Beverly v. Lone Star Lead Construction Corporation Brief for Appellant
Public Court Documents
January 1, 1970

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Brief Collection, LDF Court Filings. Beverly v. Lone Star Lead Construction Corporation Brief for Appellant, 1970. 50dda6d2-c69a-ee11-be37-000d3a574715. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/16cde09c-4f6e-45d3-9d47-1cbd7440bc46/beverly-v-lone-star-lead-construction-corporation-brief-for-appellant. Accessed July 30, 2025.
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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