Bernard v. Gulf Oil Company Brief for Appellants

    IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 77-1502

WESLEY P. BERNARD, et al.#

Plaintiffs-Appellants,

vs.
GULF OIL COMPANY, et al.,

Defendants-Appellees.

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

BRIEF FOR APPELLANTS

STELLA M. MORRISON
1015 East Gulfway Drive 
Port Arthur, Texas 77640

ULYSSES GENE THIBODEAUX
One Lakeside Plaza, 7th Floor 
Lake Charles, Louisiana 70601

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

BARRY L. GOLDSTEIN 
733 15th St., N.W.
Washington, D. C. 20005

JACK GREENBERG
PATRICK O. PATTERSON 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-Appellants



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 77-1502

WESLEY P. BERNARD,

GULF OIL COMPANY,

et al.,
Plaintiffs-Appellants 

vs.
et al.,
Defendants-Appellees.

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

CERTIFICATE REQUIRED BY LOCAL RULE 13(a)

The undersigned, counsel of record for the plain­

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

to Local Rule 13 (a).
1. Wesley P. Bernard, Elton Hayes, Sr., Rodney 

Tizeno, Hence Brown, Jr., Willie Whitley, and Willie

i



Johnson, plaintiffs.

2. The class of all black employees now employed 

or formerly employed by defendant, Gulf Oil Company, in Port 
Arthur, Texas, and all black applicants for employment at 

Gulf Oil Company who have been rejected for employment at 

said company.

3. Gulf Oil Corporation, defendant.

4. Oil, Chemical and Atomic Workers International 

Union, and Local Union No. 4-23, Oil, Chemical and Atomic 

Workers International Union, defendants.

5. International Association of Machinists and 
Aerospace Workers, Port Arthur Lodge No. 823; international 
Association of Machinists and Aerospace Workers; International 
Brotherhood of Electrical Workers, Local Union No. 390; 
International Brotherhood of Electrical Workers, AFL-CIO;
United Transportation Local Union; International United 
Transportation Union; Bricklayers, Masons, and Plasterers 

International Union, Local 13; and International Bricklayers, 
Masons, and Plasterers Union: prospective defendants named in 

plaintiffs' motion to join additional defendants and for leave 

to amend the complaint. This motion was pending when the dis­
trict court granted summary judgment for the existing defendants.

Attorney for Plaintiffs-Appellants



IN THE

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT 

No. 77-1502

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

vs .

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

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

CERTIFICATE REQUIRED BY LOCAL RULE 13 (j) (2)

Plaintiffs-appellants believe that the errors of the 
court below are clear from the record and that the issues raised 

on this appeal can be adequately argued and decided on the briefs 

alone. Therefore, we submit that oral argument is not necessary 
and that this case is appropriate for summary disposition pursuant 
to Local Rule 18. However, as set forth in part IV of the argument 

herein, this case raises First Amendment and other constitutional 

questions of first impression in this circuit which may have a 
substantial impact on the administration of class actions in the 
district courts, particularly with respect to restrictions on 

communications by named plaintiffs and their counsel with class



members. Although plaintiffs-appellants submit that the 

tions imposed on such communications in this case are so 

unconstitutional as not to require further argument, the 
may wish to hear oral argument on this question.

restric- 

clearly 
Court

IV



TABLE OF CONTENTS

Statement of Issues ..........................................  1

Statement of the C a s e ..........................................3

Summary of Argument........................................... 11

Argument

I. The district court erred in dismissing the
plaintiffs' Title VII claims for failure 
to file a civil action within ninety days 
of the issuance by the EEOC of letters 
advising plaintiffs of the failure of 
conciliation ......................................  15

II. The district court erred in dismissing the 
plaintiffs' claims under 42 U.S.C. § 1981
as barred by the statute of limitations.........21

III. The district court erred in holding that 
this action may be barred by the doctrine
of l a c h e s ...........................................28

IV. The orders of the district court restric­
ting communications by plaintiffs and their 
counsel with class members are unconsti­
tutional and are beyond the authority of
the district c o u r t ................................. 39

Conclusion............................................   63

Certificate of Service ...................................... 64

Supplemental Appendix ...................................... ^



TABLE OF AUTHORITIES

CASES Page

Adickes v. S.H. Kress Co., 398 U.S. 144 (1970)......... 23
Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975). . 23, 27
Alexander v. Gardner Denver Co., 415 U.S. 36 (1974)20,30,43

Allen v. Amalgamated Transit Union Local 788,
____  F.2d ____ , 14 FEP Cases 1494 (8th Cir. 1977). 25,27

Anderson v. Mt. Clemens Pottery Co.,
328 U.S. 680 (1946)..................................  36

Aulds v. Foster, 484 F.2d 945 (5th Cir. 1 9 7 3 ) ......... 24
Baker v. F & F Investment, 420 F.2d 1191

(7th Cir. 1 9 7 0 ) ..................................  26, 29

Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) . . .  40
Bates v. Little Rock, 361 U.S. 516 (1960)............. 52

Bates v. State Bar of Arizona, 45 U.S.L.W. 4895
(U.S., June 27, 1 9 7 7 ) ........................ 42, 48, 50

Belt v. Johnson Motor Lines, Inc.,
458 F. 2d 443 (5th Cir. 1 9 7 2 ) ...................  23, 24

Beverly v. Lone Star Lead Construction Corp.,
437 F.2d 1136 (5th Cir. 1 9 7 1 ) ........................33

Boazman v. Economics Laboratory, Inc., ___ F.2d ___ ,
13 EPD 11,329 (5th Cir. 1 9 7 6 ) .....................  37

Bolling v. Sharpe, 347 U.S. 497 (1954).................  57
Boudreaux v. Baton Rouge Marine Contracting Co., 437

F.2d 1011 (5th Cir. 1971) . . . .................. 23, 28
Bridges v. California, 314 U.S. 252 (1941)........... 62
Brotherhood of Railroad Trainmen v. Virginia ex rel.

State Bar, 377 U.S. 1 (1964)...................  47, 58



33
Choate v. Caterpillar Tractor Co., 402 F.2d 357 

(7th Cir. 1968) ............................

Costello v. United States, 365 U.S. 265 (1961) . . . .  29
Cox v. Allied Chemical Corp., 538 F.2d 1094

(5th Cir. 1 9 7 6 ) ....................................  43
Cox v. Louisiana, 379 U.S. 536 (1965)...............  58

Cox v. Louisiana, 379 U.S. 559 (1965)...............  58
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) . 44
Craig v. Harney, 331 U.S. 367 (1947)...............  43, 62
Davis v. County of Los Angeles, ___  F.2d ___ , 12 EPD

5 11,219 (9th Cir. 1 9 7 6 ) .........................  25

DeMatteis v. Eastman Kodak Co., 511 F.2d 306, modified,
520 F.2d 409 (2d Cir. 1 9 7 5 ) .....................  17, 18

Dent v. St. Louis-San Francisco R. Co., 406 F.2d 399
(5th Cir. 1 9 6 9 ) ..................................  33

Ecology Center of Louisiana v. Coleman, 515 F.2d 860
(5th Cir. 1 9 7 5 ) ..................................  29

EEOC v. Airguide Corp., 539 F.2d 1038 (5th Cir. 1976) 37,38
EEOC v. Cleveland Mills Co., 502 F.2d 153 (4th Cir.

1974), cert, denied, 420 U.S. 946 (1975)......... 32

EEOC v. Griffin Wheel Co., 511 F.2d 456 (5th Cir. 1975) 25

EEOC v. Louisville & Nashville R.R. Co., 505 F.2d 610 
(5th Cir. 1974), cert. denied, 423 U.S. 824 (1975) 32



Evans v. Dow Chemical Co., 13 FEP Cases 1461 
(D. Colo. 1975) .......................... 38

Franks v. Bowman Transportation Co., 495 F.2d 398 
(5th Cir.), cert, denied in pertinent part, 419 
U.S. 1050 (1974)........................ 28, 33, 36, 37

Franks v. Bowman Transportation Co., 424
U.S. 747 (1976)..................................... 49

Garner v. E.I. DuPont de Nemours and Co., 538 F.2d
611 (4th Cir. 1 9 7 6 ) ................................  16

Gibson v. Florida Legislative Investigative Committee,
372 U.S. 539 (1963)................................  53

Gideon v. Wainwright. 372 U.S 335 (1963)............. 58
Gray v. Greyhound Lines, East, 545 F.2d 169

(D.C. Cir. 1 9 7 6 ) ..................................  23
Guerra v. Manchester Terminal Corp., 498 F.2d 641

(1974).............................................  37
Halverson v. Convenient Food Mart, Inc., 458 F.2d 927 

(7th Cir. 1972) .................................. 42

Hanover
U.S

Shoe, Inc. v 
. 481 (1968)

. United Shoe Machinery Corp 392
. 25,36

Harper v. 
Supp. 
1134

Mayor and City Council of Baltimore, 359 F. 
1187 (D. Md.), modified and aff’d, 486 F.2d 
(4th Cir. 1973) ............................

Hines v. Olinkraft, Inc., 413 F. Supp. 1360 (W.D. La.
1976) .

36

23

Holmberg v. Armbrecht, 327 U.S. 392 (1946) . . . .
Huff v. N.D. Cass Co., 485 F.2d 710 (5th Cir. 1973) 

(en banc) .......................................
Jenkins v. McKeithen, 395 U.S. 411 (1969) .........

v m



49, 59
Jenkins v. United Gas Corp., 400 F.2d 28

(5th Cir. 1 9 6 8 ) .............................. . 49, 59

Johnson v. Georgia Highway Express, Inc. , 488
F .2d 714 (5th Cir. 1974) ................... . 49

Johnson v. Goodyear Tire & Rubber Co., 491 F.2d
1364 (5th Cir. 1974) ........................ . 23

Johnson v. Railway Express Agency, Inc., 421
U.S. 454 (1975) .............................. . 21, 23, 

26, 27

Johnson v. Robison, 415 U.S- 361 (1974) ......... . 57

Kohn v. Royall, Koegel & Wells, 59 F.R D.
515 (S.D.N.Y. 1973), appeal dismissed, 496 
F . 2d 1094 (2d Cir. 1974)..................... . 34

Lacy v. Chrysler Corp., 533 F.2d 353 (8th Cir)
(en banc), cert, denied. U.S. 12 EPD 
5 11,234 (1976) .............................. . 17, 18

Lea v. Cone Mills, 438 F.2d 86 (4th Cir. 1971) . . . 49

Macklin v. Spector Freight Systems, Inc., 478
F .2d 979 (D.C. Cir 1973) ................... . 26

Marlowe v. Fisher Body, 489 F.2d 1057
(6th Cir. 1 9 7 3 ) .............................. . 26

McDonnell Douglas Corp. v. Green, 411 U S.
792 (1973) .................................. . 20

McGuire v. Aluminum Company of America, 542 F.2d
43 (7th Cir. 1976) .......................... . 17

Miller v. Amusement Enterprises, Inc.. 426
F.2d 534 (5th Cir. 1970) ................... . 47

NAACP v. Alabama ex rel. Patterson, 357
U.S. 449 (1958) .............................. . 52, 59

NAACP v. Button, 371 U S. 415 (1963) ............. . 7, 14
42, 45-48, 
50-53, 55

- IX -



Near v. Minnesota, 283 U.S. 697 (1931) 40

Nebraska Press Association v. Stuart, 427
U.S. 539 (1976)..................................  43, 44

51

New York Times Co. v. United States, 403 U.S.
713 (1971)  40

Newman v. Piggie Park Entreprises, Inc., 390
U.S. 400 (1968)..................................  48, 49,

59

Niemotko v. Maryland, 340 U.S. 268 (1951) ........... 57

Oatis v. Crown Zellerbach Corp., 398 F.29 496
(5th Cir. 1 9 6 8 ) ...................................  20

Occidental Life Insurance Co. v. EEOC, 45 U.S.L.W.
4752 (U.S., June 20, 1977) .....................  27. 30,

31, 32, 
37

Oklahoma Publishing Co. v. District Court
51 L.Ed. 2d 355 ( 1 9 7 7 ) .......................... 44

Organization for a Better Austin v. Keefe,
402 U.S. 415 (1971).............................. 40

Pettway v. American Cast Iron Pipe Co., 411
F . 2d 998 (5th Cir. 1969)   53

Rodgers v. United States Steel Corp., 508 F.2d 
152 (3rd Cir.), cert denied, 420 U.S. 969
(1975)   61, 62,

63

Rodgers v. United States Steel Corp., 536 F.2d
1001 (3rd Cir. 1976)   40. 44,

45, 62

Shelton v. Tucker. 364 U.S. 479 (1960)...............  53

x -



512 F .2dSkipper v. Superior Dairies, Inc., 512 F.2d
409 (5th Cir. 1975) .......................... . 36

Southeastern Promotions, Ltd. v. Conrad, 420
U.S. 546 (1975) ..............................

Sperry v. Barggren, 523 F.2d 708 (7th Cir. 1975) . . 24

Thornhill v. Alabama, 310 U.S 88 (1940) ......... . 57

Tuft v. McDonnell Douglas Corp.. 517 F.2d 1301 
(8th Cir. 1975), cert denied, 423 U.S.
U.S. 1052 ( 1 9 7 6 ) ............... ............

United Air Lines, Inc. v. Evans, 45 U.S.L.W.
4566 (U.S.- May 31, 1977) ................... . 26

United Mine Workers v. Illinois State Bar
Association, 389 U.S. 217 (1967) ........... . 47

United States v. Allegheny-Ludlum Industries,
Inc., 517 F .2d 826 (5th Cir. 1975),
cert, denied, 425 U.S. 944 (1976) ...........

United States v. Georgia Power Co., 474 F.2d
906 (5th Cir. 1973) .......................... . 25

United States Steel Corp. v. Darby, 516 F.2d
961 (5th Cir. 1975) .......................... . 37

United Transportation Union v. State Bar of
Michigan, 401 U.S. 576 (1971) ............... COr-

Virginia Pharmacy Board v. Virginia Consumer
Council, 425 U S. 748 (1976) ............... . 48

Watkins v. Scott Paper Co., 530 F.2d 1159
(5th Cir. 1976) .............................. . 43

Weaver v. Joseph Schlitz Brewing Co.. F.2d
, 13 EPD f 11,589 (6th Cir. 1977) . . . . . 16

Wheat v. Hall, 535 F.2d 874 (5th Cir. 1976) . . . . 29

Williams v. Norfolk & Western Ry. Co-, 530 
F .2d 539 (4th Cir. 1975) ........... 25



Williams v. Southern Union Gas Co., 529 F.2d
483 (10th Cir.), cert, denied, ___U.S.
___, 12 EPD 5 11-234 (1976)...................  17

Williamson v. Bethlehem Steel Corp., 468 F.2d
1201 (2d Cir. 1972), cert denied, 411 U.S. 931. 43

Wood v. Georgia, 370 U.S. 375 (1962)...............  43

Zambuto v. American Telephone & Telegraph Co.,
544 F. 2d 1333 (5th Cir. 1 9 7 7 ) .................  12, 18,

19, 32, 33

CONSTITUTIONAL PROVISIONS, STATUTES,
RULES AND REGULATIONS

United States Constitution, First Amendment . . . .  passim

United States Constitution, Fifth Amendment . . . .  passim

28 U.S.C. § 2071 ........ ............................ 14. 60

42 U.S.C. § 1981, Civil Rights Act of 1866 ........ passim

42 U.S.C. § 1988, Civil Rights Attorneys' Fees
Awards Act of 1976 ............................  42, 49

42 U.S.C. § 2000e et seq,, Title VII of the Civil 
Rights Act of 1964, as amended by the Equal 
Employment Opportunity Act of 1972 ........... passim

42 U.S.C. § 2000e-3 (a) , § 704(a) of Title VII . . .  53

42 U.S.C. § 2000e-5 (b) , § 706 (b) of Title VII . . .  53

42 U.S.C. § 2000e-5(f), § 706(f) of Title VII . . .  15, 16,
18, 19

42 U.S.C. § 2000e-5(k), § 706 (k) of Title VII . . .  42, 49

42 U.S.C. § 2000e-8(c), § 709(c) of Title VII . . .  34, 35



Rule 23. Fed. R. Civ. P ............................. 14, 20
59, 61

Rule 56, Fed. R. Civ. P ............................... 37

Rule 83, Fed. R. Civ. P ............................... 14, 60

Local Rule 34(d), Western District of Pa...........61

EEOC Regulations, 29 C.F.R. § 1602, 14(a)
(1967) and 31 Fed. Reg. 2833 (Feb. 17. 1966) . 35

Tex. Rev. Civ. Stat. Ann. art. 5526 ( 4 ) ........... 23

OTHER AUTHORITIES

ABA Committee on Professional Ethics. Opinions,
No. 148 (1935)................................  48

118 Cong. Rec. 7168, 7565 (1972) .................  31-32

Legislative History of the Equal Employment
Opportunity Act of 1972 (H.R. 1746, Pub. L.
No. 92-261)   53

Manual for Complex Litigation, 1 J. Moore,
Federal Practice (2d Ed. 1 9 7 6 ) ...............  61, 62

S. Rep. No. 415, 92d Cong., 1st Sess. (1971) . . .  31

S. Rep. No. 1011, 94th Cong., 2d Sess. (1976),
reprinted in 1976 U.S. Code Cong. & Ad. News 
6338-44 49



IN THE

UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT 
No. 77-1502

WESLEY P. BERNARD, et al.,

Plaintiffs-Appellants,
vs .

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

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

BRIEF FOR APPELLANTS

STATEMENT OF ISSUES

1. Did the district court err in dismissing the

plaintiffs 1 claims under Title VII of the Civil Rights Act 

of 1964, as amended, 42 U.S.C. § 2000e et seq., for failure 

to file a civil action within ninety days of the issuance 
by the Equal Employment Opportunity Commission of letters 
advising plaintiffs of the failure of conciliation efforts?



2. Did the district court err in dismissing as 

barred by the statute of limitations the plaintiffs' claims 
under 42 U.S.C. § 1981 of present and continuing discriminatory 

employment practices?
3. Did the district court err in concluding that 

this action was barred by laches?

4. Are the district court's orders restricting 

communications by plaintiffs and their counsel with class 

members violative of the First and Fifth Amendments and 
beyond the authority of the court?

2



STATEMENT OF THE CASE

The plaintiffs-appellants in this case are six black

present or retired employees of the defendant Gulf Oil
_1/Company (hereinafter "Gulf" or "the company") who charge 

that they and all other similarly situated black persons 
are the victims of systematic past, present, and continuing

racial discrimination in employment by the company and the
_2/

union defendants, in violation of the Civil Rights Act of 
1866, 42 U.S.C. § 1981, and Title VII of the Civil Rights 
Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Juris­
diction in the district court was predicated on 28 U.S.C.

§ 1343 (4) and 42 U.S.C. § 2000e-5 (f) . Plaintiffs appeal 
from orders of the district court restricting or prohibiting 
communications by plaintiffs and their counsel with class 

members and granting summary judgment for the defendants. 
This court has jurisdiction of the appeal pursuant to 

28 U.S.C. § 1291.

1/ The named plaintiffs are Wesley P. Bernard, Elton 
Hayes, Sr., Rodney Tizeno, Hence Brown, Jr., Willie Whitley, 
and Willie Johnson. In a motion which was filed on November 
24, 1976, Mr. Brown requested that he be dropped as a party 
plaintiff (R. 344). This motion was never decided by the 
District Court, and it is not otherwise pertinent to this 
appeal.
2/ The Union defendants are the Oil, Chemical and Atomic 

Workers International Union and Local Union No. 4-23 (hereinafter 
"international union" and "local union" respectively).

3



The complaint in this action was filed in the
district court on May 18, 1976 (A. 4), and it was amended 
on July 19, 1976 (A. 66). Plaintiffs brought the action 
on their own behalf and, pursuant to Rule 23(b)(2) of the 

Federal Rules of Civil Procedure, on behalf of all black 
present and former employees of the company at its refinery 
at Port Arthur, Texas, and on behalf of all black applicants 

who have been rejected for employment at the company (A. 5, 67). 

Plaintiffs allege that black employees of the company "are, 

and have in the past, been victims of systematic racial dis­

crimination by defendants . . and that "prior and sub­

sequent to July 2, 1965, Gulf Oil engaged in policies, prac­

tices, customs and usages . . .which discriminate or have the
effect of discriminating against plaintiffs and the classes 

they represent because of their race and color" (A. 70).
The methods of discrimination are alleged to include present 
and continuing discriminatory practices in hiring, job assign­
ment, testing and selection, wages, working conditions, exclusion 
of blacks from higher-paying craft positions, promotion and up­
grading practices, training opportunities, and discriplinary and 
discharge practices (A. 70-72). The union defendants are alleged 

to have agreed to, acquiesced in, or otherwise condoned these 

discriminatory practices (A. 72-73). Plaintiffs seek, inter 

alia, a declaratory judgment, a make-whole remedy including

4



back pay for past discrimination, and a broad range of prospec­

tive injunctive relief from present and continuing discrimina­
tory practices (A. 74-76)-

Three of the named plaintiffs —  Bernard, Brown, 
and Johnson —  filed charges of discrimination with the 
Equal Employment Opportunity Commission (EEOC) in 1967 against 
the company and the local union (A. 92, 96, 100). Plaintiff 
Bernard filed an amended charge with the EEOC in 1976 against, 
inter alia, the international union (R.361-366, Supp. App. 21A). 

Plaintiff Whitley filed a charge with the EEOC in 1972 against 
the company (A. 110). Plaintiffs Hayes and Tizeno have not 

filed any charges of discrimination with the EEOC.

On August 15, 1968, the EEOC issued a decision 

finding reasonable cause to believe that the charges of 

discrimination filed by plaintiffs Bernard, Brown, and Johnson 

were true (A. 94, 98, 102). On December 4, 1973, the EEOC 
issued a determination finding no reasonable cause with 
respect to the charge filed by plaintiff Whitley, together

_3/with a "Notice of Right To Sue" (A. 104-115).
On February 26, 1975, plaintiffs Bernard, Brown, 

and Johnson each received a letter from the EEOC stating 
that the respondents named in their charges of discrimination

[did] not wish to entertain conciliation 
discussions ... [and that] you are hereby

3/ The final order of the district court states that "Plaintiff 
Willie Whitley's failure of conciliation letter was sent December 
4, 1973" (A. 182). The record contains no support for a finding 
that any letter regarding the failure of conciliation was ever 
sent to plaintiff Whitley or that any such conciliation efforts 
were ever undertaken.

5



notified that you may request a "Notice 
of Right to Sue" from this office at any 
time. If you so request, the notice will 
be issued, and you will have ninety (90) 
days from the date of its receipt to file 
suit in Federal District Court. (A. 84, 87, 
90) .

However, on the basis of a separate charge of 
discrimination which had been filed against the company by 

a commissioner of the EEOC in 1968, the company engaged in 
conciliation discussions with the EEOC and with the Office 
for Equal Opportunity of the United States Department of 
the Interior (DOI), resulting in a conciliation agreement 
which was entered into between the company and the EEOC on 
April 14, 1976, and which was approved by the DOI on the 
same date (A. 15-28). This agreement was not subject to 
judicial review or approval, and neither the union defend­

ants in this case nor the named plaintiffs or any members of 

their class were parties to the agreement (A. 26-28).
Approximately two weeks after the agreement was 

signed (A. 36), the company began tendering "back pay 

awards" under the agreement to certain black and female 

employees and former employees identified as "affected 

class members" (A. 18-20), and soliciting releases or 
waivers from such persons purporting to release the company 
"for any and all claims against [it] as a result of events 
arising from its employment practices occurring on or before 

the date of release, or which might arise as the result of 
the future effects of past or present employment practices" 
(A. 20, 35-36). Failure to respond within thirty days to

6



notice of the tender and the release or waiver was deemed 
an acceptance of back pay under the terms of the agreement 
(A. 20, 36). The tendering of awards and solicitation of 
waivers or releases continued until the commencement of this 
action on May 18, 1976, after which the company temporarily 
suspended these activities (A. 29, 36).

On May 22, 1976, four days after the complaint 
was filed, the named plaintiffs held a meeting in Port 
Arthur, Texas, which was attended by members of the class 

defined in the complaint. Attorneys for the named plaintiffs 

were invited to attend the meeting to discuss the lawsuit and 

to answer questions concerning the lawsuit and the conciliation 

agreement (A. 51, 53-54). Affidavits of counsel show that the 

attorneys for plaintiffs are associated with the NAACP Legal 

Defense and Educational Fund, Inc., which is a nonprofit 

corporation engaged in furnishing legal assistance in cases 
involving claims of racial discrimination (A. 46,50). Legal 
Defense Fund attorneys have represented persons in hundreds 
of civil rights cases in this circuit and in its district 
courts, and in many landmark Title VII cases which have been 
decided in the Supreme Court, the Fifth Circuit, and other federal 
courts (a . 47-48). The organization has been recognized by 
the Supreme Court as having "a corporate reputation for ex­
pertness in presenting and arguing the difficult questions 

of law that frequently arise in civil rights litigation."

NAACP v. Button, 371 U.S. 415, 422 (1963). None of the

7



attorneys for the plaintiffs has accepted or expects to 
receive any compensation from the named plaintiffs, from 
any additional named plaintiffs who may be joined in the 
future, or from any members of the class (A. 48, 54). Any 
counsel fees which they might obtain would result from an 

award by the court which, pursuant to statutory authorization, 
would be taxed as costs to the defendants (A. 48, 54). Any 

such award to staff attorneys of the Legal Defense Fund 

would be paid over to the Legal Defense Fund and would not 

be paid directly to any such attorneys (A. 48).

Five days after the meeting of May 22, 1976, the 

company filed a motion to prohibit the parties and their 
counsel from communicating concerning the action with any 

potential or actual class member who was not a formal party 
to the action without the prior consent and approval of the 
district court (A. 14). On the following day, May 28, 1976, 
District Judge Steger, ruling in Chief Judge Fisher's absence, 
entered an order forbidding without exception all such communi­
cations with any potential or actual class member not a formal 
party to the action, pending Judge Fisher's return (A. 30-31).

The order of May 28 remained in effect until 
June 22, 1976, when Judge Fisher granted the company's 
motion to modify the order so as to permit the resumption 

of the tenders of "back pay" and the solicitation of releases 

(A. 32-39, 56-61). The modified order also provided that it 

did not forbid certain communications initiated by a client

8



or prospective client and certain communications occurring 

in the regular course of business, and it required that any 
constitutionally protected communication be filed with the 

court within five days after its occurrence (A. 57). The 
modified order otherwise repeated the prohibitions of the 
original order (A. 56-57).

On July 6, 1976, the plaintiffs moved for per­
mission for themselves and their counsel to communicate with 

members of the proposed class, and for an order declaring that 
a notice which they proposed to distribute was within their 
constitutionally protected rights (A. 62-65). The motion 
of the plaintiffs was denied (A. 157).

On June 11, 1976, the EEOC issued to plaintiffs 
Bernard and Brown the "Notices of Right To Sue Within 90 

Days"(A. 73) which had been mentioned in the letters which

they had received from the EEOC on Febraury 26, 1975 (A. 84,
_4/

87, 90). These notices stated as follows:

Pursuant to Section 706(f) of Title VII 
. . ., you are hereby notified that you may, 
within ninety (90) days of receipt of this 
communication, institute a civil action in the 
appropriate Federal District Court.
The plaintiffs then filed a motion to amend their

complaint, which was granted on July 19, 1976 (A. 66-76).
The unions, which had answered the original complaint on
June 10, 1976 (A. 40-43), filed an answer to the amended

4/ The amended complaint states that these notices were attached 
thereto as Exhibits A and B (A. 73). However, they do not appear 
in the record as transmitted by the District Court. These notices 
nevertheless were referred to by the parties and the court below 
(e.g., A. 183), and copies are provided in an appendix to this 
brief (Supp. App. 1A-2A) . o



complaint on July 30, 1976 (A. 153-156). The company, which 
had moved to dismiss the original complaint on June 17, 1976 
(A. 44-45), filed a motion to dismiss the amended complaint 
on July 28, 1976 (A. 77-78). The unions joined in this motion 
on August 25, 1976 (A. 158). The motion sought dismissal on 
the grounds, inter alia, that the jurisdictional prerequisites 
for maintaining the action under Title VII had not been satisfied, 

that the action was barred by the statute of limitations and 
by laches, and that no proper class representatives had been named 

(A. 77-78). In support of its motion, the company filed affi­

davits of EEOC employees regarding administrative records and 

files (A. 79-152), and an affidavit of C. B. Draper, an employee 

of the company, stating inter alia that from July 1965 to April 

1975 personnel changes had occurred and the company had destroyed 

numerous records and documents pertinent to this case (A. 174-179).

On November 29, 1976, the district court ordered sua sponte 
that the motion to dismiss the amended complaint be treated as 
a motion for summary judgment (A. 180). On January 11, 1977, 
the court granted summary judgment for the defendants (A. 181-185), 
holding that plaintiffs Hayes and Tizeno had not filed charges 
of discrimination with the EEOC and therefore could not maintain 
suit in their own right or adequately represent a class (A. 182); 

that the ninety day period for plaintiffs Bernard, Brown, and 
Johnson to file a civil action under Title VII had begun on 
February 25, 1975, the date on which the EEOC had sent them 

letters advising that the respondents did not wish to entertain

10



conciliation discussions, rather than the date on which 

plaintiffs Bernard and Brown received their June 11, 1976,

EEOC "Notices of Right to Sue Within 90 Days," and that the 
Title VII claims were therefore time-barred (A. 182-184); 
that the EEOC had sent plaintiff Whitley a "failure of con­
ciliation letter" on December 4, 1973, which started the 
running of his ninety day period to file a civil action, 
and that his Title VII claim was therefore time-barred (A. 182) 
that plaintiffs' claims under 42 U.S.C. § 1981 were "the 

subject of complaints filed with the EEOC in 1967 by three 
of the plaintiffs," that the pattern of discrimination alleged 
therein "has long since been eliminated," and that all of the 

plaintiffs' claims under § 1981 were therefore barred by the 
applicable Texas statute of limitations (A. 184); and that 

the company had presented "a most compelling argument for the 

application of the equitable doctrine of laches" (A. 184). 

Plaintiffs subsequently filed a timely notice of appeal 

(R. 392, Supp. App. 27A).

SUMMARY OF ARGUMENT

The amended complaint in this action was filed 

within ninety days of the receipt by plaintiffs Bernard and 
Brown of EEOC "Notices of Right to Sue Within 90 days," but 
not within ninety days of the issuance of EEOC letters stating

11



that the defendants did not wish to entertain conciliation

discussions regarding plaintiffs' charges of discrimination. 

Although this court has held a similar EEOC two-letter pro­

cedure to be improper under Title VII, the court explicitly 

made its ruling prospective and therefore inapplicable to the 

instant case. Zambuto v. American Telephone and Telegraph Co., 

544 F.2d 1333 (5th Cir. 1977). Moreover, even if the Zambuto 

decision were applicable to this case, the opinion indicates 
that the Fifth Circuit has joined other circuits in holding 

(1) that the ninety day suit period does not commence until 
a charging party receives notice that the EEOC has terminated 
all administrative procedures, and (2) that a letter stating 
only that conciliation has failed does not satisfy this require­
ment. Therefore, the district court erred in dismissing the 
plaintiffs 1 Title VII claims on this ground.

Since plaintiffs Bernard and Brown satisfied the 
jurisdictional prerequisites to the institution of an action 
under Title VII, plaintiffs Hayes, Tizeno, Johnson, and Whitley 

were also properly named as plaintiffs and class representatives. 

Even if none of the named plaintiffs had satisfied the Title VII 

prerequisites, the district court would be in error for refusing 

for this reason to permit them to maintain the action under 

42 U.S.C. § 1981, which provides remedies which are independent 
of those provided by Title VII.

12



Plaintiffs have alleged that the defendants are 

engaging in numerous present and continuing discriminatory 
employment practices in violation of Title VII and 42 U.S.C.

§ 1981. Such claims of present and ongoing discrimination 

are barred neither by the statute of limitations nor by the 

doctrine of laches, and the court below erred in dismissing 

the action on these grounds. The district court also erred 

in holding that the filing of EEOC charges by three of the 

named plaintiffs in 1967 operated to deprive all of the 

plaintiffs of the right to seek redress for present violations 
of § 1981.

The district court further erred to the extent 
that it dismissed the action on the basis of laches. The 
party asserting the defense of laches must prove that there 

has been inexcusable delay and resulting prejudice. Neither 
element has been established here. Plaintiffs did not in­
excusably delay the filing of this action; instead, they 

justifiably relied on the EEOC to perform its administrative 
functions in accordance with the intent of Congress, and 

they promptly filed suit when they found the resulting EEOC 
conciliation agreement unsatisfactory. In view of the in­

contestable fact that the company has been on notice since at 

least 1967 that charges of discrimination were pending against 
it, there has been no showing that the company's failure to 

preserve the testimony of witnesses, or its destruction of 

documents and records in violation of Title VII and EEOC

13



regulations, constitutes prejudice resulting from any delay. 

Rather, the loss of any such evidence is attributable to the 

negligence and unlawful conduct of the defendant itself. More­

over, the district court erred in resolving these disputed 

factual and legal issues by means of a summary judgment.

The district court's orders prohibiting or restrict­
ing communications by plaintiffs and their counsel with class 
members constituted prior restraints on expression and associa­
tion in violation of the First Amendment. These orders are 
directly contrary both to the Supreme Court's decision in 
NAACP v. Button, 371 U.S. 415 (1963), and to the intent of 
Congress to encourage litigation against racial discrimination.

The orders are also plainly overbroad.
In the context of this case, the restrictions on 

the First Amendment rights of plaintiffs and their counsel 

to speak, and on the rights of the class members to hear, 
are so unfair and one-sided as to constitute a denial of 

due process in violation of the Fifth Amendment. These 

restrictions also impermissibly interfere with the efforts 

of plaintiffs and their counsel to carry out their congressionally 

mandated responsibilities as "private attorneys general" and 

their obligation under Rule 23 of the Federal Rules of Civil 
Procedure to provide fair and adequate representation to the 
class. In addition, the orders prohibiting or restricting 

communications are inconsistent with the Federal Rules of 

Civil Procedure and are therefore beyond the powers of the 
district court under 28 U.S.C. § 2071 and Rule 83.

14



ARGUMENT

I. THE DISTRICT COURT ERRED IN DISMISSING THE PLAINTIFFS' 
TITLE VII CLAIMS FOR FAILURE TO FILE A CIVIL ACTION 
WITHIN NINETY DAYS OF THE ISSUANCE BY THE EEOC OF 
LETTERS ADVISING PLAINTIFFS OF THE FAILURE OF CON­
CILIATION EFFORTS.

Section 706(f) of Title VII provides that if the EEOC 

has not within 180 days from the filing of a charge of 

discrimination "filed a civil action ... or the Commission 

has. not entered into a conciliation agreement to which the 

person aggrieved is a party, the Commission ... shall so 

notify the person aggrieved and within ninety days after 

the giving of such notice a civil action may be brought ..."

42 U.S.C. § 2000e-5(f)(1). The court below read this 

language as requiring the dismissal of the Title VII claims 

in this case on the ground that plaintiffs Bernard, Brown, 

and Johnson had not brought their civil action within ninety 

days of notification by the EEOC that the respondents named 

in their EEOC charges— the defendants below— did not wish to 

entertain conciliation discussions (A. 182-184). However, 

the record shows that the amended complaint in this action 

was filed well within ninety days of the receipt by plaintiffs 

Bernard and Brown of EEOC "Notices of Right to Sue Within 90 

Days" dated June 11, 1976 (A. 73; Supp. App. 1A-2A).

15



As the district court noted, the EEOC in this case

utilized a two-letter notification procedure with respect 

to charges on which it had made findings of "reasonable 

cause," but which it had been unable to resolve through con­

ciliation (A. 182-183). In the first letter, the EEOC 

advised the charging party that the respondents

[did] not wish to entertain conciliation 
discussions ... [and that] you are hereby 
notified that you may request a "Notice 
of Right to Sue" from this office at any 
time. If you so request, the notice will 
be issued, and you will have ninety (90) 
days from the date of its receipt to file 
suit in Federal District Court (A. 84, 87,
90) .

The second letter, entitled "Notice of Right to Sue 

Within 90 Days," stated as follows:

Pursuant to Section 706(f) of Title VII 
... you are hereby notified that you may, 
within ninety (90) days of receipt of this 
communication, institute a civil action in 
the appropriate Federal District Court (Supp.
App. 1A-2A).

Several courts of appeals have held that, under the 

EEOC two-letter procedure, the ninety day suit period does 

not commence with receipt of the first letter, but only with 

receipt of the second letter or of some other communication 

clearly indicating that all EEOC administrative procedures 

have been terminated. Garner v. E. I. DuPont de Nemours and 

Co., 538 F.2d 611 (4th Cir. 1976); Weaver v. Joseph Schlitz

16



Brewing Co., F .2d ___, 13 EPD H 11,589 (6th Cir. 1977);

McGuire v. Aluminum Company of America, 542 F.2d 43 (7th 

Cir. 1976); Lacy v. Chrysler Corp., 533 F.2d 353 (8th Cir.

en banc,)cert. denied, ___ U.S. ___, 12 EPD H 11,234 (1976);

Tuft v. McDonnell Douglas Corp., 517 F.2d 1301 (8th Cir.

1975), cert, denied, 423 U.S. 1052 (1976); Williams v .

Southern Union Gas Co., 529 F.2d 483 (10th Cir.), cert. 

denied, ____  U.S. ___ , 12 EPD fl 11,234 (1976).

The Second Circuit has rejected the EEOC two-letter 

procedure in a significantly different procedural context, 

holding that the ninety day suit period commenced when the 

plaintiff received notice that the EEOC had completed its 

administrative proceedings by the issuance of a "no reasonable 

cause" determination and a dismissal of the plaintiff's charge 

of discrimination. De Matteis v. Eastman Kodak Co., 511 F.2d 

306, 309-10, modified, 520 F.2d 409 (2d Cir. 1975). The 

holding and underlying rationale of De Matteis are fully 

consistent with the decisions in the other circuits in that 

each court has held that the ninety day suit period begins to 

run only upon notification of the completion of all administra­

tive procedures. In cases such as De Matteis, where the EEOC 

has notified the charging party of a finding of no reasonable 

cause and a dismissal of the charge, the administrative

17



procedures have clearly come to an end. But in cases such 

as the instant case, where the EEOC has found reasonable 

cause and has been unable to conciliate the charge, the EEOC 

must make a further determination as to whether it will file 

a civil action. 42 U.S.C. § 2000e-5(f). The letters advis­

ing plaintiffs that defendants did not wish to entertain 

conciliation discussions contained no indication that the 

EEOC had made any determination regarding the filing of a 

civil action (A. 84, 87, 90). Thus, these letters did not 

constitute notice of the completion of all administrative 

procedures and they accordingly did not begin the running of 

the ninety day suit period. See, Lacy v. Chrysler Corp., 

supra, 533 F.2d at 358-59.

This court recently resolved the two-letter issue in 

Zambuto v. American Telephone and Telegraph Co., 544 F.2d 

1333 (5th Cir. 1977). The court there held that an EEOC 

two-letter procedure similar to that in the instant case was 

improper under Title VII, but the court also held that its 

ruling would be prospective, applying only to actions brought 

in this circuit on or after April 11, 1977. Id.- at 1335.

Cf. De Matteis v. Eastman Kodak Co., supra, 520 F.2d 409.

The substantive ruling in Zambuto, therefore, does not apply 

to the instant case, in which the complaint was filed on

18



May 18, 1976 (A. 4), and amended on July 19, 1976 (A. 66).

The adverse effects of any impropriety in the EEOC's two- 

letter procedure thus cannot be visited upon the plaintiffs 

here. 544 F.2d at 1336.

Moreover, while holding the two-letter procedure improper, 

this court in Zambuto interpreted the above-quoted language 

of section 706(f) in a manner consistent with the other cir­

cuit court decisions cited above. The court stated as 

follows:

This language [of 42 U.S.C. § 2000e-5 (f) (1)] 
has been read to require communication of 
both the failure of conciliation and the 
EEOC's decision not to sue in order to indi­
cate clearly that the administrative process 
has been completed. ... A notice which merely 
informs the aggrieved party that conciliation 
has failed, may not mean that no suit will be 
brought [by the EEOC]. ... A letter only
announcing "no conciliation" would not fulfill 
the statute's requirement for notice of both 
inability to conciliate and a determination 
not to sue by EEOC. 544 F.2d at 1335 (emphasis 
in original).

Thus, even if the substantive ruling in Zambuto were 

applicable to this case, it would dictate a finding that 

the "first" letters here (A. 84, 87, 90), like the first 

letter in Zambuto, "failed to furnish [the plaintiffs] ... 

with the form of notice required under § 2000e-5(f)(1) to 

start the 90-day period for filing suit." 544 F.2d at 1335. 

Since the "failure of conciliation" letters were not

19



sufficient to start the running of the suit period, the 

district court clearly erred in dismissing the plaintiffs'

Title VII claims on this ground.

Title VII "specifies with precision the jurisdictional 

prerequisites that an individual must satisfy before he is 

entitled to institute a lawsuit," and these prerequisites 

are met when a plaintiff has "(1) filed timely a charge of 

employment discrimination with the Commission, and (2) received 

and acted upon the Commission's statutory notice of the 

right to sue." Alexander v. Gardner-Denver Co., 415 U.S.

35, 47 (1974). See also, McDonnell Douglas Corp. v. Green,

411 U.S. 792, 798 (1973). Plaintiffs Bernard and Brown have 

both clearly satisfied these requirements here. As the court 

below recognized, it is not necessary for each named plain­

tiff in a Title VII class action to satisfy these procedural 

requirements (A. 181-182). Indeed, in Oatis v. Crown Zellerbach 

Corp., 398 F.2d 495, 499 (5th Cir. 1968), this court explicitly 

held that persons who have not filed EEOC charges or received 

notices of their right to sue may be proper named plaintiffs 

and Rule 23 class representatives, so long as one other named 

plaintiff in the action has satisfied these requirements.

Thus, contrary to the decision in the court below, plaintiffs 

Hayes, Tizeno, Johnson and Whitley are properly named in

20



conjunction with Bernard and Brown as plaintiffs and class 

representatives with respect to the Title VII claims.

In addition, the district court erred in holding that 

those named plaintiffs who had not satisfied the Title VII 

requirements could not "maintain suit in their own right ... 

and therefore could not adequately represent a class" (A.

182), in that the court failed to recognize that the plain­

tiffs had also asserted claims under 42 U.S.C. § 1981. The 

remedies available under Title VII and § 1981 are "separate, 

distinct, and independent," and "the filing of a Title VII 

charge and resort to Title VII's administrative machinery 

are not prerequisites for the institution of a § 1981 action. 

Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 461, 

460 (1975). Thus, even if none of the named plaintiffs had 

satisfied the Title VII requirements, the district court 

would be in error for refusing for this reason to permit them 

to maintain the action under § 1981.

II. THE DISTRICT COURT ERRED IN DISMISSING THE PLAINTIFFS' 
CLAIMS UNDER 42 U.S.C. § 1981 AS BARRED BY THE STATUTE 
OF LIMITATIONS.

Plaintiffs' original and amended complaints allege that 

"black employees of Gulf Oil are, and have in the past; been 

victims of systematic racial discrimination by defendants ...'

21



and that "prior and subsequent to July 2, 1965, Gulf Oil 

engaged in policies, practices, customs and usages made 

unlawful ..." (A. 8, 70). The complaints specify that the

defendants are at the present time continuing to engage in 

numerous discriminatory practices in hiring, job assignment, 

testing practices and selection criteria, wages, working 

conditions, exclusion of blacks from higher paying craft 

positions, promotion and upgrading practices, training oppor­

tunities, and disciplinary and discharge practices (A. 8-10, 

70-73). The present and continuing nature of these violations 

is expressed in such unambiguous terms as "Gulf Oil unlawfully 

has assigned and continues to assign ..." (A. 8, 70); "White

employees are given preference ..." (A. 8, 70); "The company

utilizes a battery of tests which discriminates ..." (A. 8,

71) ; "Black employees are now, and have in the past, been 

paid less money for harder work under less desirable working

condirions __" (A. 9, 71); "Defendant company employs a

disproportionately small number of blacks in permanent craft 

positions ..." (A. 9, 71-72); "Blacks have been and are now 

confined to the lower-paying and less-preferred jobs ..." (A.

9, 72); "Blacks who perform the same or comparable work as 

whites are given unequal pay and compensation ..." (A. 9-10

72) ; and "Gulf Oil discriminatorily assesses discipline and

discharge against black employees ..." (A. 10, 72).

22



Plaintiffs have alleged that these present and continuing 

discriminatory practices violate both Title VII and 42 U.S.C.

§ 1981 (A. 8, 70). For the purposes of the motion to dismiss
_5/

the § 1981 claims as barred by the statute of limitations, 

the district court was required to construe the plaintiffs' 

allegations liberally and to accept them as true. Jenkins 

v. McKeithen, 395 U.S. 411, 421-22 (1969); Belt v. Johnson 

Motor Lines, Inc., 458 F.2d 443, 444 (5th Cir. 1972). Simi­

larly, after converting the motion to dismiss into a motion 

for summary judgment, the district court was required to view 

"the inferences to be drawn from the factual material before 

the court ... in the light most favorable to the party opposing 

the motion." Gray v. Greyhound Lines, East, 545 F.2d 169, 174 

(D.C. Cir. 1976). Failure to do so is reversible error.

Adickes v. S. H. Kress Co., 398 U.S. 144, 153-61 (1970);

5/ Since § 1981 contains no limitations period, the court 
must borrow the state statute of limitations which applies 
to the most analogous state action. Johnson v. Railway 
Express Agency, Inc., 421 U.S. 454, 462 (1975). With respect 
to the § 1981 claims for back pay in the instant case, the 
applicable statute is the two year Texas limitation on actions 
to recover unpaid wages, Tex. Rev. Civ. Stat. Ann. Art.
5526(4). Johnson v. Goodyear Tire & Rubber Co., 491 F.2d 
1364, 1378 (5th Cir. 1974). A longer period of limitations 
may apply to the § 1981 claims for declaratory and injunctive 
relief. See Boudreaux v. Baton Rouge Marine Contracting Co., 
437 F.2d 1011, 1017, n. 16 (5th Cir. 1971); Johnson v. Goodyear 
Tire & Rubber Co., supra, 491 F.2d at 1378, n. 48; Hines v. 
Olinkraft, Inc., 413 F. Supp. 1360, 1364 (W.D. La. 1976). Cf. 
Johnson v. Railway Express Agency, Inc., 421 U.S. at 467, n. 7.

23



Sperry v. Barggren, 523 F.2d 708 (7th Cir. 1975); Aulds v . 

Foster, 484 F.2d 945, 946 (5th Cir. 1973).

Despite these clear legal standards, the court below 

found that there were "no circumstances of continuous dis­

crimination ..." (A. 184). The record contains absolutely

no support for this finding. On the contrary, plaintiffs 

allege numerous present and continuing discriminatory practices 

and the court was obliged to accept these allegations as true. 

The court below also found that the pattern of discrimination 

alleged by plaintiffs "has long since been eliminated" (A.

184). This finding is equally devoid of any support in the 

record, and it is especially baffling since the plaintiffs 

were never given an opportunity to prove that such a pattern 

had ever existed.

Under the appropriate legal standards, it must be assumed 

that the defendants were continuing to engage in the alleged 

discriminatory practices at least until the date on which the 

amended complaint was filed. As this court has previously 

held, present and continuing discriminatory employment practices 

are not insulated from attack: "[T]here is no reason to lock 

the courthouse door to [a plaintiff's] claim because he has 

alleged a contemporary course of conduct as an act of discrim­

ination." Belt v. Johnson Motor Lines, Inc., supra, 458 F.2d

24



at 445. The words of the Supreme Court in an antitrust case 

are directly applicable to this employment discrimination 

case:

We are not dealing with a violation which, if 
it occurs at all, must occur within some spe­
cific and limited time span. ... Rather, we 
are dealing with conduct which constituted a 
continuing violation of the Sherman Act and 
which inflicted continuing and accumulating 
harm on [the plaintiff]. Although [the 
plaintiff] could have sued in 1912 for the 
injury then being inflicted, it was equally 
entitled to sue in 1955. Hanover Shoe, Inc. 
v. United Shoe Machinery Corp., 392 U.S. 481,
502, n. 15 (1968).

It is firmly established in this circuit and elsewhere 

that claims of present and continuing discriminatory employ­

ment practices, such as those alleged here, are not barred by 

statutes of limitation, and that "for the purpose of the 

statute of limitations a cause of action accrues whenever an 

individual is directly and adversely affected by that discrim­

inatory practice." EEOC v. Griffin Wheel Co., 511 F.2d 456, 

459 (5th Cir. 1975) (Title VII); United States v. Georgia 

Power Co., 474 F.2d 906, 922 (5th Cir. 1973) (Title VII);

Allen v. Amalgamated Transit Union Local 788, ___ F.2d ___,

14 FEP Cases 1494, 1498 (8th Cir. 1977) (§ 1981); Davis v .

County of Los Angeles, ___ F.2d ___ , 12 EPD ^ 11,219 at 5650

(9th Cir. 1976) (Title VII and §§ 1981, 1983); Williams v. 

Norfolk & Western Ry. Co., 530 F.2d 539, 541-42 (4th Cir. 1975)

25



(Title VII and § 1981); Marlowe v. Fisher Body, 489 F.2d 1057, 

1063 (6th Cir. 1973) (§ 1981); Macklin v. Spector Freight

Systems, Inc., 478 F.2d 979, 994 (D.C. Cir. 1973) (§ 1981).

See also, Johnson v. Railway Express Agency, Inc., 421 U.S. 

454, 467, n. 13 (1975) (dictum). Cf. Baker v. F. & F . 

Investment, 420 F.2d 1191, 1200 (7th Cir. 1970) (42 U.S.C.

§ 1982). As the Supreme Court held in a recent Title VII 

decision, the "critical question" in determining the timeli­

ness of a claim of continuing discrimination "is whether any 

present violation exists." United Air Lines, Inc, v. Evans,

45 U.S.L.W. 4566, 4567 (U.S., May 31, 1977) (emphasis in
_§/original). Since the plaintiffs in the instant case have

set forth numerous present violations, their claims clearly

6/ The plaintiff in Evans was a rehired employee who had 
not filed a timely EEOC charge challenging her termination 
in 1968, but who claimed in a charge filed after she had 
been rehired in 1972 that the employer's seniority system 
had a continuing impact on her pay and fringe benefits which 
carried into the present the effects of the allegedly unlaw­
ful previous termination. The Court found that the plaintiff 
in Evans had not alleged facts establishing that a violation 
was occurring within the applicable limitations period, and 
that her Title VII complaint should therefore be dismissed.
45 U.S.L.W. at 4567. Here, in contrast, numerous present 
and continuing violations have been alleged, and under the 
reasoning of Evans these claims are not barred by the 
statute of limitations.

26



are not time-barred.

The statute of limitations will indeed limit the period 

of the defendants' back pay liability for continuing viola­

tions of § 1981. Allen v. Amalgamated Transit Union, supra,

___ F.2d at ___, 14 FEP Cases at 1498. Cf. Occidental Life

Insurance Co. v. EEOC, 45 U.S.L.W. 4752, 4757 (U.S., June 20, 

1977); Albemarle Paper Co. v. Moody, 422 U.S. 405, 424-25 

(1975). But there is simply no basis for the conclusion of 

the court below that the statute of limitations poses an 

absolute bar to the assertion of claims of present and 

ongoing discriminatory employment practices.

The district court also viewed the filing of EEOC charges 

by three of the named plaintiffs in 1967 as having some effect 

on the application of the Texas statute of limitations to the 

claims which plaintiffs now assert under § 1981 (A. 184).

This view of the law is clearly erroneous. As the Supreme 

Court has held, "the remedies available under Title VII and 

under § 1981 ... are separate, distinct, and independent." 

Johnson v. Railway Express Agency, Inc., supr a , 421 U.S. at 

461. The district court erred in holding that the filing of 

EEOC charges in the past somehow deprived the plaintiffs of 

the right to seek redress for present violations of § 1981.

27



III. THE DISTRICT COURT ERRED IN HOLDING THAT THIS ACTION 
MAY BE BARRED BY THE DOCTRINE OF LACHES.

The court below stated that it "acknowledges a most 

compelling argument for the application of the equitable 

doctrine of laches in this particular case, based not only 

on the obvious lack of diligence on the part of the plaintiffs, 

but a recognition that to put this defendant to the task of 

obtaining records and locating witnesses after the expiration 

of such a lengthy period would pose a particularly onerous 

burden" (A. 184-185). To the extent that this language indi­

cates a holding that the action is barred by laches, the 

court was in error and its decision must be reversed. Even 

if an outright reversal on this point would be inappropriate, 

this court, for the guidance of the court below on remand, 

should state the proper principles to be applied in resolving 

the issue of laches in this case. Cf. Boudreaux v. Baton 

Rouge Marine Contracting Co., 437 F.2d 1011, 1017, n. 16 

(5th Cir. 1971).

Where, as here, an action in federal court asserts 

federally created claims which are essentially equitable in 

nature, Franks v. Bowman Transportation Co., 495 F.2d 398,

406 (5th Cir.), cert, denied in pertinent part, 419 U.S. 1050 

(1974), the applicability of the doctrine of laches is

28



determined by federal law. See Holmberg v. Armbrecht, 327 

U.S. 392, 395 (1946); Baker v. F. & F. Investment, 420 F.2d 

1191, 1193, n. 3 (7th Cir. 1970). In order to establish 

laches, the party asserting the defense must prove that 

there has been inexcusable delay and resulting prejudice. 

Costello v. United States, 365 U.S. 265, 282 (1961); Wheat 

v. Hall, 535 F.2d 874, 876 (5th Cir. 1976); Ecology Center of 

Louisiana v. Coleman, 515 F.2d 860, 865 (5th Cir. 1975). 

Neither of these elements was established here.

The crux of the company's argument with respect to laches 

is that "certain important relevant testimony and documents 

have not been preserved because Gulf did not know the six 

named plaintiffs in this lawsuit or the class they purport 

to represent had potential claims against it" (R. 303; Supp. 

App. 16A). This statement is patently false. The company 

has acknowledged and the district court has correctly found 

that, as early as 1967, three of the named plaintiffs filed 

EEOC charges of discrimination naming the company as a 

respondent (A. 184). As of February 1975, at least forty (40) 

related charges against the company had been pending before 

the EEOC for eight years (A. 84, 87, 90 [listing of EEOC case 

numbers]). Moreover, the company claims that it was engaged 

for those eight years in negotiations with federal agencies

29



concerning charges of discrimination, and that those negotia­

tions continued until a conciliation agreement was signed on 

April 14, 1976 (R. 25; Supp. App. 8A). Under these cir­

cumstances, the company cannot reasonably expect this court 

to believe that it was unaware of potential claims of dis­

crimination by the named plaintiffs and class members.

After the charges of discrimination were filed with the 

EEOC in 1967, plaintiffs could justifiably rely on that 

agency to carry out its statutory enforcement responsibili­

ties. As the Supreme Court has recently reaffirmed, Congress 

in enacting Title VII "selected 'cooperation and voluntary 

compliance ... as the preferred means for achieving' the goal 

of equality of employment opportunities," and "[t]o this end, 

Congress created the EEOC and established an administrative 

procedure whereby the EEOC 'would have an opportunity to settle 

disputes through conference, conciliation, and persuasion 

before the aggrieved party was permitted to file a lawsuit.'" 

Occidental Life Insurance Co. v. EEOC, 45 U.S.L.W. 4752, 4755 

(U.S., June 20, 1977); Alexander v. Gardner Denver Co., 415 

U.S. 36, 44 (1974); United States v. Allegheny-Ludlum 

Industries, Inc., 517 F.2d 826, 846-48 (5th Cir. 1975), cert, 

denied, 425 U.S. 944 (1976). The 1972 amendments to Title VII, 

which empowered the EEOC to bring civil actions,' preserved 

these administrative functions and duties of the EEOC and

30



retained the preference for settling disputes in an informal, 

noncoercive fashion- Occidental Life Insurance Co., supra,

45 U.S.L.W. at 4755.

The legislative history of the 1972 amendments clearly 

reflects the intent of Congress to permit, and indeed for a 

specified period to require, charging parties to rely on 

the efforts of the EEOC to obtain compliance with Title VII. 

The Senate committee evaluating the proposed amendments 

stated that, "where the Commission is not able to pursue 

a complaint with satisfactory speed, or enters into an 

agreement which is not acceptable to the aggrieved party, 

the bill provides that the individual shall have an 

opportunity to seek his own remedy. . . ." S. Rep. No. 415,

92d Cong., 1st Sess., 23 (1971) (emphasis added). Similarly, 

the section-by-section analysis which was presented with 

the conference committee report on the 1972 amendments stated 

that

the provisions . . . allow the person 
aggrieved to elect to pursue his or 
her own remedy under this title in 
the courts where there is agency 
inaction, dalliance or dismissal of 
the charge, or unsatisfactory 
resolution.

It is hoped that recourse to the 
private lawsuit will be the exception

31



and not the rule, and that the vast 
majority of complaints will be 
handled through the offices of the 
EEOC. 118 Cong. Rec. 7168, 7565 
(1972) (emphasis added).

See Occidental Life Insurance Co. v. EEOC, supra, 45 

U.S.L.W. at 4754-55; EEOC v. Louisville & Nashville 

R.R. Co., 505 F.2d 610, 615 (5th Cir. 1974), cert. 

denied, 423 U.S. 824 (1975); EEOC v. Cleveland Mills 

Co., 502 F .2d 153, 156 (4th Cir. 1974), cert, denied,

420 U.S. 946 (1975).

It is only when the EEOC has notified the charging 

party of the completion of its administrative processes 

that he must exercise his right to sue. Zambuto v .

American Telephone & Telegraph Co., 544 F2d 1333, 1335 (5th 

Cir. 1977). See pp. 16-20, supra. This is what plaintiffs 

have done. Indeed, the legislative history cited above 

indicates that, in awaiting the results of EEOC 

conciliation efforts which continued until April 1976 and 

then promptly filing a civil action when they found the 

EEOC conciliation agreement unsatisfactory, plaintiffs 

did precisely what Congress intended. Thus, there was 

no inexcusable delay in bringing this suit, but rather

32



justifiable reliance on the EEOC in accordance with the intent 

of Congress. To hold otherwise would penalize the plaintiffs 

for this reliance and would, contrary to the settled rule in 

this circuit elsewhere, deprive the plaintiffs of their 

statutory right to sue because of delay or lack of diligence 

on the part of the EEOC. See Zarobuto, supra, 544 F.2d at 

1336; Franks v. Bowman Transportation Co., supra, 495 F.2d 

at 404-405; Beverly v. Lone Star Lead Construction Corp.,

437 F .2d 1136, 1140 (5th Cir. 1971); Dent v. St. Louis - 

San Francisco R. Co., 406 F.2d 399, 403 (5th Cir. 1969))

Choate v. Caterpillar Tractor Co., 402 F.2d 357, 361 (7th 

Cir. 1968).

The second element necessary to establish the defense 

of laches —  a showing of prejudice resulting from the 

delay —  is also absent here. The company has asserted 

that, throughout the period since 1967, during which it 

has undeniably been on notice that claims of discrimination 

were pending against it (See pp. 29-30, supra), it has 

failed to preserve the testimony of certain witnesses and 

it has destroyed numerous records and documents pertinent to

33



those claims (A. 174-179). Where the defendant has been on 

notice that its conduct is being challenged, and indeed has 

engaged in settlement negotiations throughout the period 

in question, there is no basis for a finding of prejudice. 

See Kohn v. Royall, Koeqel & Wells, 59 F.R.D. 515, 518 n.3 

(S.D.N.Y. 1973), app. dismissed, 496 F.2d 1094 (2d Cir. 

1974). The problems of proof which such a defendant may 

experience are attributable not to any conduct of the 

plaintiffs, but rather to its own negligence.

The company's destruction of relevant records and

documents appears to go beyond mere negligence. This

conduct is a clear violation of Title VII and of the

applicable EEOC regulations, which have been published

in the Code of Federal Regulations since 1967. Section

709(c) of Title VII provides that

[e]very employer, employment agency, and labor 
organization subject to this subchapter shall 
(1) make and keep such records relevant to 
the determinations of whether unlawful employ­
ment practices have been or are being 
committed, (2) preserve such records for such 
periods, and (3) make such reports therefrom 
as the Commission shall prescribe by regulation 
or order, after public hearing, as reasonable,

34



necessary, or appropriate for the 
enforcement of this title or the 
regulations or orders thereunder 
- . . .  42 U.S.C. § 2000e-8(c).

The regulations adopted by the EEOC pursuant 

to this section provide in pertinent part as follows:

. . . Where a charge of discrim­
ination has been filed, or an action 
brought by the Commission or the Attorney 
General, against an employer under Title 
VII, the respondent employer shall preserve 
all personnel records relevant to the 
charge or action until final disposition 
of the charge or the action. The term 
"personnel records relevant to the charge," 
for example, would include personnel or 
employment records relating to the 
aggrieved person and to all other 
employees holding positions similar to 
that held or sought by the aggrieved 
person and application forms or test 
papers completed by an unsuccessful 
applicant and by all other candidates 
for the same position as that for which 
the aggrieved person applied and was 
rejected. The date of "final disposition 
of the charge or action" means the date of 
expiration of the statutory period within 
which the aggrieved person may bring an 
action in a U.S. District Court or, where 
an action is brought against an employer 
either by the aggrieved person, the Com­
mission or by the Attorney General, the 
date on which such litigation is termin­
ated. 29 C.F.R. § 1602.14(a) (1967) and
31 Fed. Reg. 2833 (Feb. 17, 1966).

The record demonstrates beyond dispute that the 

company has violated these provisions by destroying

35



relevant personnel records prior to the disposition of

EEOC charges and prior to termination of this litigation 

(A. 174-179). The company cannot base its laches defense 

on its own violation of these statutory record-keeping 

requirements. See Anderson v. Mt. Clemens Pottery Co.,

328 U.S. 680, 688 (1946); Skipper v. Superior Dairies, Inc., 

512 F.2d 409, 419-20 (5th Cir. 1975). Plaintiffs cannot be 

penalized for the defendant's illegal conduct, which is a 

circumstance "beyond the control of the aggrieved party." 

Franks v. Bowman Transportation Co., supra, 495 F.2d at 405.

Even if the defendants could make the requisite showings 

of delay and resulting prejudice, the defense of laches, 

like the statute of limitations (see pp. 24-27, supra). 

would not bar an action challenging present and ongoing 

discriminatory practices. Harper v. Mayor & City Council of 

Baltimore, 359 F.Supp. 1187, 1195-96 and n.12 (D. Md.), 

modified and aff'd, 486 F2d 1134 (4th Cir. 1973). Cf.

Hanover Shoe, Inc, v. United Shoe Machinery Corp., supra,

392 U.S. at 502 n.15. At most, laches would, if established, 

constitute on the facts of this case an equitable limitation

36



on the period of the defendant's back pay liability, not a 

ground for dismissal of the entire action. See EEOC v. 

Airquide Corp., 539 F.2d 1038, 1042 n.7 (5th Cir. 1976);

Guerra v. Manchester Terminal Corp., 498 F.2d 641, 653 and 

n.7 (1974); Franks v. Bowman Transportation Co., supra,

495 F .2d at 406. Cf. Occidental Life Insurance Co. v.

EEOC, 45 U.S.L.W. 4752, 4757 (U.S., June 20, 1977);

Albemarle Paper Co. v. Moody, 422 U.S. 405, 424-25 (1975).

Finally, a motion for summary judgment presents a 

singularly inappropriate vehicle for the resolution of the 

factual and legal issues raised by the defense of laches.

Under Rule 56(c) of the Federal Rules of Civil Procedure, 

the moving party has the burden of showing that there is no 

genuine issue as to any material fact and that judgment is 

warranted as a matter of law. Boazman v. Economics Laboratory,

Inc., ____ F.2d ____, 13 EPD H 11,329 at 6106 (5th Cir. 1976).

Both the district court and this court on appeal "must draw 

inferences most favorable to the party opposing the motion, 

and take care that no party will be improperly deprived 

of a trial of disputed factual issues." Id; United States 

Steel Corp. v. Darby, 516 F.2d 961, 963 (5th Cir. 1975).

37



As this court has held, the existence and extent of any 

prejudice to a Title VII defendant resulting from delay 

in notification of a claim is precisely the kind of 

issue which should not be resolved on a summary judgment 

motion; instead, even where a supporting affidavit 

"shows the possibility of prejudice," the district court 

is required to undertake a "full exploration of the facts," 

and its failure to do so is reversible error. EEOC v. 

Airguide Corp., supra, 539 F.2d at 1042. The doctrine of 

laches, as applied to employment discrimination cases,

[b]y its very nature . . .  is not a proper 
basis for summarily dismissing a claim.
The doctrine is first a matter of affirm­
ative defense which must be pleaded and 
second a matter of evidentiary facts which 
must be proven. On the present record, 
[the court] cannot determine plaintiff's 
delay is "inexcusable" or whether it has 
caused actual "prejudice" to defendant. 
Additionally, the "balancing of equities" 
required by the doctrine is best accom­
plished after full development of all 
relevant facts. Evans v. Dow Chemical 
Co., 13 FEP Cases 1461, 1466 (D. Colo. 
1975).

38



IV. THE ORDERS OF THE DISTRICT COURT RESTRICTING
COMMUNICATIONS BY PLAINTIFFS AND THEIR COUNSEL 
WITH CLASS MEMBERS ARE UNCONSTITUTIONAL AND ARE 
BEYOND THE AUTHORITY OF THE DISTRICT COURT.
A . The Orders Are Overbroad Abridgments of the 

Freedom of Speech and Freedom of Association 
Guaranteed by the First Amendment.

On the basis of unsworn allegations that counsel for 

plaintiffs had engaged in unethical conduct (R. 17-18; Supp.

App. 4A-5A), the court below prohibited all communications 
by the parties and their counsel with any actual or potential 

class member not a formal party to the action (A. 30-31). The 

court subsequently modified the order to prohibit all such 
communications without its prior approval of both the com­

munication and the proposed addressees; to permit certain 
communications initiated by a client or prospective client; 
to permit communications occurring in the regular course of 
business; to require that any constitutionally protected 
communication be filed with the court within five days after 
its occurrence; and to permit the company through the district 
court to make tenders of "back pay awards" to class members 

and to solicit releases from class members under the company's 
conciliation agreement with the EEOC and the DOI (A. 56-61). 

When the plaintiffs and their counsel sought permis sion to 
distribute a notice regarding the conciliation agreement and 

the releases to the class members and to discuss these subjects 

with the class members within the forty-five day period allowed 

for their consideration of the company's offer, permission

39



was denied (A. 62-65, 157). These orders have deprived the 
plaintiffs and their counsel of the right to discover the 
case and effectively present the claims of the class members, 
and these orders have infringed the right of the class members 
to consult with and be advised by the attorneys who seek to 
represent their class concerning the settlement offered by 
the defendant and the purported waiver of their civil rights.

Such prior restraints on expression come to the court 
with a "heavy presumption" against their constitutional 

validity. Southeastern Promotions, Ltd, v. Conrad, 420 U.S.

546, 558 (1975); New York Times Co. v. United States, 403 

U.S. 713, 714 (1971); Organization for a Better Austin v.

Keefe, 402 U.S. 415, 419 (1971); Bantam Books, Inc, v.

Sullivan, 372 U.S. 58, 70 (1963); Near v. Minnesota, 283 U.S.

697 (1931); Rodgers v. United States Steel Corp., 536 F.2d 

1001, 1007 (3rd Cir. 1976). Notwithstanding the "heavy burden 
of showing a justification for the imposition of such a re­
straint, " Organization for a Better Austin v. Keefe, supra 

at 419, and notwithstanding the requirements that such a 
restraint "first, must fit within one of the narrowly defined 
exceptions to the prohibition against prior restraints, and, 
second, must have been accomplished with procedural safeguards 
that reduce the danger of suppressing constitutionally pro­
tected speech," Southeastern Promotions Ltd, v. Conrad, supra 
at 559, the court below did not make any findings of fact or con­

clusions of law with respect to these orders, nor did it state

40



any reason for the orders.
The company has contended that the orders were necessary 

to prevent allegedly unethical conduct by counsel for plain-
_ZJtiffs and to permit the continued smooth operation of the 

settlement and waiver machinery which had been set into motion 

by the company's conciliation agreement with the federal agencies. 

As for the first asserted justification, there has been no 

showing that any unethical conduct has occurred. The company's 

concern appears to focus on alleged solicitation of clients. 
However, none of the attorneys for the plaintiffs has accepted 
or expects to receive any compensation from the named plaintiffs, 
from any additional named plaintiffs who may be joined in the 

future, or from any members of the class (A. 48, 54). Any 
counsel fees which they might obtain in this litigation would 
result from an award by the court which would be taxed as costs 
to the defendants and which ordinarily would not be affected 
by the number of persons named as parties plaintiff (A. 48, 54).

7 / counsel for the company made unsworn allegations that an 
unnamed source or sources had reported that an attorney for the
plaintiffs had recommended to class members at a meeting that
they "not sign the receipt and general release which had been
mailed to them pursuant to the Conciliation Agreement" (R. 17);
that they "should mail back to Gulf the checks they had received 
since he could recover at least double the amount which was paid 
to them under the Conciliation Agreement by prosecuting the pre­
sent lawsuit" (R. 17-18); that they "support the present suit"
(R. 24); and that "even if the employee had signed the receipt 
and release, he should now return the check which had been mailed 
to the employee by Gulf" (R. 24) . (Supp. App. 3A-7A) . In his 
affidavit in response, counsel for plaintiffs stated as follows: 
"I did not at any time during the course of the meeting advise 
actual or potential class members not to accept the defendant's 
offer of Settlement, nor did I state to the assembled group that 
counsel for the plaintiffs could obtain twice the amount of 
backpay for the class as has been offered to them under the 
Conciliation Agreement of April 14, 1976" (A. 51).

41



See 42 U.S.C. §§ 1988 and 2000e-5(k). Under these circumstances, 

the dangers which rules prohibiting solicitation are designed 
to guard against simply are not present. See NAACP v. Button,

371 U.S. 415, 440-44 (1963); Halverson v. Convenient Food Mart, 
Inc., 458 F.2d 927, 931 (7th Cir. 1972). In view of the 
Supreme Court's recent holding that even the solicitation of 

clients for private profit through newspaper advertising is 
protected by the First Amendment, Bates v. State Bar of Arizona, 

45 U.S.L.W. 4895 (U.S., June 27, 1977), the alleged conduct of 
counsel in the instant case cannot be used as a justification 
for the prior restraints imposed by the district court. More­

over, even assuming that some breach of ethics has been alleged, 

it has long been settled that government "may not, under the 

guise of prohibiting professional misconduct, ignore consti­

tutional rights." NAACP v. Button. 371 U.S. 415, 439 (1963).

The second asserted justification for prior restraint 

amounts to nothing more than the expressed desire of the company 
to reap the benefits of its conciliation agreement, which was 
not subject to judicial review or approval, and which was 
negotiated without the participation of any plaintiffs or 

class members or any representatives of either. The company’s 
desire to continue the solicitation of waivers or releases 

from class members under this agreement, without having to 
answer the troubling questions which might be raised if they 

heard what the plaintiffs and their attorneys had to say, is 
understandable. But neither this desire nor the undisputed 

Title VII policy in favor of conciliation limits the right 

of the plaintiffs and class members to challenge the validity

42



and fairness of the attempted non-judicial settlement of 
their claims without their voluntary and knowing consent.
See, e .g ., Alexander v. Gardner-Denver Co., 415 U.S. 36, 52 

n.15 (1974); Cox v. Allied Chemical Corp., 538 F.2d 1094, 
1097-98 (5th Cir. 1976); Watkins v. Scott Paper Co., 530 
F.2d 1159, 1172-73 (5th Cir. 1976); United States v. 
Alleqheny-Ludlum Industries. Inc., 517 F.2d 826 (5th Cir. 

1975), cert. denied, 425 U.S. 944 (1976); Williamson v. 
Bethlehem Steel Corp., 468 F.2d 1201, 1203-04 (2d Cir. 1972), 

cert. denied, 411 U.S. 931 (1973). Thus, no adequate justi­
fication has been advanced for the restraints imposed on the 

First Amendment rights of plaintiffs and their counsel.
To justify even after-the-fact punishment for speech 

concerning pending litigation, there must be "an imminent, 

not merely a likely, threat to the administration of justice. 
The danger must not be remote or even probable, it must 
immediately imperil." Craig v. Harney, 331 U.S. 367, 376 
(1947). See also Wood v. Georgia, 370 U.S. 375, 384, 393 
(1962). "The presumption against prior restraints is heavier 
—  and the degree of protection broader —  than that against 
limits on expression imposed by criminal penalties." 

Southeastern Promotions, Ltd, v. Conrad, supra, 420 U.S. at 
558-59. See also Nebraska Press Association v. Stuart, 427 
U.S. 539, 559 (1976). Even where free expression and 
dissemination of information regarding confessions and

43



admissions would result in intense and pervasive pretrial 

publicity which might impair a criminal defendant's right 

to a fair trial, prior restraints have not been permitted. 
Nebraska Press Association, supra, 427 U.S. at 563, 568-70. 

See also Oklahoma Publishing Co. v. District Court, 51 L.Ed. 

2d 355 (1977); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 
(1975). While stating that the guarantees of freedom of 
expression are not absolute, the Court has repeatedly struck 
down prior restraints on speech and publication as "the most 

serious and the least tolerable infringement on First Amend­
ment rights." Nebraska Press Association, supra, 427 U.S. 

559.
The Third Circuit has recently held such restraints 

unconstitutional in a case which is strikingly similar to 
the case at bar. In Rodgers v. United States Steel Corp.,

536 F.2d 1001 (3rd Cir. 1976), an employment discrimination 
case brought under Title VII, 42 U.S.C. § 1981, and 29 U.S.C. 
§§ 151 and 185, the district court had permitted the defen­

dants to make a tender of back pay to the class members and 
to solicit waivers from the class members pursuant to two 
nationwide steel industry consent decrees which had been 

entered in another court. But, while allowing the defendants 

to engage in such communications with and to have such access 
to the class members, the district court had ordered the 
plaintiffs' counsel not to disclose or disseminate to the

44



class members the contents of a document which showed the

formulas used by the government in deriving the back pay 
proposal incorporated in the consent decrees. 536 F.2d at 

1004-1005. The Third Circuit held that this order was a 
prior restraint on freedom of speech which did not fall 
within any of the narrowly defined exceptions to the con­
stitutional prohibition against such restraints. 536 F.2d 

at 1007-1008. In addition, in Rodgers as in the instant 

case, the district court did not find and the record did not 

show that the disclosure of information concerning the 
pending litigation would present a clear and present danger 

or a serious and imminent threat to the administration of 
justice. Under these circumstances, there is no consti­
tutional justification for the imposition of a penalty after 
an allegedly improper communication concerning the case, much 
less a prior restraint on all communications. 536 F.2d at 

1008 and n.15.
The orders in the instant case are not simply restraints 

on abstract discussion; they forbid modes of political ex­
pression and association which the Supreme Court has speci­

fically held to be protected by the First Amendment. The 
plaintiffs, their attorneys, and the class members who attended 
the meeting of May 22, 1976, were and are engaged in "consti­
tutionally privileged means of expression to secure constitu­

tionally guaranteed civil rights." NAACP v. Button, 371 U.S.

45



415, 442-43 (1963). The Court has recognized that asso­

ciation for litigation is a constitutionally protected 
activity which cannot be curtailed in the manner attempted 

here:
In the context of NAACP objectives, 
litigation is not a technique of 
resolving private differences; it 
is a means of achieving the lawful 
objectives of equality of treatment 
by all government, federal, state 
and local, for the members of the 
Negro community in this country.
It is thus a form of political 
expression.

*  *  *

The NAACP is not a conventional 
political party; but the litigation 
it assists, while serving to vindi­
cate the legal rights of members of 
the American Negro community, at the 
same time and perhaps more impor­
tantly, makes possible the distinc­
tive contribution of a minority 
group to the ideas and beliefs of 
our society. For such a group, 
association for litigation may be the 
most effective form of political 
association. Id_., 371 U.S. at 429,
431.

The attorneys for the plaintiffs in the instant case are 
associated with the NAACP Legal Defense and Educational Fund, 

Inc. (A. 46, 50), which is the very organization whose ac­
tivities in promoting and conducting litigation against 
racial discrimination were challenged as unethical solicitation 

of legal business, and were held instead to be constitutionally 
protected forms of expression and association, in NAACP v. 

Button, supra. The Legal Defense Fund is a nonprofit corpora-

46



fcion which furnishes legal assistance in cases involving 
claims of racial discrimination (A. 46). The Supreme Court 

in But ton stated that the Legal Defense Fund has "a corporate 
reputation for expertness in presenting and arguing the 

difficult questions of law that frequently arise in civil 
rights litigation," 371 U.S. at 422, and Chief Judge Brown 
of this circuit has noted that Legal Defense Fund attorneys 
have represented persons in hundreds of cases in this court 

and in the district courts of this circuit, Miller v. Amusement 

Enterprises, Inc., 426 F.2d 534, 539 n.14 (5th Cir. 1970).
The conduct of Legal Defense Fund attorneys in advising and 

assisting persons to "[r]esort to the courts to seek vindi­
cation of constitutional rights" has been recognized by the 
Supreme Court as "a different matter from the oppressive, 
malicious, or avaricious use of the legal process for purely 

private gain." NAACP v. Button, supra, 371 U.S. at 443.
The Supreme Court has reaffirmed and expanded the pro­

tection afforded to association for litigation in cases 
decided subsequent to NAACP v. But ton. See Brotherhood of 
Railroad Trainmen v. Virginia ex rel. State Bar, 377 U.S. 1 

(1964); United Mine Workers v. Illinois State Bar Association, 
389 U.S. 217 (1967); United Transportation Union v. State Bar 
of Michigan, 401 U.S. 576 (1971). "The common thread running 

through our decisions in NAACP v. Button, Trainmen and United

47



Mine Workers is that collective activity undertaken to obtain

meaningful access to the courts is a federal right within the 
protection of the First Amendment." United Transportation 

Union, supra, 401 U.S. at 585.
These decisions establish beyond dispute that "abstract 

discussion is not the only species of communication which the 

Constitution protects; the First Amendment also protects 
vigorous advocacy, certainly of lawful ends, against govern­

mental intrusion." NAACP v. Button, supra, 371 U.S. at 429.
The First Amendment even protects commercial speech for private 

profit, Virginia Pharmacy Board v. Virginia Consumer Council, 

425 U.S. 748 (1976), including the. solicitation of clients 
through newspaper advertisements of lawyers' services and 
rates. Bates v. State Bar of Arizona, supra, 45 U.S.L.W. at 

4899-4904 (U.S., June 27, 1977). This constitutional shield 

is even stronger in its protection of the vigorous prosecu­
tion of civil rights litigation which, like that in NAACP v. 
Button and that in the instant case, seeks to remedy racial 
discrimination. The American Bar Association has long held 
that the ordinary rules against solicitation are to be relaxed 
when litigation is "wholesome and beneficial," ABA Committee 
on Professional Ethics, Opinions, No. 148, at 311 (1935); and 
the Congress has determined that the national policy out­

lawing discrimination has "the highest priority." Newman v. 

Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968);



Franks v. Bowman Transportation Co., 424 U.S. 747, 763

(1976). Rather than attempting to limit litigation against 
racial discrimination, Congress has sought to encourage such 
litigation by authorizing awards of attorneys' fees for that 
very purpose in employment discrimination and other civil 
rights cases. 42 U.S.C. §§ 1988 and 2000e-5 (k). See 

Newman v. Piggie Park Enterprises, Inc., supra, 390 U.S. at 

401; Johnson v. Georgia Highway Express, Inc.. 488 F.2d 714 

(5th Cir. 1974); Lea v. Cone Mills, 438 F.2d 86, 88 (4th Cir. 
1971). See generally S. Rep. No. 1011, 94th Cong., 2nd Sess., 
reprinted in 1976 U.S. Code Cong. & Ad. News 6338-44 (report 
on the Civil Rights Attorneys' Fees Awards Act of 1976, 42 
U.S.C. § 1988). The restraints imposed on communications 
between counsel arid class members in the instant case are 
directly contrary to this congressional intent, and they 

severely restrict the ability of plaintiffs and their counsel 

to fulfill their congressionally mandated responsibilities as 
"private attorneys general," enforcing the national policy and 

securing the rights of other victims of racial discrimination. 
See Newman v. Piggie Park Enterprises, Inc., supra, 390 U.S. 
at 401-402; Huff v. N.D. Cass Co., 485 F.2d 710 (5th Cir. 1973) 

(en banc); Jenkins v. United Gas Corp., 400 F.2d 28, 32-33 (5th 
Cir. 1968).

The district court's orders also violate the First Amend­
ment because they are plainly overbroad in banning any communi-

49



cation concerning the case which is initiated by plaintiffs 
or counsel for plaintiffs with any actual or potential class 
member and which is not first submitted to and approved by 
the court. This ban suppresses all such communications, 
irrespective of what might be said and irrespective of 

whether there might be any real threat to the administration 
of justice. Counsel for plaintiffs would be in jeopardy of 

being held in contempt if they contacted and interviewed 

putative class members solely to inquire into the organi­
zation of the defendant's plant and the operation of its 
employment practices, or if they spoke about the litigation 
in the most restrained and objective manner, or if they limited 
their communications to the distribution of copies of public 

documents on file in the courts.
The Constitution does not permit such a sweeping re­

straint on expression and association: "Because First Amend­
ment freedoms need breathing space to survive, government may 
regulate in the area only with narrow specificity." NAACP v. 
Button, supra, 371 U.S. at 433. "[A]n overbroad statute might
serve to chill protected speech. First Amendment interests 
are fragile interests, and a person who contemplates protected 

activity might be discouraged by the In terrorem effect of the 

statute." Bates v. State Bar of Arizona, supra, 45 U.S.L.W. at 

4903 (U.S., June 27, 1977). As the Court has repeatedly held,
"[b]road prophylactic rules in the area of free expression are

50



suspect, . . . [and] . . . [p] recision of regulation must be
the touchstone in an area so closely touching our most 
precious freedoms." NAACP v. Button, supra, 371 U.S. at 438 
and cases cited therein. See also Nebraska Press Association 

v. Stuart, 427 U.S. 539, 568 (1976). The orders in the 
instant case, which inhibit expression and association even 

where there is clearly no substantial evil flowing from the 

exercise of these rights, are overbroad restrictions on First 

Amendment freedoms, and as such they cannot be saved by 
resolving ambiguities in favor of a constitutionally accep­

table reading:

If the line drawn by the decree between 
the permitted and prohibited activities 
of the NAACP, its members and lawyers 
is an ambiguous one, we will not presume 
that the statute curtails constitutionally 
protected activity as little as possible. 
For standards of permissible statutory 
vagueness are strict in the area of free 
expression. NAACP v. Button, supra, 371 
U.S. at 432 (citations omitted).

For the same reasons, the order of June 22, 1976, cannot 

be saved either by the provisions which purport to permit 
communication after submission to and prior approval by the 

court of both the communication and the proposed addressees 

(A. 56), or by the provisions which purport to permit con­
stitutionally protected communications if they are filed 
with the court within five days after their occurrence (A. 57).

51



As the Supreme Court held with respect to provisions in the 
decree in NAACP v. Button which appeared to grant some pro­
tection to First Amendment freedoms while in fact inhibi­
ting the advocacy of lawful means to vindicate legal rights, 
"in light of the whole decree of the court, the guarantee is 

of purely speculative value." 371 U.S. at 437.

The requirement of prior identification and approval of 
all class members with whom plaintiffs and their lawyers seek 

to communicate deters any meaningful exchange between counsel 
and the members of the class. The courts have long recognized 

that even the bare fear of reprisal can imperil free speech 
and association:

It is hardly a novel perception that 
compelled disclosure of affilation 
with groups engaged in advocacy may 
constitute [an] effective . . . re­
straint on freedom of association 
. . . This Court has recognized
the vital relationship between free­
dom to associate and privacy in one's 
associations. . . . Inviolability of
privacy in group association, may in many 
circumstances be indispensable to pre­
servation of freedom of association, par­
ticularly where a group espouses dissident 
beliefs. NAACP v. Alabama ex rel. 
Patterson, 357 U.S. 449, 462 (1958).

The rule is that, "Freedom [of speech, press, and asso­
ciation] are protected not only against heavy handed frontal 
attack, but also from being stifled by more subtle governmen­

tal interference." Bates v. Little Rock, 361 U.S. 516, 523

52



(1960); Shelton v. Tucker, 364 U.S. 479 (1960); Gibson v.
Florida Legislative Investigative Committee, 372 U.S. 539

(1963). Moreover, Congress has specifically expressed its
concern for retaliation against employees who complain of__8/
employment discrimination. Communication between counsel 

and black employees with such a condition attached is tanta­

mount to denial of any right of association. The district 
court order denies the vital "breathing space" which First 
Amendment freedoms need to survive. NAACP v. Button, supra, 
371 U.S. at 433. There is no compelling interest of the 
court which requires this invasion of the right of private 

consultation between lawyer and client, or lawyer and po­

tential witness or informant.
That the supposed protections contained in the order 

are in fact illusory is evidenced by plaintiffs' submission 

to the district court of a notice which was beyond all doubt

8/ Congress has not only made it unlawful for employers to 
retaliate against workers who invoke Title VII (42 U.S.C.
§ 2000e-3(a)), it has also amended the statute to shield 
workers from retaliation by enabling others to file charges 
on their behalf. 42 U.S.C. § 2000e-5 (b). See Legislative 
History of the Equal Employment Opportunity Act of 1972, p. 
1845 (H.R. 1746, Pub.L. No. 92-261)(Government Printing Office 
1972), wherein the conference committee report describes the 
purpose to "enable aggrieved persons to have charges processed 
under circumstances where they are unwilling to come forward 
publicly for fear of economic or physical reprisals." Cf. 
Pettway v. American Cast Iron Pipe Co., 411 F.2d 998 (5th Cir. 
1969) .

53



constitutionally privileged under the standards discussed 

above (A- 65), and by the court's refusal to let the class 
members see it (A. 157). If counsel for plaintiffs had 

proceeded first to distribute this notice to the class and 
then to file it with the court in accordance with the pro­
cedure authorized in the order (A. 57), they presumably 

would have been subject to penalties for contempt based on 
the district court's apparent but unexplained belief that 
the contents of the notice were not protected by the First 

Amendment. This is precisely the sort of inhibitory effect 

on expression and association which the Constitution forbids

There thus inheres in the statute the 
gravest danger of smothering all dis­
cussion looking to the eventual insti­
tution of litigation on behalf of the 
rights of members of an unpopular 
minority. Lawyers on the legal staff 
or even mere NAACP members or sympa­
thizers would understandably hesitate 
. . . to do what the decree purports 
to allow, namely acquaint "persons 
with what they believe to be their 
legal rights and . . . [advise] them
to assert their rights by commencing 
or further prosecuting a suit." . . .
It makes no difference whether [criminal] 
prosecutions or [disbarment] proceedings 
would actually be commenced. It is 
enough that a vague and broad statute 
lends itself to selective enforcement 
against unpopular causes. We cannot 
close our eyes to the fact that the 
militant Negro civil rights movement 
has engendered the intense resentment 
and opposition of the politically 
dominant white community of Virginia; 
litigation assisted by the NAACP has

54



been bitterly fought. In such circum­
stances, a statute broadly curtailing 
group activity leading to litigation may 
easily become a weapon of oppression, 
however even-handed its terms appear.
Its mere existence could well freeze out 
of existence all such activity on behalf 
of the civil rights of Negro citizens. 
NAACP v. Button, supra, 371 U.S. at 434- 
36.

55



B. The Orders Are Discriminatory Regulations of 
Expression and Association Which Constitute 
a Denial of Due Process.

These orders appear to restrict communications with 

class members by the parties and their counsel on both sides 

of the case. However, the order of June 22, 1976, specific­

ally permits the company to contact the class members through 

the district court for the purpose of offering "back pay" 

settlements and soliciting releases (A. 57-61). In addition, 

the company is permitted to engage in "communications occur­

ring in the regular course of business ... which do not have 

the effect of soliciting representation by counsel, or mis­

representing the status, purposes or effect of the action 

and orders therein" (A. 57). Thus, company officials and 

supervisors are free to discuss the case with their black 

employees and to offer their views on subjects ranging from 

the adequacy of the company's conciliation agreement and 

settlement offers to the reputation of plaintiffs' counsel, 

and as long as these discussions occur in the regular course 

of business, they are not subject to any regulation by the 

court. This is an opportunity for access to the class members 

which plainly is not available to plaintiffs and their counsel, 

and it is open to widespread and unpoliceable abuse in the 

context of the employer-employee relationship. Finally,

56



plaintiffs and their counsel requested and were specifically 

denied permission to engage in constitutionally protected 

communications with class members concerning the case and 

the releases which were being solicited by the company (A. 

62-65, 157).

In the context of this case, the restrictions on the 

First Amendment rights of plaintiffs and their counsel to 

speak, and on the rights of the black employees to hear, are 

sp unfair and one-sided as to constitute a denial of due 

process. The Due Process Clause of the Fifth Amendment is 

violated by a federally imposed discrimination which, if 

imposed by a state, would violate the Equal Protection Clause 

of the Fourteenth Amendment. Bolling v. Sharpe, 347 U.S. 497 

(1954); Johnson v. Robison, 415 U.S. 361, 364, n. 4 (1974). 

"The right to equal protection of the laws in the exercise 

of those freedoms of speech and religion protected by the 

First and Fourteenth Amendments, has a firmer foundation than 

the whims or personal opinions of a local governing body." 

Niemotko v. Maryland, 340 U.S. 268, 272 (1951); Thornhill v. 

Alabama, 310 U.S. 8 8 , 97-98 (1940). This principle also 

applies to the federal district courts. As Mr. Justice Black 

stated regarding a related free speech area, no government 

can

57



prescribe by law what matters of public 
interest people whom it allows to assemble 
on its streets may and may not discuss.
This seems to me to be censorship in a most 
odious form, unconstitutional under the 
First and Fourteenth Amendments. And to deny 
this appellant and his group use of the 
streets because of their views against racial 
discrimination, while allowing other groups 
to use the streets to voice opinions on other 
subjects, also amounts, I think, to an invid­
ious discrimination forbidden by the Equal 
Protection Clause of the Fourteenth Amendment.
Cox v. Louisiana, 379 U.S. 559, 581 (1965)
(Black, J., concurring). See also, Cox v .
Louisiana, 379 U.S. 536, 557 (1965).

In addition, the orders impose an unacceptable restriction 

on the black employees' right to effective counsel and a crip­

pling burden on the ability of counsel to present a case.

The plaintiffs and their black co-workers have a right "to be 

fairly represented in lawsuits authorized by Congress to 

effectuate a basic public interest." Brotherhood of Railroad 

Trainmen v. Virginia, supra, 377 U.S. at 7. The free and pri­

vate flow of communications between these workers and the 

attorneys representing their class must be protected because 

” [l]aymen cannot be expected to know how to protect their 

rights when dealing with practiced and carefully counseled 

adversaries, cf. Gideon v. Wainwright, 372 U.S. 335 ... "Id.

In the context of the employer-employee relationship 

here, an interference with the employee's right to discuss 

the case with an attorney representing his interests, without

58



the fact of that discussion being known to the employer, may

destroy the right to consult a lawyer at all. Cf. NAACP v . 

Alabama, supra, 357 U.S. at 462. Moreover, plaintiffs' 

counsel are placed at an unfair disadvantage because they 

are effectively deprived of the opportunity to canvass large 

groups of employees for helpful factual data, to learn the 

desires and attitudes of class members regarding proposed 

forms of relief, and to obtain the help of employees too 

timid to aid the plaintiffs publicly and risk the wrath of 

supervisors hostile to their claims. Under these circum­

stances, plaintiffs and their attorneys are denied the 

opportunity to perform fully their duty to provide fair and 

adequate representation to the class, Fed. R. Civ. P. 23(a)(4) 

and they are hampered in their efforts to carry out their 

congressionally mandated responsibilities as "private attor­

neys general" in enforcing the laws against employment 

discrimination, Newman v. Piggie Park Enterprises, Inc., 390 

U.S. 400 (1968); Jenkins v. United Gas Corp., 400 F.2d 28 

(5th Cir. 1968). Plaintiffs submit that, rather than restrict 

ing the contact of lawyers in Title VII class actions with 

class members, justice and the policies of Title VII would 

be better served by requiring lawyers to have sufficient con­

tact with class members to insure fair and full representation 

of their interests.

59



c. The Orders Are Inconsistent with the Federal 
Rules of Civil Procedure and Are Beyond the 
Powers of the District Court.

Rule 83 of the Federal Rules of Civil Procedure and 28
_J/

U.S.C. § 2071, the only statutory sources of district 

court rule-making power, authorize the adoption of local 

rules governing practice which are "not inconsistent with 

these rules" and which are "consistent with Acts of Congress 

and rules of practice and procedure prescribed by the Supreme 

Court." Rule 83 states that, "[i]n all cases not provided 

for by rule, the district courts may regulate their practice 

in any manner not inconsistent with these rules [i.e., the 

Federal Rules of Civil Procedure]." The orders at issue 

here constitute a regulation of practice which is inconsistent

9/ Rule 83 states in full:

"Each district court by action of a majority of 
the judges thereof may from time to time make and amend 
rules governing its practice not inconsistent with 
these rules. Copies of rules and amendments so made by 
any district court shall upon their promulgation be 
furnished to the Supreme Court of the United States. In 
all cases not provided for by rule, the district courts 
may regulate their practice in any manner not inconsistent 
with these rules."

28 U.S.C. § 2071 states in full:

"The Supreme Court and all courts established by 
Act of Congress may from time to time prescribe rules 
for the conduct of their business. Such rules shall 
be consistent with Acts of Congress and rules of prac­
tice and procedure prescribed by the Supreme Court."

60



with the policies underlying Rule 23, Fed. R. Civ. P., and 

they are therefore beyond the regulatory powers granted to 

the district court.

In Rodgers v. United States Steel Corp., 508 F.2d 152 

(3rd Cir.), cert, denied, 420 U.S. 969 (1975), the court was 

faced with a challenge to a local district court rule which, 

like the orders in the instant case, restricted communica­

tions between counsel for the plaintiffs and the members of
W

the class alleged in their Title VII complaint. Also

like the orders here, the local rule in Rodgers was based 

on "Suggested Local Rule No. 7" and "Sample Pretrial Order 

No. 15" in the Manual for Complex Litigation prepared under 

the sponsorship of the Federal Judicial Center. See, 1 J. 

Moore, Federal Practice f 1.41, at 188-90 (2d ed. 1976).

The court in Rodgers acknowledged that such restrictions 

on expression and association raised "serious first amendment 

issues," and that there was "no question but that important

10 /  Local Rule 34(d), Western District of Pennsylvania, 
provided as follows:

"No communication concerning such [class] action 
shall be made in any way by any of the parties 
thereto, or by their counsel, with any potential 
or actual class member, who is not a formal party 
to the action, until such time as an order may be 
entered by the Court approving the communication."

61



speech and associational rights are involved in this effort 

by the NAACP Legal Defense and Educational Fund, Inc. to 

communicate with potential black class members on whose behalf 

they seek to litigate issues of racial discrimination." 508 

F.2d at 162-63. The court also noted that, despite the 

highly respected source of the model for such restrictions,

"the committee which drafted the Manual went too far in its 

apparent assumption that Craig v. Harney, [331 U.S. 367 

(1947)] and Bridges v. California [314 U.S. 252 (1941)], would 

permit the vesting of unreviewable discretion in a district 

court to impose a prior restraint on communication or asso­

ciation." 508 F.2d at 165. But the court in Rodgers found
11/

it unnecessary to decide these serious constitutional issues 

because the restrictions on communications were inconsistent 

with the policy underlying Rule 23 "in favor of having liti­

gation in which common interests, or common questions of law 

or fact prevail, disposed of where feasible in a single law­

suit." 508 F.2d at 163. Thus, the court held that the district 

courts were not empowered "to require prior judicial approval

11/ In a subsequent appeal of another restraint imposed on 
communications by plaintiffs' counsel with class members, 
the Third Circuit held that the restraint violated the First 
Amendment. Rodgers v. United States Steel Corp., 536 F.2d 
1001, 1007-08 (3rd Cir. 1976). See pp. , supra.

62



of communications between plaintiffs, or their attorneys, 

and third parties, when such communications seek to encourage 

common participation in a lawsuit." 508 F.2d at 164. The 

orders in the instant case restrain precisely the same kinds 

of communications, and they are beyond the powers granted to 

the district court for precisely the same reasons.

CONCLUSION

For the foregoing reasons, the orders of the district 

court should be reversed, and the judgment should be vacated 

and the case remanded to the district court for further 

proceedings.

Respectfully submitted,

/

STELLA M. MORRISON
1015 East Gulfway Drive 
Port Arthur, Texas 77640

ULYSSES GENE THIBODEAUX
One Lakeside Plaza, 7th Floor 
New Orleans, Louisiana 70601

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

BARRY L. GOLDSTEIN
733 15th Street, N.W. 
Washington, D. C. 20005

JACK GREENBERG
PATRICK 0. PATTERSON 

10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs-Appellants



CERTIFICATE OF SERVICE

I hereby certify that on the 12th day of July, 1977, 

copies of the foregoing Brief for Appellants were served 

on attorneys for defendants-appellees by United States mail, 

postage prepaid, addressed to:

William G. Duck, Esq. 
P.0. Box 3725 
Houston, Texas 77001

Carl Parker, Esq.
440 Stadium Road
Port Arthur, Texas 77640

r D  % , o  7  ' .___

STELLA M. MORRISON
1015 East Gulfway Drive 
Port Arthur, Texas 77640

ULYSSES GENE THIBODEAUX
One Lakeside Plaza, 7th Floor 
Lake Charles, Louisiana 70601

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

JACK GREENBERG 
BARRY L. GOLDSTEIN 
PATRICK 0. PATTERSON 

10 Columbus Circle 
Suite 2030
New York, N.Y. 10019 

Attorneys for Plaintiffs-Appellants

-64-



AREA CODE 713 
226-56 1 1

E Q U A r  Em p l o y m e n t  " t o r t u n i t y  c c  m i s s i o n
HOUSTO‘ 1 I ■ <• TRICT OFFICE

23  20  LA ( * v..H. ROOM 1 1 0 1
HOUST- • T X A S  7 70 0 4

WESLEY P. BERNARD 
CHARGE NO. AU7-6-535 
DATE FILED: 6-24-67

v. GULF OIL CORPORATION 
PORT ARTHUR, TEXAS

NOTICE OF RIGHT TO SUE WITHIN 90 DAYS 
Pursuant to Section 706 (f) of. Title VII of the Civil Rights 

Act of 1964, as amended, you are hereby notified that you may 
within ninety (90) days of receipt of this communication, 
institute a civil action in the appropriate Federal District 
Court. If you are unable to retain a lawyer, the Federal 

District Court, in its discretion, may appoint a lawyer to 
represent you and to authorize commencement of the suit 

without payment of fees, costs, or security. if you decide 

to institute suit and find you need assistance, you may take 
this notice, along with any correspondence you have received 
from the Commission, to the Clerk of the Federal District 

Court nearest to the place where the alleged discrimination 
occurred, and request that a Federal District Judge appoint 
counsel to represent you.

________June 11, 1976
i rector DATE ------
omnission

McClees, District D 
Equal Employment Opportunity C

Exhibit "a



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E Q U A L  E M P L O Y M E N T  O P P O R T U N I T Y  C O M M I S S I O N  

HOUSTON D>' TINCT OFFICE 
2320 LA BR>*' *■« ROOM 1101

HOUSTON 1 ‘ • AS 77004

AREA CODE "M3 
226-56 1 1

HENCE BROWN, JR. v. GULF OIL CORPORATION
CHARGE NO. AU7-6-540 PORT ARTHUR, TEXAS
DATE FILED: 6-24-67

NOTICE OF RIGHT TO SUE WITHIN 90 DAYS 
Pursuant to Section 706(f) of Title VII of the Civil Rights 
Act of 1964, as amended, you are hereby notified that you mav, 
within ninety (90) days of receipt of this communication, 
institute a civil action in the appropriate Federal District 
Court. If you are unable to retain a lawyer, the Federal 
District Court, in its discretion, may appoint a lawver to 
represent you and to authorize commencement of the suit 
without payment of fees, costs, or security. If you decide 

to institute suit and find you need assistance, you may take
9

this notice , along with any correspondence you have received 
from the Commission, to the Clerk of the Federal District 
Court nearest to the place where the alleged discrimination 
occurred, and request that a Federal District Judge appoint 
counsel to represent you.

Equal Employment Opportunity Commission
June 11, 1976 

DATE-

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F I L E D
U. S. DISTRICT COURT 

EASTERN DISTRICT O f  TEXAS

IN THE UNITED STATES DISTRICT COURT M URRALL HARRIS, CLERK

Br  ̂S?'/  J ,FOR THE EASTERN DISTRICT OF TFyA 
BEAUMONT DIVISION 

WESLEY P. BERNARD, ET AL,
Plaintiffs,

VS.
GULF OIL COMPANY, ET AL, 

Defendants.

S
§S
§§ CIVIL ACTION NO. B-76-183-CA 
§S
§
§

MEMORANDUM IN SUPPORT OF GULF'S MOTION TO LIMIT 
COMMUNICATIONS WITH ANY POTENTIAL OR ACTUAL CLASS MEMBER

This is a class action suit brought by six indi­
vidual employees of Gulf's Port Arthur Refinery alleging 
they have been victims of discimination in violation of 
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e, et seq. and of the Civil Rights Act of 1866, 42 U.S.C. 
§ 1981. The suit was filed on May 18, 1976, and Gulf was 
served with a summons on May 24, 1976.

The issues which have been raised in this lawsuit 
have been the subject of settlement negotiations between 
Gulf, the U.S. Equal Employment Opportunity Commission and 
the Office for Equal Opportunity, U.S. Department of the 
Interior. The negotiations between Gulf and these federal 
agencies to conciliate the issues which now have been raised 
in this action have taken place over a period of several 
years and have resulted in the signing by Gulf of a Con­
ciliation Agreement. This agreement, which was entered into 
by Gulf and the Federal Agencies on April 14, 1976, provided 
for an award of over $900,000 to 614 present and former black 
employees and 29 female employees at Gulf's Port Arthur 
Refinery. A copy of this Conciliation Agreement is at­
tached hereto as Exhibit A.

3-A



As soon as the Conciliation Agreement was finalized, 
Gulf pursuant to the terms of the Conciliation Agreement mailed 
a letter and release, the form of which was approved by the 
Federal Agencies, notifying all employees covered by the 
Conciliation Agreement that they were entitled to an award 
of back pay and that upon execution of the receipt and general 
release the employees would receive the back pay award.
Between the time the Conciliation Agreement was executed by 
Gulf, and the date the summons was served upon Gulf in this 
action, approximately 452 employees out of a total of 543 
employees entitled to a back pay award had executed the 
receipt and general release and had received their back pay 
checks.

So as to comply with the letter and spirit of 
Rule 23(e), F.R.C.P. and the Canons of Ethics of the Bar 
Association, Gulf immediately upon service of the summons 
suspended all further mailings to actual or potential class 
members and informed all actual or potential class members 
who called Gulf that no further communications concerning 
the Conciliation Agreement or the issues raised in the law­
suit could be discussed with them until the Court so orders. 
Attached hereto as Exhibit B is a copy of the statement which 
was read to all potential and actual class members who called 
Gulf inquiring about these matters.

However, on Saturday, May 22, 1976, four days after 
the Complaint was filed in this action, an attorney for the 
Plaintiffs, Mr. Ulysses Gene Thibodaux, appeared before ap­
proximately 75 actual or potential class members at a meet­
ing in Port Arthur and discussed with them the issues in­
volved in the case and recommended to those employees that 
they do not sign the receipt and general release which had 
been mailed to them pursuant to the Conciliation Agreement.
In fact, it is reported to Gulf that Mr. Thibodaux advised 
this group that they should mail back to Gulf the checks

- 2-

4—A



they had received since he could recover at least double the 
amount which was paid to them under the Conciliation Agreement 
by prosecuting the present lawsuit.

Gulf believes that this action by the Plaintiffs' 
attorney is indeed a serious breach of the ethical and legal 
standards which are imposed upon attorneys under the Canons 
of Ethics and the law. In order to prevent further com­
munications of this type by all parties and their counsel to 
this suit, Gulf has moved the Court for an order to limit 
communications with any potential or actual class member to 
this lawsuit. The order which Gulf proposes be entered 
pursuant to its Motion is copied verbatim from "Sample 
Pretrial Order No. 15 - Prevention of Potential Abuse of 
Class Actions" contained in the Manual for Complex and 
Multidistrict Litigation, p. 197. This order is also 
identical to many local rules of the United States Distirct 
Courts which have adopted "Suggested Local Rule No. 7 - 
Prevention of Potential Abuse of Class Actions" contained in 
the Manual for Complex and Multidistrict Litigation on p.
196.— It should be noted that the Manual for Complex and 
Multidistrict Litigation suggests that such an order be 
promptly entered in actual and potential class action cases 
unless there is a parallel local rule.

By entering the suggested order, this Court will 
preserve the status quo of the case until Judge Fisher 
returns and can assume control and administration of the 
case. In the absence of such an or$er, Gulf feels that the 
unusual circumstances involved in this case, combined with 
the statements which Plaintiffs' counsel has already made to 
actual and potential class members, could seriously prejudice 
Gulf in its defense of this case and the conciliation efforts 
which have been conducted by the Equal Employment Opportunity 
Commission and the Office for Equal Opportunity, U.S. Depart­
ment of the Interior.

1/ See Local Rules of the U.S. District Court for the Southern 
District of Texas, Rule 6; and the General Rules of the U.S. 
District Court for the Eastern District of Louisiana, Rule 
2.12e.

-3-

5-A



Conclusion
In accordance with the above stated authorities, 

Gulf urges the Court to grant its Motion to Limit Communica­
tions with any Potential or Actual Class Member.

Respectfully submitted,
Joseph H. Sperry 
Wm. G. Duck 
P. 0. Box 3725 
Houston, Texas 77001 
713 - 226-1361

By_

uAttofs^ys for Defendant 
GULF OIL CORPORATION

-4-

6-A

I



IN THE UNITED STATES DISTRICT COURT F I L E D
U  S. DISTRICT CO UR T

Eastern  district o f  texas

FOR THE EASTERN DISTRICT OF TEXAS 
BEAUMONT DIVISION

WESLEY P. BERNARD, ET AL 
Plaintiffs 

V.
GULF OIL COMPANY, ET AL 

Defendants

JUii3 1975
W M A X  L HARRIS, CLERK

BT
max.

s
§
§
§
§ CIVIL ACTION NO. B-76-183-CA
§SS
§

MEMORANDUM IN SUPPORT OF GULF OIL 
CORPORATION'S MOTION TO MODIFY ORDER

This is a class action suit brought by six individual 
employees of Gulf's Port Arthur Refinery alleging that they 
have been victims of discrimination in violation of Title VII 
of the Civil Rights Act of 1964 , 42 U.S.C. § 2000e, et seq■ 
and of the Civil Rights Act of 1866, 42 U.S.C. § 1981. The 
suit was filed on May 18, 1976, and Gulf was served with a 
summons on May 24, 1976.

Four days after the suit was filed and prior to the 
time Gulf was served with the summons in this case, attorneys 
for the Plaintiffs appeared at a meeting of approximately 75 
actual or potential class members in Port Arthur and discussed 
with them the issues involved in the case and recommended to 
those employees that they support the present suit. In addi­
tion, it was reported to Gulf that Mr. Ulysses Gene Thibodaux, 
an attorney for the Plaintiffs, recommended to those employees 
that they do not sign the receipt and release which had been 
mailed to the employees as a result of a Conciliation Agree­
ment entered into by Gulf, the U.S. Equal Employment Oppor­
tunity Commission (EEOC) and the Office for Equal Opportunity, 
U.S. Department of the Interior (0E0). In fact, it is re­
ported that Mr. Thibodaux stated that even if the employee 
had signed the receipt and release, he should now return 
the check which had been mailed to the employee by Gulf.

7-A



As a result of this activity by the Plaintiffs' 
attorney, Gulf on May 28, 1976, filed a Motion to Limit 
Communications with any Potential or Actual Class Member 
and brought the Motion on for hearing before The Honorable 
William M. Steger. Judge Steger agreed to hear the matter 
in the absence of The Honorable Joe J. Fisher so that the 
status quo of the case could be preserved until Judge Fisher 
returned. After hearing argument of counsel for both the 
Plaintiffs and Defendant Gulf, Judge Steger entered an 
order which was made applicable to all parties and forbid 
all parties and their attorneys from communicating with actual 
or potential class members who were not formal parties to the 
action. In addition. Judge Steger ordered that the Defendant 
Gulf present a motion on this matter to Judge Fisher as soon 
as possible upon Judge Fisher's return. In order to comply 
with Judge Steger's order, Gulf has filed this Motion to 
Modify so that the matter may be heard by Judge Fisher.

The purpose of the Motion to Modify is to allow 
Gulf, the EEOC, and the 0E0 to proceed under the terms of 
a Conciliation Agreement dated April 14, 1976 (attached 
hereto as Exhibit A). The Conciliation Agreement which 
has been negotiated between Gulf and the Federal agencies 
over a period of eight years was an effort by Gulf to settle 
the very issues which now have been raised in this eleventh 
hour lawsuit. The Conciliation Agreement provided for an 
award of over $900,000 to 616 Negro employees and approxi­
mately 29 female employees at Gulf's Port Arthur Refinery.

As soon as the Conciliation Agreement was finalized, 
Gulf pursuant to the terms of the Agreement mailed a letter 
and release, the form of which was approved by the Federal 
agencies, notifying all employees covered by the Agreement 
that they were entitled to an award of back pay and that upon 
execution of the receipt and release the employees would

- 2 -

8-A



receive the back pay award. Eetween the time the Conciliation 
Agreement was executed by Gulf and the date the summons was 
served upon Gulf in this action, approximately 452 employees 
out of a total of 643 employees entitled to a back pay award 
under the Agreement had executed the receipt and release and 
had received their back pay checks.

So as to comply with the letter and spirit of 
Rule 23(a), F.R.C.P. and the Canons of Ethics of the Bar 
Association, Gulf immediately upon service of the summons 
suspended all further mailings to actual or potential class 
members and informed all actual or potential class members 
who called Gulf that no further communications concerning 
the Conciliation Agreement or the issues raised in the law­
suit could be discussed with them until the Court so orders. 
Attached hereto as Exhibit B is a copy of a statement which 
was read to all potential and actual class members who 
called Gulf inquiring about these matters. In accordance 
with Judge Steger's Order, Gulf has continued to suspend the 
payment of back pay awards and the acceptance of receipts 
and releases from employees who are actual or potential 
class members.

So that Gulf may fulfill the terms of the Concilia­
tion Agreement, it has moved this Court for an order to modify 
Judge Steger's previous Order so that it may proceed to make 
the back pay awards pursuant to the terms of the Conciliation 
Agreement. It is felt that the rights of all parties will be 
fully protected if the Court exercises its judicial control 
over the procedures whereby potential or actual class members 
not formal parties to this suit are contacted with regard to 
the terms of the Conciliation Agreement. In that regard,
Gulf proposes that the Court order that the Clerk mail a 
letter to all employees of Gulf at its Port Arthur Refinery

-3-
9—A



who are covered by the Conciliation Agreement and who have 
not signed receipts and releases for back awards informing 
them that they have 45 days from the date of receipt of the 
letter to accept the offer of settlement as contained in the 
Conciliation Agreement and if such offer is not accepted 
within that time period, the offer will expire until further 
notice of the Court. Since the affected employees already 
have received notices informing them of the terms of the 
Conciliation Agreement and enclosing the receipt and release 
the Court's order setting a time limit for acceptance of 
the offer would now be appropriate. During the 45 day time 
period in which the actual or potential class members are 
deciding whether or not to accept the offer under the 
Conciliation Agreement the parties to this lawsuit and their 
counsel should be forbidden to contact those individuals so 
that they might make their" own independent decision concerning 
the acceptance of the back pay award.

The two Federal agencies who have been involved with 
this matter for over eight years and who have protected the 
rights of the individual employees support Gulf’s position 
that the terms of the Conciliation Agreement should be carried 
out by allowing Gulf to proceed with the payment of back pay 
awards. Mr. Herbert C. McClees, who is the District Director 
of the EEOC in Houston and whose office was involved with the 
negotiation of the Conciliation Agreement, states in his af­
fidavit that he believes the issues and relief sought by 
the Plaintiffs in this- case are almost identical to the 
issues which were resolved under the terms of the Conciliation 
Agreement. In addition, he states that he feels that the 
Conciliation Agreement is a "fair, equitable, thorough and 
comprehensive solution to the charges that Gulf has discrim­
inated at its Port Arthur Refinery in violation of Title VII

-4-
10-A



of the Civil Rights Act of 1964" (see page 4 of Affidavit of 
Herbert C. McClees attached hereto as Exhibit C). Mr. Gerald 
C. Williams, Western Regional Manager of the 0E0 in Lakewood, 
Colorado, whose office was responsible for negotiating the 
Conciliation Agreement on behalf of the Department of the 
Interior, supports Mr. McClees' belief that Gulf should be 
allowed to continue to fulfill the terms of the Conciliation 
Agreement. (See Affidavit of Mr. Williams attached hereto 
as Exhibit D.)

Gulf's request to modify Judge Steger's Order to 
allow the payment of back pay awards under the Conciliation 
Agreement is consistent with the provisions of Rule 23(e) 
which states: "A class action shall not be dismissed or 
compromised without the approval of the Court, and notice of 
the proposed dismissal or compromise shall be given to all 
members of the class in such manner as the Court directs."
The Courts have been consistent in their ruling that a 
defendant in a class action suit may negotiate settlements 
with potential or actual class members who are not formal 
parties to the action. Weight Watchers of Philadelphia, Inc. 
v. Weight Watchers International, Inc., 455 F.2d 770 (2nd Cir. 
1972). However, the courts have been anxious to protect the 
rights of unsophisticated potential class members by exercis­
ing judicial control over the manner in which settlement 
proposals are communicated to those class members. In 
American Finance System, Inc., v. Harlow, 65 F.R.D. 572 
(D. Md. 1974) the court did allow precertification communica­
tions between the named parties and the prospective class 
members only within the strict limits delineated by a 
memorandum and order from the court. In that case, the 
court allowed the defendants to send a notice of pro­
posed settlement to all potential class members and al­
lowed the potential class members 35 days from the date

-5-
11-A



of receipt of the order to accept or reject the proposed 
offer. However, all further communications other than those 
permitted by the notice between the named parties, their 
representatives or counsel and the potential class members 
were forbidden by the court. Harlow, supra. at 577. The 
plaintiffs in the Harlow case stated that such a limitation 
on communications was in violation of the First Amendment 
to the United States Constitution and would violate Rule 
23(e) since a settlement by potential class members would 
have the effect of destroying the numerosity requirement 
under Rule 23(a). However, the court dismissed these 
arguments by saying:

"Counterbalancing these considerations is the 
danger that the class action vehicle will be evis­
cerated by violators of the civil rights acts who 
are able to convince legally unsophisticated class 
members that their claims are unlikely to succeed.
Even in Weight Watchers, a class not involving a 
civil rights act, the lower court required that 
counsel for each franchisee be present during the 
discussion and that counsel for the class representa­
tive be given five days notice of such negotiations,
55 F.R.D. 50 (1971). Given this judicial concern 
in the guidelines of the Manual For Complex and 
Multidistrict Litigation, the court will only permit 
AFS to send a neutrally worded notice of settlement 
containing no more than the terms of the proposed 
compromise, the position of both parties and a copy 
of this memorandum and order. If the potential class 
member affirmatively rejects the offer or fails to 
answer within 30 days, the court will assume that he 
wishes the action to proceed to judgment." Harlow, 
supra, at 576.

The instant case provides the maximum protection 
for unsophisticated class members since the two Federal 
agencies have been involved in detailed negotiations for 
a period of eight years in their attempts to settle the 
charges that Gulf has discriminated in violation of Title 
VII at its Port Arthur Refinery. Since the potential class 
members' rights have been protected by the Federal agencies, 
it is felt that the Court should allow Gulf to proceed with 
the payment of back pay awards to the potential class members.

- 6-

12-A



Conclusion
In view of the above stated authorities, Gulf's

Motion to Modify should be granted

JOSEPH H. SPERRY 
WM. G. DUCK 
KATHLEEN M. CIVINS 
P. 0. Box 3725 
Houston, Texas 77001 
(713) 226-1617

At __ „ idant
GULF OIL CORPORATION

By

-7-
13-A



F I L E D
IN THE UNITED STATES DISTRICT COURT u. s. DISTRICT CO URT

{ASTERN DISTRICT Of TEXAS

FOR THE EASTERN DISTRICT OF TEXAS __ _ __Gui 1 c 19̂6
BEAUMONT DIVISION

WESLEY P., BERNARD, ET AL §
Plaintiffs §

V. S
GULF OIL COMPANY, ET AL §

Defendants §

M U R R A I  L HARRIS, O E R K

nEPUTYtÎ -̂w._~~n-l
J

CIVIL ACTION NO. B-76-183-CA

SUPPLEMENTAL MEMORANDUM IN SUPPORT OF 
DEFENDANT GULF OIL CORPORATION'S MOTION 

TO DISMISS AMENDED COMPLAINT______
Pursuant to the Court's Order of September 24, 1976,

recited in the transcript of the Hearing on Defendant's Motion 
to Dismiss, Gulf Oil Corporation (hereinafter referred to as 
Gulf) submits this its Supplemental Memorandum and Affidavit 
in support of the Motion to Dismiss Plaintiffs' Amended Com­
plaint.

Dismissal of Plaintiff's 
Title VII Cause of Action

Gulf feels that the briefs previously submitted to 
the Court regarding the Plaintiffs' failure to comply with the 
jurisdictional prerequisites for filing suit under Title VII 
of the Civil Rights Act of 1964, as amended, are sufficient.
It should be pointed out that the Plaintiffs during oral 
argument did not dispute the facts stated in the affidavits 
of Herbert C. McClees and Nacha I Martinez filed previously 
in support of the Motion to Dismiss.

The only additional material submitted to the Court 
during oral argument and relating to Plaintiffs' Title VII 
claims was the case of McGuire v. Aluminum Company of America 
No. 76-1013 (7th Cir., Sept. 9, 1976), wherein that court held 
that the 90 day limitation period commenced to run at the time 
the party received the letter notifying him of his "right to 
sue". In this per curiam decision, the Seventh Circuit, as have 
the other circuits' ruling the same way, based its decision on

14-A



the case of Tuft v. McDonnell Douglas, 517 F .2d 1301 (8th Cir.
1975), cert, denied, 423 U.S. 1052 (1976). At this point it is
appropriate to reiterate that the Eighth Circuit's reasoning in
the Tuft case has.been severely criticized. The criticism stems
from the fact that the Eighth Circuit completely disregarded the
statutory language of Title VII in finding that the 90 day time
limitation begins to run from the notice of "right to sue"
rather than from the notice of failure to conciliate. This point
was recognized by Judge Porter in Turner v. Texas Instruments,
Inc., 401 F.Supp. 1179, 1172 (N.D. Tex. 1975) wherein he stated:

"Again I disagree with the Eighth Circuit's premise that 
notice to the aggrieved party must include both notice of a 
right to sue and a notice that conciliation has been broken 
off. I read Section 706(f) to require either notification 
of conciliation or the right to sue. Notification, then, 
is adequate so long as it informs the aggrieved party of 
the facts necessary under each prescribed notice."

Dismissal of Plaintiffs' § 1981 Cause of 
Action by Application of Doctrine of Laches

During oral argument on Defendants' Motion to Dismiss, 
held September 24, 1976, Plaintiffs asserted that the doctrine 
of laches was not applicable in the instant case because De­
fendant Gulf was not prejudiced by the Plaintiffs' long delay 
in filing this suit. Transcript of Hearing on Defendants'
Motion to Dismiss, p. 43. Plaintiffs' contention seems to be 
that Gulf could not have been prejudiced by Plaintiffs' eleven 
year delay in filing this lawsuit because Gulf had enough evidence 
to enter into a Conciliation Agreement with the Equal Employment 
Opportunity Commission (hereinafter referred to as the EEOC) and 
the Office of Equal Opportunity, Department of Interior concern­
ing issues raised in this suit.

Gulf would rebut the above assertion by showing that
(1) the evidence which is necessary for a party to accomplish 
a settlement of disputed claims and the evidence necessary to 
a party to defend itself in a lawsuit are quite different; and
(2) Gulf's defense in this lawsuit indeed has been prejudiced 
by Plaintiffs' long delay in filing suit.

- 2-

15-A



First, Gulf need not point out to this Court that 
the settlement of a controversy and the trial of a lawsuit 
dictate different types of preparation. In settling a 
dispute it, of course, is not necessary to have witnesses and 
documentary evidence available to aid in one's defense 
because legal liability is not an issue. Settlement is a 
voluntary agreement to resolve a dispute so that no legal 
liability attaches. In a lawsuit, the defendant faces a 
third party determination of legal liability and thus needs 
at his disposal all evidence, including witnesses and documen­
tary evidence relevant to his defense. Without such evidence 
the person would be unable to prepare and present his defense 
and therefore, either must settle the dispute or face the 
inevitable prospect of losing at trial of the case. The 
equitable doctrine of laches was developed by the courts to 
insure Plaintiffs who delay in filing suit will not reap 
judicially approved benefits from a defendant prejudiced 
thereby.

Secondly, in the instant lawsuit certain important 
relevant testimony and documents have not been preserved 
because Gulf did not know the six named Plaintiffs in this 
lawsuit or the class they purport to represent had potential 
claims against it. (See Affidavit of C. B. Draper filed in 
support of the Motion and attached to this Memorandum as Ex­
hibit A and hereinafter referred to as Affidavit.) Testimony 
was not taken of witnesses who are now deceased (see pp. 3 
and 4 of Affidavit) and certain documents which would have 
been relevant to this lawsuit have been destroyed (see pp. 4 
and 5 of Affidavit). The fact that certain witnesses and 
documents are now unavailable is undisputed. Consequently, 
the only question to be determined is whether these facts 
show the Defendants have been prejudiced to the extent laches 
should be applied to bar the claims of the Plaintiffs. Gulf 
submits the facts shown by Mr. Draper's Affidavit are suf­
ficient to establish prejudice.

-3-
16-A



The determination of whether prejudice exists is
left to the discretion of the district court. This rule was
stated by the Supreme Court in Burnett v. New York Central
Railroad Company, 380 U.S. 424, 435 (1965):

"Whether laches bars an action in a given case depends 
upon the circumstances of that case and 'is a question 
primarily addressed to the discretion of the trial 
court.' Gardner v. Panama R. Co., 342 U.S. 29, 30."

Only the trial court can determine from the facts whether the
"circumstances" in a particular case demand the application
of laches.

It is Gulf's position that the circumstances in 
this case present the Court with a situation in which laches 
must apply to bar the action. The instant situation meets 
the test for the . application of laches set out by Justice 
Frankfurter of "an inequity founded upon some change in the 
condition or relations of the property or parties". Kolmberg 
v. Armbrecht, 327 U.S. 392, 396 (1946), quoting Galliher v. 
Cadwell, 145 U.S. 368, 373 (1892). It is undisputed that 
witnesses have died; retired from Gulf's employ; been trans­
ferred to other positions; and that crucial records have 
been destroyed. This situation has occurred because of the 
unreasonable and unexplained delay of eleven years in filing 
of this lawsuit. Therefore, the Court would be well within 
its discretionary powers in its application of the doctrine 
of laches to the instant case. In fact, the facts in the 
instant case are compelling in their showing of prejudice to 
the Defendants.

The Affidavit of C. B. Draper states that out of 
eleven labor supervisors, who supervised the employment of 
the Plaintiffs during the relevant years, only two are still 
in that position, while six of those eleven persons have 
retired from the employment of Gulf. (See p. 3 of Affidavit.) 
Clearly, the testimony of those persons is crucial to this 
lawsuit, and nine of those persons are no longer in a position 
to give accurate and well-recalled testimony.

-4-
17-A



Mr. Draper's Affidavit also states that the person
responsible for directing the employment of personnel for 
the Port Arthur Refinery from 1965 through 1970 and the person 
responsible for investigating grievances and complaints of 
individual employees are now both deceased. (See pp. 3 and 
4 of Affidavit.) The knowledge they had concerning many 
aspects of this lawsuit is crucial, and the Affidavit in­
dicates that fact. Most of their knowledge is irreplaceable 
since the documents relating to the same matters have been 
destroyed. (See p. 3 of the Affidavit.) Both the questions 
of pre-employment testing, and hiring and employee grievances 
are critical to this lawsuit, and the information which was 
exclusively within the knowledge of these two individuals is 
necessary to Gulf's defense.

Mr. Draper's Affidavit further indicates that all 
tests given to employees to determine whether or not they 
were to be promoted during the years 1965 through March, 1971, 
have been destroyed. (See p. 4 of Affidavit.) The issue of 
Gulf's promotion policy during the period of 1965 through 1971 
is integral to the determination of the Plaintiffs' claims in 
their Amended Complaint and Gulf has no other source from which 
to retrieve the lost information regarding that matter. (See 
p. 4 of Affidavit.)

All disciplinary letters in which no employee 
suspension was involved and which were placed in employees' 
personnel records during the years 1965 through 1975 have 
been removed and destroyed, effective April 17, 1975. (See 
p. 4 and 5 of Affidavit.) Consequently, Gulf cannot show as 
to any of the named Plaintiffs or as to any potential class 
members that any failure to promote was due to the employees'

-5-
18-A



poor work performance. This information, of course, would 
be crucial to Gulf's defense of its decisions as regarding 
individual employees' promotions, demotions, terminations and 
salary increases and decreases.

Finally, under Gulf's present four year document 
retention policy, numerous relevant documents for the years 
1965 through 1971 no longer exist. (See p. 5 of Affidavit 
for a list of such documents.) Many of these documents would 
be necessary to Gulf's defense of the instant lawsuit. These 
documents are irretrievable, not through any neglect or fault 
on the part of Gulf, but because without knowledge of an im­
pending suit, Gulf in its regular business practice has not 
retained such documents.

Gulf believes that the undisputed facts in the 
Affidavit of C. B. Draper more than adequately show that 
there has been prejudice to Gulf through the Plaintiffs' 
inexcusable delay in filing this lawsuit. Moreover, as this 
Court pointed out in Harris v. Lykes Bros. Steamship Co., Inc. 
375 F.Supp. 1155, 1157 (E.D. Tex. 1974), "Once the applicable 
period of limitations has run, there arises a presumption that 
the defendant has been prejudiced by delay, and the burden 
shifts to the plaintiff to show an excusable basis for the 
delay and an absence of prejudice to the defendant". In the 
instant case, the statutes of limitations for Title VII and 
42 U.S.C. 5 1981 have run and the Plaintiffs have plead no 
excuse for delay and no absence of prejudice to Gulf.

A finding of laches, by the Court as an issue of 
fact, cannot be disturbed unless it has been shown to be 
clearly erroneous. American Home Products Corp. v. Lockwood 
Manufacturing Co., 483 F.2d 1120 (6th Cir. 1973), cert, denied 
414 U.S. 1158 (1974) citing General Electric v. Sciaky Bros., 
304 F.2d 724 (6th Cir. 1962). And as a question addressed to 
the discretion of the district court, a finding of laches will 
not be disturbed unless an abuse of discretion has been shown.

- 6-

19-A



American Home Products Corp. v. Lockwood Manufacturing Co., 483
F .2d 1120, 1129 (6th Cir. 1973), cert, denied, 414 U.S. 1158 
(1974); Baker Mfq. Co. v. Whitewater Mfq. Co., 430 F.2d 1008,
1009 (7th Cir. 1970), cert, denied, 401 U.S. 956 (1971);
Gillons v. Shell, 86 F.2d 600, 604 (9th Cir. 1936), cert, denied, 
302 U.S. 689 (1937). Therefore, Gulf believes that this Court 
would be on firm ground in deciding that laches applies in this 
case. The facts set forth in the Affidavit attached as Exhibit 
A are undisputed and present compelling factual evidence that 
prejudice has occurred. In addition Plaintiffs have plead no 
facts that mitigate the fact of the unreasonable delay in the 
filing of this lawsuit.'

forth in Gulf's Memorandum in Support of Gulf's Motion to Dis­
miss Amended Complaint, Gulf requests that this Court dismiss 
Plaintiffs' Amended Complaint with prejudice.

Conclusion
For the above stated reasons and for the reasons set

Respectfully submitted
Joseph K. Sperry 
Wm. G. Duck 
Kathleen M. Civins 
P. 0. Eox 3725 
Houston, Texas 77001 
(713) 226-3161

Kathleen M. Civins
Attorneys for Defendant 
GULF OIL CORPORATION

-7-
20-A



IN THE UNITED STATES DISTRICT COURT

WESLEY P. BERNARD, ET AL

PLAINTIFFS
V .

GULF OIL COMPANY

' L. Cm LJ 
FOR THE EASTERN DISTRICT OF TEXAS usrA

BEAUMONT DIVISION
MUSriAE L HARc,!St <ZSRX 

ÎrUTY
~  y

CIVIL ACTION NO. B-76-183-CA

DEFENDANTS

A F F I D A V I T

I.
I am a named plaintiff in the above titled action.

II.
In July of 1976 I filed with the Equal Employment Opportunity 

Commission an amended charge of discrimination, a true and correct 
copy of which is attached hereto and incorporated herein by reference.

- /, L i \ ( - i . V< r , 
WESLEY P. BERNARD ' '

SUBSCRIBED AND 
public this ^/'^day

SWORN TO BEFORE ME, 
of October, 1976.

the undersigned notary

/ /
7 : //clNotary Public in and for 

Jefferson County, Texas

20 I2 1 - A



CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the fore­
going instrument wasmmailed by United States mail, postage prepaid, 
this the 22th day of October, 1976, to Mr. William G. Duck,
P.0. Box 3725, Houston, Texas 77001 and Mr. Carl Parker, 449 
Stadium Road, Port Arthur, Texas 77640, attorneys for Defendant.

STELLA M, MORRISON

22-A



PS Form
 3811. Jon. 1975 

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Add your id d m i  in rlie "RETURN T O " ip o n  oa 

reverie.

1. T he following jervice is requested (check o n e).
I I Show to whom and date  delivered  ........  15f
I I Show to whom, date, 4  address o f delivery.. 35f
□  R E ST R IC T E D  D E L IV ER Y .

Show to whom and date delivered____ 63f
□  R E ST R IC T E D  D E L IV ER Y .

Show to whom, date , and address of delivery 35^

2. ARTICLE AOORESSEO TO:

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3. ARTICLE DESCRIPTION:
REGISTERED NO. CERTIFIED NO. INSURED NO.

(Always ob ta in  a ig n a tu ra  of add raasao  or  agan t)

I have received the article  described above. 
S IG N A T U R E /^  □  Addn-A ddr^jsc- □  A u th a riw i agen t

W~/'j
^  'DATE OEŷ ERY 

5. AO If raquoafaV^L

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6 . UNABLE TO DELIVER BECAUSE: CLERK'S
INITIALS

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2 3-A-



(PLEASE PRINT OR TYPE)

I HOC CHARGE NO.
in s '

CHARGE OF DISCRIMINATION FORM AFFROVtO 
OM0 NO. „ -124-RO

„  INSTRUCTIONS
If you  h a v .  a  c o m p la in t, UU In th in  form  a n d  m a il i t  to  t h .  E q u a l E m p lo y m en t

r n t w a ig w ^ .x ^ j? y ,ig ,,r.t?j.°,srciM,'GE **
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CAUSE OF OISCRIMINATIC

RACE OR COLOR 

□  ■ELIGIOUS CREED 

a  NATIONAL O R IG IN

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Mr. Wesley P. Bernard
[ STREET JOORCS5 ........

717 E. Thomas St.
I c i t V .

d a t e  o r  BIRTH

8-17-28
COUNTY

Jefferson SOCIAL SECURITY HO. ~~~

4 3 3 - 3  2 -
TCLCFMMC NO. (Include area  cad*)

(713) 982-1345
• * T I .  ANO 2 1 P COOC " 11

Port Arthur, Texas________________
I ______  — T He  POlLOWtNO PERSON ALWAYS KNOWS WHERE TO CONTACT ME
|  **** (India mte Mr. or Mm.) ^ — — ------------------------

Mrs. Wesley Bernard TELEPHONE n o . (In c lu de  area  c o d r)

(713) 982-1345STREET JOORCXB “

7.17 E. Thomas- Street C IT Y . STATE. AMO Z IP  COPE

Port Arthur. Texas 77640

*
I STREET AOORGIS

TCAEPHOAd NO. (l& a lu d . arm. c o d .)

I C IT Y . STATE. ANO Z IP  COOE

Port Arthur, Texas
OTHERS m o  

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AGAINST YOU 

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|  ST ATE/LOCAL G O Y'T. 
I  AGENCY

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{APPROXIMATE

AGENCY CHAROE f  I LED WITH (Namm m d  a d d r . , . )

----------------- --------------  EMPLOY EE 3 / MEM
I CHARGE | S  P IL E O  AGAINSTIn excess of 300

:r s  or c o m p a n y  or u n io n  t h i s
fH n , i? * Z r Rl 2 ! ,T.% i  CONT,'n iln e  d is c r im in a t io n  to o k  p l a c i

1976, andcontinui
f e 1* 8 ^ Gt.Unf“ x thjn,fwns don* t0 OTd how other persons were treated differently. Understanding that t | atement is for the use of the United States Egual Employment Opportunity Commission, I hereby certify:

See attached statement.

Arthur Lodge «  1
> P Q \  ~ C* A U A  A. * 1 -rt★ ★

International Association of Machinists & Aerospace Workers PoArthur Lodge No.823 i-1-- *---- - -- - ■ - '
& Aerospace w o r k e r s __ ___— -

- A Fa ~ G i O >v«- ̂  -/-44-̂ vo
International Brotherhood of Electrical workers, Local Union 39 
the Internat'l Brotherhood of Electrical Workers, AFL-CIO- Unit 
Transportation Local Union, and the International United Trans­
portation Union; Bricklayers,Masons, and Plasterers Internet' 1  Local No.13 and ^ °  Tnf i i n»: i ...  .. _ . —
Interna t ' 1 Unioi

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son̂ s,̂ ând Planter-
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SUBSCRIBED ANO SWORN TO BEFORE ME TH13 DATE 
(D ay, month, and y r tu )

i s & 7 U ____________
A ,.T ,A«J4l7  W  d if f ic u lt  for you  to  g e t a M otors P u b lic  t 

s tg iy y o u r  own nam r and n a i l  to  the D is tr ic t O ffic e . T  
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12

2 5-A

3 6 S

UNITED STATES



Re: Charge No. AU7-6-535 

AMENDED CHARGE

This amended charge realleges and incorporates all of 
the above-referenced charge in addition to those asserted below.

The- following unions, United Transportation Local Unior. 
and the International United Transportation Union; the Bricklaye 
Masons, and Plasterers International Union Local No. 13*, and the 
Bricklayer, Masons, and Plasterers International Union; the inte 
national Association of Machinists and Aerospace Workers, Port 
i^rthur Lodge No. 823 and the International Association of Mach in 
and Aerospace Workers; and, the International Brotherhood of Ele 
trical Workers, AFL-CIO, Local Union No. 390 and the Internation 
Brotherhood of Electrical Workers, AFL-CIO have agreed to, ac­
quiesced in,'or otherwise condoned the unlawful and racially dis 
criminatory employment practices of Gulf Oil Company of Port 
Arthur, Texas. These unions have failed to protect the seniori 
rights of black employees at Gulf Oil, have failed to abate the 
disproportionate discharge, suspension; and discipline of black 
employees, have failed to establish effective training and appro 
ticeship programs; if such programs have been established, the 
unions have deliberately failed to provide training opportunitie. 
to a representative number of blacks as trainees or apprentices. 
Additionally, the unions have failed to assist black workers at* 
Gulf in obtaining wages commensurate with the work being perforin 
by black employees, have not established recruitment program, an 
have not assisted blacks to attain supervisory status or promoti

This complaint is being made on behalf of the complaina 
in original charge No. AU7-6-535 and on behalf of the class of 
blacks who are presently employed, who have been employed in the 
past, and those who have attempted to obtain employment at Gulf 
Oil Company but were unsuccessful.

|p “S., ^  K

‘o S i

,T . U v C ^ ~ i / /if/ - c  I o /

26-A



F 1 L Eq D
UNITED STATES DISTRICT COURT EASTERN DISTRICT OMEXASEASTERN DISTRICT OF TEXAS

BEAUMONT DIVISION fpg Q 1977

- - - - - - - - - - - - - - - - - x
WESLEY P. BERNARD, et al., :

Plaintiffs, :
vs. :

GULF OIL COMPANY, et al., :
Defendants. :

MURRAI L  HARRIS, CLERK.

"rrT*'

NOTICE OF APPEAL

Civil Action No. 
B-76-183-CA

x

PLEASE TAKE NOTICE that the named plaintiffs 
herein, on behalf of themselves and all others similarly 
situated, hereby appeal to the United States Court of 
Appeals for the Fifth Circuit from all asoects of the
final order, judgment, and decree 
on January 11, 1977.

entered in this action

STELLA M. MORRISON
1015 East Gulfway Drive 
Port Arthur, Texas 77540

ULYSSES GENE THIBODEAUX
One Lakeside Plaza, 7th Floor 
Lake Charles, Louisiana 70601

CHARLES E . COTTON
Suite 500 - 343 3aronne Street 
New Orleans, Louisiana 70112

BARRY L. GOLDSTEIN
733 15th Street. N.W . 
Washington. D.C. 20003

JACK GREENBERG 
PATRICK O. PATTERSON 

10 Columbus Circle 
Suite 2030
New York New York 10019 

ATTORNEYS FOR PLAINTIFFS

J /2 7-A