Jones v. Alabama Brief for Appellant

    IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
NO. 72-3239

HAROLD FRANKS,
Plaintiff-Appellant,

and
JOHNNIE LEE,

intervenor-Appellant,
- vs -

BOWMAN TRANSPORTATION COMPANY, et al., 
Defendants-Appellees.

Appeal From the United States District Court 
For the Northern District of Georgia

BRIEF FOR THE APPELLANTS

HOWARD MOORE, JR.
ELIZABETH R. RINDSKOPF75 Piedmont Avenue, N.E. 
Suite 1154Atlanta, Georgia 30303

JACK GREENBERG 
WILLIAM L. ROBINSON 
MORRIS J. BALLER 
BARRY L. GOLDSTEIN 

10 Columbus Circle 
Suite 2030New York, New York 10019

Attorneys for Appellants



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 72-3239

HAROLD FRANKS,
Plaintiff-Appellant,

and
JOHNNIE LEE,

Intervenor-Appellant,
- vs -

BOWMAN TRANSPORTATION COMPANY, et al.,
Defendants-Appellees.

CERTIFICATE REQUIRED BY LOCAL RULE 13(a)

The undersigned counsel of record for Plaintiff-Appellant 
and Intervenor-Appellant certifies that the following listed 
parties 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 pursuant to 
Local Rule 13(a).



1. Harold Franks, Plaintiff.
1 2. Johnnie Lee, Intervenor.

3. The class consisting of Black employees of Bowman 
Transportation Company at its Atlanta Terminal, and rejected 
applicants for the road driver position with Bowman.

4. Bowman Transportation Company.
5. International Union of District 50, Allied and 

Technical Workers of the U.S. and Canada, and Local No. 13600 
thereof.

vJYV Vs \ a
Attorney For Appellants

t



TABLE OF CONTENTSl '

P age

Table of Authorities.......................... i
Statement of Questions Presented .............. vi
Statement of the Case.............................1
Statement of Facts .............................  4

1. The Defendants1 Operations ........  4
2. An Overview of Defendants' Dis­

criminatory Practices ............... 6
3. Exclusion of Blacks from Over-the-

Road Driver Jobs...................... 8
4. Exclusion and Segregation of Black

Employees in Atlanta Terminal . . . .  12
5. Plaintiff Franks' Individual Claims . 19
6 . Intervenor Lee's Discharge Claim . . 22

ARGUMENT
I. THE INJUNCTIVE RELIEF GRANTED BY THE

DISTRICT COURT WAS TOTALLY INADEQUATE TO 
TERMINATE THE WIDESPREAD PRESENT EFFECTS 
OF THE DEFENDANTS’ DISCRIMINATORY 
PRACTICES.............................. 2 5

A. The Inadequate Seniority Relief 
Granted By The District Court Per­petuates The Adverse Effects On Black 
Workers of Defendants' Discrim­
inatory Practices.................... 26

(1) Terminal Employees . . .  26
(2) Road Drivers.............. 28

B. The District Court Erred In Afford- 
» ing Minimal Hiring Relief Despite The

Long-Standing Racially Exclusionary 
Hiring Policies of Bowman .......... 29



P a g e

(1) Over the Road Drivers.......... 2 9
(2) Office and Clerical Workers . . 32

C. The District Court Erred In Not 
Affording Any Relief Requiring Training
Even Though Black Workers Were Consistently
Denied Training Opportunities Solely On
Account Of Their Race....................  35
D. The District Court Erred In Failing
To Retain Jurisdiction And To Require
Compliance Reports ......................  38

II. THE DISTRICT COURT MISCONSTRUED TITLE VII 
AND ABUSED ITS DISCRETION IN DENYING BACK 
PAY TO THE CLASS, DESPITE UNCONTRADICTED PROOF OF ECONOMIC INJURY SUFFERED BY THE CLASS 
BECAUSE OF DEFENDANTS' DISCRIMINATORY
PRACTICES..................................  40

A. The Evidence As To Vacancies, Qualifi­
cations, and Performance Is More Than
Adequate To Support An Award of Back Pay . 42
B. An Award of Class Back Pay Is Fully
Consistent With The Procedural Pro­
visions of Title V I I ....................  44
C. The District Court Abused Its Discre­
tion By Arbitrarily Denying Class Back
Pay......................................  47

III. THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFF 
FRANKS' CLAIMS WERE BARRED FOR FAILURE TO TILE 
SUIT IN A TIMELY MANNER....................  52

A. The Statute of Limitation Applicable to 
Plaintiff's Cause of Action Under 42 U.S.C.
§1981 Had Not Run When This Action
Was Filed..................................  52

(1) Any Applicable Statute of Limi­
tation Was Tolled By the Plaintiff's 
Filing Charges With the EEOC........  52
(2) The Action Was Timely Filed 
Within The Properly Applicable Four 
Year Statute of Limitation......... 54

B. Plaintiff Filed Timely Suit Under Title 
VII Within Thirty Days After Receipt of a 
Valid Suit Letter, The First He Had Received 56



(1) The 30-Day Limitations Period 
Runs From The Time The Complainant 
Receives Statutory Notice From
The E E O C ........................  56
(2) The Second Suit Letter Was 
Valid Basis For Plaintiff's Title
VII Action....................  57

C. There Was No Legitimate Equitable Reason 
To Bar Plaintiff's Claims and Equity
Strongly Demands Their Allowance.........  58

IV. THE DISTRICT COURT ERRED IN REFUSING TO CREDIT
LEE'S ARBITRATION AWARD AND IN FINDING NO RACIAL DISCRIMINATION IN HIS DISCHARGE ...........  60
A. The Significance of Leo's Successful
Arbitration............\ .................  60
B. The Evidence Supports Lee's Claim of
Discrimination..............................  62

CONCLUSION..........................................  66
Certificate of Service .............................  68

Pa g e



TABLE OF CASES

Page

Asbestos Workers Local 53 v. Vogler, 407 F.2d 1047
(5th Cir. 1969)..............................  26

Bailey v. American Tobacco Company, 462 F.2d 160(6th Cir. 1972).............................. 28
Beard v. Stephens, 372 F.2d 685 (5th Cir. 1967)..........  54
Beverly v. Lone Star Lead Constr. Corp., 437 F.2d

1136 (5th Cir. 1971)..........................56
Boudreaux v. Baton Rouge Marine Contracting Co., 437

F .2d 1011 (5th Cir. 1971)....................  34,53,55,58
Bowe v. Colgate-Palmolive Co., 416 F.2d 711

(7th Cir. 1969).............................. 45,48
Brazier v. Cherry, 293 F.2d 401 (5th Cir. 1961).......... 54
Brooks v. Beto, 366 F.2d 1 (5th Cir. 1966), cert.

denied 386 U.S. 975 (1967).....................  60
Brown v. City of Meridian, 356 F.2d 602 (5th

Cir. 1966)....................................  54
Brown v. Gaston County Dyeing Machine Co., 457

F.2d 1377 (4th Cir. 1972), cert, denied
41 LW 3253....................................  39,45,64

Buckner v. Goodyear Tire & Rubber Co., 339 F.Supp.
1108 (N.D. Ala. 1972) ........................  31,36,37,53

Burnett v. New York Central R. Co., 380 U.S. 424
(1965).......................................  53,58

Business Executives' Move for Vietnam Peace v. FCC,
450 F.2d 642 (D.C. Vir. 1971)..............  61

Caldwell v. National Brewing Co., 443 F.2d 1044 (5th Cir.
1971), cert, denied 404 U.S. 998 (1972) . . . 45,52

Carter v. Gallagher, 452 F.2d 315 (8th Cir. 1971) . . .  31
Clark v. American Marine, 304 F.Supp. 603 (E.D.La. 19G9)............................  34

l



P age

i
Contractors Association of Eastern Pennsylvania v.

Secretary of Labor, Shultz, et al., 442
F.2d 159 (3rd Cir. 1971), cert, denied
404 U.S. 854 (1971)......................  32

Culpepper v. Reynolds Metals Co., 421 F.2d 888
(5th Cir. 1970)   49,53,57,60

Cunningham v. Litton Industries, 413 F.2d 887(9th Cir. 1970)..........................  56
Dent v. St. Louis-San Francisco Railway Co., 40t>F . 2d 399 (5th Cir. 1969)................  56
Fluker v. Alabama State Board of Education, 441

F. 2d 201 (5th Cir. 1971)................  64
Goodman v. City Products Corp., 425 F.2d 702

(6th Cir. 1970)........................ 56
Green v. McDonnell-Douglas Corp., 463 F.2d 337

(8th Cir. 1972)......................... 55,65
Griggs v. Duke Power Co., 401 U.S. 424 (1971). . . . 15,58,65
Guerra v. Manchester Terminal Corp., 4 EPD f7874(S.D. Tex. 1972)........................  53
Hicks v. Crown-Zellerbach Corp., 321 F.Supp. 1241(E.D. La. 1971).......................... 27
Hutchings v. U.S. Industries, Inc., 428 F.2d 303

(5th Cir. 1970).......................... 53,60
Jenkins v. United Gas Corp., 400 F.2d 28

(5th Cir. 1968)........................  30,44
Johnson v. Georgia Highway Express, Inc., F.Supp.

, 4 EPD H7753 (N.D. Ga. 1972). . . .  38
Johnson v. Georgia Highway Express Inc., 417

F. 2d 1122 (5th Cir. 1969).............. 44,48,49
Joyce v. McCrane, 320 F.Supp. 1284 (D.N.J. 1970) . . 32
Lazard v. Boeing Co., 322 F.Supp. 343 (E.D. La. 1971) 55
Lea v. Cone Mills Corp., 301 F.Supp. 97 (M.D. N.C. 1969) 34
Lefton v. City of Hattiesburg, 333 F.2d 280

(5th Cir. 1964)........................  54

- li -



P age

Local 189 v. United States, 416 F.2d 980(5th Cir. 1969)............................  28, 32,49
Long v. Georgia Kraft Co., 450 F.2d 557 (5th Cir. 1971). 28,29
Louisiana v. United States, 380 U.S. 145 (1965)........  26
Love v. Pullman Co., 404 U.S. 522 (1972)..............  58
Maddock v. Sardis Luggage Co., 3 EPD *[18149 (N.D. Miss.

1971) ...................................... 31
Marquez v. Omaha District Sales Office, Ford Division,

440 F. 2d 1157 (8th Cir. 1971)............ 64
Miller v. International Paper Co., 408 F.2d 283

(5th Cir. 1969).........................  45, 56
Mitchell v. Robert deMario Jewelry, Inc., 361 U.S.

288 (1960)........................  50
NAACP v. Allen, 340 F.Supp. 703 (M.D. Ala. 1972). . . 31
Oatis v. Crown-Zellerbach Corp., 398 F.2d 496

(5th Cir. 1968)................... 45
Office of Communication of the United Church of

Christ v. FCC, F.2d (D.C. Cir.
1972) ......................... 58

Parham v. Southwestern Bell Telephone & Telegraph
j Co., 433 F.2d 421 (8th Cir. 1971) . . . .  34,39
; . ^  l»v

Quarles vf. Philip Morris, Inc., 279 F.Supp. 505
(E.D. Va. 1968)...................  28

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969) 58
Reynolds v. Dailey Press, Inc., 5 FEP Cases 4

(E.D. Va. 1972).................... 53
; Rios v. Reynolds Metals Co., F.2d ,5 EPDf7980 (5th Cir. No. 71-2681, September 

20, 1972)..........................  60
Robinson v. Lorillard Corp., 444 F.2d 791 (4th

Cir. 1971), cert, dismissed 404 U.S. 1006 28,45,48,49,50
Rowe v. General Motors Corp., 457 F.2d 348 (5th

Cir. 1972) ..............................  26,30,34

- iii -



P age

Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th 
Cir. 1970), cert, deneid 401 U.S. 948 
(1971)....................................  52

Southern Illinois Builders Assn. v. Ogilvie, 327 F.
Supp. 1154 (S.D. 111. 1971)..............  32

Sprogis v. United Air Lines, Inc., 444 F.2d 1191 
(7th Cir. 1971), cert, denied 30
L. Ed2d 543 (1971)........................  48

State of Washington v. Baugh Construction Co., 313
F.Supp. 598 (W.D. Wash. 1969) ............  32,46

Strain v. Philpott, 331 F.Supp. 836 (N.D. Ala. 1971) 32
Tipler v. E.I. duPont deNemours and Co., 443 F.2d

125 (6th Cir. 1971)......................  60
United States v. Bethlehem Steel Corp., 446 F.2d

652 (2nd Cir. 1971)....................  28
United States v. Carpenters, Local 169, 457

F. 2d 210 (7th Cir. 1972)................  36
United States v. Central Motor Lines, Inc., 338

F.Supp. 532 (W.D.N.C. 1971) ..............  31,32,34,38
United States v. Frazer, 317 F.Supp. 1079

M. D. Ala. 1970).........................  31
United States v. Georgia Power Co., F.Supp. (N.D.

Ga. 1971)................................  46
United States v. Hayes International Corp., 415 F.2d

1038 (5th Cir. 1969)....................  48
United States v. Hayes International Corp., 456

F. 2d 112 (5th Cir. 1972)................  48
United States v. IBEW, Local 38,428 F.2d 144 (6th Cir. 1973) 34,39
United States v. Ironworkers Local 86, 315 F.Supp.

1202 (W.D. Wash. 1970), aff'd 443 F.2d
544 (9th Cir. 1971), cert, denied 404
U.S. 984 (1971)..........................  2b

United States v. Ironworkers, Local 86, 5 EPD 17972,
1 7973 (W.D. Wash. 1972)....................  34,36,37,38,39

I V



Pago

United States v. Jacksonville Terminal Co., 451 F.2d 
418 (5th Cir. 1971), cert, denied 
4 EPD H 7774 (1972)......................  28

United States v. Jefferson County Board of Education,
372 F .2d 826 (5th Cir. 1966), aff'd en banc 
380 F.2d 385 (5th Cir. 1967), cert, denied 
sub. non. Caddo Parish School Board v. United States, 389 U.S. 840 (1967)..............  32

United States v. Libby-Owens-Ford Company, Inc., 3
EPD H8052 (N.D. Ohio 1971)..............  31

United States v. Local 3, Operating Engineers, 4 EPD
U 7744 (N.D. Cal. 1972)..................  37

United States v. Local 189, 310 F.supp. 906
(E.D. La. 1969)........................  27

United States v. Sheet Metal Workers, Local 36, 416
F. 2d 123 (8th Cir. 1969)..............  34

United States v. United Association of Journeymen,
Plumbers, Local Union 73, 314 F.Supp. 160 (S.D. Ind. 1969)......................  34

United States v. Wood, Wire and Metal Lathers Int. U.
Local 46, 328 F.Supp. 429 (S.D.N.Y. 1971) 48

United Steelworkers of America v. American Mfrg. Co.,
363 U.S. 564 (1960)....................  60

United Steelworkers of America v. Enterprise Wheel
& Car Co., 363 U.S. 593 (1960).........  60

United Steelworkers of America v. Warrior & Gulf
Navigation Co., 363 U.S. 574 (1960) . . 60

Vogler v. McCarty, Inc., 451 F.2d 1236 (5th Cir.
1971)..............................  26,29

v



STATEMENT OF QUESTIONS PRESENTED
1. Whether the injunctive relief ordered by the district 

court was improper because it fails to remedy the effects of 
defendants' overt practices of racial discrimination in employment 
in that:

A. The district court failed to provide full use of 
Company seniority to Black employees who had been denied 
assignment, transfer, or promotion into traditionally all- 
white jobs, and failed to allow retroactive seniority
to Black applicants who had been discriminatorily 
denied employment;
B. The district court refused to order any affirmative 
hiring measures to overcome past hiring policies which 
resulted in total exclusion of Black workers from two 
departments;
C. The district court refused to order that Black 
employees receive job-training opportunities similar to 
those defendants have made available to white employees 
exclusively; and
D. The district court refused to require defendants to 
submit compliance reports and declined to retain juris­
diction for the purpose of monitoring defendants' per­
formance under the decree?
2. Whether the district court's denial of back pay to 

members of the class, in the face of its finding that such class

vi



members had been deprived of income opportunities equal to white 
employees', was erroneous in that:

A. The district court's conclusion that plaintiffs did 
not show evidence of job vacancies, class members' 
qualifications, or performance is contrary to the clear 
facts of this record;
B. The district court's construction of Title VII's 
provision for administrative proceedings as a bar to 
back pay relief for non-plaintiff class members is con­
trary to the statutory scheme for effective relief to 
victims of racial discrimination; and
C. The district court's exercise of discretion was 
capricious, unfounded on this record, and contrary to 
the purposes of Title VII?
3. Whether the .district court erred in ruling that re­

strictive federal and state statutes of limitations barred any 
relief to Plaintiff Franks, despite its findings that he had 
been discriminatorily discharged and denied promotion and that 
he had not received notice of his right to institute suit at the 
time when, in the district court's view, the statutes began
to run?

4. Whether the district court erred in finding Intervenor 
Lee’s discharge not unlawful, despite the facts that a binding 
arbitration award found the discharge to have been without cause 
and that the discharge occurred in a context of racially discrimi 
natory treatment of Intervenor and other Black Road-Driver em­
ployees and applicants by defendant company and pursuant to a
termination procedure which allowed full play to the possible 
prejudices of hostile white employees?

v n



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 72-3239

HAROLD FRANKS,
Pla intif f-Appellant,

and
JOHNNIE LEE,

Intervenor-Appellant,
- vs -

BOWMAN TRANSPORTATION COMPANY, et al.,
Defendants-Appellees.

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

BRIEF FOR APPELLANTS

Statement of the Case

This case of racial discrimination in employment comes
here on appeal from a final judgment of the United States
District Court for the Northern District of Georgia, entered

1/July 14, 1972 (28a). The appeal presents important issues

1/ This form of citation is to pages of the Appendix.



arising from a trucking company's discriminatory hiring, transfer, 
and promotion practices, including the nature of appropriate 
relief from the effects of these practices. This Court has 
jurisdiction of the appeal under 28 U.S.C. §1291.

On March 25, 1968, Plaintiff-Appellant Harold Franks,
a Black man, first filed a charge with the Equal Employment 
Opportunity Commission (EEOC) against the Bowman Transportation 
Company (Bowman) alleging that he, and all other Blacks, had 
been denied promotion and kept in one segregated department by 
Bowman for racial reasons (911a). On May 13, 1968, Franks filed 
a second EEOC charge against Bowman alleging that his subsequent 
discharge was in retaliation for the filing of his first charge 
(912a). On March 2 and 5, 1971, Plaintiff filed amended charges 
of discrimination against Bowman and International Union of 
District 50, Allied and Technical Workers of the U.S. and 
Canada, Local 13600 (hereinafter "Local 13600"), repeating in 
substance his prior allegations (909a-910a). After lengthy 
investigation and unsuccessful attempts at conciliation, on 
April 14, 1971, the EEOC issued, and Franks received, a Notice 
of Right to Sue within 30 days on both charges (908a).

Plaintiff filed this suit as a class action under Title 
VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq., 
and 42 U.S.C. §1981, on May 5, 1971. The complaint alleges 
historic and continuing racial discrimination by defendants in 
hiring, seniority, transfer, and other terms and conditions of 
employment (31a-39a). The defendants answered this complaint

2



on May 20, 1971 and May 25, 1971, respectively, denying 
plaintiff's allegations generally (40a-43a, 44a-47a).

Intervenor-Appellant Johnnie Lee, a Black man, filed his 
first EEOC charge (later amplified by Lee's affidavit, 906a- 
907a) on February 26, 1970, alleging racial discrimination 
in Bowman's refusal to hire him as an Over-the-Road Driver 
because of a policy of not hiring blacks for that job (905a).
On March 19, 1971, after being hired and subsequently discharged
by Bowman, Lee filed a second EEOC charge, alleging a racially

2/discriminatory discharge (Pi. Ex. 5). The EEOC issued and 
Lee received Notices of Right to Sue on both charges on June 22 
and July 12, 1971 (Pi. Ex. 5). Lee thereupon filed, on July 21, 
1971, a Motion to Intervene and an Intervenor's complaint 
to join the class action lawsuit as a plaintiff (48a-53a).
The court below granted the motion to intervene on the same 
day (54a). Defendants answered the Intervenor's complaint, 
denying the allegations generally, on August 10, 1971 and 
August 25, 1971, respectively (55a-57a, 58a-61a).

After extensive discovery and a pre-trial conference, 
the action came on for a trial of three days held March 28-30, 
1972 before the Honorable Sidney 0. Smith, Jr. (78a-861a). 
Following submission of post-trial pleadings, the District 
Court on June 28, 1972, handed down its Findings of Fact, 
Conclusions of Law, Order and Decree (la-27a). The Court

2/ This form of citation, and "Def. Ex. ____, " are to exhibits
of the parties which were admitted into evidence at trial, but are not reproduced in the Appendix.

3



found long-standing, widespread racial discrimination in hiring, 
transfers, and seniority, but found that Bowman had stopped 
discriminating with respect to each job category on the date 
when it hired a Black for the first time in that job. The 
court awarded the class only partial relief, denying (among 
other proposed remedies) the claim for class back pay, affirmative 
hiring provisions, reporting provisions, and retained juris­
diction. As to Plaintiff Franks, the Court found racial 
discrimination in denying him promotion, and retaliatory 
discharge, but denied Franks any relief on the ground that he 
had failed to file suit within 30 days of issuance of a 
Notice of Right to Sue letter in March, 1969. As to Intervenor 
Lee, the court found racial discrimination in the initial 
failure to hire him, and awarded him $6,124.58 back pay, but 
found no racial discrimination in his subsequent discharge.

Judgment was entered on July 14, 1972 pursuant to the 
Court's Order and Decree (28a), and was amended by the court 
on August 2, 1972 (30a). plaintiff and intervenor filed their 
Notice of Appeal on July 26, 1972 (75a).

Statement of Facts

1. The Defendants 1 Operations
Defendant Bowman Transportation Co. ("Bowman", or "the 

Company") is an interstate trucking company operating throughout 
the Southeast and parts of the Midwest. Its principal terminals 
are in Atlanta, Birmingham, Charlotte, and Richmond (2a). it

4



is in the process of moving its main office from Gadsden,
Alabama to Atlanta (2a, 371a-372a).

Bowman, first in 1967 and again in 1970, entered into 
three-year collective bargaining agreements with defendant Local 
13600 of the Allied and Technical Workers of the united States 
and Canada ("defendant union"), under which the union represents 
Bowman employees in Over-the-Road Driver, City Driver, Dock Worker 
and Shop (or Maintenance Department) jobs. The office, sales 
and clerical jobs at each terminal are outside the bargaining 
unit (3a).

This case encompasses Bowman's entire Atlanta operation 
(including non-union jobs) and Over-the-Road Driver (OTR) jobs 
company-wide (3a). The Atlanta Terminal bargaining unit is 
divided for seniority purposes into the Maintenance Department, 
the Dock Department (including city Drivers), and the Over-the- 
Road Department, which constitutes a single department company­
wide (3a) .

The OTR Department, consisting of 400-500 drivers company­
wide, performs the basic freight transport function of the 
company. Road drivers earn the highest wage paid by the company 
to any non-management employee (882a-883a). All road drivers 
are required to operate tractor-trailer vehicles (94a) and the 
company would prefer that an OTR applicant have at least one 
year tractor-trailer experience (560a). However, the company 
has hired road drivers with no tractor-trailer experience as 
trainees, where an experienced driver was willing to train them 
(250a-251a, 560a).

5



The Dock Department consisting, in Atlanta, of about 
80 City Drivers and 150-200 Dock Workers (882a) - stackers 
and checkers - performs local pick up and delivery and loading 
and unloading of freight onto the interstate tractor-trailers 
(93a-94a). Except for City Drivers who need knowledge of 
tractor-trailer driving (120a), the Dock Department jobs are 
largely non-skilled, manual labor occupations (93a-94a, 389a).
Dock jobs are at the middle of the wage ladder (883a).

The Maintenance Department or Shop is comprised of the 
Trailer Shop (including body repair), the Tractor Shop 
(including engine repair) and the Tire Shop (3a). it maintains 
and repairs Company equipment (94a-95a). its personnel of 
about 120 employees (882a) ranges from skilled mechanics who 
earn as much as or more than Dock workers, to Tire Changers 
who earn the lowest wages of any union-represented employees 
(883a), and perform the most menial work (344a-345a).

Office and clerical employees (between 50-100 employees, 
882a), though not unionized, in essence constitute a separate 
department in the terminal (3a).

2. An Overview of Defendant's Discriminatory Practices
The record in this case indicates a long-standing, deliberate 

and comprehensive policy and practice by Bowman to exclude 
Blacks completely from all but the most menial, lowest-paying 
jobs; to subject its few Black employees to constant deprivations 
and indignities, both material and psychological; and to 
withhold equal employment opportunities from Blacks, even

6



under the pressure of this suit, until the last possible 
moment. Even when Bowman tardily yielded in some respects, 
it went only so far as it felt absolutely compelled to go by 
the filing of EEOC charges, court suits, and finally, the judicial 
decree. This comprehensive and intractable policy and practice 
of deliberate race discrimination is the leit-motif of this 
record. it appears in candid admissions by company officers 
under oath, through clear, convincing, and unrebutted statis­
tical evidence of nearly total job segregation, and through the 
vivid testimony of numerous Black employees and rejected 
applicants.

The record irrefutably proves that:
(1) Until August, 1968, Bowman employed Blacks only 

in the most menial, lowest-paying jobs - Tire Changer and 
Clean-Up Man - while hiring whites exclusively in the higher­
paying OTR and Dock/city Driver Departments, and into mechanic, 
clerical and office positions (7a, 882a-884a);

(2) Since 1968, and up until the date of trial, Bowman 
has tardily hired only a token number of Blacks into 
previously all-white OTR and Dock/city Driver departments, 
and none at all into mechanic, clerical and office jobs 
(882a, 883a, 885a).

(3) Bowman has perpetuated the effects of its hiring 
practices first by a flat no-transfer rule (562a) and then by 
instituting a strict departmental seniority system and dis­
couraging or disallowing inter-departmental transfers or 
promotions under that system (872a-873a, 876a-878a, 97a),

7



as well as by threatening reprisals against Blacks who sought 
intra-departmental transfer (268a-273a, 323a-327a).

3. Exclusion of Blacks from Qver-the-Road Driver Jobs
Bowman adhered to an admitted, conscious policy not to

hire or even consider hiring Blacks as road drivers until
3/well into 1970 (6a, 113a-114a, 116a-120a, 255a-256a). During

the period 1959 to 1970, Bowman hired many hundreds of white 
OTRs (108a, 667a, 948a-969a). When Intervenor Lee applied and 
was rejected in early 1970, Bowman had still never hired a 
Black OTR. Later, in the fall of 1970, faced by Intervenor's

3/ Bowman's attitude is perhaps best expressed by testimony 
of Sam Crisco, the officer charged with hiring in Atlanta and 
supervising Road Drivers system-wide from 1967 through 1971 
(at 248a):

THE COURT: During this time [January 1970] youweren’t hiring any blacks out of the Atlanta Terminal, 
were you?

THE WITNESS: No, sir.
THE COURT: Wasn't everybody saying they were

going to put it off as long as they could?
THE WITNESS: Saying about hiring black drivers?
THE COURT: Uh, huh.
THE WITNESS: We didn't have the facilities for

hiring.
THE COURT: You mean in bunk beds and showers?
THE WITNESS: Yes, sir.
THE COURT: All your drivers were telling you every

day not to hire anybody and you decided to tough it out 
as long as you could, isn't that the fact?

THE WITNESS: Yes, sir, we were waiting until wewere confronted with it. We had had some to say they 
would leave themselves.

8



from the OFCC (118a),pending EEOC charge (117a) and pressure 
the company hired its first Black road drivers. By year's end, 
it had hired ten Blacks - in Birmingham only. (6a, 889a). At 
the time Bowman hired these Black OTRs at Birmingham, it 
employed at least 400 whites (882a). It remained company 
policy not to hire Black OTRs at other terminals (119a-120a). 
The company followed this overtly discriminatory policy until 
September, 1971, several months after the complaint was filed
in this case.

in September, 1971, Bowman hired its first Black drivers 
at Atlanta and Richmond (892a). In February, 1972 - only one 
month prior to trial - a Black driver was hired for the first

t
time at charlotte (6a, 892a).

in addition, the number of Blacks hired into OTR jobs 
up to the date of trial indicates that, far from making its 
best remedial efforts, the company was continuing to apply a 
policy which the district judge characterized as to "put off 
[Black driver employment] as long as [they] could" (6a, 248a).

Bowman's stubborn persistence in continuing to follow 
this exclusionary policy is clearly reflected in the pertinent 
statistical evidence, all of which remains unrebutted. After 
hiring ten Black OTRs including Intervener Lee in a four-month 
period in Birmingham at the end of 1970, Bowman hired only 
17 more in the 15-month period prior to trial (889a), while it 
hired at least 134 whites (887a, 948a-969a). On February 26,

4/ One reason given by Bowman for restricting Black hiring to Birmingham was that Black OTRs s^tioned there could be assigne 
to drive to Midwestern states and kept out of120a). Another has to do with Bowman’s segregated facilitLe (117 )•

9



1972, one month prior to trial, the company's Black Road 
Driver contingent numbered 18 out of a total of 550, or 3.3% 
(948a-969a). Moreover, after the first flurry of Black
hiring^ Bowman has gone on to hire Black drivers at a decreasing 
rate. These figures are rendered more stark by the added 
fact that the number of Black driver applicants increased 300% 
from 1970 to 1971, from 62 to 167 (889a) - including a 250% 
increase during that time in Black applicants who indicated 
more than one year of experience, from 41 to 105 (890a-891a).

Because the company had difficulty filling Road Driver 
vacancies with whites (667a), in about 1968 it instituted 
a training program for OTR applicants with little or no prior 
tractor-trailer experience (667a). Because a trainee required 
a Driver-sponsor who was willing to do the training (560a) 
and because white drivers refused to train Blacks (654a),
Blacks were excluded from the training program (255a-256a).
At least 75-150 white trainees were hired in the period 1968- 
1971 under this program (250a-251a).

Bowman’s exclusionary racial policies and the statistical 
evidence of their devastating results are graphically illustrated

5/ The district judge's understanding that 10% of the OTRs 
were Black at the time of trial (6a) il plainly incorrect 
ccording to the March 1, 1972 OTR seniority list submitted by 

Bowman (948a-969a). (Blacks on that list are marked with an "3
6/ Black White > B

September - Dec. 1970 10 26 28%
Year of 1971 13 88 12%
Jan. - Feb. 1972 4 46 8%

(889a, 948a-969a)
- 10 -



by evidence of the company's treatment of two Black OTR
applicants who were witnesses at trial (6a).

Sandy McLaughlin sent his Road application to the Gadsden
office in August, 1970 (153a), indicating 9-14 years of truck
driving experience, no accidents and one six-year old $10.00
traffic violation. His race was also indicated by the picture
Bowman's application form requires of all Road Driver applicants
(922a-926a, 793a-794a). Bowman responded one day later with

!_/a two-line rejection letter (926a).
Unice Harbor responded to a Bowman advertisement for Road 

Drivers in October, 1970 in Atlanta. He filled out an appli­
cation which indicated he had at least eight years of over-the- 
road experience, an accident-free driving record, and one traffic 
violation (314a-318a, 321a). Bowman's rejection of Harbor's 
application (318a-319a) remains wholly unexplained by the 
company.

The trial court found that both McLaughlin and Harbor
8/

had been rejected for reasons of race (6a). Conceding the 
past prevalence of this rigid exclusionary policy, Bowman

7/ The company claimed that McLaughlin was not hired because 
of failure to sign the application's temporary agreement, and 
not giving requested information on past employment (793a). The 
latter cause was revealed to be incorrect during cross-examination 
of the supervisor who made the decision (794a-796a). The 
purported inadvertent failure to sign on the back of the 
application was exposed as an irrelevancy, considering that the 
supervisor knew the applicant to be Black (794a) and knew of 
the company policy of not hiring Black OTRs at that time (796a).
8/ Bowman's discriminatory refusal to hire Intervenor Lee 
as an OTR is detailed separately in Part 6 below,, p.22.

11



nevertheless asserted at trial that it had subsequently ended 
any trace of discrimination (535a-538a). The company's proof 
consisted entirely of assertions by company officials that they 
no longer discriminate on the basis of race (711a, 714a, 725a, 
781a-782a). Garfield Salyers, the President, while expressing 
satisfaction with the company's equal employment program 
(550a), admitted that he had not even reviewed its results (550a). 
Nor had he done anything positive, besides issuing bulletins and 
newspaper ads (552a-553a). Indeed, the company's entire case 
is based on bald assertion that it no longer discriminates, 
plus correspondence with various government agencies to that 
effect (Def. Ex. 1-68).

4. Exclusion and Segregation of Black Employees in
Atlanta Terminal
A. Maintenance Department

Within this department, Blacks have historically 
been segregated into the lowest—paying, most menial jobs 
Tire Changer, Clean—Up Man and janitor — and excluded from 
all others (882a).

No Black had ever to the date of trial been employed 
as a Mechanic (in either Tractor or Trailer Shop), a higher­
paying job to which several Black applicants have openly 
aspired (327a, 439a-440a, 503a, 511a). Bowman's prior experience
requirement for a Mechanic C (junior Mechanic) is "knowledge 
of lubricants and component parts" (441a). This experience may 
either be acquired (1) by working in the Grease Man job (a job

12



into which no Black has ever been hired since it became a 
training ground for mechanics (882a)) or (2) by gaining such 
experience "in other places" (442a). Bowman determines whether 
a man has such outside experience by "talking to him" (441a- 
443a). Evidence showed that several of Bowman's Black applicants 
had the required elementary mechanical experience (339a, 624a, 
647a-648a). In sum, Bowman kept the Mechanic job all-white, 
and thus the Maintenance Department totally segregated, by 
blocking both avenues of entry into the better jobs in the 
Department.

In addition, Bowman's hiring policies continue to promote 
job segregation in this Department. Since 1968, the only Tire 
Shop employees hired have been Black, and 65 out of 66 of the 
Tractor and Trailer Shop employees (and all of the mechanics 
in these Shops) have been white (894a-895a). Thus, the Mechanic 
jobs have remained 100% white, and the Tire Changer, Clean-Up 
Man and janitor jobs in August, 1971 remained 87% Black - 
20 out of 23 (882a).

Job segregation in the Shops (and throughout the plant)
Jis fostered ;lay the company's recruitment system. As the court 

below found, Bowman relies either on referrals from other 
employees, which perpetuate the racial makeup of those employees' 
Shops (5a), or on "walk-ins," who are referred to departments 
according to race, with Blacks always referred to the Tire Shop 
(5a) .

13



B. Dock and City Driver Department
The Dock jobs - checker and stacker - require 

no previous work experience and are essentially manual labor 
jobs (93a-94a, 389a). Despite this fact, these jobs remained 
all-white until August, 1968 (7a). When the first Black dock 
worker was hired, Bowman employed at least 200 whites (882a). 
As late as August, 1971, Blacks held only 6% of these jobs - 
10 out of 173 (882a). The City Driver jobs, most of which are
filled by promotion from the historically segregated Dock jobs 
(390a-391a), were never held by a Black until June, 1969 (7a). 
in August, 1971 only 4%  - 3 out of 84 - of City Drivers were 
Black (882a). Thus the former policy of absolute exclusion 
has since 1968-69 been replaced by a policy of hiring a token 
number of Blacks.

In 1969-1970, Bowman hired Blacks for 6 out of 56 (or 
11%) of the Dock Worker jobs it filled, and 3 out of 37 (or 
8%) of the City Driver jobs filled (894a). These statistics 
are all the more dramatic in light of the fact that the entry- 
level Dock job - stacker - has requirements indistinguishable 
from those of the all-Black Tire Changer job (389a, 466a).

C. Clerical and Office Workers
There has never been a Black employee in any of the 

Atlanta Terminal's 60-100 office, sales or clerical jobs 
(372a-373a, 882a).

The lily-white composition of Bowman's clerical staff is 
maintained by several aspects of the company's system of 
recruitment and hiring. Recruitment for clerical jobs is an

14



especially close-knit, word-of-mouth operation, in which no 
advertisements or public notices are used (369a). Current 
office employees tell their friends of the few clerical 
openings which are anticipated (5a, 369a). Moreover, until 
some time in the Spring of 1971 (365a-367a), Bowman adminis-

9/
tered the Wonderlic test to clerical applicants. Wonderlic 
scores were used to disqualify the only two Black clerical
applicants the company ever had up to that point (365a—367a,

10/374a).
D. Lock-in Transfer and Seniority Rules 
Prior to August, 1967, all jobs in the company were 

totally segregated by race (3a, 882a). In the Maintenance 
Department, the company maintained separate Tractor, Trailer, 
and Tire Shops, and Blacks were only hired into the Tire Shop 
(3a, 882a). At the same time, transfer between Shops was 
prohibited by company policy (3a) and in fact (100a). Transfers 
to the City Driver/Dock and OTR Departments were similarly 
prohibited (3a, 840a) and Blacks were, as a result, entirely 
excluded from these jobs (3a, 882a)„

9/ The Supreme Court has found this test to be illegal when^ 
not validated and used to disqualify Black applicants, since it 
leads to disparate racial results and is typically not job- 
related. Griggs v. Duke Power Co., 401 U.S. 424 (1971). Bowman never attempted to validate its use of the Wonderlic (551a—552a).
10/ Bowman characteristically did nothing to remedy the past 
effects of this test use after its discontinuance. Although the company keeps all applications on file (370a), it made no effort 
to contact the rejected Black applicants after use of the test 
was discontinued (375a).

15



Superimposed on this pattern of job segregation and no­
transfer rules, a rigid, departmental seniority system came 
into effect in 1967 with the first collective bargaining 
agreement. The collective bargaining agreement signed in 
1967 (and later that of 1970) enumerated three departments - 
Shop, City Driver/Dock and Over-the-Road - with departmental 
seniority as the governing factor in promotion and transfer
(872a-873a, 876a-878a). There was no provision for inter-

11/departmental transfer, and an employee could not transfer
between departments without loss of accumulated seniority.

Had this system been fairly followed, it would have 
penalized Blacks with greater company seniority wishing to 
transfer to a previously all-white department, in favor of whites 
with less company seniority already employed therein (7a).
This disincentive alone would explain a total absence of 
any inter-departmental transfer. Yet the possibility of 
transfer was made even more remote by Bowman's discriminatory 
application of the contractual system. Despite what the 
contract states, management policy is to prohibit inter­
departmental transfers, even where an employee is willing to 
give up his accumulated departmental seniority (562a).

In addition, within the Shop there have evolved, completely 
outside the collective bargaining context, two separate bidding 
systems: in August of each year, there is a general bid in 
which all Shop jobs are thrown open and in which any Shop

11/ Except from Road Driver to City Driver/Dock in a very few hardship or accident situations (3a, 98a-99a).

16



employee is (theoretically - see below) allowed to bid (434a).
It is only at this time that even departmental seniority can 
be utilized fully. Throughout the year, there are special bids 
whenever a vacancy arises, which are posted only within the area 
of the Shop - Tractor, Trailer or Tire - in which the vacancy 
occurs (399a, 434a-436a). While in theory any Shop employee 
can always use his Shop seniority to bid for any vacancy in the 
Shops, this "special" bidding system creates the effect of sub­
departmentalization, and furthers the restrictive company 
policy. As a result, no Tire Shop employee has ever been 
promoted to any other job, even within the Maintenance 
Department (269a, 882a).

In addition. Bowman's supervisors have repeatedly and 
openly threatened Black employees who seek transfer. Blacks 
have been told that they could bid for better jobs only at the 
risk of losing their current ones (7a, 327a), or that to transfer 
they had to resign for six weeks and then reapply (8a). Plaintiff 
Franks sought both inter— and intra—departmental transfer 
several times from 1966-1968 (268a-273a). He was rebuffed 
both by "sympathetic" supervisors who feared company reprisal 
for assistance in promoting or training Blacks (270a), and by 
an unsympathetic company official who told him bluntly you 
was hired in as a tire changer and you stay at that position 
(272a). Witness M. P. Williams, a tire changer until 1971, 
described his and many other tire changers' persistent efforts 
to better themselves (323a-326a), which were met by management 
rebuffs, culminating when the Superintendent of the Maintenance 
Department told the assembled Tire Men that "as long as he was

17



there and the boss over the shop, they would never be nothing 
but clean-up boys" (326a-327a). A current tire changer,
George Clark, corroborated williams' testimony (346a).

The company produced testimony from a parade of current
12/tire changers who dutifully testified that they were

satisfied with their jobs and not desirous of advancement.
In fact, cross-examination of several of these men exposed 
suppressed dissatisfaction, evidence of rebuff, and in several 
instances qualification and positive desire for improved status. 
For example, Ernest Leary testified that when he, along with 
two other tire changers (514a), sought to be promoted to the 
Trailer Shop during the general August, 1971 bid, their super­
visor warned that they would lose their seniority if they bid

13/for that job (510a-511a). Percy Grubbs testified to wanting
to drive a tractor-trailer, at which he had 18 years of 
experience (632a-634a). He had not applied, however, due to 
his understanding that the union rules required him to quit 
"for a period of time" (634a-635a). Clifford Barksdale applied 
to Bowman early in July, 1970, for work in the Dock Department 
(618a-621a). He was told there were no openings and directed 
to the Tire Shop, where he was hired on August 11, 1970 (620a- 
621a). in July-August, 1970 Bowman hired five white applicants

12/ We would recall the fact that these witnesses remain 
employed by Bowman and remain subject to reprisals similar 
to that unhesitatingly used by the company against Plaintiff 
Franks.
13/ Notwithstanding the fact that, according to the contract, 
tKie Tire Changer and Trailer Shop jobs are in the same depart­mental seniority unit (872a-873a, 876a-878a).

18



into the dock jobs Barksdale had originallv sought, including 
two who applied the same week that Barksdale filled out an 
application (625a-626a, 869a-870a).

Bowman's use of departmental and, in effect, sub-depart- 
mental seniority cannot conceivably be justified as a business 
necessity. On the contrary, the defendant union's repre­
sentative, familiar with Bowman's operations, testified 
unequivocally that full company-wide seniority was both 
feasible and desirable for Bowman (841a, 853a-854a).

5. Plaintiff Franks' Individual Claims
Plaintiff Franks was hired as a Grease Man in 1961, 

transferred to Tire Changer in about 1963, and remained in 
that job throughout his employment with the company (261a-263a). 
Despite having never seen any Black Tire Changer promoted 
out of that job (265a), from 1966 through 1968 Franks 
persistently sought to do so (12a, 268a~272a).

Franks spoke to the Trailer Shop supervisor, who told him 
that, although the supervisor felt that the Blacks should be 
promoted, he could not allow it (269a-271a). Franks also 
inquired about a dock position, and repeatedly sought through 
his own supervisor, Charlie Andrews, to improve his lot 
within the Maintenance Department (Id.). For at least three 
years, he met rebuff at each turn (272a). Finally, after 
watching white men hired off the street into higher paying 
jobs (269a), Franks filed an EEOC charge on March 25, 1968, 
alleging that despite his efforts he had not been promoted, and 
indicating that the company generally did not allow Blacks

- 1 9 -



to promote into all-white jobs (911a).
At the time Franks sought promotion into these jobs, 

the district court found, Bowman followed a policy excluding 
Blacks from the Tractor and Trailer Shops and the Dock Depart­
ment (7a, 12a, 882a), and of discouraging transfers generally 
(7a). The district court implicitly found that Franks 
was discriminatorily refused promotion by noting (in its 
calculation of his economic loss due to the unlawful discharge) 
that he deserved to be promoted to a dock job by at least late 
1967 (13a).

Bowman's reaction to the EEOC charge was swift and
predictable. Although he had never been criticized for his work
before (275a), and admittedly had done a good job for Bowman
(400a-401a), Franks soon received his first warning letter
(276a). Shortly afterwards, on the same day that an EEOC
investigator appeared at the Terminal to investigate Franks'

14/
charge, Franks was discharged (12a, 289a-290a)

The lower court saw the company's purported cause for 
discharge as the sham it was, and found that Bowman had 
unlawfully retaliated against Franks (13a).

14/ The reason given for the discharge by Bowman was Franks' 
"unauthorized bobtailing" (driving a tractor without a trailer) 
(12a), to bring his laundered uniforms to his car, remaining 
at all times on company property (13a). To the contrary, there was clear evidence that: (1) no one had ever before been
discharged for bobtailing solely on company property (481a, 597a, 
13a); (2) all bobtailing discharges resulted from bobtailing
plus another serious violation, such as using narcotics (597a); 
(3) bobtailing had always been an offense for which Road Drivers 
and not terminal employees had been discharged (597a-600a); 
and (4) in fact, terminal employees often ran short personal 
errands on company property with management's knowledge and 
acquiescence, at times using unconnected tractors (13a,
287a-288a, 336a-337a).

- 2 0 -



The court found that Franks would be entitled to in15/
excess of $5,000 back pay on his discharge claim. However, 
the court found that Franks' claims were barred by his failure 
to file suit within 30 days of issuance of a suit letter on 
March 21, 1969 (16a). A recital of certain procedural facts 
is therefore necessary.

On March 21, 1969, the EEOC mailed statutory notice, of 
the plaintiff's right to sue in federal court (the "first 
suit letter") to the home address of the plaintiff's grand­
mother, sister and nephew (14a, 825a). The plaintiff received 
his mail at that address, since his own residence, several 
doors away, was not equipped with a mailbox (824a-825a).
The "first suit letter" was delivered to that address on 
March 22, 1969 and signed for by the plaintiff's nine-year 
old nephew, Calvin High (14a, 945a-946a). The letter was lost 
by the young boy (827a), and the court below found that plain­
tiff never received it personally (14a, 16a) ; nor did he then have
any way of knowing that a letter from EEOC had been sent (827a- 

16/828a). As a result, he could not have filed suit at that time.
On March 20, 1970 plaintiff-- apparently wondering what

had become of his claim-;— returned to the EEOC and executed an 
affidavit affirming the facts recited above (944a). Plaintiff 
later retained his present attorneys and filed amended EEOC 
charges (14a-15a). They requested the suit letter that he 
received on or about April 14, 1971 (the "second suit letter"),

15/ This amount is calculated using the earnings figures found 
to apply by the district court (13a) and covers only the period 
1968-1971, without consideration of earlier and later periods 
for which Franks has a claim.
16/ Plaintiff apparently contacted an attorney in 1969 (828a), who apparently requested that EEOC issue the "first suit letter". 
There is nothing in the record to indicate that that attorney received a copy of the suit letter. In any event, he did not file 
suit and has not communicated with the plaintiff since (829a).



which was the first one Franks actually received (908a).
The case at bar was timely initiated on May 5, 1971 pursuant 
to the April, 1971 notice of plaintiff's right to sue.

6. Intervenor Lee's Discharge Claim
Intervenor Lee presented a dual claim of discrimination 

to the district court, contending that Bowman had initially 
refused to hire him and later discharged him because of his 
race. The district court found for Lee on his failure to hire 
claim, but disallowed the discharge claim, the sole issue ap­
pealed by Lee here (22a). Thus while Lee's refusal to hire 
claim is not at issue, the facts surrounding that claim bear on 
his subsequent discharge and must be briefly discussed.

Lee applied for employment as a road driver with Bowman 
on January 13, 1970 (173a, 897a). Although a well qualified 
driver with 19 years experience (170a-172a, 902a) free from 
even a single chargeable accident (901a), Lee's application 
was rejected in favor of less qualified whites (18a). Lee then 
filed a charge of race discrimination with the EEOC (905a) and 
subsequently, on September 14, 1970, became one of Bowman's 
first pair of Black road drivers to be hired anywhere in the 
system.

Because of the resentment harbored by its white employees, 
Bowman domiciled these first Black drivers exclusively in Birm­
ingham, where the absence of bunk and shower facilities made the 
integration of its driver force more feasible in the Company's 
opinion (117a-118a), Once employed, Lee like all other Black

22



1

drivers was limited to "single runs" or "double runs" with 
other Blacks (654a, 672a), again in an effort to appease the 
"considerable driver resentment against the hiring of Black 
road drivers" (5a).

Lee continued as a model employee until the date of his 
discharge on March 18, 1971 (673a). The district court noted 
that " [h]is service ... was entirely satisfactory to management 
and he had a good record" (19a). On that date Lee was summarily 
discharged by Joseph D. Woods, Safety Supervisor at Bowman's 
Birmingham Terminal (663a-665a). Woods was summoned to Bowman's 
Gadsden Terminal by its shop foreman, Wayland Hines, who had 
been apprised of the fuel pump alteration on Lee's assigned 
tractor (664a).

Woods' testimony revealed that he had never discharged 
any other employee for fuel pump alteration (674a) and that he 
had furthermore acted without direct knowledge of Lee's case, 
solely on the representation of the Gadsden Shop foreman and 
two white mechanics who had serviced Lee's truck (665a). He 
stated that he "had no alternative but to discharge him 
[Lee]" under Company rules, because the tractor had been checked 
out to Lee the week prior to the discharge with fuel pump 
seal intact (665a).

Despite his testimony that he was aware of the pervasive 
racial prejudice existing among Bowman's white employees (654a), 
Woods based his decision on the representations made by members 
of Bowman's solidly white mechanic force (751a), and in the 
face of Lee's steadfast denials of any involvement in the alter­
ation (218a, 664a). Woods' decision was made shortly after his 
arrival at the Gadsden Terminal, without further investigation

23



or consultation. Woods, as well as the mechanics and shop 
foreman, testified that they knew Lee's truck had been un­
attended for a two-hour period between 6 A.M. and 7:30 A.M., 
while parked in the Gadsden Yard along with other tractors 
some 25 yards from the garage (755a ff). The mechanics also 
testified that alteration of a fuel pump was a simple fifteen 
minute task, which virtually anyone might accomplish, even as 
a prank (746a, 751a). At approximately 7:30 A.M. an unidenti­
fied mechanic drove the tractor into the garage for servicing 
to be performed by yet another two mechanics. The altered fuel 
pump was first noted by the shop foreman an hour and a half 
later (770a ff).

Lee sought relief from his discharge both through the 
present Title VII action and by way of arbitration under the 
company-union collective bargaining agreement. He won his 
arbitration hearing on October 29, 1971 (914a-921a) and was 
ordered reinstated with full back pay (921a). However, the 
collective bargaining agreement in force between the defen­
dants limited the award of back pay to one month's wages and 
contained no anti-discrimination provisions (209a, Pi. Ex. 1 (S)) .

Lee then proceeded with his Title VII claim in the lower 
court, now seeking full back pay for his "no-cause” termination 
which he contended was racially discriminatory. The lower court 
found that Lee's discharge was not the result of race discrim­
ination and refused to order further back pay (22a).

24



ARGUMENT
I.

THE INJUNCTIVE RELIEF GRANTED BY THE DISTRICT 
COURT WAS TOTALLY INADEQUATE TO TERMINATE THE 
WIDESPREAD PRESENT EFFECTS OF THE DEFENDANTS' 
DISCRIMINATORY PRACTICES.

The district court found that the defendants had practiced 
overt discrimination and segregation in job assignments, trans­
fers, hirings and training practices. See Court's Opinion pp.
3-7 (3a-7a). Despite these findings, the district court failed 
to grant affirmative relief that would even begin to overcome 
the effects of past discrimination.

The district court only allowed partial use of plant senior­
ity by members of the affected class who were previously assigned 
into the lowest-paying and least desirable jobs at Bowman's 
terminal. Furthermore, the district court failed to provide any 
affirmative relief in the areas of training or hiring, nor did 
the court even retain jurisdiction or require reporting of 
defendants' employment practices in order to monitor their com­
pliance with the decree. In each of these aspects, the district 
court's decree is deficient. We ask this Court to remedy those 
deficiencies.

The fundamental inadequacy of the district court's remedies 
follows from its basic misapprehension of the purpose and scope of 
Title VII. The district court failed to apply the broad equit­
able power of district courts to terminate discrimination, since 
the district court, incorrectly, did not interpret the statute 
or judicial precedent to require any affirmative remedies, even 
in the extreme circumstances of this case. At one point the dis-

-  25



trict court candidly acknowledged this belief by stating that 
["an affirmative duty to hire Blacks . . . ] is a legal zero" 
(379a).

This Court has been emphatic in stressing the duties of 
the district courts to overcome all the effects of racial dis­
crimination. Voqler v. McCarty, Inc.. 451 F.2d 1236, 1238 
(5th Cir. 1971). District courts, accordingly, are not limited 
to simply "parroting" the act's prohibition but rather are 
required, pursuant to §706 (g) of Title VII, 42 U.S.C. §2000e-5(g), 
to order "such affirmative relief as may be appropriate".
Asbestos Workers Local 53 v. Voqler, 407 F.2d 1047, 1052-1053 
(5th Cir. 1969); Rowe v. General Motors Corp., 457 F.2d 348, 355 
(5th Cir. 1972); see United States v. Iron Workers Local 86.
443 F.2d 544, 553 (9th Cir. 1971). cert, denied, 404 U.S. 984 
(1971); Louisiana v. United States, 380 U.S. 145, 154 (1965).
The partial relief granted by the district court fails to re­
cognize either the general importance of affirmative relief under 
Title VII as repeatedly set forth by this Court, or the types of 
specific affirmative relief held appropriate in this and other 
courts to remedy discriminatory employment practices similar to 
those found herein.

A. The Inadequate Seniority Relief Granted By the District 
Court Perpetuates The Adverse Effects On Black Workers 
Of Defendants' Discriminatory Practices.
(1) Terminal Employees.
The district court found that prior to August 15, 1968, all 

Black workers were exclusively assigned to menial and low-paying 
jobs of tire changer and clean-up man at Bowman. This racial 
segregation by job or department is identical to employment

2 6



patterns that existed in Crown-Zellerbach Corporation, the defendant 
in the seminal opinion of this Court concerning appropriate senior­
ity relief. United States v. Local 189, 310 F.Supp. 906 (E.D. La. 
1969), aff'd sub. nom. Local 189 v. United States. 416 F.2d 980 
(5th Cir. 1969), cert.denied, 397 U.S. 919 (1970). See Hicks v. 
Crown-Zellerbach Corp.. 321 F.Supp. 1241 (E.D. La. 1971) (final 
order compelling use of full plant seniority). Here, the same form 
of discrimination requires the same relief - full use of plant 
seniority.

However, the district court's partial seniority relief 
stopped far short of the full use of plant seniority: Black workers 
who had been discriminatorily assigned to all-Black jobs are only 
permitted use of company seniority accumulated prior to August 
15, 1968 to promote or transfer to better paying and previously 
all-white jobs (25a). This denial of company seniority accumulated 
since that date obviously blocks Black workers from attaining 
their "rightful place".

The halfway seniority relief ordered herein is unprecedented 
and has no justification within the factual context of this action. 
August 15, 1968, is no more than the date that a single Black 
worker has hired into a single job at the Atlanta Terminal other 
than tire changer or clean-up man. This token deviation from 
Bowman's previously absolute racial pattern of assignment in no 
way affected the Black workers who had been previously assigned 
to inferior jobs. These Black workers were still "locked in" to 
these jobs by restrictive transfer rules and by the loss of 
departmental seniority if they transferred. See Statement of 
Facts 15-19.



The remedy for these discriminatory practices is clear: 
whenever a member of the affected class seeks transfer or promo­
tion or seeks to protect his job in a lay-off, roll back, or re­
assignment situation, that person's full company-wide seniority 
must be utilized. Local 189 v. United States, supra; Long v.
Georgia Kraft Company, 450 F.2d 557, 560 (5th Cir. 1971); United 
States v. Jacksonville Terminal Co., 451 F.2d 418 (5th Cir. 1971) 
cert denied 4 EPD f7774; United States v. Bethlehem Steel Corp.,
446 F.2d 652 (2nd Cir. 1971); Robinson v. Lorillard Corporation,
444 F .2d 791 (4th Cir. 1971), cert.dismissed 404 U.S. 1006;
Quarles v. Philip Morris, 279F.Supp. 505 (E.D. Va. 1968).
See Bailey v. American Tobacco Company, 462 F.2d 160 (6th Cir. 1972)

(2) Road Drivers
The district court found that open and unjustifiable dis­

crimination prevented the hiring of Black OTR applicants prior to 
January 1, 1972 (25a-26a). But as relief, the district court
provided only that Black applicants for OTR positions prior to 
that date should have preference for consideration of their appli­
cation. Once again the district court adopted a halfway measure 
to overcome discriminatory effects. The court erred in failing 
to provide that all such applicants hired pursuant to its decree
should have seniority back to the time they would have been hired

17/
but for the discriminatory practices of Bowman.

17/ The district court raised several evidentiary and legal 
objections to "retroactive" seniority (10a). These are the same unwarranted objections raised by the district court to the award 
of back pay; these objections are discussed in part II, infra, 
dealing with the issue of class back pay.

28



O F F IC E  O F  T H E  C L E R K

U N IT E D  STA TE S  C O U R T  O F  A P P E A L S
N E W  O R L E A N S ,  LOUISIANA 7 0 1 3 0 P O S T A G E  A N D  FE E S  P A ID  

U N IT E D  S T A T E S  C O U R T S

O F FIC IA L  B U S IN E S S  

P E N A L T Y  FO R  P R IV A T E  U S E , $ 3 0 0

Ms. Elaine R. Jones and 
Mr. Jack Greenberg 
Attorneys at Law 
10 Columbus Circle 
Suite 2030
New York, New York 10019

21





The date of OTR seniority determines the driver's ability 
to bid for better truck runs and to protect his job seniority in 
case of lay-off. If these Black employees are not allowed retro­
active seniority, then they will be limited in their job oppor­
tunities for the remainder of their employment at Bowman solely 
on account of prior discriminatory employment practices. This 
result is impermissible under the well-settled principle of law 
that all the effects of past discrimination must be remedied. 
Voaler v. McCarty. Inc., supra at 1238; Long v. Georgia Kraft Co.,
supra at 561.

B. The District Court Erred In Affording Minimal HiringRelief Despite The Long-Standing Racially Exclusionary 
Hiring Policies of Bowman.
The district court denied affirmative hiring relief despite 

evidence demonstrating that Bowman maintained a blatantly dis­
criminatory hiring system. (Statement of Facts, pp. 8-15)
The need for such relief is all the more compelling here because 
of BowmaPlj consistent refusal to change its discriminatory hiring 
practices except under direct pressure from OFCC or the filing 
of this lawsuit. In particular, affirmative injunctive relief 
is required in two specific departments: Over-the-Road drivers
and clerical staff.

(1) Over the Road Drivers.
With respect to the OTR department, the district court 

found that "[T]he company presently employs no racial discrimina­
tion in hiring road drivers and some 10% of such drivers are now 
Black" (6a). This finding is directly contrary to the evidence.

2 9



The district court'sSee Statement of Facts, p. 10 and n.5. 
appraisal of Bowman's current practices is at best naive. As this 
Circuit has noted, "[s]uch actions [as Bowman's hiring of a few 
Black OTRs after the EEOC charge and this action were filed] in the 
face of litigation are equiovocal in purpose, motive, and perman­
ence." Jenkins v. United Gas Corp., 400 F.2d 28, 33 (5th Cir. 
1968); Rowe v. General Motors Corp., 457 F.2d 348, 359 (5th Cir. 
1972). In fact, the record here suggests that Bowman did retrench, 
following its first tentative hiring concessions in 1970 (p. 10 n.6
supra). Whatever partial relaxation of Bowman's discriminatory 
practices might result from the district court's general injunc­
tion, in the absence of any affrimative hiring provisions that
relaxation could prove equally ephemeral.

Bowman's segregationist policy had particularly pernicious 
results in) the OTR department; scores of qualified Black appli­
cants were rejected without consideration while inexperienced 
white drivers were hired. This deliberate policy was strictly
adhered to six years after the passage of the 1964 Civil Rights 

18 /
Act.— Additional affirmative relief is therefore mandated for 
OTR hiring. Given the ready supply of qualified Black OTR
applicants and the appalling discriminatory results of Bowman'sv
past practice. Bowman should be required to hire one Black OTR
driver for each white OTR driver hired until 20% of the OTR

12/drivers at Bowman are Black.

,R / It is particularly revealing as to the lack of interest on the 
part of Bowman to afford Black drivers the opportunity to work the 
high paying OTR driver jobs that Bowman had not as of the date of trial contacted the numerous qualified Black applicants whose appli­
cations had been rejected solely on account of their race.
19/
their

Appellants suggested this remedy to the district court in 
Proposed Advisory Decree (68a-69a). ,

_ 30 _



Of course, this affirmative hiring order need not compel 
Bowman to hire in this ratio if qualified Black applicants are 
unavailable. However, the evaluation of a Black applicant's 
qualifications should not be more stringent than the evaluation 
of white applicants' qualifications in the past. See Statement 
of Facts pp. 8-11. The objective evidence of the record
indicates that numerous qualified Black OTRs are available and do 
apply (890a-891a). In addition. Bowman should be required to con­
duct an active public campaign to attract qualified Black appli­
cants and to contact likely sources of such applicants.

The utilization of an affirmative hiring or training order 
providing that a fixed ratio of Blacks be hired or trained until 
present effects of discrimination are overcome is an established 
and necessary form of Title VII injunctive relief. United States 
v. Central Motor Lines, Inc., 338 F.Supp. 532, 563 (W.D.N.C. 1971) 
(one Black driver hired for each white driver until 20% of OTRs 
are Black); Carter v. Gallagher, 452 F.2d 315, 331 (8th Cir. 1971) 
(rehearing en banc) (one Black for every two whites hired until 
twenty Black firemen on force); Buckner v. Goodyear Tire & Rubber 
Co., 339 F.Supp. 1108, 1124-1125 (N.D. Ala. 1972); Strain v.
Philpott, 331 F.Supp. 836 (N.D. Ala. 1971), order issued 4 EPD
f7562 (requiring 50% minority hiring); NAACP v. Allen, 340 F.Supp. 
703 (M.D. Ala. 1972) (one Black for each white hired until 25%
of the force is Black); see United States v. Frazer, 317 F.Supp. 
1079 (M.D. Ala. 1970); Madlock v. Sardis Luggage Co., 3 EPD f8149 
(N.D. Miss. 1971) (consent order) (two Black workers hired for 
every white worker until Black work force proportionate to Black 
population) ; United States v. Libby-Owens-Ford Company,— Inc., 3 EPD

31 _



f8052 (N.D. Ohio 1971) (consent decree) (two out of next four
foremen to be women).

The imposition of an affirmative hiring plan which is intended 
to correct the current and future effects of past discrimination is 
not limited by Title VII's §703 (j) provision against preferential 
treatment, 42 U.S.C. §2000e-2(j). A contrary reading would create 
an anomalous situation: discriminatory practices clearly prohibited 
by Title VII would be denied effective remedy by that same Act. Thus, 
numerous courts have directly held that affirmative hiring and/or 
training programs which include a ratio of Black hiring or training, 
and which continue in effect only until the termination of present 
effects of discriminatory practices are contrary to neither Title
VII nor the Constitution. United States v. Central Motor Lines,_Inc.
supra at 560; Ccrtractors Association of Eastern Pennsylvania v. 
Secretary of Labor. Shultz, et al., 442 F.2d 159 (3rd Cir. 1971), 
cert, denied 404 U.S. 854 (1971); Southern Illinois Builders Asso­
ciation v. Qgilvie, 327 F.Supp. 1154, 1159 (S.D. 111. 1971); State 
of Washington v. Baugh Construction Co., 313 F.Supp. 598, 606 (W.D.
Wash. 1969); Joyce v. McCrane, 320 F.Supp. 1284 (D.N.J. 1970).

See Local 189 v. United States, supra at 995; United States 
v. Jefferson County Board of Education, 372 F.2d 826, 876 (5th Cir. 
1966), aff1d on rehearing 380 F.2d 385 (5th Cir. 1967) (en banc), ceri 
denied sub.nom. Caddo Parish School Board v. United States, 389 U.S. 
840 (1967); and Swann v. Charlotte-Mecklenburg Bd. of Ed. 402
U.S. 1, 25 (1971).

(2) Office and Clerical Workers
The facts about Bowman's hiring of office and clerical em­

ployees demand specific hiring relief. The district court found 
that no Black has ever been employed in office, managerial or cleri­
cal positions (4a, 882a). As of August, 1971, there were 109
white employees in these positions (Id.) .

32



Despite the total exclusion of Blacks from clerical and 
managerial positions, the district court found no need to order 
injunctive relief. The district court based its conclusion on 
three grounds: first, that Bowman was preparing to hire a single 
Black clerical worker; second, in the past five years there have 
been only three or four Black applicants; third, Bowman has treated

2QVBlack applicants similarly to white applicants (8a). The dis­
trict court ultimately found that"[t]here simply has been little 
interest by Blacks in clerical positions in this company . . . "  
and then concluded that there was no racial discrimination here (8a) 

The district court completely ignored the method of re­
cruitment utilized by Bowman for these jobs. Bowman relied on its 
present office and clerical staff —  all of whom are white —  to 
refer friends and relatives or to inform them that clerical posi­
tions were available (369a). Bowman never resorted to newspaper 
advertising or any other form of public recruitment for clerical 
applicants. This absolute lack of advertising, combined with the
solicitation of new employees through the present clerical staff,

»*obviously produces minimal opportunity for any potential Black 
applicants to seek jobs. This is borne out by the statistical 
disparity in the number of Black and white applicants: whereas 
there have been 25 to 30 applicants per year over the last five 
years for clerical positions, only 3 or 4 of these applications 
have been submitted by Blacks (364a, 371a). Such a system of re-

20/ This conclusion ignores facts relating to Bowman's use of 
the Wonderlic Test, see p.15 supra.

33



cruitment through an all-white existing staff is clearly a dis 
criminatory employment practices. Parham v. Southwestern Bell- 
Telephone Co., 433 F .2d 421, 427 (8th Cir. 1971); Clark_v.
American Marine, 304 F.Supp. 603 (E.D. La. 1969); See United 
States v. Sheet Metal Workers. Local 36, 416 F.2d 123, 137 
(8th Cir. 1970); cf. Rowe v. General Motors Corp., supra at 357-358.

Affirmative hiring relief for office jobs is not precluded 
because only a few Blacks applied. The relief will benefit a 
class of potential applicants for clerical employment with Bowman.
It is unnecessary that every beneficiary of affirmative relief have 
applied and been turned down, where such application for a his­
torically all-white department would have been an exercise in 
futility. Boudreaux v. Baton Rouge Marine Contracting Company,
437 F .2d 1011, 1016 (5th Cir. 1971); Lea v. Cone Mills, 301 F.Supp. 
97, 102 (M.D.N.C. 1969); United States v. Sheet Metal Workers,
Local 36, supra at 132.

To remedy the effects of Bowman's discriminatory recruit­
ment and hiring policies for both OTR and clerical positions, 
appropriate affirmative relief should include an order directing 
Bowman to recruit in a manner specifically designed to advise the 
Black community of the employment opportunities existing at Bowman, 
United States v. Sheet Metal Workers, Local 36, suP£.il 133;
United States v. IBEW, Local 38,428 F.2d 144, 150 (6th Cir. 1970); 
United States v. Ironworkers. Local 86, 315 F.Supp. 1202, 1238-1239 
(W.D. Wash. 1970), aff'd 443 F.2d 544 (9th Cir. 1971), cert, denied 
92 S. Ct. 447 (1971); United States y. Central Motor Linest— Inc.,
supra at 561-562; United States v. United Association of Journeymen, 
Plumbers. Local Union 73, 314 F.Supp. 160-166 (S.D. Ind. 1969).

34



C. The District Court Erred In Not Affording Any ReliefRequiring Training Even Though Black Workers Were Con­
sistently Denied Training Opportunities Solely On 
Account Of Their Race.
Bowman has excluded Black workers from opportunities for 

training at high-paying and skilled jobs, while it has liberally 
afforded such opportunities to white workers. Company officials 
testified that in 1968-1971 Bowman hired 75-150 white OTR drivers 
who had no prior driving experience (250a-251a). Bowman would then 
assign these inexperienced applicants to an experienced driver at 
Bowman to receive training. During the entire period of this 
training program not a single Black worker was afforded such train­
ing (and even experienced Black road driver applicants were turned 
away). A company official testified that it was impossible for 
Bowman to assign a Black employee to train with a white driver 
because the white driver would object (248a, 654a). Since Bowman 
had never hired a black driver it followed from the Company's 
logic that it could hire no Black OTR trainees. The district 
judge correctly stated that the bias of its white drivers could not 
be considered a legal defense to Bowman's discriminatory refusal 
to hire Black trainees (115a). Nevertheless, the judge failed to 
grant any appropriate relief from this form of discrimination.

In addition, Black terminal workers for many years had been 
denied initial assignments to jobs that would provide important 
on-the-job training for skilled and high-paying jobs at Bowman.
For example, Black workers in the Maintenance Department were only 
assigned to the Tire Shop or Clean-up jobs prior to August 15,
1968. Black workers were deprived of the opportunity to work as

3 5



grease men or on the "Inspection Line", which provided training 
for the mechanic jobs in the Trailer and Tractor Shops. See 
Statement of Facts, pp. 12-13. As a consequence of this dis­
criminatory denial of training opportunity Black workers in the 
Tire Shop are unable to take advantage of the annual bidding for 
jobs in the Maintenance Department. See Statement of Facts, pp.
13, 17. The district court observed at trial the obvious effect 
of this discriminatory practice when he stated, "[A]s a practical 
matter nobody in the tire shop can bump a mechanic" (404a).

On-the-job training was also denied by the absolute company 
policy against hiring Black workers in the dock department prior 
to August 15, 1968. The dock department provided a line of pro­
gression for employees assigned to that department to become city 
drivers and, subsequently, road drivers (390a-391a).

Under these circumstances, it is appropriate for the court 
to order the defendants to establish training programs to "upgrade" 
the skills of members of the class in order that the effects of 
past discrimination may be overcome as quickly as possible.
Buckner v. Goodyear Tire & Rubber Co., supra at 1124-1125; United 
States v. Iron Workers, Local 86, 315 F.Supp. supra at 1247-50;
United States v. Carpenters, Local 169, 457 F.2d 210 (7th Cir. 1972).

The court should order relief that will allow Black workers 
at Bowman to take advantage of their full company seniority. In 
particular, the court should order training opportunities for 
Black applicants to the job of OTR driver in order that the present

36



effects of Bowman's discriminatory hiring practices may be overcome21/
as quickly as possible. In addition, appropriate relief should
include training for Black workers locked into the Tire Shop to
qualify them to bid into mechanic jobs in the Tractor and Trailer
Shops of the Maintenance Department during the August open bidding.

22 /Buckner v. Goodyear Tire & Rubber Co., supra.
Courts have not hesitated to order special training programs 

for Blacks in situations less flagrant than this one. In Buckner, 
for example, the Court ordered the following injunctive relief:
(1) that pre-apprenticeship academic training related to the 
entrance requirements of the apprenticeship program be given, at 
company expense, for twenty applicants each year; (2) that counsell­
ing concerning academic problems and job opportunities be provided 
by the Company to the participants in the program; (3) that 
selection of participants in the pre-apprenticeship program be made 
in consultation with the Black community; and (4) that Goodyear 
select for admission to its Apprenticeship Program at least one 
Black for each white, if possible, until such time as the percentage 
of Blacks in Goodyear's craft jobs is at least 3/4 of the percentage 
of blacks in Goodyear's production jobs. 339 F.Supp. at 1124-1125. 
Similarly, in United States v. Ironworkers, Local 86. supra. the 
district court ordered three joint apprenticeship and training

21/ Bowman's training of class members for OTR jobs could assist 
it in achieving the one-to-one hiring ratio suggested as appro­priate herein. See pp. 30-32 supra.
22/ Such training should be limited to that which is mandated 
by business necessity. See United States v. Local 3, Operating Engineers, 4 EPD U 7744 (N.D. Cal. 1972).

37



4

committees to create a special apprenticeship program designed to 
meet the special needs both of average blacks with no previous ex­
perience or special skills and of Blacks with some previous ex­
perience or special skills. The defendant unions and committees 
were further ordered to recruit a sufficient number of Blacks to 
comprise thirty percent membership in their apprenticeship programs.
315 F.Supp. at 1247.

On its deplorable record of discrimination, Bowman should 
certainly be held to the less onerous program we propose here.
In effect, all appellants ask is that Bowman now extend the same 
training advantages to Blacks as it has previously offered to 
literally hundreds of whites.

D. The District Court Erred In Failing to Retain Juris­
diction and To Require Compliance Reports.
Consistent with his belief that affirmative action is not 

required by Title VII (379a, 555a-556a), the district judge re­
jected appellants' specific request for reporting provisions and 
retained supervisory jurisdiction (73a-74a). Instead, the district 
court simply admonished defendants to refrain from continued dis­
crimination (28a). This was error. Reporting provisions and 
retention of jurisdiction are essential here, if the district 
court's injunction against Bowman is to have any probable effect.

Reporting provisions and retained jurisdiction are now 
granted almost as a matter of course in cases where discrimina­
tion is found. Johnson v. Georgia Highway Express,_Inĉ ., F.Supp.

4 EPD 57753 (N.D. Ga. 1972); United States v. Central Motor

23/ it is instructive that the district court subsequently found 
it necessary to make the order even more specific in order to over­
come the effects of defendant's discriminatory practices. United 
States v. Ironworkers, Local 86, 5 EPD 57972 (W.D. Wash. 1972).

38



Lines, supra; United States v. Ironworkers, Local 86, supra and
5 EPD f7973 (W.D. Wash. 1972) (ordering United States to provide
a monitoring attorney in order to assure compliance). Even where 
employers have taken affirmative steps to remedy the effects of 
past discrimination, the necessity for continued judicial vigilance 
has been repeatedly recognized. Brown v. Gaston County Dyeing 
Machine Co., 457 F.2d 1377, 1383 (4th Cir. 1972), cert.denied 
41 LW 3253 (1972); U.S. v. IBEW. Local No. 38. 428 F.2d 144 (6th 
Cir. 1970); Parham v. Southwestern Bell Telephone Co., 433 F.2d 
421, 429 (8th Cir. 1970). In each of these instances where it 
appeared that the defendants1 voluntary steps might have been 
taken in response to the litigation, the Court of Appeals recognized 
that an overly hasty termination of litigation could also terminate 
the employer's compliance.

The record in this case, in contrast to those just cited, 
is barren of any indication of effective voluntary remedial 
action on the employer's part. In this case, where the long history 
of overt racial discrimination continued up to the date of trial, 
provisions for monitoring the offender's compliance with law and the 
injunction are even more vital than in cases where some voluntary 
steps have been taken. The trial court's denial of monitoring in 
effect leaves assurance of defendants' compliance exclusively in 
the same hands that have so blatantly violated Title VII in the 
past —  the Company's.

On this record, the prospects for good-faith, effective com­
pliance with the law would appear speculative at best —  unless this 
Court orders mandatory reporting provisions by which appellants
and the court can hold defendants accountable to their obligations 
under law. This Court should so order.

39



I I .

THE DISTRICT COURT MISCONSTRUED TITLE VII AND ABUSED ITS DISCRETION IN DENYING BACK 
PAY TO THE CLASS, DESPITE UNCONTRADICTED 
PROOF OF ECONOMIC INJURY SUFFERED BY THE 
CLASS BECAUSE OF DEFENDANTS1 DISCRIMINATORY PRACTICES.

The record emphatically demonstrates that the discrimina­
tory hiring, seniority, promotion, transfer and training practices 
of the defendants resulted in substantial economic harm to mem­
bers of the class. The jobs to which Black employees were first 
assigned and then locked in -- Tire Changer and Clean Up -- were 
the lowest paying of all jobs at Bowman's Terminal. The jobs from 
which they were totally excluded —  in some instances until a few 
months before trial included all the highest paying jobs at 
Bowman. In particular, the OTR jobs, where Bowman's exclusionary 
practices were most blatant, were among the highest paying non­
technical positions in industry.

In March, 1968, when Blacks were totally segregated into 
the Tire Changer and Clean Up jobs, all̂  Blacks earned considerably
less than 98% ,of the white union--represented workers:

\ Number Number
Weekly Wage: of of PercentBlacks Whites Blacks

More than $150 
(Road Drivers) 0 464 0.0%

$125-150 (Terminal Employees) 0 393 0.0%Less than $125 10 12 45.5%
TOTAL 10 869 1.1%

(4a; see also 884a)

4 0



By August, 1971, when some Blacks had been hired into pre­
viously all-white jobs, 45% of the Black employees (including all 
the class members), were still locked into the lowest paying jobs, 
and were earning considerably less than 99% of the white employees.

Weekly Wage:
More than $225 (Road Drivers) 
$172-210 (Terminal Employees) 
$175 (Terminal)

TOTAL

Number Number
of of Percen

Blacks Whites Blacks
11 499 2 .2%
13 343 2.7%
20 6 76.9%
44 848 4.9%

(5a; see also 885a)
These past and continuing income disparities cannot be 

exaplained away on grounds of qualifications or skill requirements. 
See p. 43 infra.

Despite the obvious and severe economic loss suffered by
black employees the district court arbitrarily and categorically
refused to grant economic relief for any members of the class24/
except the named plaintiff and plaintiff-intervenor. The dis­
trict court grounded its refusal to grant back pay both in an
erroneous view of the law and in an arbitrary exercise of its 
discretion.

24/ The district court even denied back pay to four witnesses who convincingly testified at trial to the discrimination and con­
sequent economic loss they had suffered. Witnesses Harbor and 
McLaughlin, rejected black OTR applicants, were, like Lee, 
evidently qualified and were rejected for racial reasons (Statement of Facts, p. 11 ), as the district court apperently
found (6a ). Witnesses Clark and Williams, Black Tire Men, had,
like Franks, frequently applied for promotion and been refused 
solely because of their race and defendants' unlawful transfer 
policies (323a-329a, 346a-349a, Statement of Facts, 17-18).

_ 4 1  _



The district court enumerated two bases in law for denying 
class back pay. (A) The first basis is essentially evidentiary: 
the district court observed that back pay presupposes an opening, 
qualification, and performance, and since no evidence was presented 
as to these multiple conclusions no award of back pay could be

25/granted. (B) The second basis concerns EEOC procedures established 
by Title VII. The district court reasoned that the remedy of class 
back pay would bypass the statute's administrative prerequisites 
to personal suits, appropriate statutes of limitations, and the 
"emphasis on private settlement". (C) In addition, the district 
court denied class back pay "in the exercise of discretion"; 
however, the district court gave no reason for this exercise of 
discretion. (10a)

The district court's refusal to grant relief in the form 
of class back pay is contrary to law and is an unwarranted exercise 
of discretion. /

A. The Evidence As To Vacancies, Qualifications, and Per­
formance Is More Than Adequate To Support An Award 
of Back Pay. f
The record demonstrates that the district court's con- 

clusory statement that there was no evidence of openings, quali-
t

fications and performance on which to base an award of back pay 
is simply wrong. The evidence is undisputed that there were 
numerous openings in both the OTR category and in other depart-

25/ The district court's assertions as to what was and was not 
shown in this respect seriously distort the whole record and con­
tradict others of its own findings.

_ 42



merits at Bowman. Throughout the pertinent time period the Company-
had an annual turnover rate of approximately 50% of its OTR
drivers (108a-109a). Vacancies were also plentiful in the other
jobs in the Dock Department and Maintenance Department from which

26 /
black workers were totally excluded.

Similarly, there is uncontradicted evidence that Bowman 
rejected dozens of qualified and experienced black OTR applicants 
even while it hired dozens of only partly qualified or wholly 
unqualified whites (Statement of Facts, p. 10 ). As to terminal
workers, the qualifications and experience required of workers 
in the entry level jobs of the Dock Department and the Maintenance 
Shops were minimal and, moreover, they are exactly the same as 
those required for the virtually all-black job of Tire Changer 
(389a, 466a).

Finally, it is hard to determine what the district court 
meant by "performance". "Performance" was never a question at 
Bowman since Black employees did not until recently receive any 
opportunity to demonstrate their skills or their ability to learn 
the OTR job in Bowman's training program or to perform in the 
entry-level jobs in the Maintenance Shops or Dock Department.

26/ From 1965-1970 Bowman filled an average of at least 33 
vacancies (including 11 City Drivers) in the City Driver/Dock Department (8943).. In the same period, the company filled an 
average of 54 vacancies annually (including 16 Mechanics) in 
the Maintenance Department (894a-895a).

- 43



Thus, the court's statement that class back pay may not 
t>e granted because there exists no evidence as to openings, quali­
fications, and performance is utterly inapplicable to the facts 
of this record.

B. An Award of Class Back Pay Is Fully Consistent With The 
Procedural Provisions of Title VII.

district court relied on its view of the procedural 
provision; of Title VII to deny class back pay. In effect the 
district court concluded that the procedural and administrative 
structure of Title VII, which provides employers an opportunity to 
conciliate claims, restricts the award of specific remedies to 
individuals who have filed EEOC charges and brought suit thereon 
(10a). Consistent with its narrow interpretation of the statutory 
remedies, the district court limited its consideration of relief 
for class members to prospective injunctive measures only.

In construing Title VII's procedural provisions to preclude 
any affirmative class remedies, including retroactive seniority 
and class back pay, the district court squarely rejects this 
Court's considered interpretation of class actions within the sta­
tutory scheme of Title VII. This Court has consistently favored 
class actions as an inappropriate vehicle for presentation of 
claims for relief. Jenkins v. United Gas Corp., 400 F.2d 28 (5th 
Cir. 1968); Johnson v. Georgia Highway Express, 417 F.2d 1122
(5th Cir. 1969). It has noted.

Racial discrimination is by definition 
class discrimination, and to require a multiplicity of separate, identical charges 
before the EEOC, filed against the same 
employer, as a prerequisite to relief 
through resort to the court would tend to 
frustrate our system of justice and order.

-  44



mt-i« v. Crown-y.ellerhach Corporation, 398 F.2d 496, 499 (1968).
See also, Oiler v. International Paper Co., 408 F.2d 283, 284-285 
(1969) . in short, this Court has consistently ruled that each 
class member need not individually exhaust EEOC remedies and 
suit, in order to qualify for remedial relief under Title VII.

It is logically indefensible to rule, as the court below 
did. that a class action is maintainable, and class relief is 
available, for purposes of prospective injunctive relief only, but 
not for purposes of affirmative relief as part of the equitable 
remedy. As the Seventh circuit has flatly commented. "(K)e are 
also unable to perceive any justification for treating such a suit 
as a class action for injunctive purposes, but not treat it so for 
purposes of other relief." Bowe v. Colgate-Palmolive_Co.■ 416 
F.2d 711, 720 (1969). See also, Robinson v. Lorillard CorE . ■ 
supra at 802-804.

The fallacy of the district court's rule is amply demon­
strated by the facts of this case. Bowman had full notice from 
the EEOC charges filed by appellants that its entire segregationist 
employment system was being challenged. There was ample oppor­
tunity for Bowman and the defendant unions to remedy the effects 
of these discriminatory policies and to engage in meaningful con­
ciliations with the EEOC before this suit was filed. Yet in fact

2 7 / Of course, the instant case was also brought as a class
tt c  r r 1981 Back pay is recoverable under

that°statute, S f H y
^ e m e ^ o  SxEaustin^ ^ C  procedures^or Jitle VI^remedles

F?td5U1044U' U  Cir. 1971). cert deniecTi^u.S
9 9 8 .



there was no conciliation and only the most insignificant effects 
at reform were undertaken prior to the filing of this suit. There 
is no reason to believe, given the record of pervasive dis­
crimination by the defendants, that these same practices might 
have been changed if only other members of the class had brought 
repetitive charges. It would therefore be purposeless at best, 
when previous attempts at class-wide conciliation have failed, to 
apply a rule of law in this case that no back pay may be given to 
an employee who did not file a charge with the EEOC -- especially 
in light of these defendants' unbending practices of overt dis­
crimination which continued long after the filing of EEOC charges. 
See State of Washington v. Baugh Construction Company, 313 F.Supp. 
598, 605 (W.D. Wash. 1969).

Furthermore, Congress realized that potential complainants 
might hesitate to file charges with the EEOC because they feared 
the loss of their jobs. Therefore, Congress provided in Title 
VII that a Commissioner may file a charge without any individual 
complainants being named. §706 (b),(f), 42 U.S.C. 2000e-5 (b),(f) .
A member of the class affected by the discrimination alleged 
by the Commissioner may then seek judicial relief. The courts, 
and particularly this Court, have also been cognizant of the 
hesitancy that many workers may have in filing EEOC charges; con­
sequently the courts have developed a judicial principle to im­
plement fully the strong public policy of Title VII. A Title VII 
plaintiff assumes a public interest and the "mantle of the 
sovereign" when he sues to end racial discrimination on behalf

4 6



of all similarly situated employees. And the facts of this action
demonstrate that Congressional and judicial concern over the 
reluctance of black workers to file charges with the EEOC is fully

287warranted.
Under the district court's reasoning a company that success­

fully intimidates its workers from filing charges with the EEOC 
would be rewarded by escaping liability for substantial back pay.
It is unrealistic to expect all the other Black employees at 
Bowman to endanger their job-security by filing charges with the 
EEOC. And it is unfair to penalize such workers for their caution, 
which directly resulted from Bowman's discriminatory practices, 
by depriving them of any redress for their undeniable economic 
loss.

C. The District Court Abused Its Discretion By Arbitrarily
Denying Class Back Pay .
The district court also denied class back pay in the ex­

ercise of its discretion. The court advanced no reasons for this 
exercise of its discretion (10a). By couching the denial of class 
back pay in terms of discretion, the district court may not auto­
matically afford validity to the court's evidentiary and proce­
dural rationales for denying class back pay - especially since 
those rationales are themselves erroneous. See parts A, B, supra.

28/ Both appellants were fired without cause. They were the 
only individuals who ever filed EEOC charges against Bowman, a 
fact which could not have been lost on other Bowman employees.



In actuality, the district court obviously did not base 
the exercise of its discretion on the facts of this action, but 
rather on the court's belief that "such relief is not warranted 
in class actions" (10a). Cf. United States v. Georgia Power Co., 

F.Supp. (W.D. Ga. 1971), on appeal Nos. 71-3447,-3293.
This per se rule denying class back pay is contrary to the es­
tablished rule of this Circuit and of other Circuits. United 
States v. Hayes International Corp., 456 F.2d 112, 121 (5th Cir. 
1972); Johnson v. Georgia Highway Express, supra at 1125; Robinson 
v. Lorillard Corp., supra at 802-804; Bowe v. Colgate-Palmolive 
Co., supra at 720; Sprogis v. United Air Lines, Inc., 444 F.2d 1191 
(7th Cir. 1971), cert denied 30 L.Ed.2d 543 (1971); see United 
States v. Wood, Wire and Metal Lathers Int. U. Local 46, 328 F.
supp. 429, 441 (S.D.N.Y. 1971).

Moreover, the discretion of the district court may not be 
capriciously utilized, as it was below. A district court's dis­
cretion in a Title VII action must be exercised "with an eye to 
the purpose of the Act," United States v. Hayes International 
Corp., 415 F.2d 1038, 1044 (5th Cir. 1969). The Seventh Circuit 
has clearly articulated that purpose:

i The clear purpose of Title VII is to bring 
an end to the proscribed discriminatory 
practices, and to make whole, in a pecuniary 
fashion, those who have suffered by it. To 
permit only injunctive relief in the class 
action would frustrate the implementation of 
the strong Congressional purpose expressed 
in the Civil Rights Act of 1964.

Bowe v. Colgate-Palmolive Co., supra at 720, cited with approval 
by the Fourth Circuit in Robinson, supra at 802. The Bowe court

4 8



went on to say of the statutory authority to award back pay:
This grant of authority should be broadly 
read and applied so as to effectively ter­
minate the practice and make its victims 
whole . . . The full remedial powers of the 
Court must be brought to bear and all appro­
priate relief given. 416 F.2d at 721.

The purpose of Title VII is therefore served in two prin­
cipal ways by an award of class back pay. First, individual vic­
tims of discrimination are made economically whole, as "an integral 
part of the statutory equitable remedy". Johnson v. Georgia 
Highway Express, Inc., supra at 1125; Robinson v. Lorillard Corp., 
supra at 802. Indeed, in many cases like this one no relief other
than back pay can even partially remedy the injuries suffered dur-

29/
ing long years of unlawful discrimination.

The second purpose of the class back pay remedy is to make 
Title VII effective as a public policy against discriminatory 
employment practices. It is, of course, "the duty of the courts 
to make sure that the Act works" to eradicate this intolerable 
form of discrimination, Culpepper v. Reynolds Metals Co., 421 
F .2d 888, 891 (5th Cir. 1970), and the availability of class back 
pay is necessary to make Title VII work.

29/ It is noteworthy that this Court rejected "freedom now"
seniority relief on the policy grounds that white workers should 
not be bumped out of a job, even by senior black workers who had been discriminated against. Local 189 v. United States, supra 
at 988-898. Rather, this Court there allowed black workers to 
bid up to their "rightful place" on the basis of a non-discrimi- 
natory seniority only when there is a vacancy. This "rightful 
place" theory was chosen even though the court recognized that black workers would not in the foreseeable future be made whole 
with respect to their work experience, occupational status, or 
training. Id. Black workers should not be forced to endure 
economic loss as well as inferior occupational status.

-  4 9  -



Only if discriminatory employers and unions know that they 
will be exposed to an obligation to compensate minority workers 
for the substantial economic loss that their discriminatory 
practices have caused will such lawbreakers have a strong incentive 
to comply voluntarily with Title VII.

This is not a theoretical or hypothetical observation, but 
rather is clearly illustrated by this action. The past and present 
practices of Bowman are as blatantly discriminatory as any this 
Court is likely to encounter. Bowman's discrimination was con­
scious and deliberate, and Bowman's discrimination has been made 
all the more intolerable by its steadfast refusal to change "as 
long as [it] could". Bowman doubtless felt safe in its assumption 
that when eventually caught, as it was by the district court below, 
its liability would not exceed a paltry sum. This Court should 
refuse to vindicate that expectation. To sustain the district 
court here would be to tell discriminatory employers openly that 
their tactics of delay and evasion of federal law will cost them

30/little more than their own lawyers' fees. Moreover, affirmance 
would mean that resultant economic loss from discrimination will 
be fully borne by the victims rather than the perpetrators of the

31/wrongdoing.

30/ Cf. Mitchell v. Robert de Mario Jewelry, Inc., 361 U.S. 288 
(1960), rev'ing 260 F.2d 929 (5th Cir. 1958). Compare in part­
icular 260 F.2d at 930, 934-935 with 361 U.S. at 296 (dictum).
31/ Appellants do not suggest that back pay be used to penalize 
discriminatory employers. As the Fourth Circuit has stated,
"[B]ack pay is not a penalty imposed as a sanction for moral tur­
pitude; it is compensation for the tangible economic loss resulting 
from an unlawful employment practice. Under Title VII the plaintiff 
class is entitled to compensation for that loss." Robinson v. 
Lorillard Corp., supra at 804.

50



On this record, this Court should conclude that the
district court misconstrued applicable law and abused its dis­
cretion in denying class back pay. Moreover, this Court should 
direct that back pay should be awarded, and remand to the dis­
trict court for determination of appropriate procedures for 
determining class members' entitlements. Appellants suggested 
such procedures to the district court in their Proposed Advisory 
Decree (72a-73a). These procedures take note of the somewhat 
different positions occupied by incumbent employees and rejected 
applicants. We again suggest that this outline would be both 
workable and fair to all the parties.

51



I I I .

THE TRIAL COURT ERRED IN FINDING THAT PLAINTIFF 
FRANKS' CLAIMS WERE BARRED FOR FAILURE TO FILE 
SUIT IN A TIMELY MANNER.

The trial court found that the failure to file suit within 
30 days of issuance of the first suit letter (March 21, 1969) 
barred the claims of the plaintiff for relief, and granted him 
nothing (16a). This ruling followed the court's finding of 
racial discrimination (retaliatory discharge) by the defendant 
against the plaintiff, and its finding that, but for this bar, 
plaintiff Franks would be entitled to a back pay award in excess 
of $5,000 (13a) .

This ruling was in error with regard to both of plaintiff's 
causes of action under 42 U.S.C. §1981 and Title VII.

A. The Statute of Limitation Applicable to Plaintiff's
Cause of Action Under 42 U.S.C. §1981 Had Not Run
When This Action Was Filed.
(1) Any Applicable Statute of Limitation was Tolled by 

the Plaintiff’s Filing Charges With the EEOC.
After disposing of plaintiff's Title VII claim (see part

B, infra), the district court summarily held plaintiff's claim
32/under U.s.C. §1983 to be barred by a two-year statute of limi­

tations (17a). Plaintiff disputes that the court applied the 
correct limitations statute, infra; but initially contends that, 
whatever the applicable statute, such statute was tolled when,

32/ It is not clear whether the lower court’s reference to §1983 
rather than §1981 was inadvertent. In any case, the complaint (35a) 
alleged, and the plaintiff has proved, violation of §1981, which 
gives rise to an independent cause of action for private employ­
ment discrimination. Caldwell v. National Brewing Co., supra; 
Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir. 1970)/ 
cert.denied 401 U.S. 948 (1971). Further reference will be to §1981

52



three days after his §1981 cause of action for discriminatory 
discharge arose, plaintiff sought relief by filing his EEOC charge. 
Boudreaux v. Baton Rouge Marine Contracting Co., 437 F.2d 1011,
1017 n.16 (5th Cir. 1971); Guerra v. Manchester Terminal Corp.,
4 EPD f7874 (S.D. Tex. 1972); Buckner v. Goodyear Tire & Rubber Co., 
supra at 1118; Reynolds v. Daily Press, Inc., 5 FEP Cases 4 
(E.D. Va. 1972).

This holding is required by application of the time-honored 
principle that statutes of limitation ought not be invoked against 
those who actively assert their rights. See Culpepper v. Reynolds 
Metal Co., 421 F.2d 888, 892 (5th Cir. 1970); Burnett v. New 
York Central R. Co., 380 U.S. 424 (1965). An analogous situation 
is presented when the limitations period under Title VII is tolled 
by pursuit of contractual grievance rights. Culpepper v. Reynolds 
Metals Co., supra at 891; Hutchings v. U.S. Industries, Inc.,
428 F.2d 303, 309 (5th Cir. 1970).

The EEOC process here went on from May 13, 1968 until 
plaintiff first received notification of his right to sue on 
April 14, 1971 (908a). His unlawful discharge occurred on May 
10, 1968 and he filed suit under §1981 on May 13, 1971 (31a).
Giving full tolling for the period of the EEOC proceedings,»
Buckner v. Goodyear Tire & Rubber Co., supra, the §1981 statute

ll/of limitations ran for a total of 24 days. Under no conceivable 
statute could plaintiff's §1981 claim be barred.

33 / Even if the Court were to decide that the EEOC proceedings 
terminated with the issuance of the first suit letter on March 21, 1969, the statute on §1981 ran for a total of two years, two 
months, still well within the applicable statute of limitations. 
See part A (2), infra.

53



(2) The Action Was Timely Filed Within The Properly 
Applicable Four Year Statute of Limitation .

The trial court, in adopting Ga. Code Ann. §3-704 as con­
taining the applicable limitations period, see 42 U.S.C. §1988, 
Beard v. Stephens, 372 F.2d 685 (5th Cir. 1967), analogized 
plaintiff's employment discrimination claim under §1981 to the
wrong state statute.

This Court has held that the method for determining the 
analogous state remedial statute is governed by a strong policy
of remedial liberality.

In civil rights cases, federal courts 
should use that combination of federal 
law, common law and state law as will be 
best adapted to the object of the civil 
rights law and must use common law powers 
to facilitate and not to hinder proceed­
ings in vindication of civil rights. 42 
U.S.C. §1988.

Brown v. City of Meridian, 356 F.2d 602, 605 (5th Cir. 1966). 
Accord, T.efton v. City of Hattiesburg, 333 F.2d 280 (5th Cir. 1964); 
Brazier v. Cherry, 293 F.2d 401, 408, 409 (5th Cir. 1961). The 
court below abused this principle of liberality in the selection 
of the appropriate Georgia statute by choosing an inappropriate 
and unduly restrictive state model, the two-year clause of §3-704.

34J  Ga. Code Ann §3-704,
pertinent part:

cited by the lower court, reads in

. Provided, however, . . . that all such suits
for recovery of wages, overtime or damages and penalties 
accruing under laws respecting the payment of wages and 
overtime . . . shall be brought within two years after the
right of action shall have accrued, (emphasis added)

54



That wages and overtime statute is obviously not analogous to 
42 U S C §1981, which is a broad equal rights statute prohibiting

2 h Jracial discrimination in the making and enforcing of contracts.
While back pay is a proper remedy under §1981, it is only one of
several remedies which may be fashioned. Lazard v. Boeing Co.,
322 F.Supp. 343, 345 (E.D. La. 1971).

The more appropriate analogy to §1981 is the state statute
of limitations governing contract claims. Boudreaux v. Baton
Rouae Marine Contracting Co., supra ("It is, after all, the rights
to 'make and enforce contracts' which is protected by §1981");
Green v. McDonnell-Douglas Corp. , 463 F.2d 337, 340 (8th Cir. 1972) ;
Lazard v. Boeing Co., supra.

There are two possible applicable Georgia limitations
. .statutes. Ga. Code Ann §3-706 provides a four-year limita- 37/

tions period for breach of oral contracts. Ga. Code Ann. §3-711

25/ 42 U.S.C. §1981 provides in pertinent part:
"All persons . . . shall have the same right . . .  to make
and enforce contracts . . .  as is enjoyed by white citizens.

36/ Ga. Code Ann. §3-706 provides in pertinent part:
"All actions . . . for the breach of any contract
not under the hand of the party sought to be charged 

. . shall be brought within four years after the
right of action shall have accrued."

37/ Ga. Code Ann. §3-711 provides:
"All other actions upon contracts expressed or implied, not hereinbefore provided for, shall be brought with­
in four years from the accrual of the right of action.

55



provides an identical four-year period for contracts "not here­
inbefore provided for". No matter which of these contract action 
statutes the Court decides is more appropriate, the correct 
limitations period is four years. since the plaintiff filed his 
suit under §1981 within four years, his claims for relief are 
not barred by any statute of limitations.

Plaintiff FH e<3 Timely Suit Under Title VII Within 
Thirty Days After Receipt of a Valid Suit Letter, The First He Had Received.
(1) The 30-Day Limitations Period Runs From The Time

The Complainant Receives Statutory Notice From The EEOC.
The trial court found that plaintiff's individual claims 

should be barred "by failure to file within 30 days of the 
.issuance of the suit letter of March 21, 1969" (16a) (emphasis 
added). This statement is incorrect as a matter of law. in this
and other circuits, it is issuance and receipt of such notice _
and not issuance alone -- which triggers the 30-day limitations 
period of Title VII, 42 U.S.C. §2000e-5(e) (before amendment in 
1912) • Millg; v. International Paper Co.. 408 F.2d 283 (5th 
Cir. 1969); Beverly v. Lone Star Lead Constr. Corp.. 437 F.2d 
1136, 1140 (5th Cir. 1971); Dent v. St, Louis-San Frann-i 
Railway Co., 406 F.2d 399, 403 (5th Cir.1969); Cunningham v .
Litton industries, 413 F.2d 887, 890 (9th Cir. 1970); Goodman 
v. City Products Corp., 425 F.2d 702, 703 (6th Cir. 1970).

Jg/ A hypothetical situation discussed by this Court in Miller indicates that it clearly required both issuance and receipt before the limitations period ran. 408 F.2d at 285-286

56



The lower court apparently recognized the importance of 
receipt of notice by the complainant, but found that mailing it to 
his usual mailing address was sufficient (16a). Under this form­
ulation, the suit letter could have been lost by postal authorities 
or stolen from the mail and the complainant would still have been 
penalized by the bar of the limitations period. Such a result 
would of course be unjust; yet from Franks's point of view, the 
first letter might just as well have been lost or stolen.

In this situation, actual receipt should be required to 
trigger the limitations period. The limitations bar should only
he applied to those who sleep on their rights. Culpepper_
Reynolds Metals Co., supra. One who, in fact, does not have 
notice of his rights can hardly be found to have slept on them.
It would have taken a small amount of effort by the EEOC to in- 
gujg actual receipt —  simply by marking suit letters Deliver to 
Addressee Only" on the appropriate postal form (945a), 39 C.F.R. 
§161.4 (e) (1) —  and the plaintiff should not be so heavily 
penalized for the agency's failure to do so.

Nor should he be penalized for the mistake of a young child.
There was no "receipt" here.

(2) The Second Suit Letter Was Valid Basis For 
Plaintiff’s Title VII Action.

When it accepted Plaintiff's amended charges on March 2
and 5 1971, and issued Plaintiff a second suit letter on April39 /
4, 1971, EEOC acted in conformance with its regulations and

39/ EEOC Regulations allow amendment of charges to cure
technical defects. Such amendments relate back to the filing 
of the original charges. 29 C.F.R. §160.11.

57



exercised its statutory authority to grant charging parties 
authority to file suit under Title VII.

The court below erred in refusing to accept the validity 
of that authorization. By looking behind the issuance and 
receipt of the second suit letter (16a), the district court 
failed to heed the "venerable principle that the construction 
of a statute by those charged with its execution should be 
followed unless there are compelling indications that it is wrong 
Red Lion Broadcasting Co. v. FCC  ̂, 395 U.S. 367, 381 (1969);

of Communication of the Unit_ed_Church of Christ v. JFCC, 
F.2d (D.C. Cir . March 28, 1972), Slip op. at 10;

Rl1d n Ps. F.m-ndves' Move for Vietnam Peace v. FCĈ ., 450 F.2d 
642, 649 (D.C. Cir. 1971). In the realm of Title VII, the 
Supreme Court has twice suggested judicial deference to EEOC's 
interpretation of its own procedures and statutory duties. Love 
v. Pullman Co., 404 U.S. 522 (1972); Griggs v._Duke Power Co.,
401 U.S. 424, 434 (1971). This Court has also questioned thet,
wisdom of looking behind EEOC's own procedural interpretations, 
Boudreaux vii Baton Rouge Marine Contracting Corp., supra, at 1014

V' 1n. 6 . , |
This suit was timely filed after receipt of a valid right

i
to-sue letter based on valid charges. The district court erred

•* >"
in looking farther and depriving plaintiff of any remedy.

C. There Was No Legitimate Equitable Reason To Bar 
Plaintiff's Claims and Equity Strongly Demands 
Their Allowance.
The district court's ruling on the limitations issue 

appears founded in the misguided notion that Bowman would be

58



unfairly prejudiced unless plaintiff's causes of action were 
held time-barred. The court reasoned that Bowman would have 
been deprived of opportunity to settle or mitigate damages 
if plaintiff could now recover (16a). This view of the 
equities, whatever its theoretical merits, bears no relation 
to the reality of this case.

In light of the entire record, to suggest that this 
defendant would have yielded one inch or one penny to Harold 
Franks, without being compelled to do so by a federal court, is 
absurd. Likewise, the idea that Bowman had any interest in 
achieving early resolution of the Franks claim is purely

aqJhypothetical here.
The plaintiff's case is one in which the interest of justice 

will be very poorly served should this Court affirm the lower 
court's denial of relief to Harold Franks. That court found the 
defendant guilty of long and widespread racial discrimination; 
found that plaintiff Franks was more than once an object of these 
illegal practices; and yet found that due to the mistake of 
a child, which was injected into this suit as a last-minute tech­
nicality, plaintiff could have no remedy. Equity demands that 
this Court give plaintiff hiis due in the form of back pay. See 
Burnett v. New York Central Railroad Co., supra.

40/ In addition to the overwhelming record of discrimination and 
retaliation, the fact is that Bowman contributed to the delay: 
although Bowman received notice from the EEOC that Franks was 
issued a suit letter in March, 1969 (970a-971a), it waited until 
the final moments of the three—day trial (814a—815a), one year 
after the filing of suit, to raise the claim that suit had not 
been timely filed. That defense was entirely omitted from the 
pleading stage, including defendants' answers (821a, 40a,44a).We would also note that Bowman's counsel specifically stated 
that his belated motion to dismiss did not concern Franks' dis­
charge claim (821a, 831a). The court nevertheless dismissed 
precisely that claim.

59



IV.
THE DISTRICT COURT ERRED IN REFUSING TO CREDIT 
LEE'S ARBITRATION AWARD AND IN FINDING NO RACIAL 
DISCRIMINATION IN HIS DISCHARGE.

A. The Significance of Lee's Successful Arbitration.
Lee's discharge raises once again the question of the

proper relationship of arbitration awards to Title VII rights and
remedies against discrimination. Past decisions of this and
sister courts hold that a plaintiff's pursuit of arbitration
remedies does not diminish the ability and duty of federal courts
to vindicate equal employment rights under Title VII. See
Hutchings v. U.S. Industries, Inc, supra; Culpepper v. Reynolds
Metals Co., supra; and Tipler v. E.I. duPont de Nemours and Co.,
443 F.2d 125 (6th Cir. 1971). This is not to say that courts must,
or should, ignore the presence of arbitration awards. Rios v.
Reynolds Metals Co.. F.2d , 5  EPD f7980, (5th Cir. No.
71-2681, September 20, 1972), teaches that Title VII rights and

tremedies do not exist to the exclusion of arbitration procedures. 
Instead, the relationship is one of co-existence; and while the

i
courts stand as the final guardian of Title VII rights, in proper

. Acases they may defer to fairly achieved arbitration awards. In 
no sense are district courts automatically to disregard the find­
ings and results of arbitration decisions bearing on Title VII 
rights.

The court below misunderstood the lesson of Rios and com­
mitted unequivocal and forthright error in this regard by com­
pletely ignoring the result of Lee's earlier arbitration award.

60



The lower court found that "[t]he court is not bound by the arbi­
tration award in any way. The theory adopted in this Circuit is 
that contractual grievance procedures are independent of all rights 
under the Act and the two may proceed concurrently without either 
affecting the other on the merits". (22a) The district court's 
erroneous view of the law enabled it to consider afresh all facts 
surrounding Lee's discharge and then to conclude that the discharge
was not racially motivated. When the correct legal significance

4l/is ascribed to the arbitration decision, then the no-discrimination 
finding of the lower court becomes clearly erroneous under Rule 
52(a), Federal Rules of Civil Procedure. (See Part B, infra.)

We do not contend here that the arbitration decision was 
res judicata upon all issues before the district court. The over­
lap in the areas before the district court and the arbitrator did 
not include discrimination, because of the complete absence of a 
discrimination provision in the collective bargaining agreement (299a 
Of necessity, the district court was required to decide the question 
of discrimination for the first time. However, the district court 
should have deferred to the arbitration award on the question of 
whether Lee was discharged "for cause". At trial Lee insisted on 
this position and argued that the only question before the court 
was that of racial animus in his "no cause" discharge (213a-214a).

41/ See e.g., the "Steelworkers Trilogy": United Steelworkers of America (Steelworkers) v. American Mfrg. Co.. 363 U.S. 564 
(1960); Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 
574 (1960); Steelworkers v. Enterprise Wheel & Car Corp.. 363 U.S. 593 (1960).

61



B. The Evidence Supports Lee's Claim of Discrimination.
The arbitrator's "no cause" finding accords with the 

narrative and statistical picture set forth supra showing racial 
discrimination against Lee. "Figures, speak, and when they do 
courts listen". Brooks v. Beto, 366 F.2d 1, 9 (5th Cir. 1966), 
cert, denied. 386 U.S. 975 (1967). Lee was not only the first 
employee to grieve his discharge for fuel pump alteration, but 
also the only employee at the time of trial who had ever obtained 
a "no-cause" arbitration award (660a). Lee's discharge is thus 
clearly distinguishable from any other termination for the same 
alleged "cause".

Even among the almost 30 white employees discharged for this
reason, both before and after Lee, a vast majority were either
permitted to resign and had admitted the alteration as charged, or
had previously received numerous warnings. Bowman's Assistant
Safety Director for the Atlanta Terminal testified that he knew

42/of no exception to this pattern (Tr. 730). (Lee's case, of course, 
was an exception in both respects.) If discharges of this variety 
only since 1970 are considered, an even stronger picture emerges.
Of these 12 most recent discharges, only Lee and one other employee 
(Evans) were terminated without either admitting complicity or 
knowledge, or having received numerous prior warnings (927a-943a,
798a-805a). v

42 / The testimony of Joe A. Gore, Assistant Safety Director, 
on this point was as follows:

Q: What are the names of employees who were discharged
who had not had another offense and did not admit 
[to altering a fuel pump]?

A: No one else, they just happen to have other offenses
committed. (805a-806a)

62



The statistics are not alone in pointing to race as the 
sole motivation behind Lee's discharge. The presence of per­
vasive discrimination throughout Bowman's operations has already 
been noted (Statement of Facts )• The pattern of discrimination 
was nowhere more extreme than in Bowman's treatment of Black 
applicants and (later) employees in the road driver category 
(Statement of Facts pp. 8-12), where Bowman adopted its white 
employees' prejudices as its own. At the time of Lee's termina­
tion, Bowman still refused as a matter of policy to employ Black 
road drivers at Atlanta, Charlotte, and Richmond (ll9a-120a).
Even after adding Blacks to its road driver force in Birmingham 
after 1970, Bowman continued to respect these prejudices by 
differentiating its Black drivers for special, less favored treat­
ment (117a-118a, 248a, 654a, 672a-673a). And Intervenor Lee, 
both before and after his hiring, was a prime target of Bowman's 
discriminatory practices. Statement of Facts, pp. 22-23.

Despite well-documented past and present racial hostilities 
in its white work force, Bowman continued to use a termination 
policy that invited misuse and discriminatory application by white 
employees (Statement of Facts, pp. 23-24). The lower court was 
troubled by the fact that Lee could introduce no direct proof of 
racial discrimination motivating his discharge, and apparently

41/based his opinion on this fact.

43 / "As to [Lee's discharge], the court is asked to assume with 
no proof whatsoever that Lee's unit was 'doctored' by other em­
ployees with racial motivation and, more importantly, to assume that the first assumption was caused by racial motivation on the 
part of management. This the court cannot do. Consequently, no 
award is made for any period of time subsequent to March 18, 1971."
(22a)

63



Yet the procedure with which Lee was confronted made such proof 
all but impossible. And more significantly, Bowman itself could 
present neither direct testimony of Lee's involvement nor statisti 
cal support for its contention that whites had received the same 
treatment as Lee. In fact no white employee had ever been dis­
charged "without cause" for fuel pump alteration. The absence 
of any proper motive points convincingly to the presence of imper­
missible motives. Fluker v. Alabama State Board of Education.
441 F .2d 201, 209 (5th Cir. 1971). The situation here is closely 
comparable to that in Marquez v. Omaha District Sales Office,
Ford Division, 440 F.2d 1157 (8th Cir. 1971). There, after sum­
marizing a history and background of disparate treatment similar 
to the backdrop of Lee's claim, the court wrote,

Racial discrimination will seldom be admitted 
by any employer. Documentary evidence rela­
ting to an employee's nonpromotional status 
serves to corroborate a claim of racial dis­
crimination. This evidence becomes particu­
larly significant when no rational reason is 
offered to rebut the telling inference other­
wise established. 440 F.2d at 1162.

Cf. Green v. McDonnell-Douglas Corporation, supra at 343-344
(discharge case).

Racial discrimination is the only conclusion possible here 
where statistical evidence, past discrimination (against Lee him­
self as well as other Black drivers), and standardless procedures 
combine and where no non-racial cause can be demonstrated.
Brown v. Gaston County Dyeing Machine Co., supra at 1382-1383.
This is also the precise lesson of Rowe v. General Motors Corp., 
supra, where this Court said:

6 4



. . . procedures which depend almost entirely
upon the subjective evaluation and favorable 
recommendation of the immediate foreman are a 
ready mechanism for discrimination against Blacks 
much of which can be covertly concealed and, for that matter, not really known to management. We 
and others have expressed a skepticism that Black 
persons dependent directly on decisive recom­
mentations from Whites can expect non-discrimi- 
natory action. 457 F.2d at 359.

Bowman, not Lee, had power to prevent the potential abuses 
of an automatic termination policy where racial foul play was 
a distinct possibility. Nothing suggests that this policy was 
accidental. Moreover, Bowman was fully aware of the virulent 
racial prejudice possessed by its white employees (248a, 654a). 
Lee's termination procedure may have had the appearance of 
neutrality, but the record in this case shows overwhelmingly and 
without exception that it resulted in discrimination. Bowman 
must bear responsibility for the discriminatory effects of this 
procedure. Rowe v. General Motors Corp., supra; Griggs v. Duke 
Power Co., supra at 431-432.

65



I

C O N C L U S I O N

For the reasons set forth above, this Court should 
reverse the judgment of the court below and remand with in­
structions to enter a decree providing full and effective 
relief to appellants and members of the class they represent. 
Such relief should specifically include: (1) the use of full
company seniority by class members who are now employed, and 
retroactive seniority for class members who are rejected appli­
cants and are later hired; (2) an affirmative program for hiring 
Black road drivers on a ratio as suggested herein, and for re­
cruitment of Black applicants for office/clerical positions;
(3) a training program to assist Blacks in entering jobs from 

tfiich they have been excluded; (4) provision for retained juris­
diction and reporting by defendants; (5) an order that back pay 
may be granted to class members, and proceedings to determine 
the amounts and distribution thereof; (6) an award of back pay 
to plaintiff Franks in the net amount he lost due to the denial 

of promotion or transfer and his discharge; (7) an award of

«

l

V

-  6 6  -



back pay to Intervenor Lee in the net amount he lost due to 
his discharge.

Respectfully submitted,

Htpms , l- ̂
HOWARD MOORE JR.
ELIZABETH R. RINDSKOPF75 Piedmont Avenue, N.E. 

Suite 1154Atlanta, Georgia 30303

JACK GREENBERG 
WILLIAM L. ROBINSON 
MORRIS J. BALLER BARRY L. GOLDSTEIN10 Columbus Circle 

Suite 2030New York, New York 10019

Attorneys for Appellants*

* Appellants1 attorneys acknowledge with appreciation the 
dedicated and competent assistance of Peter Bienstock, 
a third year student at the Law School of New York University, in the preparation of the trial in this case 
and of this brief.

67



CERTIFICATE OF SERVICE

The undersigned attorney for Plaintiff Appellant
and Intervenor-Appellant hereby certifies that he served two 
copies of Appellants' Brief on Appeal and one copy of Appellants' 
Appendix on counsel for Defendants, William Pate, Esq. and 
Robert B. Hocutt, Esq., at their office addresses by placing 
copies of these documents in the United States mail, postage 
prepaid, this 29th day of November, 1972.

and lntervenor-Apfc>ellant