Equal Employment Opportunity Commission v. Nemours Consolidated Brief for Appellee, Neoprene Craftsman Union
Public Court Documents
August 27, 1980

Cite this item
-
Brief Collection, LDF Court Filings. Equal Employment Opportunity Commission v. Nemours Consolidated Brief for Appellee, Neoprene Craftsman Union, 1980. 1fe1f6a4-b09a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/245442e2-e2e3-48b0-b123-6b4f7ce34381/equal-employment-opportunity-commission-v-nemours-consolidated-brief-for-appellee-neoprene-craftsman-union. Accessed April 29, 2025.
Copied!
•321?*as * £ ^ 5 5 5 wR ? £ v A - • im3*i$Sk #$>; THE >; UNITED STATES' COURT. OF. APPEALS 1 p̂*'..:. ̂ ^OR^tE^i^TR'iCIROpIT >•. - r*;.- ■ ?;; • ? < • * . • -3 • ■■̂■-: ..- •. •-- .tv - ''v-'̂ NOS.<80-3176, /30-3177 if U ■ 2fe 5$£5 p i 'ikxSk&k p p n m i... dupont :'<3e:.ne^oor s ."UNION :&:.4G0LD.SMI?H 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 -19- 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 -20- 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". -21- 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 -22- 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 -23- ( 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 -24- 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. -25- 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 -26- 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 -27-