Beverly v. Lone Star Lead Construction Corporation Brief for Appellant

    I n t h e

Hutted States (Emtrt of Appeals
F oe t h e  F if t h  C ir c u it

No. 29620

W illia m  J .  B everly ,

Plaintiff-Appellant, 
vs.

L one S tar L ead C o nstruction  C orporation ,

Defendant-Appellee.

ON A PPEA L  FR O M  T H E  U N IT E D  STA TES D ISTR IC T COURT 

FO R  T H E  S O U T H E R N  D ISTR IC T  OF TEXAS 
H O U S T O N  D IV ISIO N

BRIEF FOR APPELLANT

W illia m  W . K ilgarlin  
723 Main Street 
Houston, Texas 77002

G abrielle  K . M cD onald 
M cD onald & M cD onald 

1834 Southmore Blvd. 
Houston, Texas 77004

J ack  G reenberg  
N orm an  C. A m aker  
W illia m  L . R obinson  
V ilm a  M a r tin ez  S in g er  

10 Columbus Circle 
Suite 2030
New York, New York 10019 

Attorneys for Appellant



I N D E X

PAGE

Statement of the Issue Presented ......... .................... 1

Statement of the Case ..... ...........................................  1

Statement of the Facts ............. .................................. 2

A rg u m en t—•

An administrative finding of the Equal Employ­
ment Opportunity Commission of “no reasonable 
cause” does not bar the maintenance of a de novo 
civil action under the Civil Rights Act of 1964 .... 3

C o n clu sio n  .......................................................................      13

T able op A u t h o r it ie s

Cases:

Aiken v. New York Times, 2 F.E.P. Cases 64 (S.D. N.Y. 
1969) ........    6

Brown v. Frontier Airlines, 2 F.E.P. Cases 223 (D. 
Colo. 1969) ................................................................ 6

Carr v. Conoco Plastics, Inc., 295 F. Supp. 1281 (N.D.
Miss. 1969) .................................................................  6

Choate v. Caterpiller Tractor Co., 402 F.2d 357 (7th
Cir. 1968) ...................................        4

Cox v. U.S. Gypsum Co., 284 F. Supp. 74 (N.D. Ind.
1968) ........      8

Culpepper v. Reynolds Metals Company, 61 Lab. Cas.
119374 (5th Cir. 1970) ......................... ........... .......... ..5,10

Cunningham v. Litton Industries, 413 F.2d 887 (9th 
Cir. 1969) 4



11

PAGE

Davis v. Boeing Co., 2 F.E.P. Cases 62 (W.D. "Wash.
1969) .............................................................. ............  6

Dent v. St. Louis-San Francisco Bailway Co., 406 F.2d
399 (5th Cir. 1969) ........................................ ............  4

EEOC v. Local 780, United Cement Masons, 55 Lab.
Cas. TI9055 (S.D. N.Y. 1967) ..................................... 12

Fekete v. United States Steel Corp., 62 Lab. Cas. 1J9430,
2 F.E.P. Cases 540 (3rd Cir. 1970) ...................6,10,11

Green v. McDonald-Douglas Corp., 299 F. Supp. 1100
(E.D. Mo. 1969) .................................................. ...... 6

Grimm v. Westinghouse Electric Corp., 300 F. Supp.
984 (N.D. Calif. 1969) ........................................ 6,10,12

Hall v. Werthan Bag Corp., 251 F. Supp. 184 (M.D.
Tenn. 1966) ................................................ .......... . 12

Hart v. Buckeye Industries, Inc., 59 Lab. Cas. If9181
(S.D. Ga. 1968) ...................... ................... ................. 11

Holliday v. Railway Express Co., 2 F.E.P. Cases 279,
61 Lab. Cas. H9371 (N.D. Ga. 1969) ......................... 6

International Chemical Workers Union v. Planter Mfg.
Co., 259 F. Supp. 365 (N.D. Miss. 1968) ................ . 8

Jenkins v. United Gas Corp., 400 F.2d 28 (5th Cir.
1968) ..........................................................................  10

Johnson v. Seaboard Air Line Railroad Co., 405 F.2d 
645 (4th Cir. 1968) ...................... .............. ..............  4, 8

King v. Georgia Power Co., 295 F. Supp. 943 (N.D. Ga. 
1968) ............... ...................... ...... . .........................  H

McDonald v. Musicians, 2 F.E.P. Cases 365 (N.D. 111.
1970) 6



PAGE

Miller v. International Paper Co., 408 F.2d 283 (5th

m

Noon v. Kaiser Steel Corp., 2 F.E.P. Cases 65 (C.D. 
Calif. 1969) ....................... .............................. .........  6

Oatis v. Crown Zellerbach Corp., 398 F.2d 496 (5th 
Cir. 1968) ............ .......................................................  10

Quarles v. Philip Morris, Inc., 271 F. Supp. 842 (E.D.
Va. 1967) ............................................................  12

Robinson v. P. Lorillard Co., C.A. No. C-141-G-66
(M.D. N.C., Jan. 19, 1967) ........ ....................... ....... q

Ross v. Continental Telephone Service Corp., 2 F.E.P. 
Cases 356 (D. New Mexico 1969)  ........................... 6

Udall v. Tallman, 380 U.S. 1 (1965)  .......... ............... 8

Walker v. Keathley’s, Inc., 2 F.E.P. Cases 375 (W.D.
Tenn. 1969) ........ ..................................  ...............  g

Weeks v. Southern Bell Telephone & Telegraph Co.,
408 F.2d 228 (5th Cir. 1969) ..... .............................. ’ 8

Statutes:

42 U.S.C. §2000e ............................1, 3, 4, 5, 9,10,11,12,13
42 U.S.C. §2000e-5(e) ....... ...........................................  n
42 U.S.C. §2000e-12(b) ................................... ............  p2

Other:
110 Cong. Rec. 14191 (1964) .......... ..................... ........  9



1 st t h e

United States (Enurt of Appeals
F ob t h e  F if t h  C ib c u it  

No. 29620

W illia m  J .  B everly ,

vs.
Plaintiff-Appellant,

L one S tab L ead C o nstruction  C orporation ,

Defendant-Appellee.

ON A PPEA L  PR O M  T H E  U N IT E D  STA TES D ISTR IC T  COURT 

FOR T H E  S O U T H E R N  D ISTR IC T  OF TEXAS 
H O U S T O N  D IV ISIO N

BRIEF FOR APPELLANT*

Statem ent o f Issue Presented

Whether the District Court erred in granting appellee’s 
motion for summary judgment on the basis that a Com­
mission determination of reasonable cause is a jurisdic­
tional prerequisite to suit under Title YII of the Civil 
Rights Act of 1964.

Statem ent o f  the Case

This is an employment discrimination action brought 
under Title YII of the Civil Rights Act of 1964, 42 U.S.C.

* This brief was prepared with the assistance of Kenneth A. 
Wolfe, a 1969 graduate of Boston University School of Law.



2

§2000e et seq. (hereinafter sometimes referred to as Title 
VII). This appeal is from a judgment entered January 21, 
1970 (App. 20a) of the United States District Court for the 
Southern District of Texas, granting appellee’s motion for 
summary judgment.

Appellant’s complaint, filed June 11, 1969, alleged that his 
rights under Title VII were violated by the appellee’s deny­
ing him employment because of appellant’s race, Negro. 
The job was subsequently granted to a white man, named 
in the complaint. (App. 4a)

The appellee filed an answer (App. 7a) and in July, 1969, 
a motion for summary judgment. (App. 10a) The court 
below, granting appellee’s motion for summary judgment, 
ruled that “a finding of reasonable cause is a jurisdictional 
prerequisite to suit in federal district court.” (App. 19a)

Notice of appeal was filed February 18, 1970. (App. 21a) 

Statem ent o f the Facts

On or about June 19, 1967, the appellant, Mr. William 
Beverly, while in the employ of American Smelting and 
Befining Company, applied for employment with appellee, 
a wholly owned subsidiary of appellant’s employer. (App. 
3a) The appellant was told by appellee that there were no 
jobs available and no applications. (App. 4a)

A week later, appellant filed a charge of racial discrimi­
nation with the Equal Employment Opportunity Commis­
sion claiming that appellee’s refusal to employ him, was on 
racial grounds. (App. 13a) By its decision dated April 7, 
1969, the EEOC advised appellant that it had not found 
reasonable cause to believe that the Company had com­
mitted any unlawful employment practices. (App. 13a-14a) 
In a letter dated May 19, 1969 the Commission notified ap-



3

pellant that he was entitled to institute a civil action for 
relief; and on June 11, 1969, the complaint in this action 
was filed. (App. 12a)

The complaint alleged that American Smelting and Re­
fining Company has one hundred and forty-two employees, 
of which eighty are Negro; that appellee, which operates 
on the premises of American Smelting and Refining Com­
pany, has no Negro employees; that the appellant was not 
offered employment by the appellee because he is a Negro; 
and that subsequent to appellant’s application the company 
hired white employees. (App. 3a-4a)

A R G U M E N T

An A dm inistrative F inding by the EEOC o f  “no  rea­
sonable cause” does not bar the m aintenance o f  a de 
novo  c iv il action under the Civil R ights Act o f  1 9 6 4 .

In his complaint filed in the district court, the appellant 
specifically asked for redress for deprivation of rights 
secured by Title VII. The court below held that it had no 
jurisdiction and granted appellee’s motion for summary 
judgment, ruling that, ‘;While this Court is reluctant to 
grant motions for summary judgment, it is convinced in this 
case that a finding of reasonable cause is a jurisdictional 
prerequisite to suit in federal district court.” (App. 19a) 
This ruling is in error. Appellant argues that this ruling, 
which effectively precludes a judicial adjudication on the 
merits (1) has been rejected at Appellate and lower court 
levels and by the Equal Employment Opportunity Commis­
sion itself; (2) is not supported by the legislative history of 
the Act; and (3) would frustrate the normal and intended 
operation of Title VII.



4

1. D ecisional law and E.E.O.C. interpretation require reversal 
of the lower court’s holding that a finding o f “reasonable  
cause”  is a prerequisite to suit.

The landmark decisions of this Court on the issue of 
jurisdictional prerequisites have set the limit at two:

1) The filing of a timely charge with the Commission, and
2) The filing of suit within 30 days after receipt of the 

statutory notice from the Commission.

Miller v. International Paper Co., 408 F.2d 283 (5th Cir. 
1969); Dent v. St. Louis-San Francisco Railway Co., 406 
F.2d 399 (5th Cir. 1969).

This view of Title VII has been adopted by every Court 
of Appeals which has considered the issue. Cunningham v. 
Litton Industries, 413 F.2d 887 (9th Cir. 1969) reversing, 
56 Lab. Cas. 119078 (D.C. Calif. 1967); Choate v. Caterpillar 
Tractor Co., 402 F.2d 357 (7th Cir. 1968) ; and Johnson v. 
Seaboard Air Line Railroad Co., 405 F.2d 345 (4th Cir. 
1968) cert. den. 89 S. Ct. 1189 (1969).

Recently, the Court of Appeals for the Third Circuit, re­
lying on Miller and Dent held explicitly that a Commission 
determination of “reasonable cause” is not a prerequisite 
to a Title VII suit.1 Fehete v. United States Steel Corp., 61 
Lab. Cas. H9430 (3rd Cir. 1970).

It is worthy of special note that in Miller, supra, this 
Court had before it a situation where the Commission had 
not yet made a determination as to whether there was 
reasonable cause to believe that the charge was valid. 
Nonetheless, this Court expressly held that conciliation is 
not a jurisdictional prerequisite to suit and sub silento

1 This issue is presently before the Seventh Circuit in Flowers 
v. Local 6, Laborers International Union of North America, No. 
18060.



0

that a finding of reasonable cause is not a prerequisite 
to suit:

For whatever reason, if voluntary compliance is not 
achieved within sixty days after the charging party 
files his complaint with the EEOC, his right to be 
notified of the failure vests, and upon receipt of notice, 
he may file in the district court. The action or inaction 
of the EEOC cannot affect the grievant’s substantive 
rights under the statute. We reiterate the holding 
in Bent that an effort to conciliate by the EEOC is 
not in any sense a condition precedent to the charging 
party’s right to seek judicial consideration of his 
grievance. (Emphasis supplied) Miller, supra, at 291.

It is thus clear that this Court’s understanding of the 
consequences of Commission “action or inaction” includes 
a Commission determination of “no reasonable cause.” In 
holding that conciliation is not a jurisdictional prerequisite 
to suit, this Court recognized that Title VII dictates that 
the courts are the exclusive organ of enforcement.2 And 
recently this Court explicitly stated:

. . . the Commission’s Regulations allow for the is­
suance of notice letters in cases where a finding of no 
probable cause is rendered. This flows from the fact 
that Commission conciliation efforts are not jurisdic­
tional prerequisites to the institution of civil actions 
under Title VII . . . Culpepper v. Reynolds Metals, 
Inc., 61 Lab. Cas. H9374 (5th Cir. 1970) (fn. la).

2 The Court in Miller, supra, expressly rejected the defendant 
Company’s argument that the legislative history of Title VII made 
it clear that an attempt to conciliate was a prerequisite to suit. 
The Court observed that the legislative history relied upon by de­
fendant (particularly Representative Celler’s comments) had been 
directed to a bill which lodged final enforcement powers with the 
Commission and not to the compromise bill that became Title VII 
as it is known today.



6

To permit an EEOC determination of no reasonable 
cause to preclude a judicial determination would be to 
grant the Commission a final authority not contemplated 
by Title V II:

Unquestionably, the Commission’s role is an important 
one, designed to encourage and to effect voluntary 
compliance with the provisions of the Act. But in this 
role of investigator and conciliator, the Commission 
is not the final arbiter of an individual’s grievance. 
Under Title VII that function is vested solely in the 
courts. Only the courts have the power of enforcement. 
No power to issue penalty, citation, or cease and desist 
orders has been vested in the Commission by Congress. 
Fekete v. United States Steel Corp., 62 Lab. Cas. 9430 
(3rd Cir. 1970) (footnote omitted).

The law is clear that a determination of reasonable cause 
by the Commission is not a jurisdictional prerequisite. 
And, indeed, courts have so held. Fekete, supra; Mc­
Donald v. Musicians, 2 FEP Cases 365 (N.D. 111. 1970); 
Walker v. Keathley’s, Inc., 2 FEP Cases 375 (W.D. Tenn. 
1969); Ross v. Continental Telephone Service Corp., 2 FEP 
Cases 356 (D. New Mexico 1969); Grimm v. Westinghouse 
Electric Corporation, 300 F. Supp. 984 (N.D. Calif. 1969); 
Brown v. Frontier Airlines, 2 FEP Cases 223 (D. Colo. 
1969); Holliday v. Railway Express Co., 2 FEP Cases 279,
61 Lab. Cases 9371 (N.D. 6a. 1969); Aiken v. New York
Times, 2 FEP Cases 64 (S.D.N.Y. 1969); Noon v. Kaiser 
Steel Corporation, 2 FEP Cases 65 (C.D. Calif. 1969); 
Robinson v. P. Lorillard Co., C.A. No. C-141-G-66, M.D.N.C., 
Jan. 19, 1967; and Carr v. Conoco Plastics, Inc., 295 F. 
Supp. 1281 (N.D. Miss. 1969). Contra, Green v. McDonnell- 
Douglas Corp., 299 F. Supp. 1100 (E.D. Mo. 1969) and 
Davis v. Boeing Co., -----  F. Supp. ----- , 2 FEP Cases
62 ( W.D. Wash. 1969).



7

Moreover, the Equal Employment Opportunity Commis­
sion, through its interpretive Rules and Regulations, has 
held that a charging party’s right to bring a civil action 
under Section 706 (e) is not dependant upon the investiga­
tive, decisional, or compliance activities of the EEOC. The 
pertinent provisions of the Commission’s Rules and Regula­
tions are:

§ 1601.25 Notice to Respondent and Aggrieved Person.
In any instance in which the Commission is unable 

to obtain voluntary compliance as provided by Title 
VII it shall so notify respondent and the aggrieved 
person or persons. Notification to an aggrieved person 
shall include.

(a) A copy of the charge.
(b) A copy of the Commission’s determination of 

reasonable cause.
(c) Advice concerning his right to proceed in court 

under section 706 (e) of Title VII.
§ 1601.25a Processing of Cases; When Notice Issues 
Under § 1601.25.

(a) The time for processing all cases is extended 
to 60 days except insofar as proceedings may 
be earlier terminated pursuant to § 1601.19.

(b) Notwithstanding the provisions of paragraph 
a) of this section, the Commission shall not issue 
a notice pursuant to § 1601.25 prior to a deter­
mination under § 1601.19 or, where reasonable 
cause has been found, prior to efforts at concilia­
tion with respondent, except that the charging 
party or respondent may upon the expiration 
of 60 days after the filing of the charge or at 
any time thereafter demand in writing that such



notice issue., and the Commission shall 'promptly 
issue such notice to all parties.

(c) Issuance of notice pursuant to § 1601.25 does not 
terminate the Commission’s jurisdiction of the 
proceeding, and the case shall continue to be 
processed. (Emphasis supplied)

It is well established that courts will accord great weight 
to an agency’s interpretation of the statute it administers. 
This is particularly true where, as here, such practices 
involve . . .  “a contemporaneous construction of a statute 
by the men charged with the responsibility of setting its 
machinery in motion; of making the parts work efficiently 
and smoothly while they are yet untried and new.” Udall v. 
Tollman, 380 U.S. 1, 16 (1965), reversing 324 F. 2d 411 
(D.C. Cir. 1963). Accord: International Chemical Workers 
Union v. Planters Mfg. Co., 259 F. Supp. 365, 366-367 
(N.D. Miss., 1968); Cox v. U.S. Gypsum Co., 284 F. Supp.
74, 78 (N.D. Ind. 1968), affirmed in pertinent part----- F.
2d ----- , 60 LC TI9230, 70 LRRM 3278 (7th Cir. 1969);
Weeks v. Southern Bell Telephone & Telegraph Co., 408 
F. 2d 228 (5th Cir. 1969).

As the above Regulations indicate, the Commission itself 
views §706(e) as merely establishing a sixty day period 
during which a charging party exhausts his administrative 
remedies prior to the institution of his civil action. Appel­
lant urges that the Commission, in adopting this view, has 
struck a reasonable balance between the two conflicting 
Congressional policies underlying §706(e) : (1) Utilization 
of the Commission’s administrative machinery to resolve 
disputes by way of voluntary conciliation and (2) avail­
ability of swift access by charging* parties, to the Federal 
District Courts for the purpose of enforcing compliance 
with the Title. Cf. Johnson v. Seaboard Air Line Railroad 
Co., supra.



9

2. The legislative history of T itle VII lends support to the 
view that a Com m ission determ ination is not a prerequi­
site to suit.

Appellant will not dwell on the legislative history of 
Title VII since the instant case presents an unforeseen 
question. As this Court in Miller, supra, noted, drastic 
legislative changes in Title VII, which resulted primarily 
in the shifting of enforcement powers from the Commission 
to the grievant, left a final product containing gaps so 
that “the question which is (now) raised on the statute 
never occurred to it”. Miller, supra, at 287. However, 
Senator Javits, a principal supporter of the Civil Rights 
Act of 1964, stated:

“[T]he Commission does not have to find that the com­
plaint is a valid one before the complainant individu­
ally can sue or before the Attorney General can bring 
a suit to establish a pattern or practice of discrimi­
nation. The Commission may find the claim invalid; 
yet the complainant still can sue, and so may the 
Attorney General, if he find reasonable cause for doing 
so. In short, the Commission does not hold the key to 
the courtroom door. The only thing this title gave the 
Commission is time in which to find that there has 
been a violation and time in which to seek conciliation.

“Mr. President, this provision gives the Commission 
time in which to find that there exists in the area in­
volved a pattern or practice, and it also gives the 
Commission time to notify the complainant whether it 
has or has not been successful in bringing about con­
ciliation.

“But Mr. President, that is not a condition precedent to 
the action of taking a defendant into court. A com­
plainant has an absolute right to go into court, and 
this provision does not affect that right at all.” 110 
Cong. Rec. 14191 (1964). (Emphasis supplied.)



10

3. The lower court holding on the reasonable cause issue, if 
allowed to stand, frustrates enforcem ent o f T itle VII.

The view of the reasonable cause question championed 
by appellant is the only view that takes into consideration 
the singular and undisputed fact concerning the protection 
of equal employment opportunities under Title VII: Title 
VII can be enforced only by private litigants; the Commis­
sion, created therein, has no legally binding power. That 
this is so is apparent from the face of the statute and 
judicial interpretation.

Only by permitting a plaintiff to bring a suit despite a 
Commission finding of no reasonable cause can a court pre­
serve the statutory scheme whereby the right to equal 
employment opportunity is to be secured by private liti­
gants. Fekete v. United States Steel Corp., supra; Jenkins 
v. United Gas Corp., 400 F. 2d 28 (5th Cir. 1968); Oatis v. 
Crown Zellerbach, 398 F. 2d 496 (5th Cir. 1968); Grimm 
v. Westinghouse Electric Corp., supra. Cf. Culpepper v. 
Reynolds Metals Company, 2 FEP Cases 377, 61 Lab. Cas. 
H9374 (5th Cir. 1970) at fn. la.

In Jenkins v. United Gas. Corp., supra, the Fifth Circuit 
recognized and underscored the important role of “osten­
sibly private litigation in effectuating the Congressional 
policies” of Title VII. This Court held that:

The suit is therefore more than a private claim by the 
employee seeking the particular job which is at the 
bottom of the charge of unlawful discrimination filed 
with EEOC . . . [T]he individual, often obscure, takes 
on the mantle of sovereign. Newman v. Piggie Park 
Enterprises, 1968 . . .
Whether in name or not, the suit is perforce a sort of 
class action for fellow employees similarly situated. 
Jenkins v. United Gas Corp., supra, at pp. 32-33.



11

That the Commission has no legally binding power to 
secure compliance with Title VII cannot be the subject of 
serious dispute. Section 2000e-5(e) of 42 TJ.S.C. provides 
that nothing said or done during the efforts of the Com­
mission to conciliate a claim may be used as evidence in 
a subsequent proceeding. Thus, judicial proceedings under 
Title YII constitute a trial de novo and not an appeal from 
EEOC action.3 The assertion that Commission determi­
nations are not legally binding has received judicial appel­
late affirmation in Fekete v. United States Steel Corp., 
supra:

In sum we do not conceive the role of the Commission 
to be that of exclusive administrator of the Act. Al­
though it is entrusted with important and sensitive 
responsibilities of investigation and conciliation, it 
was not intended by Congress to pre-empt the ulti­
mate right of the claimant, the person the Act was 
designed to protect. We therefore conclude that the 
ultimate decision whether the. claim is real or fanciful 
must he for the courts, and not the Commission. Fekete 
v. United States Steel Corp., supra. (Emphasis sup­
plied.)

And, finally, Congress itself was aware that, with regard 
to the requirements of Title YII, Commission determina-

3 In granting motions to strike copies of the Commission’s deci­
sion of reasonable cause, where these were attached to the com­
plaint, courts have noted: “It must be remembered that this action 
is not an appeal from an administrative agency hut is a trial de 
novo.” King v. Georgia Power Co., 295 F. Supp. 943 at 948 (N.D.
Ga. 1968). Hart v. Buckeye Industries, Inc., -----  F. Supp. ----- ,
59 Lab. Cas. ff9181 (S.D. Ga. 1968).



12

tions might be judicially overturned. See 42 U.S.C. §2000e- 
12(b).4

To allow a Commission, which has no legally binding 
power, to block this plaintiff’s access to the federal courts, 
now the only possible source of meaningful relief, is to 
frustrate completely the intent of a statute which relies 
on private enforcement and to impose a significant dis­
advantage solely on the class whose rights the statute was 
designed to protect.5 Only by permitting the plaintiff- 
appellant to bring a private suit despite a Commission 
finding of no reasonable cause can this Court give effect 
to the established principle that a charging party may not 
be prejudiced by any conduct of the Commission. Grimm, 
supra; Miller, supra; Quarles v. Philip Morris, Inc., 271 
F. Supp. 842 (E.D. Va. 1967); Hall v. Werthan Bag Corp.. 
251 F. Supp. 184 (M.D. Tenn. 1966).

4 Section 2000(e) 12 (b) of 42 U.S.C. reads as follows:
In any action or proceeding based on any alleged -unlawful 
employment practice, no person shall be subject to any liabil­
ity or punishment for or on account of (1) the commission 
by such person of a unlawful employment practice if he pleads 
and proves that the act or omission complained of was in good 
faith, in conformity with, and in reliance on any written inter­
pretation or opinion of the Commission, or (2) the failure of 
such person to publish and file any information required by 
any provision of this title if he pleads and proves that he 
failed to publish and file such information in good faith, in 
conformity with the instructions of the Commission issued 
under this title regarding the filing of such information. Such 
a defense, if established, shall be a bar to the action or pro­
ceeding, notwithstanding that (A) after such act or omis­
sion, such interpretation or opinion is modified or rescinded 
or is determined by judicial authority to be invalid or of no 
legal effect, or (B) after publishing or filing the description 
and annual report, such publication or filing is determined 
by judicial authority not to be in conformity with the re­
quirements of this title.

5 I t is interesting to note that a finding by the New York State 
Human Bights Commission that a charge filed with it lacked merit 
could not serve as a bar to a proceeding under Title VII. EEOC
v. Local 780, United Cement Masons, ------ F. Supp. ------, 55 Lab.
Cas. ([9055 (S.D.N.Y. 1967).



13

Appellant urges that decisional law and statutory inter­
pretation require the view that Title VII creates in the 
private charging party a right to a trial de novo not af­
fected by an EEOC determination that there is no rea­
sonable cause to believe that the employer has violated 
Title VII.

CONCLUSION

For all the reasons stated above, appellant respectfully 
urges this Court to reverse the holding of the lower court 
that a Commission determination of reasonable cause is a 
jurisdictional prerequisite to the maintenance of a Title 
VII suit.

Respectfully submitted,

W illia m  W . K ilgarlin  
723 Main Street 
Houston, Texas 77002

G abrielle  K. M cD onald 
M cD onald & M cD onald 

1834 Southmore Blvd. 
Houston, Texas 77004

J ack  Greenberg  
N orman  C. A mak er  
W illia m  L. R obinson  
V ilm a  M a rtin ez  S in g er  

10 Columbus Circle 
Suite 2030
New York, New York 10019 

Attorneys for Appellant



M EIIEN  PRESS INC. —  N. Y. C. 219