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TABLE OF CONTENTS

Table of Authorities. 
Questions Presented . 
Statement of the Case 
Summary of Argument .
Argument.............

I. The District Court properly granted 
Summary Judgment to DuPont and the Union 
under the case of Teamsters vs. United 
States, Supra, and Section 703(h) of
Title V I I ............................ .. 7

II. Williams may not avoid Summary Judgment 
as dictated by Teamsters and Section 
703(h) by reliance upon an alleged 
violation of 42 U.S.C. Section 1981 . . . .  18

III. Williams may not maintain an action for 
an alleged continuing violation and 
circumvent the holding of Teamsters
and Section 703(h).......................... 19

IV. The E.E.O.C. may not make a claim in this 
action for alleged discrimination in 
hiring occurring after the effective 
date of Title VII because those allega­
tions are beyond the scope of the 
E.E.O.C. complaints made by Williams
and the other black employees of DuPont 
and beyond the investigation and con­
ciliation procedure followed by the
E.E.O.C. in this regard................... 22

Conclusion................. ................................ 26



Table of Authorities

/Cases:-
Page

E.E.O.C. v. Bailey Company, 563 F.2d 
439 (6 CR., 1977) CERT denied,
435 U.S. 915 (1978)........ ................. 6, 23, 25

E.E.O.C. v. E.I. duPont deNemours and Company,
Chestnut Run, 373 F. Supp., 1321 (D.Del. 1974) 
(Aff'd, 516 F.2d 297 (3rd Cir. 1975) ........... 25

E.E.O.C. v. Federal Mutual Insurance Company 
F.Supp. , 16 FEP Cases 

820, (N.D.Ga., 1977);............................ 25
E.E.O.C. v. Honeywell, Inc., 73 Frd. 496

(N.D.I11. 1977).................................. 25
E.E.O.C. v. National Cash Register Company

405 F.Supp. 562 (N.D.Ga. 1975) ................. 25
Ferguson v. Mobile Oil Corporation, 443 F.Supp.

1334 (S.D.N.Y. 1978) ............................ 25
Garner v. E.I. duPont, 2 FEP Cases

60 (W.D.Ky. 1 9 6 9 ) ..............................  15, 16, 17
Green v. Medford Knitwear Mills, Inc.

408 F. Supp. 577 (E.D. PA., 1976) ........... 7
James v. Stockham Valves and Fittings Co.

559 F. 2d 310 (5th CR. 1977), Cert.
denied, 434 U.S. 1034 (1978)................. 12

Johnson v. Rvder Truck Lines, Inc.,
575 F .2d 471 (4th Cr. 1978), Cert, denied,
440 U.S. 979 (1979) ............................ 18

Newburg Area Counsel, Inc. v. Board of
Education, 489 F.2d 925 (6th Cir. 1973), 
vacated and remanded, 418 U.S. 918, 
reaff'd per curiam, 510 F. 2d 1358 (6th 
Cir. 1974) cert, denied. 421 U.S. 911 (1975). . 13

i i



Orlik Ltd. v. H'elm Products, Inc.
427 F. Supp. 771 (S.D.N.Y., 1977)

Pa^e

7
Pettway v. American Cast Iron Pipe Company,

576 F.2d 1157 (5th Cr 
439 U.S. 1115 (1979).

. 1978), Cert, denied,
18

Sears v. Santa Fe Ry. Co., 
(D.Ken. 1978) . . . .

454 F .2d 158
12

Teamsters v. U.S., 431 U.S. 
(1977)...............

324
. . 2, 6, 8, 10,

17, 11,18,
12,
19,

15,20
Trabucco v. Delta Air Lines 

315 (6 CR., 1979) . .
, 590 F. 2d,

6, 21, 22
United Air Lines v. Evans, 

(1977)...............
431 U.S. 553

. . 2, 6, 11, 17, 20, 21, 22

iii



IN THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT 

NOS. 80-3176, 80-3177

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,
Plaintiff-Appellant, v .

E. I. DuPQNT de NEMOURS, et al.,
Defendants-Appellees.

JOHN R. WILLIAMS, et al.,
Plaintiffs-Appellants, 

v .
E. I. DuPONT de NEMOURS, et al.,

Defendants-Appellees.

On Appeal from the United States District Court 
for the Western District of Kentucky

BRIEF FOR APPELLEE, NEOPRENE CRAFTSMEN UNION 

QUESTIONS PRESENTED
1. Whether the District Court erred in granting Summary 

Judgment to the Appellees herein on the basis that there was no 
showing that the seniority system was not bona fide, and that as 
such, the seniority system was immunized by Section 703(h) of 
Title VII of the Civil Rights Act of 1964.



2. Whether the Trial Court erred in holding that 
Plaintiffs may not maintain an action for employment 
discrimination in the herein action under 42 U.S.C. Section 1981.

3. Whether the Appellants, under United Air Lines v. 
Evans, 431 U.S. 553 (1977), are barred from circumventing in 
Section 703(h) of Title VII and the holding in Teamsters vs.
U.S., 431 U.S. 324 (1977), by alleging a "continuing violation" 
in this case.

4. Whether the Trial Court erred in dismissing the 
allegations of the E.E.O.C.'s complaint pertaining to 
discriminatory hiring, job assignments and testing on the grounds 
that these questions were beyond the scope of the underlying 
administrative charges and investigative and conciliation process.

STATEMENT OF THE CASE
Appellee, Neoprene Craftsmen Union (hereinafter referred 

to as "Union"), feels that Appellants have omitted certain 
pertinent aspects from their statement of the case. As such,
Union will not attempt to restate all aspects of the case, but 
will point out to the Court those aspects which Union believes 
were lacking from Appellant's (hereinafter referred to as 
"E.E.O.C." and/or "Williams") statement.

In May, 1971, eighteen (18) employees of DuPont filed 
charges with the E.E.O.C. in which they alleged that they had

-2-



been discriminated against in violation of Title VII. In fact,
of the eighteen (18) charges, thirteen (13) were worded
identically and stated:

"Past discriminatory practices in job 
opportunities perpetuate impresent opportunities 
for negroes as a class. I have been 
discriminated agianst (sic) because of past 
disciminatory practices which denied negroes as a 
class, job opportunities and now perpetuate as a 
disadvantage to negroes. (See E.E.O.C. charges.
App. pp. 209-230).
Each of the eighteen (18) complained that the seniority 

system perpetuated discriminatory hiring practices which occurred 
prior to the enactment of Title VII.

The E.E.O.C., in its statement of the case, indicates 
that it believes that the charges contain specific allegations of 
payment of discriminatory wages, the use of tests and educational 
standards which deny transfer opportunity to blacks, and current 
discriminatory hiring practices. However, in attempting to 
support this statement, the E.E.O.C. pointed to only three of the 
eighteen (18) charges. It is respectfully submitted that those 
charges simply do not support the statement made by the 
E.E.O.C.l

1 The E.E.O.C. has stated that the those charges 
which support a claim relating to something other than the 
seniority system are the charges of W. Green, J. Williams and I. 
Arnold.

-3-



Two years after the filing of these charges, the 
E.E.O.C. issued its reasonable cause determination and Williams 
filed the herein action in July of 1973 on behalf of a class of 
134 black encumbant employees hired prior to July, 1965. In 
November, 1973, the E.E.O.C. also filed suit. (E.E.O.C. 
Complaint. App. pp. 64-68).

 ̂ (Footnote continued)
The charge of W. Green makes the blank statement that 

there is a segregated seniority list but no evidence was 
introduced of such nature in any of the discovery in this 
action. He also refers to segregated jobs. This apparently 
relates to the balance of whites and blacks on the seniority 
list, which in turn relates to hiring practices which existed 
before the effective date of Title VII. As such, William W. 
Green's charge is consistent with the other charges, namely that 
the seniority system perpetuated discriminatory hiring practices 
which occurred prior to the enactment of Title VII. [See Charge 
of W. Green. App. p. 543]

J. Williams' charge with regard to testing does not 
allege a continuous discriminatory test, but rather alleges that 
he was discriminated against with regard to a particular 
promotion in the early 1960’s. Williams stated that he believed 
he had scored high on the test but that the company claimed that 
he fell short of a passing score. He does not allege that the 
tests were discriminatory or that different tests were given to 
whites after the requirement was imposed by the company (Charge 
of J. Williams. App. pp. 541-542)

Finally, the E.E.O.C. points to the charge of I. Arnold, 
but examination of that charge reveals that Mr. Arnold complains 
of not being hired into higher paying jobs when he was hired.
The charge itself indicates that at the time he made the charge 
in 1971 he had twenty years of service and therefore it would 
appear that the time period about which he is complaining is in 
1951, prior to the effective date of Title VII. As such, he, 
too, is complaining of perpetuation of alleged discriminatory 
acts which occurred prior to the date of Title VII in the form of 
the current seniority system. [See charge of I. Arnold. App. 
pp. 546-547]

-4-



The complaints filed by the E.E.O.C. and Williams are 
based upon the eighteen (18) employee charges to the E.E.O.C. 
that pre-act discriminatory practices are being perpetuated by 
the Defendant's seniority system. Williams' complaint defines 
the class which he represents as "134 negro employees of 
Defendant DuPont, whose plant-wide seniority dates are prior to 
July 2, 1565." (Williams' Complaint, App. pp. 10-17).
Therefore, the complaints of Williams and the E.E.O.C., like the 
charges filed before the E.E.O.C. on which they are based, amount 
to nothing more than an allegation that the seniority system 
violates Title VII because it allegedly perpetuates the effects 
of discriminatory practices which occurred prior to the effective 
date of Title VII.

After six (6) years of discovery having been taken by 
all parties, the Appellees filed a Motion for Summary Judgment 
and that motion was granted by the District Court below. It is 
this Summary Judgment from which the E.E.O.C. and Williams appeal 
to this Court.

SUMMARY OF ARGUMENT
1. DuPont and the Union were entitled to Summary 

Judgment because the complaints upon which Williams and the 
E.E.O.C.'s complaints are founded allege perpetuation of 
pre-Title VII discriminatory hiring practices. Under

-5-



International Brotherhood of Teamsters v. U.S., 431 U.S. 324 
(1977), and Section 703(h) of Title VII, since there has been no 
showing that the current seniority system was adopted for 
discriminatory purposes or is anything but a bona fide system, no 
claim may be made under Title VII, merely because it may 
perpetuate the effects of past alleged discrimination.

2. If no claim may be made under Title VII because of 
Teamsters and Section 703(h), no claim may be founded under 42 
U.S.C. Section 1981.

3. The Appellants contend that their complaints are not
limited to "perpetuation of past discrimination", but state that 
they have alleged a so-called "continuing violation" of Title VII 
as that relates to testing requirements for transfer into certain 
divisions of jobs. Williams' complaint is not a current 
violation and as such may not be maintained as a "continuing 
violation" under the rational of United Air Lines v. Evans, 431 
U.S. 553, (1977) and this Court's decision in Trabucco v. Delta
Air Lines, 590 F.2d, 315 (6 CR., 1979).

4. That the E.E.O.C. did not have the right to litigate 
claims aside from the bona fides of the seniority system under 
the authority of E.E.O.C. vs. Bailey Company, 563 F.2d 439 (6 
CR., 1977), CERT denied, 435 U.S. 915 (1978).

-6-



ARGUMENT
I. THE DISTRICT COURT PROPERLY GRANTED SUMMARY JUDGMENT 

TO DuPONT AND THE UNION UNDER THE CASE OF TEAMSTERS VS. UNITED 
STATES, SUPRA, AND SECTION 703(h) OF TITLE VII.
It must first of all be pointed out that this action had 

been maintained for slightly over six years in the District Court 
when DuPont and the Union made its motions for Summary Judgment.

In their appeal, both Williams and the E.E.O.C. 
complained that they were not afforded an opportunity to discover 
relevant evidence and both speculate as to what relevant evidence 
could be produced which would establish that the seniority system 
maintained at the DuPont plant in Louisville was something other 
than a bona fide system. What they ignore is that they have had
six years to produce this evidence and have not yet done so.

*

At some point in time the parties must be called upon to 
test the evidence which has been produced. One cannot answer 
that the motion for Summary Judgment is premature because 
discovery has not been completed. Green v. Medford Knitwear 
Mills, Inc., 408 F. Supp. 577 (E.D. PA., 1976); Orlik Ltd, v.
Helm Products, Inc., 427 F. Supp. 771 (S.D.N.Y., 1977)

An examination of the record indicates that there is 
absolutely no evidence that indicates that the seniority system 
maintained at the DuPont plant is anything but neutral and bona 
fide.

-7-



The Appellants' briefs go on at great length to attempt 
to demonstrate that DuPont's seniority system is not bona fide 
and that unresolved issues exist in connection with its bona fide 
nature.

What Williams and the E.E.O.C. rely on, however, is not 
any hard evidence that the seniority system was adopted for 
purposes of racial discrimination instead of for purposes of 
labor management relations, but rather seek to impeach the 
seniority system by pointing to acts which occurred prior to the 
enactment of Title VII.

In Teamsters vs. U.S., supra, the Supreme Court held 
that so long as a seniority system is facially neutral and not 
adopted with a discriminatory intent, the fact that it locked in 
previous victims of discrimination would not render it violative 
of Section 703(h) of Title VII.

The holding of this case and its import can best be 
related in the words of the Supreme Court itself in the decision:

To be sure, Section 703(h) does not immunize 
all seniority systems. It refers only to "bona 
fide" systems, and a proviso requires that any 
differences in treatment not be "the result of an 
intention to discriminate because of race . . . 
or national origin...." But our reading of the 
legislative history compels us to reject the 
Government's broad argument that no seniority 
system that tends to perpetuate pre-Act 
disrimination can be "bona fide." To accept the 
argument would require us to hold that a

-8-



431 U.S. 
Congress

seniority system becomes illegal simply because 
it allows the full exercise of the pre-Act 
seniority rights of employees of a company that 
discriminated before Title VII was enacted. It 
would place an affirmative obligation on the 
parties to the seniority agreement to subordinate 
those rights in favor of the claims pre-Act 
discriminatees without seniority. The 
consequence would be a perversion of the 
congressional purpose. We cannot accept the 
invitation to disembowel Section 703(h) by 
reading the words "bona fide" as the Government 
would have us do. Accordingly, we hold that an 
otherwise neutral, legitimate seniority system 
does not become unlawful under Title VII simply 
because it may perpetuate pre-Act 
discrimination. Congress did not intend to make 
1. illsgal for employees with vested seniority 
rights to continue to exercise those rights, even 
at the expense of pre-Act discriminatees.
at 353-54. Moreover, as to legislative intent of
in enacting Title VII, the Court said:
"Title VII would have no effect on established 
seniority rights. Its effect is prospective and 
not retrospective. Thus, for example, if a 
gug-iness has been discriminating in the past and 
~ — resuH  ^as an all-white working force, when tie title comes into effect the employer's 
obligation would be simply to fill future 
vacancies on a non-discriminatory basis. He 
would not be obliged--or indeed, permitted to 
fire whites in order to hire Negroes, or to 
prefer Negroes for future vacancies, or, once 
Negroes are hired, to give them special seniority 
rights at the expense of the white workers hired earlier."

"■pills VII would have no effect on seniority 
rights existing at the time it takes effect. If, 
for example, a collective bargaining contract

-9-



provides that in the event of lay-offs, those who 
were hired last must be laid off first, such a 
provisions would not be affected in the least by 
Title VII. This would be true even in the case 
where owing to discrimination prior to the 
effective date of the title, white workers had 
more seniority then Negroes."

Teamsters, 431 U.S. at 350-51 (emphasis in original)(quoting 
Clark Case Memorandum from the Congressional Record).

What Appellants rely on in their briefs are pre-Act 
occurrences and innuendo of possible evidence which may exist of 
discriminatory intent.

As set forth previously, the Appellants have had six 
years to produce the evidence which they state they think exists 
to establish an issue as to the less than bona fide nature of the 
seniority system. Nonetheless, it is important to note that 
neither Williams nor the E.E.O.C. filed any concrete relevant 
evidence or filed a single affidavit to support their assertions 
that DuPont's seniority system was not bona fide. An examination 
of the evidence which E.E.O.C. and Williams assert in their 
briefs that establishes an issue as to the bona fide nature of 
the seniority system simply does not do so.

Williams refers to negotiation of the first collective 
bargaining agreement in 1954, as relevant evidence of current 
discriminatory intent. Williams and the E.E.O.C. allege that the 
District Court failed to look to the genesis of the agreement

-10-



between DuPont and the Union in making its determination that no 
evidence existed that the seniority system was anything but bona 
fide. They state that Teamsters requires this investigation.

It must first of all be pointed out that the collective 
bargaining agreement at DuPont has not been in force continuously 
since 1956. There were periodic collective bargaining 
negotiations which produced new agreements which were effective 
September 23, 1968, April 20, 1971 and March 22, 1974. To hold 
that Appellants can prove the discriminatory intent which is 
required to be proved to remove the Section 703(h) immunity for 
the seniority system, they need only show that the 1956 agreement 
was adopted with intent to discriminate, is to subvert the very 
intent of the 1964 Congress when it enacted Section 703(h).

Williams filed his charge in January of 1971. Under 
United Air Lines v. Evans, 431 U.S. 553 (1977), any 
discriminatory conduct which occurred more than ninety (90) days 
before the charge was filed was merely "an unfortunate event in 
history". Therefore, any attack on DuPont's seniority system as 
the result of Williams' charges must relate to the negotiations 
which produced the March 23, 1968 contract. Unless Williams and 
E.E.O.C. can prove that the 1968 negotiators changed the 
seniority system for purposes of racial discrimination rather

-11-



than for purposes of labor management relations, Section 703(h) 
immunizes the seniority system. The Trial Court below clearly 
and accurately saw that no such evidence existed.

Moreover, it is respectfully submitted that Teamsters 
does not require going to the very genesis of the chain of 
agreements as Williams and the E.E.O.C. would have this Court 
believe.

In Teamsters the bona fide nature of the seniority 
system was stipulated. The Supreme Court had no occasion to 
decide the criteria by which lower Courts were to determine the 
bona fide nature of the seniority system. In pointing this out, 
the Supreme Court mentioned in passing the genesis of the system 
when it said,

"It is conceded that the seniority system did not 
have its genesis in racial discrimination, and 
that it was negotiated and has been maintained 
free from any illegal purpose. In these 
circumstances, the single fact that the system 
extends no retroactive seniority to pre-Act 
discriminatees does not make it unlawful."
Teamsters, supra, at Page 356.
Thus, the cases relied upon by Williams and the E.E.O.C. 

which relate to an inquiry into the genesis of a seniority system 
rest upon dictum not a substative holding by the Court, (e.g. 
James v. Stockham Valves and Fittings Co., 559 F.2d 310 (5th CR. 
1977), Cert. denied, 434 U.S. 1034 (1978), and Sears v. Santa Fe 
Ry. Co . , 454 F.2d 158 (D.Ken. 1978).



However, even if one does look to the genesis, it is 
clear that, as set forth previously, that genesis involves the 
agreement which was in effect at the time of the charged 
activity, not previous agreements that have been modified and 
renegotiated over periods of time.

There simply is no evidence that the seniority system in 
effect at the time the charges were filed was anything but bona 
fide. No evidence was presented as to the intent of that 
seniority system nor did either Williams or the E.E.O.C. point to 
any notes of the negotiating sessions that resulted in the 
agreement that was effective at that time as indicating any such 
thing. The best that Williams can do is refer to the Newburq 
Area Counsel, Inc, v. Board of Education case, 489 F.2d 925 (6th 
Cir. 1973), vacated and remanded, 418 U.S. 918, reaff'd per 
curiam, 510 F. 2d 1358 (6th Cir. 1974), cert, denied, 421 U.S.
911 (1975), involving intergration of the public schools in the 
mid-seventies in the Louisville area as some indication that 
racial discrimination was occurring in the mid-seventies in 
connection with the DuPont Labor Agreement. It is difficult to 
see how Williams makes this jump of logic from alleged 
discrimination in the public schools based on geographical 
concentrations of blacks and whites to alleged discrimination in 
a totally different context in connection with the labor 
management arena at the DuPont plant.

-13-



Williams further refers, at Page 31 of his brief, to 
what he alleges as limited black access to white jobs through the 
use of tests and educational requirements which presently 
discriminate against blacks and are unrelated to job performance 
as an indication of present discrimination interests. He, 
however, points to no evidence which establishes this issue, but 
merely to the self-serving finding of the E.E.O.C. determination. 
[App. pp. 563-565]

Further, Williams refers to current discriminatory 
impact of the seniority system but really refers to disparate 
impact which results not from the seniority system, but rather 
from actions which occurred prior to the effective date of Title 
VII.

Williams finally refers to irrationality between the 
seniority divisions and the set-up at DuPont as far as work, but 
fails to point to any evidence which establishes any 
irrationality. In Williams' statement of the case, he refers to 
the classifications within the seniority system as not coinciding 
with the departments of the plant (Williams Brief-Page 3), but 
what Williams fails to point out is that Mr. McConnell, in his 
deposition, made it clear that the seven departments which he 
testified to were divided in such a manner in the context of the 
management structure rather than the relations of the jobs

-14-



themselves [McDonnel Depo. Pages 7-9, App. pp. 573-576], This 
certainly is not evidence of irrationality of relationship 
between the divisions in the seniority system and the work forpe.

In short, neither the E.E.O.C. nor Williams can point to 
anything other than actions which occurred prior to the effective 
date of Title VII as evidence that DuPont's seniority system is 
not bona fide.

There can be no doubt that pre-Act conduct is irrelevant 
in determining the bona fide nature of a seniority system under 
Section 703(h). Indeed this is the clear holding of Teamsters, 
supra.

Another basis exists for the granting of the Summary 
Judgment below as that relates to all aspects of relief from the 
seniority system. That basis is the res judicata effect of the 
decision of the District Court in the case of Garner v. E. I. 
duPont, 2 FEP Cases 60 (W.D.Ky. 1969).

In the briefs filed in support of DuPont's and the 
Union's motion for Summary Judgment below, the res judicata 
effect of Garner was raised as additional grounds for the 
granting of the motion. While the District Court's memorandum 
opinion [App. pp. 531-538] did not cite this as one of the 
grounds for its granting of the motion for Summary Judgment, the 
Union feels that it is important to point this aspect of the case 
out to this Court as an additional consideration.

-15-



In 1968, Mr. Garner filed a class action in the Western
District of Kentucky against DuPont and the Union. In his
complaint he represented a class composed of all of the persons
who are now in the Williams class, namely "Negro persons who are
employed or who might be employed by E. I. DuPont deNemours and
Company . . .at its chemical plant located in Jefferson County,
Kentucky" . . . The complaint in Garner alleged discrimination
by DuPont and the Union in regard to employment, terms of
employment and requirements for promotion and in the application
of the seniority system. These are the same charges which are
being made in the present case by Williams and the E.E.O.C.

On July 10th of 1969, the District Court in Garner
entered a final judgment granting partial relief and dismissing
the complaint with prejudice. That decision was appealed to this
Court and the appeal was dismissed on November 28th of 1969.

When the original Motion to Dismiss was filed with the
District Court below in this case, by both DuPont and the Union,
which set forth the res judicata effect of Garner, Judge
Bratcher, by an order entered March 13, 1975, overruled that
Motion to Dismiss stating that:

"The Complaint in the instant case alleges acts 
of discrimination of a continuing nature, not 
acts which occurred prior to the judgment in the 
Garner case."

-16-



Judge Bratcher went on to indicate that the allegations 
of the Complaint for purposes of the Motion to Dismiss must be 
taken as true and as such, those allegations which stated that 
Plaintiffs were locked into the classifications of their 
seniority system that were "segregated" by means of the 
collective bargaining agreement constituted a continuing 
violation. [See Opinion of Judge Bratcher overruling Motion to 
Dismiss, App. pp. 317-319]

Judge Bratcher's decision pre-dated the Evans and 
Teamsters cases which, it is respectfully submitted, did away 
with the continuing violation theory in a case similar to the 
case at bar and further did away with the theory that an 
otherwise valid seniority system which perpetuated past 
discrimination was actionable.

It is respectfully submitted that had those decisions 
been rendered prior to Judge Bratcher's decision, his decision 
would have been different, and that the Garner decision is res 
judicata as to the issues raisec by E.E.O.C. and Williams in this 
action.

For the above reasons it is respectfully submitted that 
the District Court below properly rendered Summary Judgment in 
favor of DuPont and the Union under the dictate of Teamsters and 
Section 703(h) of Title VII.

-17-



II. WILLIAMS MAY NOT AVOID SUMMARY JUDGMENT AS DICTATED
BY TEAMSTERS AND SECTION 703(h) BY- RELIANCE 

UPON AN ALLEGED VIOLATION OF 42 U.S.C. SECTION 1981.
Williams asserts in his brief that he may avoid the

impact of 703(h) of Title VII as construed by Teamsters by
relying upon a violation of 42 U.S.C. Section 1981. It is clear
that this may not be done and, in fact, the E.E.O.C., in its
brief, has not asserted that it may be done.

The Fourth and Fifth Circuits have clearly held this to
be true in Johnson vs. Ryder Truck Lines, Inc., 575 F.2d 471
(4th Cr. 1978), Cert. denied, 440 U.S. 979 (1979) and Pettway vs.
American Cast Iron Pipe Company, 576 F.2d 1157 (5th Cr. 1978),
Cert, denied, 439 U.S. 1115 (1979).

Clearly, Congress, which in 1974 enacted Section 703(h)
in order to preserve seniority systems, could not have intended
to permit 703(h) to be rendered a nulity by reliance upon 42
U.S.C. Section 1981. As the Fifth Circuit has said in Pettway:

"Assuming, as we must, that Congress intended 
section 703(h) to accord absolute protection to 
pre-Act seniority rights which accrued under bona 
fide seniority systems, Congress could not have 
intended such seniority rights to remain subject 
to revision under section 1981. The same 
protections should apply whether the seniority 
system is challenged under Title VII or section 
1981. We therefore agree with the Fourth 
Circuit's holding in Johnson that the protection 
accorded bona fide seniority systems by section 
703(h) apply whether suit is brought under Title 
VII or section 1981."

-18-



None of the cases cited by Williams involving the 
elements of proof and other related matters between Title VII and 
Section 1981 address the real question, namely whether Congress 
intended Section 1981 to circumvent Section 703(h) of Title VII 
and permit a claim involving an otherwise immunized seniority 
system.

It is therefore clear that the District Court acted 
properly in refusing to consider a claim under Section 1981 as 
that claim relates to the seniority system which system has not 
been shown to be anything but bona fide.

III. WILLIAMS MAY NOT MAINTAIN AN ACTION FOR AN ALLEGED 
CONTINUING VIOLATION AND CIRCUMVENT THE HOLDING OF 

TEAMSTERS AND SECTION 703(h).
In an attempt to avoid the impact of Teamsters in 

Section 703(h), Williams and the E.E.O.C. alleged before the 
District Court and now before this Court that the charge that 
Williams filed in 1971 and which became the basis for his 1973 
suit in the District Court below, was not limited to an 
allegation of "perpetuation of past discrimination", but rather 
specifically alleged discrimination in connection with his 
failure to obtain a particular promotion in the early 1960's. 
Williams and the E.E.O.C. now argue that that allegation was, in 
fact, an allegation of a continuing discriminatory policy

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of testing which exists even today and which, as such, is not
foreclosed by Teamsters or by United Air Lines vs. Evans, supra.

A close examination of Williams' complaint points out
that when boiled down to essentials, it is merely a claim that he
was deprived of a promotion in the early 1960's because DuPont
told him he had not obtained a passing grade on a test which was
required. He states in that claim that he believed he had scored
well on the test and that whites, before and after his passing
for the promotion, received promotions with grades he believed to
be lower than his own. While he makes the blanket accusation
that the testing requirements a.re a continuing violation, he does
not allege, nor was there any evidence introduced that the test
itself was discriminatory. He only states that he was
discriminated against because the score which he received should
have entitled him to the promotion and he did not get it because
of discrimination. He does not say that differents tests are
given to blacks and whites, only that he was personally
discriminated against. While he may still be suffering the
impact of that alleged act in the early 1960's, he does not
allege that he has been discriminated against since then a result
of the test. The Court, in Evans, stated that:

"Respondent is correct in pointing out that the 
seniority system gives present effect to a past 
act of discrimination. But United was entitled 
to treat that past act as lawful after Respondent

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failed to file a charge of discrimination within 
ninety (90) days then allowed by Section 706(d).
A discriminatory act which is not made .the basis 
for a timely charge is the legal equivalent of a 
discriminatory act which occurred before the 
statute was passed. It may constitute relevant 
background evidence in a proceeding in which the 
status of a current practice is at issue, but 
separately considered, it is merely an 
unfortunate event in history which has no present 
legal consequences." Ic3. at Page 558.

Nor does Williams' contention that this was a continuing
violation save in any way his claim. In Evans, the Court said:

"Respondent emphasizes the fact that she has 
alleged a continuing violation. . . but the 
emphasis should not be placed on mere continuity; 
the critical question is whether any present 
violation exists. . . .  A contrary view would 
substitute a claim for seniority credit for 
almost every claim which is barred by 
limitations. Such a result would controvene the 
mandate of Section 703(h)." _Id. at Page 560.
It is, therefore, clear that Williams alleged a

discriminatory act which took place not ninety (90) days or one
hundred and eighty (180) days, but rather almost ten (10) years
before he filed his complaint with the E.E.O.C. As such, under
the clear mandate of Evans, he may not bring that claim in this
lawsuit and the District Court accurately so held.

In this Court, in the case of Trabucco vs. Delta Air
Lines, 590 F.2d 315 (6th Cir. 1979), this Court rejected
assertions identical to Williams' claim as a "continuing
violation".

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The real question and distinguishing factor between 
Evans and Trabucco, and the cases cited by Williams and the 
E.E.O.C. in support of their position, is the crucial question of 
whether there is a present occurrence. It is clear that 
regardless of the terminology of Mr. Williams in his complaint, 
the last occurrence alleged and of which there is any evidence in 
the record was Mr. Williams' promotion which he did not receive 
in the early 1960's. There simply is no evidence in the record 
to create an issue in this regard as to a present occurrence.

As such, the District Court accurately granted Summary 
Judgment on this aspect of the case.

IV. THE E.E.O.C. MAY NOT MAKE A CLAIM IN THIS ACTION 
FOR ALLEGED DISCRIMINATION IN HIRING OCCURRING AFTER THE 

EFFECTIVE DATE OF TITLE VII BECAUSE THOSE ALLEGATIONS ARE BEYOND 
THE SCOPE OF THE E.E.O.C. COMPLAINTS MADE BY WILLIAMS AND THE 

OTHER BLACK EMPLOYEES OF DuPONT AND BEYOND THE INVESTIGATION AND 
CONCILIATION PROCEDURE FOLLOWED BY THE E.E.O.C. IN THIS REGARD.

The E.E.O.C. has alleged to this Court that the granting 
of Summary Judgment on the "non-seniority" allegations of 
discriminatory hiring and transfer policies was in error.

In the herein action not one of the eighteen charges 
filed with the E.E.O.C. dealt with hiring. Everyone attacked 
DuPont's seniority system for perpetuating pre-Act

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discrimination. Even in E.E.O.C.'s statement of the case, it 
could refer to only three of the eighteen as allegedly supporting 
claims of violations in hiring practices. [See E.E.O.C. brief, 
Pages 3 and 4; See also this brief, Pages 11 and 12.] In the 
Williams' complaint, as is set forth previously, the only 
complaint was a failure to obtain a promotion in the early 1960's 
as a result of racial discrimination. In the Arnold complaint, 
Mr. Arnold complained of hiring discrimination when he was hired, 
which apparently occurred in approximately 1951, many years 
before the effective date of Title VII. In the Green complaint, 
the only thing alleged was a segregated seniority list and 
segregated jobs. In sum total, no complaints were lodged of 
discrimination in hiring and therefore the E.E.O.C.'s 
determination of reasonable cause in its conciliation proposals 
were limited to seniority. DuPont's hiring practices were never 
investigated nor conciliated. Under these circumstances, the 
E.E.O.C. cannot now maintain a suit over alleged discriminatory 
hiring practices.

This Court, in the case of E.E.O.C. vs. Bailey Company, 
563 F. 2d 439 (6th Cir. 1977), Cert, denied, 435 U.S. 915 (1978) 
has issued an opinion which is dispositive of this issue.

In that decision, this Court held that the conciliation 
process would be of no use whatsoever if the E.E.O.C. could use 
any charge to support a complaint that covers any conceivable

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(



aspect of discrimination. Therefore this Court held that any 
complaint which the E.E.O.C. filed must include .only those 
allegations which were in the E.E.O.C.'s determination of 
reasonable cause and within the scope of a reasonable 
investigation of the charge filed with the E.E.O.C. Any other 
type of discrimination found in connection with the investigation 
would require the E.E.O.C. to file a new charge of its own:

The clearly stated rule in this Circuit is that 
the EEOC's complaint is "limited to the scope of 
the EEOC investigation reasonably expected to 
grow out of the charge of discrimination."
Tipler v. E. I. duPont deNemours & Co., 443 F.2d 
125, 131 (6th Cir. 1971); EEOC v. Kimberly-Clark 
Corp., 511 F.2d 1352, 1363 (6th Cir. 1975), cert, 
denied, 423 U.S. 994, 96 S.Ct. 420 (1976);
McBride v. Delta Air Lines, Inc., 551 F.2d 113,
115 (6th Cir. 1977).

The procedure to be followed when instances of 
discrimination, of a kind other than that raised 
by a charge filed by an individual party and 
unrelated to the individual party, come to the 
EEOC's attention during the course of an 
investigation of the private party's charge is 
for the filing of a charge by a member of the 
EEOC and for a full EEOC investigation of that 
charge. Then the employer is afforded notice of 
the allegation, an opportunity to participate ina 
complete investigation of such allegation, and an 
opportunity to participate in meaningful 
conciliation discussions should reasonable cause 
be found following the EEOC investigation.
Section 706(b) of Title VII, 42 U.S.C. Section 
2000e-5(b), provides for the filing of a charge 
by a member of the EEOC, and under such a filing, 
an employer will not be stripped of formal notice

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of the charge and of the opportunity to respond 
to the EEOC's inquiry into employment practices 
with respect to allegations of discrimination 
unrelated to the individual party's charge. In 
addition, the filing of a charge will permit 
settlement discussions to take place pursuant to 
29 C.F.R. Section 1601.19a after a preliminary 
investigation but before any finding of 
reasonable cause. Id. at 446, 448.

Also, in accord with this Court's holding, see E.E.O.C. v.
Federal Mutual Insurance Company, ______^_F.Supp. ____________, 16
FEP Cases 820, (N.D.Ga., 1977); Ferguson v. Mobile Oil
Corporation, 443 F.Supp. 1334 (S.D.N.Y. 1978); E.E.O.C. v.
Honeywell, Inc., 73 Frd. 496 (N.D.I11. 1977); E.E.O.C. v.
National Cash Register Company, 405 F.Supp. 562 (N.D.Ga. 1975);
E. E.O.C. v. E. I duPont deNemours and Company, Chestnut Run, 373
F. Supp., 1321 (D. Del. 1974) (Aff'd, 516 F. 2d 297 (3rd Cir. 1975).

An examination of E.E.O.C.'s determination letter will 
show that the "investigation, determination and conciliation" was 
limited to the seniority system. Hiring practices were never a 
subject of this process and as such, under this Court's ruling in 
Bailey, cannot be a part of a complaint filed by the E.E.O.C. 
Moreover, the E.E.O.C., even it had investigated hiring 
practices, would have been required under Bailey to file a new 
charge, which it did not do. As is set forth previously, none of 
the eighteen charges filed with the E.E.O.C. deal with hiring or 
anything like or related to hiring.

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Therefore, the District Court below correctly granted 
Summary Judgment to DuPont and the Union on all non-seniority 
aspects of the E.E.O.C. 's complaint.

CQNCLUS ION
For the foregoing reasons, the Summary Judgment granted 

to DuPont and the Union below should be sustained.
Respectfully submitted.

BOROWITZ & GOLDSMITH

CHARLES W. BROOKS^"JR. 
Attorneys for Neoprene 

men Union 
310 West Liberty Street 
Louisville, Kentucky 40202 
Telephone: 584-7371

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CERTIFICATE
I hereby certify that two copies of the foregoing Brief 

have been mailed postage pre-paid this 27th day of August, 1980, 
to each of the following Counsel of Record:

Edgar A. Zingman, Esq.
Sheryl G. Snyder, Esq.
Robert B. Vice, Esq.
Wyatt, Grafton & Sloss 
2800 Citizens Plaza 
Louisville, Kentucky 40202
Patrick O. Patterson 
10 Columbus Circle 
Suite 2030
New York, New York 10019 
Daniel Hall
Jones, Rawlings, Keith & Northern 
504 Portland Federal Building 
Louisville, Kentucky 40202
Philip B. Sklover
Equal Employment Opportunity Commission
2401 E Street, N.W. 
Washington, D.C.^-20506

Charles W. Brooks,"Jr. 
Attorney for Neoprene Qrctf 

Union

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