, this result which was accepted by the 
District Court is contrary to the decisions of the Courts which 
have considered this question. The fact is that with the sole 
exception of the District Court's ruling in the present case, 
every Court which has considered this question has refused to 
allow a plaintiff to use an allegation of jurisdiction under 
the 1866 statute for the purpose of litigating class action 
issues which are not maintainable under Title VII because of 
the like or related principle.

For one, this Court decided a case last year which so 
held and in so holding furthermore dispelled any notion that 
the District Court was compelled by Hill v. American Airlines to 
allow the maintenance of class action issues which could not 
be maintained under Title VII. The Hill case was decided by this 
Court in July of 1973. Thereafter, in October of 1973, the 
Court decided Smith v. Delta Air Lines, 486 F.2d 512 (5th Cir. 
1973),  ̂ which was in all material respects identical with the 
facts of the present case. Just as in this case, the plaintiff 
filed a charge with the Commission asserting the claim that 
he had been unlawfully discharged because of race. So also 
as was the case here, the complaint in the civil action - which 
was prepared by the attorneys who prepared the complaint in the 
present case - contained the stock-form allegation of jurisdiction

11. Supra, page 14 .



31

under both Title VII and the Civil Rights Act of 1866 and raised 
class action claims regarding jobs, hiring, and promotions.
The District Court's ruling that the plaintiff could not be 
a class representative unless he were entitled to reinstatement 
became error after this Court's en banc decision on rehearing 
in Huff v. N. D. Cass Co., 485 F.2d 710 (5th Cir. 1973) , where 
the Court withdrew the panel decision in the case^ and held 
that a plaintiff's failure to prevail on his own cause of action 
does not in and of itself mean he cannot be a proper class representa­
tive .

The issue which remained before this Court in the 
Smith case was whether the plaintiff was entitled to litigate the 
class action claims which had not been raised before the Commission. 
The Court held in answer to this question that the District Court 
was to determine whether the class action claims could be maintained 
under the "like or related" principle adopted in Sanchez v. Standard 
Brands, Inc.^  As the Court expressed this holding through Judges 
Tuttle, Morgan, and Roney:

"[T]he trial court should proceed to a determination 
of whether the claims made adequately stated a class action within the contemplation of this 
Court in Sanchez v. Standard Brands, Inc., 431 
F.2d 455 (5th Cir. 1970)." (486 F.2d at 515).

12.

13
468 F.2d 172 (5th Cir. 1972) 
Supra, page 12 .



32.

While the question presently before the Court in this 
case was not directly at issue in Smith v. Delta Air Lines, 
the Court's application of the like or related principle in 
that case is entirely inconsistent with the plaintiff's contention 
here that there is a completely independent right to litigate 
class action claims under the 1866 statute. The Smith case, 
like this case, was brought under both Title VII and the 1866 
statute, and if this Court had thought that the earlier decision 
in the Hill case had established a completely independent right 
to litigate class action claims under the 1866 statute although 
they are not like or related to the issue considered by the 
Commission, the Court certainly would not have decided the 
Smith case on the basis of the holding that the plaintiff's right 
to maintain the class action claims was to be determined by applying 
the like or related principle.

The plaintiff’s contention is further inconsistent with 
another recent decision in which this Court rejected an attempt 
by a plaintiff to use the 1866 Civil Rights Act to achieve a 
procedural result which would not be proper under Title VII.
In Lynch v. Pan American World Airways, 475 F.2d 764 (5th Cir.
1973), the plaintiff contended that the District Court had erred 
in striking the plaintiff's motion for a trial by jury. It had 
earlier been established in this Circuit that a jury trial 
is not available in an action under Title VII,14 but the plaintiff

14. Johnson v. Georgia Highway Express, 417 F.2d 1122 (5th Cir. 1969).



33.
argued that he was entitled to a jury trial because he was suing 
under the 1866 statute and not under Title VII. Through Chief 
Judge Brown and Judges Dyer and Simpson, the Court rejected 
this argument and held that the nature of the case could not 
be altered by using the 1866 statute rather than Title VII.
As the Court said:

"Neither may the Plaintiff - by framing his 
prayer under § 1981 or by making unsupported 
allegations for compensatory and punitive 
damages - unilaterally alter the genre of the proceeding." (475 F.2d at 765).
Moreover, while this Court will be the first Court of 

Appeals to resolve the question at issue, it has been considered 
by several District Courts which have not allowed plaintiffs 
to use the stock-form allegation of jurisdiction under the Civil 
Rights Act of 1866 to litigate class action claims which cannot 
be litigated under Title VII.

For example, in Kinsey v. Legg, Mason and Co., 60 F.R.D. 
91 (D.D.C. 1973), the plaintiff filed a charge with the Commission 
alleging that he had been unlawfully refused employment. The 
complaint in the civil action was based on both Title VII and 
the 1866 statute, was brought as a class action, and contained 
the class action allegation that the defendant "has engaged



34.

in discriminatory practices by limiting, segregating, and classifying 
employees in ways which deprive them of equal employment 
opportunities." Relying on this Court's decision in Sanchez v. 
Standards Brands, the Court dismissed the class action claims 
on the ground that they were not like or related to the issue 
considered by the Commission, pointing out in so holding that:

"Applying the Sanchez rule to the instant case, this_Court_finds that the matters alleged by Kinsey 
in his judicial complaint pertaining to the terms 
and conditions of employment are beyond the scope 
of the EEOC investigation which can reasonably be 
expected to grow out of his charge that he was denied employment because of his race. --

"This Court is mindful of the fact that EEOC 
complaints are generally filed by laymen unlearned 
in the law and that consequently courts have established
1 i  K p  r * n i 1 r -P  ^  M  x . . . . .  ^  <? _ . i n . •-— ~ —*-------— ~ uxuy l a t x u d i  cun tern: io n sin charges of discrimination in order to accomplish 
the purposes of the Civil Rights Act. Nevertheless, 
even the most generous construction of the facts and 
issues before the EEOC concerning Legg, Mason's 
hiring, recruiting and testing procedures does not 
sustain an across-the-board attack in federal court 
upon every aspect of the company's employment practices.
The record is clear that the EEOC was not requested to 
investigate these practices and that litigation of 
their validity in a Title VII enforcement suit at the 
present time would be unjustified. If parties were 
given complete freedom to litigate claims of discrimina­
tion never presented to the EEOC for investigation and conciliation, it would result in the frustration of 
the statutory scheme and policies favoring informal 
persuasion and voluntary compliance." (60 F.R.D. at 96-97).



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35.

The Court further rejected the plaintiff's contention 
that claims not like or related to the issues before the Commission 
could be litigated by using the alternative allegation of jurisdiction 
under the 1866 statute. As the Court said in rejecting this 
contention, "this Court holds that Section 1981 is not a 
carte blanche authorization to circumvent and undermine the 
preferred policy of exhausting administrative remedies and utilizing 
the conciliatory procedures of the EEOC. Accordingly, plaintiff 
will not be allowed to assert claims under Section 1981 which go 
beyond his claims of discrimination in hiring, recruitment and 
testing that were originally raised during the EEOC proceedings."
(60 F.R.D. at 98) .

Similarly, in Roberson v. Great American Insurance Co.,
48 F.R.D. 404 (N.D. Ga. 1969), the charge filed with the Commission 
alleged a racially discriminatory failure to hire. The complaint 
in the civil action was brought under Title VII and the 1866 statute. 
Judge Edenfield held that the class action allegations could not 
be expanded beyond issues which were like or related to the issues 
before the Commission. In so holding, the Court analyzed the lav/ 
on the point as follows:

"Oatis v. Crown Zellerbach Corp., supra, dealt with the relationship between the charge before the 
EEOC and the complaint filed with the court in a subse­
quent civil action. In that case, the Fifth



36
Circuit found that a class action could be brought 
in a civil suit even though only one of the members 
of the class had filed a charge with the Commission.
The Court felt that if kept within proper confines, 
the class action did not frustrate the purpose of the 
Act to permit the EEOC to attempt voluntary compliance.
The Court reasoned that if a voluntary settlement 
had failed with one member of the class, there was 
no reason to think it would be more successful with 
the next person raising the same issue before the same 
employer. However, to keep the class action within 
proper confines, the Fifth Circuit stated that the 
plaintiff could raise only issues as to which he was 
aggrieved and which he had raised in his charge to 
the Commission. Therefore, in the instant action, 
plaintiff Roberson may only raise those aspects of 
the class action which relate to issues she herself 
has standing to raise. She has no standing to raise 
issues not before the Commission." (48 F.R.D. at 
421) .
These decisions commend themselves as the correct and 

reasonable view of the problem. It creates only minimal consequences 
for the practice of including a jurisdictional allegation under 
the 1866 statute to enable a plaintiff to litigate individual 
claims which have not been considered by the Commission. But 
the plaintiff's attempt to extend this result to the point of 
requiring the Courts to hear and decide across-the-board class 
action issues which are not ripe for adjudication under Title 
VII makes meaningless rhetoric of all the emphatic passages 
by which the Courts have insisted upon a prior submission of 
issues to the Commission.



37.

C. THE RESULT REACHED BY THE DISTRICT COURT IS AN ILL-ADVISED 
CHOICE OF POLICY;

Given the fact that the complaints in Title VII cases 
typically include the stock-form allegation of alternative 
jurisdiction under the 1866 statute, the decision which the 
Court hands down in this case will have a substantial and far- 
reaching impact on future cases. It is therefore important 
to consider the policy considerations which are relevant to 
the question before the Court.

On the one hand, what can be said for the view that a 
plaintiff has the completely independent right under the 1866 
statute to call on the Courts to adjudicate class action issues 
which are not ripe for adjudication under Title VII? The only 
conceivable policy justification for this procedure is that- 
it could expand and expedite the litigation of class action claims. 
However, the fallacy in this consideration is that it rests on 
assumptions which, in any given case, may not be true at all.
For one, it assumes that the absent members of the class are in 
agreement with having their employment rights adjudicated by a 
Court under the Civil Rights Act of 1866 without having them placed 
before the Commission under Title VII for conciliation, or for 
the filing of suit by the Commission under the 1972 amendment 
to Title VII which gives the Commission the authority to institute

. i5suits. It further assumes that the one and only way these

15. The EEOC is featured in commercial messages on the news 
media encouraging those with a complaint to "Contact the EEOC - 
They want to hear from you", and it may be presumed that most citizens 
are familiar with at least the existence of the Commission.
In contrast, it is doubtful that anyone outside the legal profession 
is even aware of the Civil Rights Act of 1866.



38.

cases will ever be resolved is through a Court proceeding, and 
that disregards the fact that they may well be resolved through 
Commission conciliation and without resort to the courthouse.

On the other side of the question, there are substantial 
and important policy considerations which are ill-served by the 
ruling which the plaintiff sought and obtained in the District 
Court. These considerations speak emphatically for the view that 
the proposition accepted by the District Court is extremely unwise 
and creates undesirable results, for the rights of employees in 
the class, for the Courts, and for the procedure established 
by Congress in Title VII.

(1) The rights of the class: It is indisputable that 
the Courts have the responsibility under Rule 23 to be certain 
that the rights of the absent members of the class are not 
jeopardized. As Judge Weinstein commented in a recent class action 
symposium at the Fifth Circuit Judicial Conference, "there is 
additional responsibility on the courts to protect absent class 
members.

The importance of this consideration in Title VII cases 
has been emphasized by this Court. For example, in Danner v. 
Phillips Petroleum Co., 447 F.2d 159 (5th Cir. 1971), the Court 
stated as follows in holding that the case was not a proper class 
action:

16. Honorable Jack B. Weinstein, Some Reflections on the 
"Abusiveness" of Class Actions, 58 F.R.D. 299, 300 (1973).



39.

"Class actions are very specialized types 
of suits, and 'an allegation of class repre­
sentation is attended by serious consequences.' 
Philadelphia Electric Co. v. Anaconda American Brass Co., E.D. Pa. 1967, 42 F.R.D. 324, 328.
Class actions are governed by the quite specific require­
ments of Rule 23 of the Federal Rules of Civil 
Procedure, and as a general rule, an action on behalf 
of unnamed persons must be brought in conformity with Rule 23. See 3B Moore's Federal Practice 
1123.02-2." (447 F.2d at 164).

This consideration was similarly expressed by Judge Godbold
in his concurring opinion in Johnson v. Georgia Highway Express,
417 F.2d 1122 (5th Cir. 1969):

"[W]hat may be most significant, an over-broad 
framing of the class may be so unfair to the 
absent members so to approach, if not amount to,
deprivation of due process. --  It is tidy, convenientfor the courts fearing a flood of Title VII cases, 
and dandy for the employees if their champion wins.
But what of the catastrophic consequences if the 
plaintiff iuoes cuul uaiiitia the class down with 
him, or proves only such limited facts that no 
practice or policy can be found, leaving him •, 7
afloat but sinking the class?" (417 F.2d at 1126).
The proposition that any and all plaintiffs have a

completely independent right to litigate class action claims
which cannot be maintained under Title VII is inconsistent with
the responsibility of the Courts to protect the rights of the
absent members of the class, for this proposition disregards
the fact that the rights and remedies available to the members

17. Another court has similarly observed in discussing the use 
of class actions in Title VII cases that "if the employee lost the 
suit, he may be precluding other employees whom he includes in 
the class from instituting legitimate claims in the future."
Arey v. Providence Hospital, 55 F.R.D. 62, 68 (D.D.C. 1972).



40.
of a class under Title VII may be greater than those available 
under the 1866 law. It is sometimes said, as a general proposition, 
that the rights and remedies under these statutes are coextensive, 
but like all general propositions, this is subject to several 
important exceptions. The fact is, as the Eighth Circuit pointed 
out in Brady v. Bristol-Meyers, Inc., 459 F.2d 621, 623 (8th 
Cir. 1972), that "Title VII is far broader than §1981."^®
The position which the plaintiff urged and the District Judge 
accepted therefore creates the potential result of the members 
of a class receiving considerably less through the adjudication 
of their rights under the 1866 statute than they would have 
through an adjudication under Title VII. The dimensions of 
this consideration mav be illustrated with sP W r al pvamnl oq •

(a) Test validation: The outcome of an attack on 
the use of an aptitude test may be different depending on the 
statute under which the issue is decided. Under Title VII, 
the principle which this Court has established is that the test 
must be shown to have been validated in compliance with the 
Guidelines issued by the Commission under Title VII. United 
States v. Georgia Power Co., 474 F.2d 906, 913 (5th Cir. 1973). 
However, while it may be that the same would hold true in a 
case decided under the 1866 statute, that is not a certainty

18. A law review article has similarly said of the 1866 Act 
and Title VII that "the more recent legislation provides a 
more comprehensive system of relief". Kovarsky, Current Remedies 
for the Discriminatory Effects of Seniority Agreements, 24 Vand. 
L. Rev. 683, 699 (1971).



L 41.

I
I j

v i

r*-

by any means. It could reasonably be said that Guidelines which
have been promulgated under Title VII are not necessarily applicable
in a case governed by the 1866 statute. Indeed, the First Circuit
has already rejected the contention in an action under the 1866
statute that the test should have been validated in compliance
with the Commission's Guidelines. Castro v. Beecher, 459 F.2d
725, 737 (1st Cir. 1972).

(b) Back pay: Claims for back pay are of ever-
increasing importance in these cases. As one Court has observed:

"The Court has heard numerous civil rights cases; 
in fair employment, education, prisoner petitions 
and other matters. While the Courts have held 
that civil rights complaints are primarily equitable 
in nature with monetary damages incidental to the 
primary issues, this Court has observed all too often 
in the pretrial and discovery procedures of many of these 
causes as well as at the hearings themselves and during 
settlement discussions, that some plaintiffs have 
iaLiitj. jxubicectbly placed the recovery of monetary 
damages as the primary aim with violation of civil 
rights as an aside consideration." Henderson v.
First National Bank, 6 FEP Cases 859 (M.D. AlaT- 1973).
There is no doubt that the amount of back pay which 

might be awarded would be less under the 1866 statute than it 
would be under Title VII. The statute of limitations on back 
pay under Title VII is a period of two years prior to the filing 
of the charge.^ But the statute of limitations on back pay 
under the 1866 statute depends on the period of time provided 
by the most analogous statute of the forum State,20 and in

19. Section 706(g) of Title VII, as amended in 1972, provides 
that "Back pay liability shall not accrue from a date more than two 
years prior to the filing of a charge with the Commission." 42 
U.S.C.A. §2000e-5 (g). (Supplementary pamphlet, page 370).

20. E.g., Buckner v. Goodyear Tire & Rubber Co., 339 F.Supp. 
1108 (N.D. Ala. 1972), aff'd per curiam, 476 F.2d 1287 (5th Cir. 1973).



42.

at least two States in which the Courts have considered 
the question, the statute of limitations applied to actions under 
the 1866 statute has been one year rather than the two years 
provided by Title VII. The Alabama one year statute of limitations 
was applied in Buckner v. Goodyear Tire & Rubber Co., supra. Similarly 
the Sixth Circuit applied the Tennessee one year statute of 
limitations in Johnson v. Railway Express Agency, 489 F.2d 525,
(6th Cir. 1973). The result is that the adjudication of the 
rights of the class solely under the 1866 law could mean a year's 
less back pay for the members of the class.

(c) Retaliation claims: Retaliation for the filing of 
charges is expressly prohibited by Title VII, as it should be.21 
However, any such claims by members of the class might not be 
redressible in a case decided under the 1866 statute, as illustrated 
by Judge Will's decision in Tramble v. Convertors Ink Co., 343 
F.Supp. 1350 (N.D. 111. 1972). That was an action brought under 
the 1866 statute by a plaintiff alleging that he was discharged 
because of race and in retaliation for the filing of charges 
of discrimination. The Court held that the allegation of discharge 
because of race stated a claim under the 1866 statute but 
that the allegation of discharge in retaliation for filing charges 
did not state a claim under the 1866 statute. As the Court said:

21. Section 704(a) of Title VII, 42 U.S.C. §2000e-3(a).



43.

i .2

P

"We would readily agree with the plaintiff's 
conclusion were he suing under the jurisdiction created by Title VII. The fact of the matter, however, is 
that he is not so suing and cannot. After pursuing 
his Title VII administrative remedies and receiving 
a right to sue notice from the EEOC, he referred 
the matter to an attorney who, after the statute 
of limitations on Title VII claims had expired, filed 
a suit in federal court which was dismissed because 
of the jurisdictional defect created by the tardy 
filing of the claim. The mere fact that the defendant may have violated the prohibition of § 704(a) of 
Title VII against retaliating against any person 
complaining to the EEOC does not mean that the 
defendant has also violated 42 U.S.C. § 1981."(343 F.Supp. at 1352-1353).
The Court accordingly granted the defendant's motion to 

dismiss, pointing out that:
"The defendant's basis for its motion is that, 
irrespective of whether this alleged action might 
be a Title VII violation, such is not a §1981 
violation and thus cannot te a basis for this suit.
We agree with this contention.-- As the racial
motivation which is the central crux of a § 1981 
action is not necessarily involved in such a 
retaliatory discharge, we conclude that a discharge 
of an employee because of his bringing charges before 
the EEOC, while clearly a violation of Section 704(a) 
of Title VII, is not a violation of § 1981." (343 F.Supp. at 1354).
(d) Active-passive discrimination: On the one 

hand, Title VII applies to passive discrimination, that is, 
to employment standards which are racially neutral and do not 
entail any element of present active discrimination but passively 
Place more of a burden on blacks than they do on whites because 
of the lingering effects of pre-Title VII discrimination. E.g.,



44.

Local 189, United Papermakers & Paperworkers v. United States,
416 F.2d 980 (5th Cir. 1969), cert, denied, 397 U.S. 919 (1970).
On the other hand, there is authority for the view that 
recovery under the 1866 Act requires an active deprivation of
rights, privileges, or immunities so that, unlike suits under Title

/
VII, a showing of passive discrimination would not establish a 
violation of the 1866 Act. The Eighth Circuit, for example, has 
stated with reference to actions under 42 U.S.C. §1983 that:

"In order to maintain an action under the 
foregoing section, the plaintiffs must allege 
facts showing that the defendants acted to 
deprive them of the rights, privileges, and 
immunities secured by the Fourteenth Amendment 
of the Constitution." Spears v. Robinson,
431 F.2d 1089, 1091 (8th Cir. 1970).
(e) EEOC investigation and findings: When the

Commission has been called upon to investigate class action claims,
the plaintiff's attorney will have the benefit of the evidence
obtained by the Commission in the investigation as well as the
Commission's findings. As this Court said in holding that the
Commission's investigation file should be available to a plaintiff's
attorney prior to the filing of suit:

"This conclusion is further justified on 
policy grounds. It is difficult to understand 
how a grievant could amass the statistical 
information alone that would be necessary in 
order for him to know whether he had anything 
more than a suspicion of discrimination without 
access to the kind of information referred to 
in Section 709(e) concerning his employer's 
practices with regard to promotions, terminations 
and the like." H. Kessler & Co. v. EEOC,
472 F.2d 1147, 1151-1152 (5th Cir. 1973).



45.

So also has the Court held that the Commission's 
findings are admissible evidence at the trial. Smith v. Universal 
Services, Inc., 454 F.2d 154 (5th Cir. 1972).

The contrasting situation resulting from the technique 
of adding class action claims which the Commission was not called 
upon to investigate is illustrated by the present case. In this 
case, the sum total of the Commission's file consists of 
evidence and findings concerning the plaintiff's claim that 
he was unlawfully discharged. (R. 30-31).

(2) Effect on the procedure intended by Congress:
It would be a most ill-advised choice of policy to 

sanction the result that class-wide issues may bypass the Commission 
and be thrust into the courthouse by means of an alternative 
allegation of jurisdiction under the 1866 statute. Allowing a 
plaintiff to bypass the Commission with his individual claims 
does not have any far-reaching repercussions, since only the 
individual is concerned in that situation. But to say that the 
Courts are compelled to allow class-wide claims to bypass the 
Commission cannot be reconciled with the emphatic expressions 
which both the Courts and Congress have voiced in speaking of 
the role which the Commission was intended to have in achieving 
the goal of equal opportunities in employment. As the Supreme 
Court recently said in discussing Title VII in Alexander v.
Gardner-Denver Co., 42 U.S.L.W. 4214 (February 19, 1974):



46.

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Cooperation and voluntary compliance were selected as the preferred means for achieving this goal.
To this end, Congress created the Equal Employment 
Opportunity Commission and established a procedure 
whereby existing State and local employment opportunitv agencies, as well as the Commission, would have an 
opportunity to settle disputes through conference, 
conciliation, and persuasion before the aggrieved party was permitted to file a lawsuit."
So also has this principle been repeatedly expressed

and applied in the Fifth Circuit. It was emphasized when the Court
stated in Beverly v̂ _ Lone Star Lead Construction Co.22 that "the
EEOC was intended to, and does play an important role in the
legislative scheme. Potential litigants are absolutely required
to take a step which affords them at least an opportunity to
reach a more amicable settlement out of court." It was similarly
expressed when the Court stated in Miller v̂ _ International Paper
Co^23 that "a complainant under Title VII cannot bypass the
EEOC. The effect of a contrary holding would be virtually
to eliminate the commission established by Congress to encourage
fair employment practices." it was present when the Court held
in Oat is v^ Crown Zellerbach Corp,24 that class actions are
appropriate in Title VII cases provided the Rule 23 standards
are satisfied and the claims have been raised during the proceedings

22. Supra, page 9 .
23. Supra, page 9 .
24. Supra, page 7 .



47.

before the Commission. It constituted the premise of the Court's
decision in Sanchez v. Standard Brands, Inc.,25 where the Court
adopted the like or related principle and pointed out that a
less exacting rule would subvert the statutory scheme. But
this principle would no longer have any meaning in practical
terms if the Court does not now repudiate the proposition that
a plaintiff has the completely independent right to litigate
class action issues merely by pleading an allegation of jurisdiction
under the 1866 statute and without regard to the fact that
these issues are not maintainable under Title VII.

The role which the Commission was intended to have in 
the resolution of discrimination claims was reiterated when 
Congress amended Tide v n  in 19/2. For example, Senator Dominick, 
the author of the bill enacted as the 1972 amendment, explained 
that "The court approach combines the expertise of the EEOC 
in investigating, processing, and conciliating unfair employment 
cases with the expertise and independence of the Federal Courts."26 
The Conference Report on the bill as agreed to by the House 
and Senate similarly observed that "The conferees contemplate 
that the Commission will continue to make every effort to conciliate 
as is required by existing law. Only if conciliation proves 
to be impossible do we expect the Commission to bring action

25. Supra, page 12.
26. Legislative History of the Equal Employment Opportunity

Act of 1972, page 494. (U.S. Government Printing Office 1972).



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48.

in Federal district court to seek enforcement."27
In contrast,' the result of the ruling obtained by the 

plaintiff in the District Court is that because of the addition 
of an alternative allegation of jurisdiction under the 1866 
statute, the Courts are obliged to countenance the disregard 
of this procedure intended by Congress - not merely for individual 
claims which affect only the individual plaintiff — but for across-the 
board issues which affect all of the members of the class. Surely 
this is both illogical and inconsistent with the role which 
Congress intended for the Equal Employment Opportunity Commission.
As Judge Guin accurately observed in expressing the result the 
Court preferred but believed it could not reach, "The mere 
allegation of alternative qrounds of juri sdi rt-i nn under 519 81 
allows the plaintiff to completely by-pass the conciliatory 
procedures under Title VII and allows the plaintiff to frustrate 
the statutory scheme under Title VII favoring informal persuasion 
and voluntary compliance." (R. 26).

The plaintiff has attempted to avoid this consideration 
by contending that after suit has been filed, a District Court 
could stay proceedings in the case and refer the parties to the 
Commission for conciliation. However, the conciliation process

27• Legislative History of the Equal Employment Ooportunitv Act of 1972, page 1856 (1972). ------ ^ ^



49.

would in that situation be a poor substitute. For one thing, 
the Commission could not even conciliate the issues under the 
authority of Title VII. Moreover, while conciliation is normally 
conducted within the framework of the investigation and the 
Commission's findings based on the investigation, that could not be 
the case where the issues have not been raised until the civil 
action complaint was prepared. In this case, as an example, 
the only Commission findings deal with the discharge claim and 
nothing else.

Furthermore, the plaintiff's "completely independent 
right" theory is inconsistent with still another intended 
procedure which Congress expressed in amending Title VII in 

^nicicjitd rapor-c empoaied a Section-by-Section 
Analysis of H.R. 1746, Equal Employment Opportunity Act of 
1972," and this analysis of the amendment explained that it
was the intention for cases to be handled by the Attorney General 
(in the case of governmental employees) and by the Commission 
under the authority being given to it to initiate civil actions. 
As the analysis of the amendment stated:

"it is hoped that recourse to the private 
lawsuit will be the exception and not the rule, 
and that the vast majority of complaints 
will be handled through the offices of the EEOC 
or the Attorney General, as appropriate."28

28. Legislative History of the 
Act of 19/z, page'"184 I (IV 12) .---- Equal Employment Opportunity



50.

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The plaintiff's contention is obviously inconsistent 
with this intention expressed in the Conference Report. Rather 
than having these cases handled by the Commission under the 
right of suit authority conferred on it by the 1972 amendment, 
the result created by the plaintiff's contention is that a 
private plaintiff prosecutes across-the-board class issues, and 
not even under Title VII but instead under the 1866 statute.

This subject entails another consideration which should be
discussed. It should be emphasized before doing so that these
comments are not applicable to the attorneys for the plaintiff
in this case. But since the Court's decision will be written
as well for all future cases within the Fifth Circuit, it is
necessary to face the fact that the ciaac: artinn procedure car.
be subject to misuse when a case is in the hands of an attorney
who has more than an ordinary interest in attorneys' fees. This
potential problem is of concern to the Courts, as it should be.
As one Court observed in considering an attorney's fee award
in a class action, "A lawsuit is a fruit tree planted in a lawyer's 

29garden." This danger cannot exist when cases are brought 
by the Commission in accordance with the intention expressed by 
the Conference Report. But the result which the plaintiff obtained 
in the District Court in this case would clearly raise this problem 
by enabling any plaintiff to insist upon the completely independent 
right to litigate expansive class action claims.

29. Judge Decker of the Northern District of Illinois in 
State of Illinois v. Harper & Row Publishers, Inc., 55 F.R.D. 221, 224 (N.D. 111. 1972).



51.
(3) Effect on the Courts:
The proposition that an allegation of jurisdiction 

under the 1866 statute gives a plaintiff the completely independent 
tight to maintain class action claims which have never been considered 
byy the Commission furthermore compounds the problem of the 
increasing demands on the Federal Court dockets.30

There is no doubt at all that if class action allegations 
cannot be resolved in any way other than through a trial in 
a Federal District Court, then they should be tried, regardless 
of the time required to do so and regardless of the cases which 
have to wait their turn on the docket. But that is not the 
situation in this case or in the cases like it. What the 
Court has before it is simply the situation where class action 
allegations have been raised for the first time when the civil 
action complaint is being prepared, with the Commission never having 
been called on to investigate, consider, or conciliate these 
issues. How then can it reasonably be said that these issues 
would not be resolved by the Commission in a case in which they 
have been raised by a charge? In fact, contrary to the picture 
of blundering administrative handling which the plaintiffs' bar 
paints in speaking of the Commission's conciliation procedures,33.

30. As recently expressed again by Chief Justice Burger at 
the 1973 American Bar Association Convention. Honorable WarrenE. Burger, Report on the Federal Judicial Branch - 1973. 59 a .r  a  J. 1125 (197TT ----------- ----------

31. This was recently illustrated in the remarks of a 
plaintiff's attorney at the Federal xRemedies for Discrimination in 
Employment Seminar (Atlanta, February 15, 1974). "Never conciliate, 
she stated, unless you are ordered to do so or if there is con­ciliation proceeding in progress." (85 L.R.R. 157).



52.
anyone who practices in this field of the lav; knows that many 
cases are successfully resolved through conciliation. The Courts 
never hear of these cases, because they are administratively 
resolved without reaching the Courts, and that is exactly as 
it should be, both from the standpoint of resolving discrimination 
claims through informal conciliation and from the standpoint of 
avoiding the result of burdening the Courts with issues which the 
Commission has not had so much as an opportunity to investigate 
or conciliate.

In contrast, the ruling which the plaintiff obtained
in the District Court in this case disregards these considerations
and increases the caseload of the Courts by adding class action issues
which the Commission has never even investigated and which might
be resolved administratively without being brought to the courthouse.
The point was accurately expressed in a recent case in the Western
District of Pennsylvania. Quoting the opinions which Judge
Friendly of the Second Circuit has expressed in his Federal
Jurisdiction: A General View, the Court commented that:

"[A]s Judge Friendly urges, it would be helpful 
if administrative action was made a prerequisite 
to court consideration of this type of issue. This^ 
is 'an area in which initial jurisdiction to deal with 
complaints of discrimination is best lodged elsewhere 
than in the courts.' --



54.
CONCLUSION

The result which the District Court believed it 
was compelled to reach was not required by anything that 
any Court has said, because a plaintiff's completely independent 
right to litigate individual claims under the Civil Rights Act 
of 1866 does not establish a right to maintain class action 
claims which are not ripe for adjudication under Title VII. 
Moreover, this result is inconsistent with the Court decisions 
which have considered the question and have not allowed an 
allegation of jurisdiction under the 1866 statute to be used to 
expand a case to class action issues wnich have not been considered 
by the Commission. Most important, it is a serious mistake as 
a matter of policy to say that the addition of an allegation of 
alternative jurisdiction under the Civil Rights Act of 1866 obli­
gates the Courts to allow the litigation of across-the-board 
class issues which have never been considered by the Commission 
and therefore cannot be litigated under Title VII.

As a general principle for the resolution of the issue 
in future cases in the Fifth Circuit, the Court should hold that 
an allegation of alternative jurisdiction under the Civil Rights 
Act of 1866 does not create a completely independent right to 
litigate class action claims which have not been considered by 
the Commission.



53.
"Title VII of the 1964 Civil Rights Act does 

impose certain requirements of prior administrative 
consideration, thus satisfying what Judge Friendly 
considers desirable. Friendly, Federal Jurisdiction: 
A General View (1973) 76-77; Love v. Pullman Co.,
404 U.S. 522, 523 (1972)."32

32. Bradford v. Peoples Natural Gas Co., 6 FEP Cases 1336 
7 EPD 119120 (W.D. Pa. 1972). /



Vi

55.
For this case, the Court should reverse the District

Court's order allowing the plaintiff to maintain the class 
action allegations under the "completely independent right" theory.
As in this Court's decision of last year in Smith v. Delta Air Lines, 
where the Court remanded a Title VII-1866 statute case to the 
District Court for "a determination of whether the claims made 
adequately stated a class action within the contemplation of 
this Court in Sanchez v. Standards Brands, Inc.",33 the Court should 
here also remand this case to the District Court for a 
determination of the issue in light of the like or related principle 
adopted by this Court in Sanchez v. Standard Brands, Inc.

Respectfully submitted

William F.  Gardner

Attorneys for Defendant-Appellant Alpha Portland Cement Company

Cabaniss, Johnston, Gardner, Dumas & O'Neal 
1900 First National-Southern Natural Building Birmingham, Alabama 35203

33. 486 F.2d at 515. Supra, page 12.



56.

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing 
Brief has been served by United States mail, postage prepaid, 
on Mr. 0. W. demon, Adams, Baker 5 demon, 2121 Building,
2121 Eighth Avenue North, Birmingham, Alabama 35203, attorney
for plaintiff-appellee.

This the \JaJTday of March, 1974.