Defendants’ Response to Court Order

    APPENDIX

Supreme Court of the United States
OCTOBER TERM, 1973 

No. 73-1543

WILLIE JOHNSON, JR., 
PETITIONER,

v .

RAILWAY EXPRESS AGENCY, INC., ET AL.

OIST W R IT  OR C ER TIO R A R I TO T H E  TO U TED  STA TES 

CO U RT OE A P P E A L S  ROR T H E  S IX T H  C IR C U IT

PETITION FOR CERTIORARI FILED APRIL 15, 1974 
CERTIORARI GRANTED JUNE 3, 1974



T o :  G l o r i a  D a v i s - H o y e s  
( d o  n o t  r e m o v e )



I N D E X

PA G E

Complaint, with Exhibits ..................................... ....... 4a
Exhibit 1—EEOC Final Investigation Report .... 14a
Exhibit 2—Letter dated February 17, 1972 from 

William E. Caldwell to Hon. Bailey 
Brown ................................................   45a

Exhibit 3—Order Dismissing Action (No. C-71-
66) Without Prejudice .....   47a

Exhibit 4—Letter dated May 5, 1972 from 
William E. Caldwell to Hon. Bailey 
Brown ...........................   49a

Exhibit 5—Letter dated May 8, 1972 from 
Hon. Bailey Brown to William E. 
Caldwell ............................................. 51a

Answer of REA Express, Inc......................................  52a

Motion of Defendants Tri-State Local, etc. with 
Appendices* ...............................................................  58a

Appendix A—Supplemental Complaint in No.
C-71-66 ............................................. 60a

Appendix B—Answer of Defendants Tri-State
Local, etc. in No. C-71-66 .............. 67a

Appendix C—Motion of Defendants Tri-State 
Local etc. in No. C-71-66, with 
Affidavit* ....................................   72a

Docket E n trie s  ............ ............................................................  l a

* Appendix F, Supplemental Memorandum in Support of Mo­
tion, has been omitted.



11

PAGE

Appendix D—Interrogatories of Defendants Tri- 
State Local, etc. to Plaintiff, etc. 
in No. C-71-66 .......... .................... 77a

Appendix E—Answer to Interrogatories of De­
fendants Tri-State Local, etc. to 
Plaintiff, etc. in No. C-71-66 ......  86a

Appendix G-—Order with. Respect to Motions to
Dismiss, etc. in No. C-71-66 ........... 91a

Motion of Defendant REA Express, Inc. etc............. 94a

Amendment to Motion of Defendants Tri-State Local, 
etc............................ ..................................................... 96a

Order on Defendant Motions for Judgment .............. 98a

Opinion of United States Court of Appeals................ 105a

Opinion on Petition for Rehearing ............................  114a *

* Exhibits to Affidavit have been omitted.



la

I n  t h e  U n it e d  S tates D ist r ic t  C ourt

F or t h e  W e s t e r n  D ist r ic t  oe T e n n e s s e e  
W e st e r n  D iv isio n

C-72-183

Docket Entries

W illie J o h n s o n , J r ., 

vs.

R a ilw ay  E xpress  A g en c y , I n c ., B r o th erh o o d  oe R ailw ay  
C le r k s  T r i-S tate  L ocal, a n d  B ro th erh o o d  oe R ailw ay  
C l e r k s  L il y  oe t h e  V alley  L ocal.

5/31/72 Filed Complaint, exhibits 1 thru 5.
5/31/72 Filed Cost Bond for $250.00, Wm. E. Caldwell, 

Surety.
6/12/72 Filed Stipulation Extending time to Answer 

through July 25, 1972.
6/27/72 Filed Answer of REA Express, Inc.
7/25/72 Filed Motion—defts Tri-State Local to Dismiss 

Complaint, or in alternative to grant Summary 
Judgment.

7/25/72 Filed Memorandum of Points and Authorities 
of defts. BRAC Locals in support of Motion to 
Dismiss or in alternative for Summary Judg­
ment on ground of res judicata.

8/25/72 Filed Motion of the Defendant REA Express, 
Inc. to Dismiss the Complaint, or in the alter­
native to Grant Summary Judgment.



2a

8/25/72 

9/ 7/72

9/25/72

10/ 4/72

1/25/73

2/21/73

2/21/73

Filed Memorandum in Support of Defendant’s 
Motion to Dismiss or in the alternative to Grant 
Summary Judgment.
Filed Amendment to Motion of Defts. Tri-State 
Local and Lily of the Valley Local of the 
Brotherhood of Bailway, Airline and Steam­
ship Clerks to Dismiss the Complaint or in the 
alternative to Grant said defendants Summary 
Judgment.
Filed Memorandum in opposition of Defendants 
BEA Express, Inc. and Tri-State Local and 
Lily of the Valley Local of the Brotherhood of 
Bailway, Airline and Steamship Clerks to Dis­
miss the Complaint or in the alternative to 
Grant said Defendants Summary Judgment.
Filed Beply of Defendants Tri-State Local and 
Lily of the Valley Local of the Brotherhood of 
Bailway and Airline Clerks to Memorandum of 
Plaintiff in opposition to Motion to Dismiss the 
Complaint or, in the Alternative, to Grant said 
Defendants Summary Judgment, Copy Judge.
Filed Order on Defendant Motions for Judg­
ment—grant all defendants’ motions and dis­
miss the Complaint but at the cost of BEA. 
Copies to Caldwell, Greenberg, Belz, Highsaw 
and Morrow.
Filed Notice of Appeal by the Plaintiff. Copies 
to Highsaw, Belz and Morrow and Court Be- 
porter.
Filed Appeal Bond in amount of $250.00. Bill 
Caldwell, surety.

Docket Entries



3a

Ce r t ific a t e

I, W. Lloyd Johnson, Clerk of the United States District 
Court for the Western District of Tennessee, do hereby 
certify that the above index of the docket entries is a true 
and correct copy of all relevant docket entries which ap­
pear on the docket in this office. This 26th day of March, 
1973.

W. L loyd J o h n s o n , C ler k  
By: D.C.



4a

I n  t h e  U n it e d  S tates D ist r ic t  C ourt

W e st e r n  D istr ic t  oe T e n n e s s e e  
W e st e r n  D iv isio n

No. C-72-183

Complaint

[Title omitted in printing]

I.
The jurisdiction of this court is invoked pursuant to 28 

U.S.C. § 1343 and 42 U.S.C. § 2000e-5(f). This is a suit in 
equity authorized and instituted pursuant to Title VII of 
the Act known as the Civil Rights Act of 1964, 42 U.S.C. 
§§ 2000e, et seq., and 42 U.S.C. §§ 1981, 1982, 1983 and 1988. 
The jurisdiction of this court is invoked to secure protection 
of and to redress the deprivation of rights secured by (a) 
Title VII of the Act known as the Civil Rights Act of 1964, 
42 U.S.C. § 20Q0e, et seq., providing for injunctive and other 
relief against racial discrimination in employment, and (b) 
42 U.S.C. § 1981, 1982 and 1983, providing for equal rights 
of citizens and all persons within the jurisdiction of the 
United States.

II.

This is a proceeding for preliminary and permanent in­
junctions restraining defendants from maintaining a policy, 
practice, custom or usage of withholding, denying* or at­
tempting to withhold or deny, and depriving or attempting 
to deprive or otherwise interfering with the rights of plain­
tiff and other Negro persons similarly situated to equal 
employment opportunities at Railway Express Agency, 
Inc., Memphis, Tennessee, and equal labor representation



5a

by Brotherhood of Railway Clerks Tri-State Local and 
Brotherhood of Railway Clerks Lily of the Valley Local, 
without discrimination on grounds of race or color.

III.
Plaintiff is a Negro citizen of the United States, residing 

in the State of Tennessee. The defendant, Railway Express 
Agency, Inc., [hereafter, REA] is a corporation doing 
business in the State of Tennessee, and City of Memphis, 
and is an employer within the meaning of 42 U.S.C. 
§ 2000e(b) in that it is engaged in industry affecting inter­
state commerce and employs more than tweny-five (25) 
persons.

IV.
Defendant, Brotherhood of Railway Clerks Lily of the 

Valley Local is an unincorporated association of produc­
tion workers employed at defendant REA, and defendant, 
Brotherhood of Railway Clerks Tri-State Local is an un­
incorporated association of workers employed at defendant 
REA. On behalf of its members, defendant Union Locals 
enter into collective bargaining agreements dealing with 
the terms and conditions of employment of persons em­
ployed at defendant REA in Memphis, Tennessee. The 
principal office of the Brotherhood of Railway Clerks Tri- 
State Local is 3131 Radford Road, Memphis, Tennessee. 
The Union Locals are a labor organization within the mean­
ing of 42 U.S.C. §2GQ0e(d), and are engaged in industry 
affecting commerce within the meaning of 42 U.S.C. 
§ 2000(e).

V.
Plaintiff alleges that he was employed by REA from the 

Spring of 1964 until the spring of 1967. Plaintiff alleges

Complaint



6a

that at all times relevant hereto REA follows a policy and 
practice of racial discrimination in tha t:

(1) Defendant REA denies Negro employees eqnal 
promotion opportunities with white employees;

(2) Defendant REA in conjunction with defendant 
Union Locals, assigns, reassigns, promotes and 
otherwise acts or fails to act in such a manner as 
to maintain a preexisting pattern of racial dis­
crimination in employment;

(3) Defendant REA directs membership in defendant 
Union Locals according to race;

(4) Defendant REA discriminates on the basis of race 
in job assignments, extra work assignments and 
the application of seniority rules;

(5) Defendant REA employs racially dual standards 
for conditions of employment and discriminates 
against black employees in the application of 
disciplinary procedures and actions.

Plaintiff further alleges that he was denied the same 
opportunity to obtain supervisory training and promotion 
which the defendant Railway Express Agency, Inc. provides 
white employees. Plaintiff further alleges that his employ­
ment with defendant REA was terminated on June 20, 
1967, because of plaintiff’s race and in accordance with the 
racially discriminatory policies and practices set forth 
above.

VI.

Plaintiff alleges that he was a member of the Brother­
hood of Railway Clerks Lily of the Yalley Local, one of 
the defendant Union Locals, and that he was denied mem­

Complaint



7a

bership in the Brotherhood of Bailway Clerks Tri-State 
Local, which at all times relevant hereto excluded blacks 
from membership on the basis of race. Plaintiff alleges 
that the Union Locals followed a policy, custom or practice 
of racial discrimination in that they failed to defend the 
rights of Negro members in the same manner in which the 
rights of white members were defended. Plaintiff further 
alleges that he was denied equal labor representation be­
cause of his race and the segregation policies and practices 
of defendant Union Locals, and that he, because of his race, 
was forced to pay higher membership dues in the black 
Lily of the Valley Local than his white counterparts in the 
white Tri-State Local were required to pay.

VII.
Plaintiff filed timely charges with the Equal Employment 

Opportunity Commission [hereafter, EEOC] alleging the 
discriminatory policies and practices set forth herein. On 
December 22, 1967, the EEOC issued its “Final Investiga­
tion Beport” (attached hereto as Exhibit 1) and recom­
mended that the Commission find reasonable cause to 
believe that defendant, BEA and Union Locals had dis­
criminated against plaintiff in that the defendants had 
violated rights of the plaintiff guaranteed under Title VII 
of the Civil Bights Act of 1964 by failing to grant plaintiff 
equal opportunity for employment advancement, by dis- 
criminatorily discharging plaintiff and by failing to repre­
sent plaintiff in the same manner as white employees are 
represented.

VIII.
(A) This is the second complaint filed by plaintiff 

against defendants BEA and Union Locals concerning the 
matters set forth herein and seeking the relief requested

Complaint



8a

herein. On or about January 15, 1971, plaintiff received a 
“Notice of Right to Sue” letter from the EEOC. At that 
time plaintiff was financially unable to employ counsel to 
represent bim in his claims against defendants. Plaintiff 
had attempted to obtain counsel on his own and had been 
in contact with, among others, Ratner, Sugarmon & Lucas, 
undersigned counsel in this complaint. Ratner, Sugarmon 
& Lucas was unable to accept representation of plaintiff 
because (1) of plaintiff’s poverty and his consequent in­
ability to pay expenses of the contemplated litigation, and
(2) the great number of pending Title VII eases to which 
this Court had appointed Ratner, Sugarmon & Lucas as 
counsel of record.

■ (B) On February 12, 1971, this Court entered orders 
appointing Robert E. Rose, Esq. as attorney for plaintiff 
and allowing plaintiff’s “Notice of Right to Sue” letter be 
filed and treated as a complaint on a pauper’s oath, which 
documents were docketed as Civil No. C-71-66. Subse­
quently, on March 18, 1971, a “Supplemental Complaint” 
was filed on plaintiff’s behalf by his court-appointed attor­
ney. Defendant REA filed its answer on March 29, 1971, 
and defendant Union Locals filed their answer on April 6, 
1971. Thereafter, the case was set for trial on August 18, 
1971. On April 30, 1971, defendant Union Locals filed a 
motion to dismiss or in the alternative for summary judg­
ment, with supporting affidavits and memoranda of law. 
May 11, 1971, defendant Union Locals propounded 43 num­
bered interrogatories to plaintiff. June 3, 1971, defendant 
REA filed a motion to dismiss or in the alternative for 
sum m a ry  judgment, along with supporting affidavits and 
memoranda of law. No memoranda or affidavits were ever

Complaint



9a

filed on behalf of plaintiff in opposition to defendants’ 
motions.

(C) On June 30, 1971, the Honorable Bailey Brown, 
Chief Judge of this Court, entered an order on defendants’ 
motions, which: (1) dismissed plaintiff’s claims insofar as 
they were based on statutes other than Title VII of the 
Civil Rights Act of 1964; (2) granted summary judgment 
to defendant Union Locals; (3) granted summary judgment 
to defendant REA “with respect to the claim of dismissal 
for not giving plaintiffs supervisory training” ; (4) denied 
defendant REA’s motion with respect to plaintiff’s charge 
of discriminatory discharge and plaintiff’s claim of denial 
of equal promotion opportunities and discriminatory job 
assignments; (5) denied the defendants’ motions to dismiss 
on the grounds that filing the “Notice of Right to Sue” 
letter did not constitute the filing of a complaint within the 
time allowed. This order was a consolidated ruling in 
plaintiff’s case and in No. C-71-2 (Thomas Thornton v. the 
same defendants).

(D) On June 22, 1971, defendant REA propounded 41 
numbered interrogatories to plaintiff. On August 9, 1971, 
defendant REA filed its pre-trial memorandum. The case 
was re-set for trial to February 2, 1972. On November 23, 
1971, defendant REA pursuant to notice took plaintiff’s 
deposition.

(E) No discovery, by depositions, interrogatories or any 
other manner permitted by the Federal Rules of Civil 
Procedure, was ever undertaken on behalf of plaintiff, and 
no pre-trial memorandum of points and authorities was 
ever filed on plaintiff’s behalf.

(F) Defendant REA made a “nuisance” settlement offer 
of $150.00 to plaintiff, which plaintiff refused to accept

Complaint



Complaint

despite the insistence of his conrt-appointed attorney. On 
January 5, 1972, plaintiff’s court-appointed attorney filed a 
motion to he relieved as attorney of record for plaintiff 
based on the following grounds: (1) because plaintiff’s case 
was “questionable” in his view; (2) because plaintiff re­
fused to accept defendant EEA’s $150.00 settlement offer;
(3) because plaintiff was unable to substantiate monetary 
damages and because plaintiff “has not expressed any in­
tention of advancing the funds that would be necessary 
for taking numerous discovery depositions to prepare plain­
tiff’s case for trial.” (Plaintiff denies the first and third 
grounds of the motion to withdraw.)

(G) Although no order was ever entered allowing plain­
tiff’s court-appointed attorney to withdraw as counsel of 
record, plaintiff received a letter dated January 14, 1972, 
from the Honorable W. Lloyd Johnson, Clerk of this Court, 
stating that the motion of plaintiff’s court-appointed attor­
ney to withdraw had been allowed on the same date (Jan­
uary 14, 1972), that the case would have to be reset for trial 
from February 2, 1972, and “that if you [plaintiff] do 
not obtain another counsel to represent you within 30 days 
from this date, your claim will be dismissed without 
prejudice.”

(H) Plaintiff contacted numerous attorneys in Memphis, 
but was unable to obtain representation within the time 
allowed. Although representation had previously been re­
fused by Eatner, Sugarmon & Lucas, plaintiff returned to 
that firm toward the end of the 30-day period allowed by 
the Clerk’s letter of January 14, 1972, and talked to under­
signed counsel regarding representation of plaintiff in this 
matter. Although undersigned counsel was unable to rep­



11a

resent plaintiff because of plaintiff’s poverty and conse­
quent inability to pay discovery expenses in the case, 
undersigned counsel did agree to attempt to secure financial 
support for continuation of plaintiff’s cause of action. By 
letter dated February 17, 1972 (attached hereto as Ex­
hibit 2) to the Honorable Bailey Brown, undersigned coun­
sel stated that he was attempting to secure financial sup­
port for plaintiff’s case and requested an additional 30 
days within which plaintiff might attempt to secure legal 
representation. However, the Court had already, on Feb­
ruary 16, 1972, entered an order (attached hereto as Ex­
hibit 3) dismissing plaintiff’s action without prejudice. 
After diligent efforts, undersigned counsel succeeded in 
obtaining an agreement from the N.A.A.C.P. Legal Defense 
Fund to underwrite discovery costs and expenses for plain­
tiff to continue his cause of action against defendants. 
Promptly after receiving such agreement, undersigned 
counsel, by letter dated May 5, 1972 (attached hereto as 
Exhibit 4), wrote Judge Brown informing him of the agree­
ment stating that undersigned counsel had agreed to repre­
sent plaintiff and requesting that plaintiff’s case be rein­
stated on the active docket of this Court. By letter dated 
May 8, 1972 (attached hereto as Exhibit 5), Judge Brown 
informed undersigned counsel that the proper way to handle 
reactivating plaintiff’s case would be to file a new action. 
This complaint is being filed pursuant to Judge Brown’s 
direction.

Complaint

IX .

Neither the State of Tennessee nor the City of Memphis 
has a law prohibiting the unlawful employment practices 
alleged herein.



12a

X.
Plaintiff alleges that he has no adequate and complete 

remedy at law to redress the wrongs alleged herein other 
than this suit for a permanent junction. Plaintiff is now 
suffering and will continue to suffer irreparable injury 
from the defendants’ policies, practices, customs and usages 
as set forth herein.

Complaint

XI.
W h e r e f o r e , plaintiff prays that this Court advance this 

case on the docket, order a speedy hearing at the earliest 
practicable date and cause this ease to be in every way 
expedited and upon such hearing:

(1) Grant plaintiff a permanent injunction enjoining the 
defendants, their agents, their successors, employees, at­
torneys and those acting in concert with them or at their 
direction from continuing and maintaining the policies, 
practices, customs and usages of denying, abridging, with­
holding, conditioning, limiting or otherwise interfering, in­
dividually and/or jointly, with the rights of the plaintiff 
as provided under Title YII of the Civil Eights Act of 1964, 
42 II.S.C. Sections 2000e, et seq.

2. Grant the plaintiff a permanent injunction enjoining 
the defendants, their agents, successors, employees, attor­
neys and those acting in concert with them or at their direc­
tion from denying employment to plaintiff and from con­
tinuing or maintaining any policy, practice, custom or usage 
of denying, abridging, withholding, conditioning, limiting 
or otherwise interfering individually and/or jointly, with 
the rights of the plaintiff to enjoy equal employment oppor­
tunities for advancement and/or training as directed by



13a

Title YII of the Civil Rights Act of 1964, 42 U.8.C. Sections 
20G0e, et seq.

(3) Order plaintiff reinstated in the employment of de­
fendant REA at the same position and salary level and 
with the same benefits to which he would be entitled but for 
his unlawful termination.

(4) Grant the plaintiff judgment in the amount of back 
pay, including all raises, bonuses and fringe benefits, to 
which he would have been entitled, and union membership 
dues which would not have been paid, but for the dis­
criminatory policies and practices complained of herein.

(5) Award plaintiff the costs of this action, together 
with reasonable attorney’s fees as provided in Section 
706(k) of the Civil Rights Act of 1964, 42 U.S.C. §2000e 
(5)(k).

(6) Grant plaintiff such other, further, additional and/or 
alternative relief as the needs of justice require.

Respectfully submitted,

R a t n e r , S ugarm on  & L ucas

By: / s /  W illia m  E. Ca ldw ell

W il l ia m  E. Cald w ell

U ral B. A dams, J r .
525 Commerce Title Building 
Memphis, Tennessee 38103

J ack  G reenberg

W il l ia m  L . R obinson  
10 Columbus Circle 
New York, New York 10019

Attorneys for Plaintiffs

Complaint



14a

U n it e d  S tates G o v er n m en t

MEMORANDUM

D a t e : December 22, 1967

To: Director of Compliance
F r o m : Walter M. Dickerson

S u b j e c t : Willie Johnson et al. 
vs
Railway Express Agency 

and
Brotherhood of Railway Clerks 
Tri-State Local 
Memphis, Tennessee 

and
Brotherhood of Railway Clerks 
Lily of the Valley Local 
Memphis, Tennessee

Case Numbers: NO 7-6-822 & U 
thru

NO 7-6-828 & U 
NO 68-8-148E 
NO 6-10-205 
NO 6-10-152

F in a l  I nv estig a tio n  R eport  

I .  T h e  C harge  :

All of the Charging Parties allege that they have been 
discriminated against because of their race (Negro).

Exhibit 1 (To Complaint)



15a

Willie Johnson, Lorenza McGaha, James Tinnon, W.
E. Gilliland, Claude Elliott, Aaron Kern and Noble
Boyd all allege that:
1. The unions maintain racially segregated locals; 

Tri-State Local for white members and Lily of the 
Valley Local for Negroes.

2. The cost of membership is greater with the Negro 
local.

3. The firm directs membership affiliation according 
to race.

4. The firm dscriminates against Negroes on the 
extra work list with respect to the seniority rules 
and job assignments.

In addition, Willie Johnson also alleges that:
1. The firm employs dual standards, based on race, 

for conditions of employment and disciplinary 
action.

2. The firm required him to sign an undated resig­
nation form a year before it was executed.

William Worsham, Thomas Thornton and James Ol­
iver allege that they were terminated by the firm
because they are Negroes.

II. C hbonology  op E v en ts  :

May 31, 1967 Willie Johnson, Lorenza Me-
Gaha, James Tinnion, W. E. 
Gilliland, Claude Elliott, Aaron 
Kern and Noble Boyd file with 
EEOC

Exhibit 1 (To Complaint)



16a

Exhibit 1 (To Complaint)

June 20, 1967 Willie Johnson terminated by 
firm

September 6, 1967 Willie Johnson amends charge 
with EEOC

June 27, 1967 William Worsham employed at 
firm

July 27, 1967 William Worsham terminated
August 1, 1967 William Worsham files with 

EEOC
August 24, 1966 Thomas Thornton employed at 

firm
September 3, 1966 Thomas Thornton terminated 
September 12, 1966 Thomas Thornton files with

August 3, 1966
EEOC
James Oliver employed at firm

September 22, 1967 James Oliver terminated 
September 27, 1967 James Oliver files with EEOC
October 20, 1966 EEOC cases for Thomas Thorn­

ton and James Oliver assigned 
for investigation

September 5, 1967 EEOC cases for Thornton and 
Oliver assigned for re-investi­
gation

III. B ackground  :

Memphis, Tennessee is located on the northwest bor­
der of the State of Mississippi, along the Mississippi 
River, and it is the highest populated city in the State.



17a

The present population, projected by possible accre­
tions from the 1965 census by the New Orleans EEOC 
Regional Office, is 766,000 for the Memphis Standard 
Metropolitan Statistical Area. It is estimated that 
Negroes represent 38.4% of the total population.
The area’s economy is enhanced by a diversification of 
industries: manufacturing, transportation, agricul­
tural, governmental, banking, and others. Major in­
dustries in the area include: E. I. DuPont de Nemours 
& Company, Kellog Company, Kimberly-Clark, Buck­
eye Cellulose, Armour and Company, and others. The 
health industry puts about $200,000 daily into the com­
munity’s economy. (Memphis Chamber of Commerce).
Industrial employment statistics indicate that Negro 
employment is highest among the blue collar workers 
(40% Negro), laborers (64.2% Negro), operatives 
(37.1% Negro), and service workers (46.3% Negro). 
(These statistics have been obtained from a com­
pilation of EEO-1 reports by the New Orleans Reg­
ional Office of the EEOC).
The Respondent has been the subject of previous EEO 
investigations, two of which are incorporated in this 
report for re-investigation; is a Plans for Progress 
Firm; meets the definition of Employer under Title 
VII of the Civil Rights Act of 1964 and is a govern­
ment contractor, the predominant interest agency 
being the U.S. Army.
Employees at the firm are represented by the Brother­
hood of Railway Clerks and both the firm and the 
union are within the jurisdiction of the EEOC.

Exhibit 1 (To Complaint)



18a

The national office of the Respondent firm is ad­
dressed :

210 E. 42nd Street 
New York, New York

IV. S ttmmaby of t h e  I n v estig a tio n  :

A. Position of the Charging Parties:
1. Willie Johnson, Lorenza McGaha, James Tin- 

nion, W. E. Gilliland, Claude Elliott, Aaron 
Kern and Noble Boyd all allege that the Re­
spondent firm practices discrimination against 
Negroes in the manner in which the seniority 
rules are applied and in job assignments on 
the extra work list. (Tab B-l).
The Charging Parties stated that when work 
falls off, employees are laid off by seniority 
and placed on a day-to-day call basis. They 
claim that such persons are placed on an extra 
work list and are intended for recall to work on 
a seniority basis. However, continued the 
Charging Parties, Negroes are not considered 
for recall to various non-traditional jobs such 
as foremen, and clerk. They said Negroes are 
called back, regardless of their seniority, for 
jobs as freight handlers or truck drivers when 
actually all employees on this extra work list 
are classified to do jobs in all areas. (Tab 
B-l). Aaron Kern stated that he entered a bid 
as Chauffeur (Truck Driver) during the time 
that there were no Negroes n that classification. 
He said that this resulted in his foreman telling 
him that he ha dbeen terminated. After much

Exhibit 1 (To Complaint)



19a

discussion, claims Kern, the foreman had him 
sign an undated resignation form and told him 
that if he ever “messed up” again the foreman 
would date and execute the form.
Kern claims that white employees were “passed 
around” him because of job classification that 
he was not permitted to hold. He said that this 
resulted in his seniority being displaced behind 
the white employees who were actually junior 
to him (Tab D-4). All of the remaining Charg­
ing Parties entered supporting statements 
(Tabs D-3 thru D-7).
Seven witnesses, contacted by the Investigator, 
supported the contentions of the Charging 
Parties that the extra work list arrangement 
discriminates against Negro employees in the 
manner in which job assignments are made. 
All of the witnesses claim that Negroes are 
called in to perform duties of Freight Handlers 
or Truck Drivers and, in some rare instances, 
Negroes have been called as Checkers. (Tabs 
I)-8 thru D-14).
Jesse Whitfield (witness) stated that the firm 
has not elected to permit his being trained as a 
Checker yet white employees who are junior 
to him have been given this opportunity. (Tab 
D-9).

Robert Boykin, (witness) stated that his fore­
man assigned him to a Checker job only to 
have another foreman change the assignment 
(Tab D-ll).

Exhibit 1 (To Complaint)



20a

Albert McCulley stated:

“The firm employs and trains white employ­
ees as Clerks, Checkers and Foremen over 
senior qualified Negroes with more experi­
ence.”
“. . . Regular employees are not allowed to 
‘bump’ on jobs in which they are not quali­
fied. Negroes are not given the opportunity 
to qualify on these jobs as extra board em­
ployees—white employees are.
Supervisors tests are administered by the 
firm. Management approaches the employee 
to take the test. No Negro has ever been 
approached by management to take the 
test. . .” (Tab D-13).

2. Willie Johnson, in an amended charge, stated 
that the firm employs dual standards, based 
on race, for conditions of employment and dis­
ciplinary action. He said that he was termi­
nated from the firm after being required to 
sign an undated resignation form a year be­
fore it was executed. He said that the error 
he committed, that resulted in his termination, 
is common-place among white employees. (Tab 
B-2).
Expanding on his statement, Johnson said:

“About one year ago, as a result of my taking 
off from work to attend a funeral of my 
Aunt, the firm forced me to sign an undated 
resignation form. This action was prompted

Exhibit 1 (To Complaint)



21a

by my foreman, a Mr. Pittman, who gave the 
wrong information to his superior about my 
absence.”
“About February or March of this year, I 
encountered an accident in the operation of 
a tractor and trailer truck that I was just 
learning to operate. I misjudged the height 
of an underpass and bumped the truck into 
it.”
“On Monday, June 19, 1967, while making 
my first deliveries as a truck driver, I in­
advertently accepted the wrong receipts from 
a customer. I had come upon the job of truck 
driver by ‘bumping’ a junior white employee. 
My foreman, Mr. Anderson, called my at­
tention to the error and I was sent back to 
the customer to obtain the correct receipts, 
which I did. It was then that the firm en­
tered a current date on the resignation 
(form) that I  had signed over a year ago. 
This practice is commonplace with the firm 
in its dealings with Negro employees.”

Charging Parties Kern, Elliott, MeGaha, and 
Boyd all support Johnson’s statement that he 
was required to sign an undated resignation 
form and that the error he committed is com­
monplace among white employees (Tabs D-4 
thru D-7).
Jesse Whitfield (witness) stated that white 
employees are generally given better treatment 
and Negroes are dealt with more severely.

Exhibit 1 (To Complaint)



22a.

He said that Willie Johnson was terminated 
because he “stood np for his rights” and white 
employees are seldom disciplined (Tab D-9).
Robert Caldwell (witness) stated that he had 
observed Foreman Cornelius harassing Willie 
Johnson (Tab D-10).
Robert Boykin (witness) stated that he felt 
that Willie Johnson was fired because he (John­
son) was outspoken. Boykin also said that he 
had observed Foreman Cornelius harassing 
Johnson on many occasions (Tab D-ll).
Albert McCulley (witness) stated:
“ . . . The firm deals more severely with Negro 

employees than with white employees.” 
(Tab D-13).

Archie Parson (witness) stated that the fore­
men and supervisors are usually more severe in 
giving wTork orders or according disciplinary 
measures against Negroes (Tab D-14).

3. William Worsham, Thomas Thornton and 
James Oliver allege that they were terminated 
by the firm because of the discriminatory 
practices employed by the firm against Negroes 
(Tab B-3).
Thornton stated that he applied for work on 
August 23, 1966, and started with the firm on 
August 24, 1966. He claims that his work was 
satisfactory and he had no problems until his 
foreman addressed him as “boy”. After taking 
exception to the manner in which he was

Exhibit 1 (To Complaint)



23a

addressed, Thornton claims that he was sub­
sequently terminated because of the incident 
(Tab B-3, page 1).
James Oliver alleges that after about six weeks 
of employment he was terminated and the 
reason given was that he had a police record. 
Oliver stated that he had been arrested but had 
gained employment at the U. S. Post Office 
where the security requirements were higher 
than at EEA. He feels, therefore, that he was 
discriminated against by EEA because he is a 
Negro (Tab B-3, page 2).
In an interview with a previous investigator, 
Oliver stated that the firm hires Negroes for 
six weeks and then at the end of that period 9 
out of 10 are laid off. He said that white 
employees are hired but he doesn’t know of 
any who are laid off (Tab D-2).

B. Position of the Eespondent.
On September 20, 1967, two investigators, Odell 
Clark and Walter Dickerson, keeping a pre­
arranged appointment made by telephone, met 
with Mr. A. A. Steward, Manager for the Memphis 
Terminal for the Eespondent. Mr. Steward 
receipted service of the charges (Tab C). Mr. 
Steward then told the investigators that they could 
telephone either him or the District Superintendent 
at St. Louis, Missouri, at a later date for any 
information they might need. After an explanation 
of the procedures of the EEOC investigation, Mr. 
Steward stated that he would have to confer with

Exhibit 1 (To Complaint)



24a

his District Superintendent and that, for security 
reasons, he was certain that the records of the firm 
could not be examined. Mr. Steward then termi­
nated the conversation.
On September 12, 1967, acting on information 
gained through an investigation of the Respon­
dent at another locality, a telephone call was 
placed to the national office of the firm at New York 
City. The investigator spoke with the Vice Presi­
dent of Personnel Services with the Respondent, 
Mr. Clement Lane. Mr. Lane expressed dissatis­
faction over the fact that local officials were un­
cooperative in such matters and said that he would 
look into the situation.
On September 19, 1967, Mr. G. L. Hall, Division 
Operations Manager at the Memphis Terminal, 
telephoned the investigator and set an appoint­
ment for the following day.
The investigators met with Mr. Hall and Mr. 
Steward at a site removed from the Memphis 
Terminal in the general offices located in the I. C. 
Railroad Building. This made the investigation 
difficult from the standpoint of examining records 
over and above those brought into the conference 
room by the Respondent. Mr. Hall categorically 
and emphatically denied all allegations.
Directing the investigation to the attention of 
paragraph 3 of the charges by seven Charging 
Parties, Mr. Hall stated the extra work list is 
administered in strict accordance with seniority 
and qualifications. He said that in order to bid on

Exhibit 1 (To Complaint)



25a

a position, the employee must first have knowledge 
of the job. Hall said that temporary positions 
from the extra work list are not posted for bid.
Hall said that Willie Johnson was terminated for 
failing to follow instructions. He said that a hear­
ing wras conducted and Johnson was found guilty 
of insubordination in that he did not do what his 
foreman told him to do.
A request for copies of the hearing concerning 
Johnson was refused by the firm. Subsequent 
requests were, too, refused (Tab J).
Both Hall and Steward readily admitted that they 
employ the practice of requiring an employee to 
sign an undated resignation form. However, they 
contend that such requirements are made of both 
white and Negro employees. Johnson, they said, 
was terminated by simply filling in the current 
date on a form that he had signed a year earlier.
Hall stated that William Worsham was terminated 
under the provisions of the national contract that, 
“Employees must comply with the wishes of per­
sons he is employed under.” Hall said that this is 
reflected in Worsham’s work record. Hall could 
not quote the section of the agreement that covered 
the matter but he stated that he would provide a 
copy of the contract. Hall said that he had no 
personal recollection of the situation involving 
Worsham but he had read the records of the case.
Mr. Steward said that he did not recall Mr. Wor­
sham and that the picture attached to the applica­
tion, “Didn’t ring a bell”. Steward offered that

Exhibit 1 (To Complaint)



26a

some employees are terminated without being 
given a reason for termination. He said that such 
instructions are contained in the security regula­
tions (Tab F-14).
Hall stated that the OJT program is administered 
without prejudice. He said that a record of all 
employees who are hired, fired, or quit, is sent to 
both unions monthly. When queried as to what he 
meant by both unions, Steward answered the ques­
tion that was asked of Hall with, “The one for 
the niggars and the one for the whites.”
Hall admitted that there were no Negro super­
visors, foremen, clerks, cashiers, adjusters, tele­
phone operators or money deliverymen. Hall said 
that the firm employs the use of a Supervisor’s 
Test for promotion to Supervisor. He said that 
the method of selection is that a man must show 
intelligence and that a candidate is personally 
observed by the Manager and the Superintendent 
and may be assigned on an acting basis for this 
period of observation. Hall said that such a person 
might come from the ranks or hired from outside. 
Women are not considered, he concluded.
Steward added that a successful applicant must 
have had supervisor’s experience and must have 
been classified as a foreman.

Hall said that most Negroes are Express Handlers 
and assorters. He said that there were some Negro 
Chauffeurs (Truck Drivers) and some Checkers. 
Hall hastened to point out that there was 
only the difference between $126.00 per week and 
$128.00 per week in most of the job classifications.

Exhibit 1 (To Complaint)



27a

The Respondent firm was not cooperative in pro­
viding the documentation necessary for the in­
vestigation. Hall stated that an EEO-1 had been 
prepared during the normal reporting period and 
sent to the national office. Further correspondence 
on the matter had negative results (Tab J). Hall 
refused to produce records of the hearings con­
cerned with the termination of Willie Johnson. 
Again correspondence on the matter did not result 
in obtaining the records (Tab J). The request for 
work records of certain employees produced type­
written job progression information (Tabs F-3, 
8, 9 & 10).
N ote : At this point, because of previous com­
mitments concerned with another case, one investi­
gator left the investigation which was completed 
by the writer.
During the initial interview, Mr. Steward gave the 
following account of the events leading to the dis­
charge of Willie Johnson:
“Willie was assigned to pick up at three locations 
within one firm (International Harvester). He 
did not sign the necessary documents at one stop. 
At another he signed the documents but didn’t 
pick up the freight. He billed one shipment collect 
instead of prepaid”.
“He was told to return to International Harvester 
immediately upon starting his route the next day 
to correct the mistakes he had made. This would 
mean that if he had followed instructions he would 
have reached the customer around 11 a.m. or 12:00 
noon. At 2 :GQ p.m., the Traffic Manager at Inter-

Exhibit 1 (To Complaint)



28a

national Harvester called to say that Johnson still 
had not arrived. W. S. Anderson, a foreman, gave 
Johnson the instructions to go to the customer 
immediately”. (Tab E-l).
The investigator interviewed Mr. W. S. Ander­
son, foreman with the Respondent.
Mr. Anderson stated that he personally gave John­
son instructions to straighten out the error first. 
He said that he allowed Johnson to load his truck 
and proceed in a normal manner. He stated that 
his only instructions were to straighten out the 
order with International Harvester before he went 
anywhere else. Anderson said that he had no idea 
as to when Johnson left the loading dock. The 
first indication he had that Johnson had not fol­
lowed instructions was when Mr. R. J. Fergerson, 
the Assistant Manager, said that International 
Harvester had called.
Anderson stated that Johnson would have been 
cited for the error anyway even if he had cor­
rected the error. Anderson did not recall the 
chain of events involved in the error Johnson al­
legedly committed. He didn’t recall his specific 
instructions to Johnson beyond telling him to cor­
rect the errors before he mad other deliveries or 
pick-ups. (Tab E-7)

The investigator met with Mr. R. J. Fergerson, 
Assistant Manager with the Memphis Terminal. 
Mr. Fergerson stated that he did not recall Wil­
liam Worsham nor the circumstances surrounding 
his termination. He did recall that Willie John­
son was terminated for insubordination. He said

Exhibit 1 (To Complaint)



29a

that previous demerits or past record was not a 
factor in Johnson’s termination because insubordi­
nation is automatic termination. On other sub­
jects, Fergerson contended that he practiced EEO 
policies that were given to him through the man­
ager. He said that there were no formal EEO 
meetings and that there was no discrimination at 
the plant.
Fergerson said that there were no Negro fore­
man or clerks because Negroes had not bid on 
such jobs. He said that such jobs that were con­
sidered non-bid jobs were not filled by Negroes 
because they didn’t have sufficient seniority to be 
appointed (Tab E-5).

C. U n io n  S it u a t io n :

Charging Parties Johnson, McGaha, Tinnion, 
Gilliland, Elliott, Kern and Boyd allege that the 
union maintains racially segregated locals; Tri 
State Local for white members and Lily of the 
Valley Local for Negroes. They further allege 
that the cost of membership is greater with the 
Negro local.
The Respondent firm admitted that the locals of 
the Brotherhood of Railroad Clerks were racially 
segregated but offered little other information. 
Hall denied that the firm referred Negroes to the 
Lily of the Valley Local and white employees to 
the Tri State Local. He said that the only in­
formation provided the new employee is that union 
membership is available to them after 60 days 
employment.

Exhibit 1 (To Complaint)



30a

Hall verified that the dues are $5.00 with the Lily 
of the Valley Local and $4.00 with the Tri State 
Local. Hall stated that the union contract is nego­
tiated on a national level and that he has little 
contact with the local officials.
Mr. Steward stated that he did not have local ad­
dresses for the unions, but that mail addressed in 
care of Kail way Express at Memphis would be 
delivered to the proper parties. He stated that 
the chairman for the white local worked in the 
office at the firm and the chairman for the Negro 
local worked for the I. C. Railroad.
Many unsuccessful attempts were made to con­
tact the officials of the local unions. Since it was 
determined that all of the allegations, concerned 
with the union, had been answered in the investi­
gation, the charges were served by mail (Tab I).

D. P lant T o u r :

The plant tour showed that all of the restrooms 
have been recently renovated with the removal 
of walls to end the discriminatory practice of 
segregated restrooms. Lockers are arranged in 
areas adjoining the restrooms and Mr. R. J. 
Fergerson, the Assistant Manager for the firm, 
said that the lockers were assigned in a non- 
discriminatory manner. There was no visual con­
tact made of employees using the locker area, 
however, random conversation with several em­
ployees in the work area indicated that there were 
no problems concerned with locker or rest areas. 
There are no official lunch rooms and there is no 
cafeteria.

Exhibit 1 (To Complaint)



31a

Conversation with one un-named Negro employee 
produced the fact that he is an extra board em­
ployee and that he was called to work jobs as 
Express Handler and Assorter only. He said 
that white employees who are junior to him are 
often called to work as clerks, checkers, or fore­
men. He said that some few Negroes had been 
called as checkers. Assistant Manager Ferger- 
son witnessed the conversation.
EEO posters were displayed in proper places. 
Conversations with Assistant Manager Fergerson, 
Foremen Cantrell, Anderson and McClunney in­
dicated that they were verbal in stating that there 
were no discriminatory practices at the firm, but 
had no formal exposure to meetings, publications 
or discussions on company policy.
At the time of the plant tour, questions concern­
ing the duties of various employees were put to 
Mr. Fergerson. There were no Negroes observed 
working in capacities other than Express Handlers 
and Assorters.

Exhibit 1 (To Complaint)

E. C lo sin g  L e t ter

Because of the difficulty in obtaining documents 
and the firms failure to respond to communica­
tions, a delayed closing letter was mailed on De­
cember 21, 1967.

F. E x it  I n ter v iew

The exit interview did not produce any new in­
formation concerned with the investigation except 
that Charging Party Willie Johnson has obtained



32a

legal council in his case. His lawyer, Mr. Louis R. 
Lucas, of Ratnee, Thomson, Sugarmon, Lucas & 
Willis at Memphis, wishes to be informed of any 
contact made with his client.
Mr. Johnson’s rebuttal is incorporated in this re­
port (Tab D-3 page 2).

V. I n vestigative  C o n c lu sio n s— A lleged  V io lations

A. Willie Johnson, Lorenza McGaha, James Tinnian, 
W. E. Gilliland, Claude Elliott, Aaron Kern and 
Noble Boyd all allege that:
1. The unions maintain racially segregated locals.

The investigation showed that:
a) Employees at the Respondent Firm are 

represented by the Brotherhood of Railway 
and Steamship Clerks, Freight Handlers, 
Express and Station Employees (Tab H-l)

b) The Tri State local of the above union rep­
resents white employees at the Respondent 
firm and the Lily of the Valley local repre­
sents Negro employees. This fact is attested 
to by all of the Charging Parties and all of 
the witnesses (Tabs D-3 thru D-14). The 
Respondent firm admits the charge is ac­
curate (Tabs E-l & E-2).

2. The cost of membership is greater with the
Negro local. The investigation showed that:
a) The cost of membership with the Lily of the 

Valley Local (Negro) is $5.00 per month. 
The cost of membership with the Tri State

Exhibit 1 (To Complaint)



33a

Local (white) is $4.00 per month (See Tabs 
B-l & E-l)

3. The firm directs membership affiliation (union) 
according to race. The investigation showed 
that:

a) The firm denied that it directs which local 
an employee should affiliate with (Tab E-2).

b) Conversation with the Charging Parties and 
witnesses and random conversation with 
Negro employees at the firm indicate that a 
form is given to them by the firm for union 
membership.

The personnel section at the firm makes the 
transaction and dues are withheld. This 
places the responsibility of assignment upon 
the firm.

4. The firm discriminates against Negroes on the 
extra work list with respect to the seniority 
rules and job assignment. The investigation 
showed that:

a) The firm denies the charges (Tab E-2).
b) The extra work list, selected at random 

dates, show that Negroes are called for 
Assorters jobs, Express Handlers and 
some Chauffeurs (Truck Driver) almost ex­
clusively. The only other job category that 
Negroes are called into on some rare occa­
sions is that of Checkers.

Exhibit 1 (To Complaint)



34a

The list of jobs and their code number (Tab 
F-2), when compared with the extra work 
list (Tab F-l) shows many examples of 
senior Negroes being confined to one or two 
job categories. The agreement (Tab I) 
states that employees are to be called in 
the order of their seniority and the senior 
person given his choice of jobs if he quali­
fies. Negroes are not given this preference 
of jobs and, thereby, never qualify for posi­
tions where Negroes are not permitted to 
work.

Candidly the extra work list (Tab F-l) 
shows that on January 9, 1967, the two se­
nior most employees are White, Winsett and 
Bailey. Winsett was called in to perform 
job number 51. This is the code for Tele­
phone Operator (Tab F-2). Bailey was 
called in to work in the city office. The next 
person on the list is a Negro, McCulley, and 
he was called in as an Assorter. Following 
him is another Negro, McG-aha, who was 
also called for the Assorter job.

Mullins, a white employee, was called next 
to fill a clerical position which is not coded 
on the work sheet. Four white employees 
follow and all were assigned duties other 
than assorter. Following these four is a 
Negro, Boyd, who was called in as an As­
sorter. On this date, only one white em­
ployee was called in as an assorter. His 
name is Evans and he is eleventh in the

Exhibit 1 (To Complaint)



35a

order of seniority. Only one Negro was 
called in as a chauffeur, Hampton, who ap­
pears twentieth in the order of seniority 
(Tab F-l pages 1-2-3).

All of the entries on the extra work list 
show the same pattern from January 9, 
1967, thru April 26, 1967 (Tab F-l).

c) The seniority roster of all employees at the 
plant shows a history of discrimination. 
White employees seniority dates from 1917 
and the senior Negro at the plant was hired 
in 1944. He is still an Assorter. There are 
no Assorters under him until the next two 
Negro names are reached (Tab F-2, page 5).

d) The effects of this manner of job assignment 
is demonstrated clearly in the case of Charg­
ing Party, Aaron Kern, Kern claims that 
white employees were “passed around” him 
because of job classifications he was not per­
mitted to hold. He said that this resulted 
in liis seniority being displaced behind the 
white employees who were actually junior 
to him (Tab D-4). Kern was hired on Au­
gust 13, 1964. His seniority date is Decem­
ber 6, 1965. (The seniority date is the date 
on which an employee is accepted off the 
extra list to a permanent position). War­
ren, a white employee, was hired on Febru­
ary 11, 1965, yet, he has a seniority date of 
November 29, 1965, which places him above 
Kern in the order of seniority because he

Exhibit 1 (To Complaint)



36a

was able to accept a position before Kern. 
Evans, another white employee, was also 
placed above Kern (Tab F-2, page 7).
Even more demonstrative of this situation 
is the case of Noble Boyd, a Charging 
Party. Boyd was employed on September 
12, 1964, and now holds seniority below 
three white employees who were hired on 
November 25, 1964, November 12, 1964, and 
September 27, 1964, respectively (Tab F-2, 
page 7).

The white employees involved in the above 
situation are "Wright, Maxey, Johnson, 
Evans and Warren. Maxey is currently a 
Belief Foreman—Money Clerk, and War­
ren is a Foreman—Money Clerk (Tab F-10), 
positions that Negroes have never held.
Of the Two Negroes, Kern is now an As- 
sorter (Tab F-9) and Boyd is an Assorter 
who works as a relief Chauffeur (Tab F-8).

B. Willie Johnson alleges that:

1. The firm employs dual standards, based on 
race, for conditions of employment and disci­
plinary action. The investigation showed that:
a) The firm denies the allegations (Tabs E-l & 

E-2)
b) The firm does employ dual standards for 

conditions of employment as concluded in 
part A above.

Exhibit 1 (To Complaint)



37a

c) In conversation with the Charging Parties, 
the investigator requested names of white 
employees who might be classified as “bad 
actors” or employees who were problemati­
cal with respect to discipline. The names 
provided were J. B. Smith, Y. B. Alderson, 
L. H. Childress, J. C. Limbaugh and J. H. 
Martingals. This was done for comparative 
purposes with Willie Johnson. J. B. Smith’s 
record is as follows: (Tab F-7).

Exhibit 1 (To Complaint)

Date Violation Penalty
3/18/58 Damaged vehicle 5 demerits
2/26/62 Damaged vehicle 10 demerits
3/26/62 Failed to lock truck 10 demerits
7/13/63 Failed to value 

shipment 10 demerits
9/27/64 Damaged vehicle 10 demerits

8/ 5/65 Damaged vehicle 15 demerits

J. H. Childress (Tab P-6) record is as 
follows:
9/ 6/63 Damaged vehicle 10 demerits

J. C. LimbougJis (Tab F-5) record is as 
follows:
12/ 7/66 Insubordination &

Damaged vehicle 20 demerits
12/29/66 Absent without

permission 15 demerits



38a

There were no disciplinary actions taken 
against V. B. Anderson and J. H. Martin- 
dale, according to the Respondent (Tab 
F-4).
Willie Johnson’s record is as follows: (Tab 
F-3)

Date Violation

8/11/66 Violation of rules 
59 & 64 (Absence 
without permission 
& failure to follow 
instructions)

2/21/67 Damaged vehicle
3/30/67 Damaged utility 

pole
6/22/67 Violation of Rule 20 demerits 

64 (Insubordina- and resigna­
tion) tion

It is pointed out that J. B. Smith had a 
record of damaging vehicles on four occa­
sions which resulted in penalties of from 
five to fifteen demerits. Johnson received 
no less than twenty demerits for this in­
fraction. Childress, another white driver, 
received 10 demerits for the same infrac­
tion. Limbaugh committed identical infrac­
tions with Johnson. Both Limbaugh and 
Johnson were charged with insubordination. 
Limbaugh received 20 demerits and Johnson 
was terminated. Limbaugh was charged with

Exhibit 1 (To Complaint)

Penalty

Six days 
Suspension

20 demerits 
20 demerits



39a

absence without permission and drew 15 
demerits. Johnson was suspended for six 
days for the same infraction. Johnson’s in­
fraction was incorporated into two charges, 
in that he failed to follow instructions (In­
subordination, rule 64) by not notifying his 
foreman of an intended absence which is a 
violation of rule 59 (Tab H-2). Limbaugh’s 
infraction was not compounded in this man­
ner.

d) By admission of the Respondent, Johnson 
was required to sign an undated resignation 
form (Tab E-l) on the date of his first in­
fraction of the company’s rules (Tab G-l). 
The form was executed a year later when 
he was charged with insubordination. Thus, 
the notation of “resigned” appearing on 
Johnson’s record (Tab F-3) is, in effect, 
termination.

e) Respondent officials stated that insubordi­
nation is automatic termination (Tabs E-l, 
E2, E-5, E-7). Apparently this does not 
apply to white employees with the same 
charge as is indicated on Limbaugh’s record. 
(Tab F-5)

2. Willie Johnson also alleged that the firm re­
quired him to sign an undated resignation form 
a year before it was executed. The investiga­
tion showed that:
a) By admission of the Respondent (Tab E-l) 

and as stated above under Section 1, part

Exhibit 1 (To Complaint)



40a

e, such requirements were made of the 
charging party.

b) The firm produced records to show that 
other such forms are on file against Aaron 
Kern, a Negro, and J. B. Smith, a white 
employee (Tab F-12). However, as,stated 
above in this report, there is evidence that 
leads to the conclusion that disciplinary ac­
tion is taken more severely against Negroes. 
The firm did not produce evidence that the 
form has been executed against white em­
ployees as it was in Johnson’s case. Too, 
in Johnson’s case, the form was executed 
against him as alleged.

c) William Worsham, Thomas Thornton and 
James Oliver alleged that they were termi­
nated by the Respondent because they are 
Negroes. The investigation showed that:
1. William Worsham, according to the Re­

spondent, was terminated under the pro­
visions of the national contract which, 
they said, states that, “an employee must 
comply with the wishes of the person he 
is employed under.” (Tab E-2)

2. The firm’s manager, Steward, did not 
recall why Worsham was fired. (Tab 
E-l). This bears out Worsham’s state­
ment that, “Each supervisor I ap­
proached told me they didn’t know why 
(I was terminated). This included Mr. 
A. A. Steward, the manager, who told me

Exhibit 1 (To Complaint)



41a

that a lot of things goes out over his 
signature that he knows nothing of.” 
(Tab D)
Superintendent Fergerson. stated that he 
didn’t know why Worsham was fired 
(Tab E-5) although it was Hall, the Divi­
sion Operation Manager, who stated that 
Worsham was terminated under the 
terms of the national contract. Hall fur­
ther stated that many employees are ter­
minated without being given a reason 
because of security regulations (Tab 
E-2). Hall read off a paragraph from 
the security regulations which states, 
“Do not inform employees that they are 
being discharged because of security rea­
sons.” (Tab F-14). Yet, Hall failed to 
state that Worsham was terminated for 
security reasons.

3. Worsham’s records do not reflect any 
adverse work habits or security risk in­
formation (Tab F-15).

4. Information reported to the union states 
only that Worsham’s application was not 
accepted (Tab F-13, page 1).

5. Foremen in Worsham’s work area dis­
play little working knowledge of com­
pany policy on EEO. (Tab E-5, E-7).

6. Worsham’s records contain a photograph 
of Worsham which represents, in effect, 
racial designation, and the records re­

Exhibit 1 (To Complaint)



42a

fleet that Worsham completed 2 years 
college and good references from pre­
vious employers (Tab F-15).

1. Thomas Thornton and James Oliver, ac­
cording to the Respondent, were termi­
nated because the Security Officer, Mr. 
Oslin, refused to approve them (Tab 
E-4).

2. Contact with Mr. Oslin produced infor­
mation that he knew nothing about the 
charging parties nor of the MDTA Pro­
gram they were a part of. He knew 
nothing of special security requirements 
of MDTA (Tab E-6).

3. Contact with the Memphis Police Depart­
ment produced evidence that Oliver, 
while attending college at Lamar, was 
arrested for disorderly conduct on March 
23, 1956. The charges were subsequently 
dropped on March 26, 1956 (Tab D-l).

4. Oliver passed the United States Postal 
Security measures and spent 3% years 
working in the Post Office prior to his 
employment with REA and after the 
Lamar incident (Tab D-l).

5. Contact with the Memphis Police Depart­
ment showed that Thomas Thornton was 
arrested on April 23, 1964, and charged 
with disorderly conduct and discharging 
a gun inside the city limits. The dis­
orderly conduct charge was dismissed

Exhibit 1 (To Complaint)



on April 26, 1966 and lie was fined $50.00 
for shooting within the city limits (Tab 
D - l ) .

6. Thornton, after being discharged by 
EEA, passed the Postal Security and 
went to work at the Memphis Post Office. 
He was still employed there at the time 
of the investigation (Tab D-l).

7. James Oliver’s work record (Tab P-16) 
shows that a photograph was attached to 
his application, there are no adverse 
work habits noted; no security risk in­
formation; he scored high on the pre­
employment test; received an honorable 
discharge from the U.S. Air Force, and 
spent one year in college as an elemen­
tary education major. He received good 
recommendations from previous em­
ployers.

8. The work record of Thomas Thornton 
shows a photograph was attached to his 
application; there are no adverse work 
habits noted; no indication of action by 
security officials; he received an honor­
able discharge from the U.S. Marines, 
and he completed one year of college at 
Tuskegee (Tab F-17).

9. Thornton claimed that his trouble began 
when he took exception to being called 
“boy” (Tab B-3, page 1 and Tab D-l), 
Steward, the manager for the Respon-

Exhibit 1 (To Complaint)



44a

dent, continually, refers to Negroes as 
Niggras. (Tab E-l). Brodie Bowen, Jr, 
(witness) stated that, “White employees 
of equal rank want Negroes to address 
them as “Mister”. (Tab D-8). Charging 
Party Elliott (Tab D-5) makes the same 
statement. All of the charging parties 
and witnesses testified that Negroes are 
generally discriminated against and suf­
fer abuses.

During the investigation, the Bespondent men­
tioned that women are not considered for promo­
tion to supervisor (Tab E-2). Too, women are 
employed in various laborers and operatives classi­
fications by the firm in localities other than Mem­
phis (Case Number CC-6-9-7919; N.O. 6-9-16). The 
respondent also stated that new hires are con­
sidered for employment as supervisors if they have 
the necessary qualifications.

Exhibit 1 (To Complaint)



45a

Exhibit 2 (To C om plain t)

February 17, 1972

Honorable Bailey Brown 
Chief United States District Judge 
Federal Building 
Memphis, Tennessee

Re : Willie Johnson v. Railway 
Express Agency, Inc,
No. C-71-66

Dear Judge Brown:

Mr. Willie Johnson has contacted me regarding repre­
sentation in the above-entitled case. As I understand the 
facts, Mr. Johnson’s previous attorney was permitted to 
withdraw from this case and Mr. Johnson was given thirty 
(30) days within which to secure new counsel or the case 
would be dismissed.

Mr. Johnson has been unable to secure other counsel, 
and I am also unable to represent him because of the 
apparent discovery expense that would be involved. Never­
theless, I have agreed to seek financial support for Mr. 
Johnson’s case and, if such support can be obtained, I  would 
be willing to represent him.

Although I do not represent Mr. Johnson at this time, 
I have agreed to ask the court in his behalf to grant an 
additional thirty (30) days within which he can attempt to 
secure legal representation and so that I may assist him 
in this matter. I am therefore requesting on Mr. Johnson’s



46a

Exhibit 2 (To Complaint)

behalf that he be given thirty (30) additional days within 
which to secure counsel for representation in the above- 
entitled matter.

Very truly yours,

William E. Caldwell

WEC :pw

cc: Willie Johnson
4325 Loral Cove, Memphis, Tenn.



47a

F e b  18, 1972
I n  t h e  U n it e d  S tates D ist r ic t  C ourt 

F ob t h e  W ester n  D istr ic t  o e  T e n n e s s e e  

W e st e r n  D iv isio n  

C iv il  N o. C-71-66

Exhibit 3 (To Complaint)

W il l ie  J o h n s o n , Jr.,

v.
Plaintiff,

R ailw ay  E xpress A gency , I n c ., e t  a l.,

Defendants.

O rder D is m is s in g  A ctio n  W it h o u t  P r e ju d ic e

In this cause, this Court heretofore appointed Robert 
Rose of the Memphis Bar to represent this plaintiff, as 
well as the plaintiff Thomas Thornton in C-71-2, which are 
EEOC claims by these plaintiffs against REA Express and 
others. Thereafter, after various proceedings in these 
matters, counsel for the plaintiffs appeared in court and 
stated that he had managed to obtain an offer of settlement 
from REA Express, that plaintiff Thornton had agreed to 
accept the settlement, but plaintiff Johnson was unwilling 
to do so. Counsel further stated to the Court that in all 
frankness, in view of the staleness of the claim and other 
reasons, he had strongly recommended these settlements, 
but had been unable to persuade plaintiff Johnson to accept. 
The cases were set for trial on February 2, 1972, and Mr.



48a

Rose filed a motion on or about January 7, 1972 to be 
relieved as attorney for plaintiff Johnson, which the Court 
granted on January 14, 1972. On the latter date, the Clerk 
of this Court, under direction of the Court, wrote to plain­
tiff Johnson stating that Mr. Rose had been relieved, that 
the setting for trial on February 2, 1972 would have to be 
reset, and that plaintiff Johnson was allowed 30 days from 
that date to obtain other counsel or his case would be dis­
missed without prejudice. Since such 30 days have passed 
without plaintiff having obtained such counsel and so notify­
ing the Clerk as he was directed, this cause should be dis­
missed without prejudice.

It is therefore Ordered and A dju d g ed  that this action 
be and the same is hereby dismissed without prejudice.

E n t e r  this 15th day of February, 1972.

Exhibit 3 (To Complaint)

B ailey  B row n  
Chief Judge



49a

Exhibit 4  (To Complaint)

May 5, 1972

Honorable Bailey Brown 
Chief United States District Judge 
Federal Building 
Memphis, Tennessee 38103

Re : Willie Johnson v.
Railway Express Agency, Inc. 
No. C-71-66

Dear Judge Brown:

I wrote the Court on February 17, 1972 indicating that I 
was seeking financial support on behalf of Mr. Willie John­
son, plaintiff in the above-referenced case, with a view 
toward representing him in this matter if such financial 
support could be obtained. At the time of my letter, how­
ever, the Court had previously, on February 16, 1972, 
entered an order dismissing Mr. Johnson’s action for 
failure to obtain legal representation, but without prejudice.

At the time of my letter of February 17, I immediately 
set about seeking to obtain financial support for Mr. John­
son’s cause of action. The NAACP Legal Defense Fund has 
agreed to underwrite costs and expenses to carry on this 
litigation. I have, therefore, agreed to represent Mr. John­
son in the above-entitled cause, and ask that this letter be 
treated as an entry of appearance as attorneys for the 
plaintiff by myself and Mr. Ural Adams of this office.

Since issue is joined as between plaintiff and defendant 
REA, and since the Court dismissed the action without 
prejudice, it seems to us that the most efficient way to



50a

proceed would be to reopen the case in its February 16, 
1972 status. We, therefore, request that the order dis­
missing the action entered on February 16, 1972 be vacated, 
and that this cause of action be reinstated on the active 
docket of the Court.

If counsel for EEA objects to our suggested procedure, 
or if the Court otherwise feels that this matter should be 
handled in a formal manner, we will file a motion in accor­
dance with the foregoing.

Exhibit 4 (To Complaint)

Very truly yours, 

William E. Caldwell

WEC :pw

ec: Saul C. Belz, Esq.
Attorney for Defendant 
Hon. W. Lloyd Johnson, Clerk



51a

Exhibit 5 (To Complaint)

8 May 1972

U n ited  S tates D istr ic t  C ourt 

W e st e r n  D ist r ic t  oe T e n n e s s e e

Mr. William E. Caldwell 
Attorney at Law 
525 Commerce Title Building 
Memphis, Tennessee 38103

Re: Willie Johnson v. Railway Express Agency, Inc. 
Civil No. C-71-66

Dear Mr. Caldwell:

I have your letter of May 5, 1972.

It appears to me that the proper way to handle this 
matter would be to file a new action since the old one has 
long since been dismissed.

Yonrs very truly,

/ s /  B a iley  B row n  
Bailey Brown 
Chief Judge

BB :asw

CC: Mr. Saul C. Belz
Mr. W. Lloyd Johnson, Clerk



52a

I n  t h e  U n it e d  S tates D istr ic t  C ourt 

F oe t h e  W e ster n  D istr ic t  oe T e n n e s s e e  

W e ster n  D iv isio n  

No. C-72-183

Answer of REA Express, Inc.*

[Title omitted in printing]

Comes now the defendant, REA Express, Inc. and files 
this its separate answer to the original complaint filed 
herein and would show the Court as follows:

1. The complaint fails to state a claim upon which 
relief can be granted against the defendant REA Express, 
Inc.

2. That with regard to the allegations of the complaint 
pertaining to any rights under statutes other than the 
Civil Rights Act of 1964, the same are barred by res 
judicata between the plaintiff and the defendants in this 
cause. That in a suit heretofore pending in the United 
States District Court for the Western District of Tennes­
see, Western Division, in which Willie Johnson, Jr., was 
plaintiff, and REA Express, Inc. and the other named 
defendants herein were defendants, Cause No. C-71-66, 
suit was brought under the Civil Rights Act of 1964 and 
42 U.S.C. Sec. 1981, 1982 and 1983. Also, it was alleged 
in the above mentioned complaint that plaintiff was denied 
the opportunity to obtain supervisory training which the 
defendant REA Express, Inc. provided white employees. *

* Effective June 1,1970, defendant’s corporate name was changed 
to REA Express, Inc.



53a

That Cause No. C-71-66 was by this Court consolidated 
with Cause No. C-71-2 by the Court.

In the consolidated cause, it was, among other things 
adjudged and decreed by this Court that through the 
Honorable Chief Judge Bailey Brown in ruling upon a 
motion of summary judgment by all defendants, that

“In so far as plaintiff's in both cases sue under Civil 
Rights Statutes other than the Civil Rights Act of 
1964, such claims are dismissed for the reasons that 
there is no Federal statute of limitations governing 
these claims, that therefore the Tennessee Statute of 
limitations of one (1) year would apply, and both of 
these claims were barred by such statute at the time 
they were filed.”

The Court then further decided with regard to the claim 
concerning supervisory training:

“4. The motions of REA Express, Inc. for sum­
mary judgment with respect to the claim of dismissal 
for not giving plaintiff’s supervisory training are 
granted on the grounds that from the undisputed facts 
plaintiffs have not shown any discrimination in this 
respect.”

The above mentioned judgment stands unreversed and 
unmodified and in full force ana effect, and the matters 
and things above set forth which were determined, ad­
judged and decreed in that judgment were and are res 
judicata between the plaintiff and the defendants in this 
cause.

3. The Court lacks jurisdiction of the subject matter 
of the complaint by reason of the fact that this action

Answer of REA Express, Inc.



54a

was not brought within thirty days after plaintiff was 
notified of his right to sue as required by Section 706 (e) 
of the Civil Rights Act of 1964, nor was this action 
brought within thirty days of the dismissal without prej­
udice of plaintiff’s previously filed suit in Cause No. 
C-71-66, which cause was dismissed without prejudice on 
the 16th day of February, 1972. That the instant suit 
was not filed until May 31, 1972, in excess of 100 days 
after the dismissal of previous suit. That there is no 
applicable tolling provision or saving statute which would 
allow the refiling of this suit in such an untimely manner.

4. REA Express, Inc. admits the allegations contained 
in Paragraph 1 of the complaint.

5. REA Express, Inc. admits the allegations contained 
in Paragraph II of the complaint as to the nature of the 
proceeding, but denies that it is guilty of any acts which 
would entitle plaintiff to the relief sought.

6. REA Express, Inc. admits the allegations contained 
in Paragraph III of the complaint.

7. REA Express, Inc., is without knowledge or informa­
tion sufficient to form a belief as to the truth of the allega­
tions contained in Paragraph IV of the complaint.

8. REA Express, Inc. denies each and every allegation 
of Paragraph V of the complaint except that plaintiff 
was employed by REA Express, Inc. which it admits. 
REA Express, Inc. relies upon its defense of res judicata 
as set forth in Paragraph 2 of this its answer, with regard 
to the allegations of Paragraph V concerning supervisory 
training.

Answer of REA Express, Inc.



55a

9. REA Express, Inc. is without knowledge or informa­
tion sufficient to form a belief of the allegations of Para­
graph VI of the complaint.

10. REA Express, Inc. admits the allegations of Para­
graph YII of the complaint, except that it denies the 
validity of the findings of the EEOC investigator.

11. REA Express, Inc. admits the allegations of para­
graph VIII (A) to the extent that they allege that on or 
about January 15, 1971, plaintiff received a ‘“'notice of 
right to sue” letter from the EEOC. REA Express, Inc. 
is without knowledge or information sufficient to form a 
belief as to the remaining allegations of paragraph 
VIII (A) of the complaint.

12. REA Express, Inc. admits the allegations of para­
graph VIII (B) of the Complaint to the extent that they 
allege that on February 12, 1971, a notice of right to sue 
was filed and treated as a complaint on paupers oath 
and docketed as case No. C-71-66. REA Express, Inc. 
further admits that on March 18, 1971, a “supplemental 
complaint” was filed on plaintiff’s behalf by his Court 
appointed attorney and that answers were filed by the 
defendants in that suit. REA Express, Inc. admits the 
remaining allegations of paragraph VIII (B).

13. REA Express, Inc. admits the allegations of para­
graph VIII (C) of the complaint.

14. REA Express, Inc. admits the allegations of para­
graph VIII (D) and VIII (E) of the complaint.

15. REA Express, nc. admits with regard to the allega­
tions of paragraph VIII (F) of the complaint that settle­
ment of this case was discussed with adverse counsel, but

Answer of REA Express, Inc.



56a

that no settlement was reached. REA Express, Inc. is 
without knowledge or information sufficient to form a be­
lief as to the details of plaintiff’s refusal to accept any 
settlement offer or the attitude of his attorney. REA 
Express, Inc. is without knowledge or information suffi­
cient to form a belief as to the reasons for plaintiff’s 
attorney’s withdrawal from the case other than those 
reasons set forth in his motion to withdraw which is a 
part of the record in Cause C-71-66.

16. REA Express, Inc. admits the allegations of para­
graph VIII (Gt) of the complaint.

17. REA Express, Inc. is without knowledge or informa­
tion sufficient to form a belief as to the allegations of 
paragraph VIII (H) of the complaint concerning plain­
tiff’s efforts to obtain representation or the diligence of 
counsel’s efforts to obtain representation for the plaintiff. 
REA Express, Inc. admits that letters were written to 
the Court concerning Cause No. C-71-66 on February 17, 
1972 and on May 5, 1972.

18. REA Express, Inc. is without knowledge or informa­
tion sufficient to form a belief as to the truth of the allega­
tions contained in Article IX of the complaint.

19. REA Express, Inc. admits the allegations of para­
graph X of the complaint except that it denies that the 
plaintiff has suffered or is suffering irreparable injury 
or any form of injury as a result of its actions.

20. REA Express, Inc. denies the allegations of para­
graph XI of the complaint.

All other allegations of the complaint which have not 
heretofore been admitted or denied or otherwise explained, 
are hereby denied.

Answer of REA Express, Inc.



Answer of REA Express, Inc.

Now, having fully answered, defendant, EEA Express, 
Inc., prays judgment in its favor together with its costs.

Burch, Porter & Johnson, 
Attorneys for Defendant 
REA Express, Inc.
130 North Court 
Memphis, Tennessee



58a

M otion o f D efendants Tri-S tate Local and  Lily o f th e  
Valley Local o f  th e  B ro therhood  o f Railway, A irline 
and  S team ship C lerks to  D ismiss th e  C om plaint o r  in  

th e  A lternative to  G rant Said D efendants 
Sum m ary Judgm ent

I n  t h e  U n it e d  S tates D istr ic t  C ourt 

W e ster n  D istr ic t  oe T e n n e s s e e  

W ester n  D iv isio n  

No. C-72-183

[Title omitted in printing]

Now come the defendants Brotherhood of Railway, Air­
line and Steamship Clerks Tri-State Local and Lily of the 
Valley Local (BRAC Locals) to move this Court to dismiss 
the complaint in the above-entitled case, or in the alterna­
tive to grant said defendants summary judgment on the 
grounds that the Court’s Order of June 14, 1971, in the 
case of Willie Johnson, Jr. v. REA Express, Inc., Brother­
hood of Railway Clerks Tri-State Local and Lily of the 
Valley Local (Civil Action No. 0-71-66), (1) granting 
the BRAC Locals summary judgment on the complaint 
based on Title VII of the Civil Rights Act of 1964 on the 
grounds that the undisputed facts showed that plaintiff 
Johnson had no grounds for relief against the BRAC 
Locals under that statute and (2) granting the motion of 
the BRAC Locals to dismiss the claims of the plaintiff 
under civil rights statutes other than Title VII of the Civil 
Rights Act of 1964, on the grounds that such claims were 
barred by the Tennessee State of Limitations, is res



59a

Motion of Defendants Tri-State Local, etc.

judicata with respect to the claims asserted in the present 
complaint and that the claims in the present complaint are 
barred by the Court’s Order of June 14, 1971, which is final 
and binding with respect to such claims. This motion is 
based upon the complaint in the present case and the record 
in the prior ease identified as C-71-66. There is attached to 
the present motion the pertinent documents from the prior 
case and a memorandum of points and authorities in sup­
port of this motion.

Respectfully submitted,

/ s /  J am es L. H ighsaw  
James L. Highsaw 
1015 18th Street, X.W. 
Washington, D.C. 20036

/ s /  G eorge E. M orrow 
George E. Morrow 
750 Union Planters National 

Bank Bldg.
Memphis, Tennessee 38103

Attorneys for Defendants BRAC 
Locals

Of Counsel:
H ig h sa w  &  M a h o n ey  
1015 18th Street, N.W.
Washington, D.C. 20036
M a r tin , T a te , M orrow  & M arston , P.C.
705 Union Planters National Bank Bldg.
Memphis, Tennessee 38103

July 25, 1972



60a

I n  t h e  U n it e d  S tates D istr ic t  C ourt 

W e ster n  D istrict  of T e n n e s s e e  

W e ster n  D iv isio n  

No. C-71-66 
Filed, Marcli 18, 1973,

District Court, Western District of Tennessee

Appendix A
(To Motion of Defendants Tri-State Local, etc.)

W il l ie  J o h n s o n , J r .,

v s.
Plaintiff,

R ailw ay  E xpress A gen cy , I n c ., B rotherhood  oe R ailw ay  
C ler k s  T r i-S tate L ocal, a n d  B rotherhood  oe R ailw ay  
Clerk s  L ily  oe t h e  V alley  L ocal,

Defendants.

S u p p l e m e n t al  C o m pla in t

I .

The jurisdiction of this court is invoked pursuant to 
28 U.S.C. Section 1343 (4) and 42 U.S.C. Section 2000e-5(f). 
This is a suit in equity authorized and instituted pursuant 
to Title VII of the Act known as the Civil Rights Act of 
1964, 42 U.S.C. Sections 2000e, et seq., and 42 U.S.C. Sec­
tions 1981, 1982, 1983 and 1988. The jurisdiction of this 
court is invoked to secure protection of and to redress the 
deprivation of rights secured by (a) Title VII of the Act 
known as the Civil Rights Act of 1964, 42 U.S.C. Sections



61a

2000e, et seq., providing for injunctive and other relief 
against racial discrimination in employment, and (b) 42 
U.S.C. Sections 1981, 1982 and 1983, providing for equal 
rights of citizens and all persons within the jurisdiction 
of the United States.

II.
This is a proceeding for preliminary and permanent 

injunction restraining defendants from maintaining a 
policy, practice, custom or usage of withholding, denying 
or attempting to withhold or deny, and depriving or at­
tempting to deprive or otherwise interfering with the 
rights of plaintiff and other Negro persons similarly situ­
ated to equal employment opportunities at Railway Ex­
press Agency, Inc., Memphis, Tennessee, and equal labor 
representation by Brotherhood of Railway Clerks Tri- 
State Local and Brotherhood of Railway Clerks Lily of the 
Valley Local, without discrimination on grounds of race 
or color.

III.
Plaintiff is a Negro citizen of the United States, resid­

ing in the State of Tennessee. The defendant, Railway 
Express Agency, Inc. is a corporation doing business in the 
State of Tennessee, and City of Memphis, and is an em­
ployer within the meaning of 42 U.S.C. Section 2000e(b) in 
that it is engaged in industry affecting interstate commerce 
and employs more than twenty-five (25) persons.

IV.
Defendant, Brotherhood of Railway Clerks Lily of the 

Valley Local is an unincorporated association of produc­

Appendix A
(To Motion of Defendants Tri-State Local, etc.)



62a

tion workers employed at defendant, Bailway Express 
Agency, Inc., and defendant, Brotherhood of Railway 
Clerks Tri-State Local is an unincorporated association of 
workers employed at defendant, Railway Express Agency, 
Inc. On behalf of its members, defendant Unions enter into 
collective bargaining agreements dealing with the terms 
and conditions of employment of persons employed at de­
fendant, Railway Express Agency, Inc., in Memphis, Ten­
nessee. The principal office of the Brotherhood of Railway 
Clerks Tri-State Local is 331 Radford Road, Memphis, 
Tennessee. The principal office of the Brotherhood of Rail­
way Clerks Lily of the Valley Local is 1274 Effie Road, 
Memphis, Tennessee. The Unions are a labor organization 
within the meaning of 42 U.S.C. Section 2000e(d), and is 
engaged in industry affecting commerce within the mean­
ing of 42 U.S.C. Section 2000(e).

V.
Plaintiff alleges that he was employed by Railway Ex­

press Agency, Inc. from the spring of 1964 until the spring 
of 1967. Plaintiff alleges that Railway Express Agency, 
Inc. follows a policy and practice of racial discrimination 
in that:

(1) Railway Express Agency, Inc. denies Negro em­
ployees equal promotion opportunities with white 
employees;

(2) Railway Express Agency, Inc., in conjunction with 
defendant Unions, assigns, reassigns, promotes and 
otherwise acts or fails to act in such a manner as 
to maintain a preexisting pattern of racial dis­
crimination in employment.

Appendix A
(To Motion of Defendants Tri-State Local, etc.)



63a

Plaintiff further alleges that he was denied the oppor­
tunity to obtain supervisory training and promotion which 
the defendant Railway Express Agency, Inc. provides 
white employees.

VI.
Plaintiff alleges that he was a member of the Brother­

hood of Railway Clerks Lily of the Valley Local, one of 
the defendant unions, and that he was denied membership 
in the Brotherhood of Railway Clerks Tri-State Local. 
Plaintiff alleges that the unions followed a policy, custom 
or practice of racial discrimination in that the unions fail 
to defend the rights of Negro members in the same manner 
it defends the rights of white members. Plaintiff further 
alleges that he was denied equal labor representation be­
cause of his race and that his termination of employment 
was occasioned by racial discrimination practices by de­
fendant, Railway Express Agency, Inc.

VII.
Plaintiff filed timely charges with the Equal Employ­

ment Opportunity Commission alleging the discriminatory 
practices set forth herein. On the 18th day of January, 
1971, a commission investigator recommended that the 
commission find reasonable cause to believe that defendant, 
Railway Express Agency, Inc,, had discriminated against 
plaintiff in that the defendants had violated rights of the 
plaintiff guaranteed under Title VII of the Civil Rights 
Act of 1964 by failing to grant plaintiff opportunity for 
equal employment advancement and by failing to represent 
plaintiff in the same manner as it represents Caucasian 
employees.

Appendix A
(To Motion of Defendants Tri-State Local, etc.)



64a

VIII.
Plaintiff filed timely charges with the Equal Employ­

ment Opportunity Commission alleging the discriminatory 
practices set forth herein. On January 18, 1971, a commis­
sion investigator recommended that the commission find 
reasonable cause to believe that the defendant unions and 
defendant Railway Express Agency, Inc. had discriminated 
against the plaintiff in the same manner as set forth in 
Paragraph VII.

IX.
Neither the State of Tennessee nor the City of Memphis 

has a law prohibiting the unlawful employment practices 
alleged herein.

X.
Plaintiff was notified by the commission that pursuant 

to Section 706(e) of the Civil Rights Act of 1964, he had 
thirty (30) days in which to institute a civil action in the 
appropriate United States District Court. Plaintiff is now 
suffering and will continue to suffer irreparable injury 
from the defendants’ policy, custom, practice and usage 
as set forth herein.

XI.
Plaintiff alleges that he has no adequate and complete 

remedy at law to redress the wrongs alleged herein other 
than this suit for a permanent injunction. Plaintiff is now 
suffering and will continue to suffer irreparable injury 
from the defendants’ policy, practice, custom and usage as 
set forth herein.

Appendix A
(To Motion of Defendants Tri-State Local, etc.)



65a

XII.
W herefore , p la in tif f  p ra y s  th a t  th is  c o u rt ad v an ce  th is  

•case on  th e  docket, o rd e rin g  a  speedy  h e a r in g  a t  th e  e a r lie s t 
p ra c tic ab le  d a te  an d  cause  th is  case to  be in  ev e ry  w ay  
ex p ed ited  an d  u p o n  such h e a r in g :

(1) Grant plaintiff preliminary and permanent injunc­
tion enjoining the defendants, Railway Express Agency, 
Inc., Brotherhood of Railway Clerks Tri-State Local, and 
Brotherhood of Railway Clerks Lily of the Valley Local, 
their agents, successors, employees, attorneys and those 
acting in concert with them at their direction from con­
tinuing and maintaining the policy, practice, custom and us­
age of denying, abridging, withholding, conditioning, limit­
ing or otherwise interfering, individually and/or jointly, 
with the rights of the plaintiffs as provided under Title VII 
of the Civil Rights Act of 1964, 42 U.S.C. Sections 200Qe, 
et seq.

(2) Grant the plaintiff preliminary and permanent in­
junction enjoining the defendants, Railway Express Agency, 
Inc,, Brotherhood of Railway Clerks Tri-State Local, and 
Brotherhood of Railway Clerks Lily of the Valley Local, 
their agents, successors, employees, attorneys and those 
acting in concert with them at their direction from continu­
ing or maintaining any policy, practice, custom or usage 
of denying, abridging, withholding, conditioning, limiting 
or otherwise interfering, individually and/or jointly, with 
the rights of the plaintiff to enjoy equal employment for 
advancement or training as directed by Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. Sections 2QOOe, et seq.

Appendix A
(To Motion of Defendants Tri-State Local, etc.)



66a

(3) Grant the plaintiff judgment in the amount of back 
pay to which he would have been entitled including all 
raises, bonuses and fringe benefits to which he would have 
been entitled had the employment not been terminated.

(4) Award plaintiff the costs of this action, together 
with reasonable attorney’s fees as provided in Section 
706(k) of the Civil Rights Act of 1964, 42 U.S.C. Section 
2000e(5)(k).

(5) Plaintiff prays that this court grant such other, 
futrher, additional and/or alternative relief as the needs 
of justice require.

Respectfully submitted,

Appendix A
(To Motion of Defendants Tri-State Local, etc.)

Robert E. Rose 
Matthews, Thompson & Rose 
745 Commerce Title Building 
Memphis, Tennessee 
Attorney for Plaintiff



67a

I n  t h e  U n it e d  S tates D istr ic t  C ourt 

F or t h e  W e st e r n  D istr ic t  oe T e n n e s s e e  

W e st e r n  D iv isio n  

No. C-71-66

Appendix B
(To Motion of Defendants Tri-State Local, etc.)

[Title omitted in printing]

A n sw er  of D efe n d a n t s  T r i-S tate L ocal and  L ily  of t h e

V alley  L ocal of t h e  B rotherhood  of B ailw ay  and 
A ir l in e  C ler k s  to S u p p l e m e n t a l  C o m pla in t

Now come the Tri-State Local and the Lily of the Valley 
Local of the Brotherhood of Railway, Airline and Steam­
ship Clerks, Freight Handlers, Express and Station Em­
ployes (BEAC Locals) to answer the supplemental com­
plaint in the above-entitled cause as follows:

F ir st  D e f e n s e

The Court lacks jurisdiction of the subject matter of the 
supplemental complaint with respect to the defendants 
BRAC Locals insofar as the supplemental complaint pur­
ports to be based upon Civil Rights Act of 1964 for the 
following reasons:

1. The defendants BRAC Locals were never served with 
any charges against such defendants filed with the Federal 
Equal Employment Opportunity Commission, as required 
by Section 706(a) of the Civil Rights Act of 1964.



68a

2. Prior to the institution of this suit, there was no real 
endeavor by the Federal Equal Employment Opportunity 
Commission to conciliate with the defendants BRAG Locals 
the matter complained of as required by the Civil Rights 
Act of 1964.

S econd  D e f e n s e

The Court lacks jurisdiction of the subject matter of the 
supplemental complaint insofar as that complaint is based 
upon Federal statutory provisions other than the Civil 
Rights Act of 1964 in that such provisions are not applicable 
to the subject matter of the supplemental complaint and 
the plaintiff has not exhausted his internal union remedies 
within BRAC as a condition precedent to his suit as 
required by Federal law. In addition, the matter in con­
troversy does not exceed the sum or value of $10,000.00, 
exclusive of interest and costs, as required by Title 28, 
Section 1331, of the United States Code.

T r ie d  D e f e n s e

The Court does not have jurisdiction of the claims set 
forth in the supplemental complaint insofar as such juris­
diction is based upon Federal statutes other than the Civil 
Rights Act of 1964 because exclusive jurisdiction over such 
claims rests with the National Railroad Adjustment Board 
pursuant to Section 3 of the Railway Labor Act, as amended 
(45 U.S.C.A., Section 153).

F o u r th  D e fe n se

Insofar as the supplemental complaint seeks to assert a 
cause of action based upon Federal, statutes other than 
the Civil Rights Act of 1964, such actions are barred by

Appendix B
(To Motion of Defendants Tri-State Local, etc.)



69a

applicable statutes of limitations including, but not limited 
to, Tennessee Code Annotated, Title 28, Section 304, and 
Title 28, Section 305.

Appendix B
(To Motion of Defendants Tri-State Local, etc.)

F if t h  D e f e n s e

The supplemental complaint fails to state a claim upon 
which relief can be granted against defendants BEAC 
Locals.

S ix t h  D e fe n se

The Court lacks jurisdiction of the subject matter of the 
supplemental complaint by reason of the fact that this 
action was not brought within 30 days after plaintiff was 
notified of his right to sue as required by Section 706(e) 
of the Civil Eights Act of 1964.

S e v e n t h  D e fe n se

The Court lacks jurisdiction to grant the relief prayed 
for by the plaintiff by reason of the provisions of Section 
706(g) of the Civil Rights Act of 1964.

E ig h t h  D e fe n se

The defendants BEAC Locals admit or deny the allega­
tions of the supplemental complaint as follows:

1. The BEAC Locals deny the allegations of paragraph
I of the supplemental complaint.

2. The BEAC Locals deny the allegations of paragraph
II of the supplemental complaint.

3. The BEAC Locals admit the allegations of paragraph
III of the supplemental complaint.



70a

4. The BRAG Locals admit that they are unincorporated 
associations who have members employed by Railway Ex­
press Agency and that they have offices in Memphis, Ten­
nessee. Except to the extent thus specifically admitted, the 
BRAC Locals deny the allegations of paragraph IY of the 
supplemental complaint.

5. The BRAC Locals state that they are without knowl­
edge sufficient to admit or deny the averments of paragraph
V of the supplemental complaint with respect to plaintiff’s 
alleged employment with Railway Express Agency. The 
BRAC Locals deny all of the remaining allegations of 
paragraph V of the supplemental complaint.

6. The BRAC Locals deny the allegations of paragraph
VI of the supplemental complaint.

7. The BRAC Locals deny the allegations of paragraph
VII of the supplemental complaint.

8. The BRAC Locals deny the allegations of paragraph
VIII of the supplemental complaint.

9. Paragraph IX of the supplemental complaint con­
stitutes a legal conclusion to which the BRAC Locals are 
not required to plead.

10. The BRAC Locals state that they are without knowl­
edge sufficient to admit or deny the averments of paragraph
X of the supplemental complaint and therefore deny such 
allegations.

11. The BRAC Locals deny the allegations of paragraph
XI of the supplemental complaint.

Appendix B
(To Motion of Defendants Tri-State Local, etc.)



71a

W h e r e fo r e , the BRAC Locals pray as follows:
1. That the Court dismiss the supplemental complaint 

or grant the defendants BRAC Locals judgment with 
respect thereto.

2. That the Court award defendants costs of this action 
together with reasonable attorney’s fee.

3. That the Court grant defendants BRAC Locals such 
other, further, additional and/or alternative relief as may 
be appropriate in the premises.

/ s /  J am es L. H ig h sa w  
James L. Highsaw 
Highsaw & Mahoney 
1015 Eighteenth Street, N. W. 
Washington, I). C. 20036

/s /  George M orrow 
George Morrow 
Martin, Tate and Morrow 
Union Planters National Bank 

Bldg.
Memphis, Tennessee 38103 

Attorneys for Defendant BRAC 
Tri-State Local and Lily of the 
Valley Local

Of Counsel:
William J. Donlon 
6300 River Road 
Rosemont, Illnois 60018

Appendix B
(To Motion of Defendants Tri-State Local, etc.)

April 4, 1971



72a

I n  t h e  U n it e d  S tates D istr ic t  C ourt 

F or t h e  W ester n  D istr ic t  oe T e n n e s s e e  

W e st e r n  D iv isio n  

No. C-71-66

Appendix C
(To Motion of Defendants Tri-State Local, etc.)

[Title omitted in printing]

M otion  oe D efe n d a n t s  T r i-S tate L ocal and  L il y  oe t h e  
V alley  L ocal oe t h e  B rotherhood  oe R ailw ay  and  A ir l in e  
Cler k s  to D ism iss  t h e  S u p p l e m e n t a l  C o m pla in t  or, in  t h e  

A lter n a tiv e , eor S u m m a ry  J u d g m en t

N ow come the defendants in the above-entitled case, 
Tri-State Local of the Brotherhood of Railway and Air­
line Clerks and Lily of the Valley Local of said Brother­
hood (BRAC Locals), to move the Court to dismiss the 
supplemental complaint upon the ground that the Court 
does not have jurisdiction of the subject matter of the 
complaint. Insofar as the jurisdiction of the complaint 
is based upon Federal statutes other than the Civil Rights 
Act of 1964, the motion is based upon the additional ground 
that the supplemental complaint is barred by the applicable 
Tennessee Statutes of Limitations; failure of the plain­
tiff to utilize administrative and union remedies as a condi­
tion precedent to a suit based on such statutes; and the 
fact that plaintiff has no independent cause of action 
under such other statutes.



There are attached hereto in support of this motion an 
affidavit of Mr. William J. Donlon, General Counsel of 
the Brotherhood of Railway and Airline Clerks, and a 
legal memorandum of points and authorities.

Respectfully submitted,

James L. Highsaw 
Highsaw & Mahoney 
Suite 506
1015 Eighteenth Street, 1ST. W. 
Washington, D. C. 20036
George Morrow7 
Martin, Tate &• Morrow7 
Union Planters National Bank Bldg. 
Memphis, Tennessee 38103 

Attorneys for Defendants BRAC 
Tri-State Local and Lily of the 
Valley Local

73 a

Appendix C
(To Motion of Defendants Tri-State Local, etc.)

Of Counsel:
William J. Donlon 
6300 River Road 
Rosemont, Illinois 60018

April 30, 1971



74a

Affidavit

U n it e d  S tates D istr ic t  C ourt 

W e ster n  D istr ic t  of T e n n e sse e  

W e st e r n  D iv isio n  

C iv il  A ction  N o. C-71-66

W il l ie  J o h n s o n , J r .,
Plaintiff,

v.

R ailw ay  E xpress A gen cy , I n c .;  B rotherhood  op R ailw ay  
Cler k s  T r i-S tate L ocal ; and  B rotherhood  oe R ailw ay  
Cle r k s  L ily  op t h e  V alley  L ocal,

Defendant.

S tate of I l l in o is ,
C o u n ty  of C ook, ss .:

William J. Donlon, being duly sworn deposes and says 
as follows:

1. That lie is General Counsel of the Brotherhood of 
Railway, Airline and Steamship Clerks, Freight Handlers, 
Express and Station Employees (hereinafter referred to 
as BEAC); that his office is in the Headquarters of BRAC 
located in the O’Hare International Transportation Center 
at 6300 River Road, Rosemont, Illinois.

2. That he appeared as Counsel of record in proceedings 
instituted by Willie Johnson, Jr., against REA Express,



75a

Affidavit

Inc., and Brotherhood of Railway Clerks Tri-State Local 
and Brotherhood of Railway Clerks Lily of the Valley 
Local, before the Equal Employment Opportunity Com­
mission, designated case No. 7-6-822EU.

3. That on January 19, 1971 Affiant received notice that 
Willie Johnson, Jr., had made written demand and the 
Equal Employment Opportunity Commission had issued 
pursuant to Section 706(e) of Title 7 of the Civil Rights 
Act of 1964 and the Equal Employment Opportunity Com­
mission’s Procedural Regulations Section 1601.25 and 
16Q1.25a(b), a notice of Charging Parties’ right to initiate 
suit in the appropriate Federal District Court. Copy of 
Mr. Charles A. Dixon’s letter of January 15, 1971 is at­
tached and designated as Exhibit “A”. Copy of Notice of 
Right to Sue sent to Mr. Johnson, dated January 15, 1971, 
is attached and designated as Exhibit “B”.

4. Affiant requested further information from Equal 
Employment Opportunity Commission relative to date on 
which Mr. Willie Johnson, Jr. received his Notice dated 
January 18, 1971 of his right to initiate a suit. Affiant was 
advised by Mr. Charles A. Dixon, Deputy Director, in a 
letter dated March 2, 1971, that Mr. Willie Johnson, Jr. 
received his notice January 18, 1971. Copy of Mr. Dixon’s 
letter is attached hereto and marked as Exhibit “C”.

5. Affiant further states that he has read copy of com­
plaint filed by Willie Johnson, Jr. in the above captioned 
case which indicates court filing on March 18, 1971 and is 
of the opinion and belief that said action was not com-



76a

Affidavit

menced within the thirty day period prescribed by the 
statute.

/s /  W il l ia m  J. D onlon

Subscribed and sworn to before me 
this 2nd day of April, 1971.

/ s /  H elen  M. W e ig h t  
H elen M. W rig h t
Notary Public, Cook County, Illinois 
My Commission expired March 9, 1974



77a

I n  t h e  U n it e d  S tates D istr ic t  C ourt 

F or t h e  W e st e r n  D istr ic t  oe T e n n e s s e e  

W e st e r n  D iv isio n  

C iv il  A ctio n  N o. C-71-66

Appendix D

(To Motion of Defendants Tri-State Local, etc.)

[Title omitted in printing]

I nterrogatories N o. 1 oe D e fe n d a n ts  
T r i-S tate L ocal and  L il y  oe t h e  V alley 

L ocal oe t h e  B rotherhood  oe R ailw ay  
and  A ir l in e  Cle r k s  to P l a in t if f  

W il l ie  J o h n so n , J r .

N ow  come the defendants Tri-State Local and Lily of 
the Valley Local of the Brotherhood of Railway, Airline 
and Steamship Clerks, Freight Handlers, Express and 
Station Employees (BRAG Locals) and request the plain­
tiff Willie Johnson, Jr., pursuant to the provisions of Rule 
33 of the Federal Rules of Civil Procedure, to answer the 
following interrogatories fully in writing, under oath, and, 
except where otherwise indicated, separately with respect 
to each such defendant, and to serve a copy of the answers 
upon the undersigned counsel for said defendants within 
fifteen (15) days after service hereof.

These interrogatories shall be deemed continuing and 
supplemental answers shall be required as plaintiff, directly 
or indirectly, obtains further information sought herein 
between the time answers are served to these interroga­
tories and the time of trial.



78a

1. State the specific date on which the plaintiff began 
work for Railway Express Agency, Inc., as alleged in 
paragraph V of the supplemental complaint.

2. State the job or position held by plaintiff when he 
began work with Railway Express Agency, Inc., as alleged 
in paragraph V of the supplemental complaint.

3. State specifically the occasion or occasions upon which 
the defendant unions failed to defend the rights of negro 
members in the same manner they defended the rights of 
white members as alleged in paragraph VI giving the date 
of each occasion and the names of the members involved.

4. State the particular action or failure to act which 
constituted a denial to the plaintiff of equal representation 
because of his rights, as alleged in paragraph VI, including 
the dates and persons involved.

5. State whether the termination of plaintiff’s employ­
ment with Railway Express Agency, Inc. was voluntary on 
his part or was the result of a discharge by his employer 
if alleged in paragraph VI.

6. If plaintiff was discharged from employment with 
Rialway Express Agency, Inc., then state the date of termi­
nation, whether the termination was done orally or in writ­
ing, if the latter the date of the communication and the 
name of the person who signed same.

7. Does plaintiff have knowledge of any by-law or other 
rule or regulation of the defendant Lily of the Valley Local 
limiting the membership of that local to Negroes?

Appendix D
(To Motion of Defendants Tri-State Local, etc.)



79a

8. If the answer to question no. 7 above is in the affirma­
tive, set forth specifically the by-law or rule to which 
plaintiff refers.

9. Does plaintiff have knowledge of any by-law or rule 
of defendant Tri-State Local limiting the membership of 
that local to white persons?

10. If the answer to question no. 9 above is in the af­
firmative, set forth the by-law or rule to which plaintiff 
refers.

11. Set forth the approximate date upon which plaintiff 
became a member of the defendant Lily of the Valley Local.

12. Is plaintiff still a member of the Lily of the Valley 
Local ?

Appendix D
(To Motion of Defendants Tri-State Local, etc.)

13. If the answer to question no. 12 is “No”, set forth 
the date upon which plaintiff ceased to be a member of the 
Lily of the Valley Local.

14. If plaintiff is no longer a member of the Lily of the 
Valley Local, did plaintiff resign his membership in such 
local?

15. Has plaintiff ever appied for membership in any 
other BRAC Local?

16. If the answer to question no. 15 above is “Yes”, fur­
nish the following information:

(a) The name of the BRAG Local to which plaintiff 
applied for membership.



80a

(b) The approximate date upon which such applica­
tion was made.

17. Has palintiff ever filed a complaint with BRAC con­
cerning the alleged segregation of membership of the Lily 
of the Valley Local?

18. If the answer to question no. 17 above is in the af­
firmative, furnish the following information:

(a) The approximate date of such complaint.
(b) The individual to whom such complaint was 

made.
(c) Whether the complaint was made orally or in 

writing.

19. Furnish the following information with respect to 
the collective bargaining agreements which the defendants 
BRAC Locals have allegedly entered into with defendant 
Railway Express Agency, Inc,, as alleged in paragraph IV 
of the supplemental complaint :

(a) List each such agreement, including the ap­
proximate date thereof.

(b) Name the parties to each such agreement.

20. Set forth the names of white employees provided
training for supervisory positions with Railway Express 
as alleged in paragraph V of the supplemental complaint,

21. Did plaintiff ever request Railway Express to pro­
vide him with training toward a supervisory position with 
Railway Express?

Appendix D
(To Motion of Defendants Tri-State Local, etc.)



81a

22. If the answer to question no. 21 above is in the 
affirmative, furnish the following information:

(a) The name of the person to whom such request 
was made.

(b) The approximate date upon which such request 
was made.

(c) Whether such request was made orally or in 
writing.

(d) What response did plaintiff receive to such 
request.

(e) Was such response oral or in writing.
(f) The approximate date of such response.

23. Did plaintiff ever file a grievance with the Lily of 
the Valley Local or with BRAC alleging that he had been 
improperly denied an opportunity to train toward a super­
visory position with Railway Express?

24. If the answer to question no. 23 above is in the af­
firmative, furnish the following information:

(a) The date upon which such grievance was filed.
(b) With whom such grievance was filed.
(c) Was such grievance oral or in writing.

25. Paragraph VII of the supplemental complaint al­
leges that plaintiff’s rights as a member of the Lily of the 
Valley Local were not equal to those of white members of

Appendix D
(To Motion of Defendants Tri-State Local, etc.)



82a

BRAC. In connection with this allegation, furnish the 
following information:

(a) The specific rights as a member of BRAC to 
to which plaintiff refers in paragraph VII of the sup­
plemental complaint.

(b) The rights of plaintiff with respect to the mat­
ters so referred to.

(c) The claimed rights of white members of BRAC 
with respect to the matters so referred to.

Appendix D
(To Motion of Defendants Tri-State Local, etc.)

26. Paragraph VI of the supplemental complaint al­
leges that plaintiff has been denied equal representation 
because of his race. With respect to this allegation, fur­
nish the following information:

(a) Set forth specifically the matters with respect 
to which plaintiff refers claiming he has been denied 
equal representation.

27. Did plaintiff ever file a grievance with the Lily of 
the Valley Local claiming that he had been denied equal 
representation because of race?

28. If the answer to question no. 27 above is in the af­
firmative, furnish the following information:

(a) The date upon which such grievance was filed.
(b) The person with whom such grievance was filed.
(c) Whether such grievance was oral or in writing.

29. State the date upon which plaintiff was notified by 
the Federal Equal Employment Opportunity Commission



83a

that he had 30 days in which to institute a civil action in an 
appropriate United States District Court as alleged in 
paragraph X of the supplemental complaint,

30. Has plaintiff been employed by any other employer 
since the termination of his employment by Railway Ex­
press as alleged in paragraph V of the supplemental com­
plaint ?

31. If the answer to question no. 30 above is in the 
affirmative, set forth the following information with re­
spect thereto:

(a) The name of each such employer.

(b) The approximate dates upon which plaintiff was 
employed by each such employer.

(c) If there has been more than one employer, the 
positions plaintiff held with each such employer and 
his approximate compensation with each such em­
ployer.

(d) Was plaintiff fired by any such employer. If 
so, what was the reason given therefor!

32. Furnish the address at which plaintiff resides in the 
State of Tennessee as alleged in paragraph III of the 
supplemental complaint.

33. What is plaintiff’s age!

34. Set forth plaintiff’s education.

Appendix D
(To Motion of Defendants Tri-State Local, etc.)



84a

35. Did plaintiff hold a bulletined position with Railway- 
Express?

36. If the answer to question no. 35 is “No”, did plaintiff 
ever file a bid with Railway Express for a bulletined posi­
tion ?

37. If the answer to question no. 35 above is “Yes”, fur­
nish the following information:

(a) The job for which plaintiff bid.
(b) The date upon which such bid was filed.

38. Did plaintiff ever appear on a seniority roster of 
employees of Railway Express?

39. State the specific acts which plaintiff requests the 
Court to enjoin the defendants BRAC Locals from per­
forming under the prayed for relief contained in paragraph 
X II(2) of the supplemental complaint.

40. State the specific acts which plaintiff seeks to have 
the Court enjoin the defendants BRAC Locals from per­
forming in the prayer for relief contained in paragraph 
XII(p) of the supplemental complaint.

41. State the specific position with Railway Express to 
which plaintiff claims he should be reinstated as prayed for 
in paragraph X II(3) of the supplemental complaint.

42. Set forth the amount of back pay which plaintiff 
claims he should be awarded with respect to this position.

Appendix D
(To Motion of Defendants Tri-State Local, etc.)



85a

43. List the names and addresses of any persons whom 
plaintiff knows to have any knowledge of any of the mat­
ters set forth in the supplemental complaint.

Respectfully submitted,

/s /  J ambs L. H ighsaw  
James L. Highsaw 
Highsaw & Mahoney 
1015 Eighteenth Street, N. W. 
Washington, D. C. 20036

Of Counsel:
William J. Donlon 
6300 River Road 
Rosemont, Illinois 60018

/s /  George E. M orrow 
George E. Morrow
Martin, Tate, Morrow & Marston, P. C. 
Union Planters National Bank Bldg. 
Memphis, Tennessee 38103 
Attorneys for Defendants BRAG Tri- 
State Local and Lily of the Valley Local

Appendix D
(To Motion of Defendants Tri-State Local, etc.)

May 11, 1971



86a

I n  t h e  U n it e d  S tates D istr ic t  C ourt 

F or t h e  W e st e r n  D istr ic t  oe T e n n e s s e e  

W e st e r n  D iv isio n  

C iv il  A ctio n  N o . C-71-66

Appendix E

(To Motion of Defendants Tri-State Local, etc.)

[Title omitted in printing]

A n sw e r  to I nterrogatories N o. 1 oe D e fen d a n ts  
T r i-S tate L ocal and  L il t  oe t h e  V alley  

L ocal oe t h e  B rotherhood  oe B ailw ay  
and  A ir l in e  Cle r k s  to P l a in t ie e  

W il l ie  J o h n so n , J r.

1. Plaintiff does not recall exact date lie began work for 
Railway Express Agency, Inc. bnt states that it was ap­
proximately May or June of 1964.

2. Plaintiff began work as a handler.

3. Plaintiff does not know specifically the dates and the 
names of all persons involved but recalls generally that all 
Negro employees were referred to Lily of the Valley Local 
and the Tri-State Local would not represent the Negro 
employees.

4. Plaintiff states that the Lily of the Valley Local was 
not even for Railway Express employees in his category 
but was in fact a union for mail employees.



87a

5. Plaintiff’s employment was the result of a discharge 
by his employer.

6. Plaintiff does not recall the exact date of termination, 
he believes the termination was in writing because he had 
been given a post dated resignation which he executed prior 
to termination.

7. No.

8. Not applicable.

9. Plaintiff has no knowledge.

10. Plaintiff has no knowledge.

11. Plaintiff joined the union approximately thirty (30) 
days after being hired by Railway Express.

12. No.

13. Plaintiff does not recall date.

14. No.

15. No.

16. Not applicable.

17. No formal complaint was ever filed before filling suit.

18. Not applicable.

19. Plaintiff has no personal knowledge.

Appendix E
(To Motion of Defendants Tri-State Local, etc.)



88a

20. Plaintiff has no knowledge.

21. No.

22. Not applicable.

23. Plaintiff has filed no formal grievance.

24. Not applicable.

25. Plaintiff states that the dues were higher for the 
Negro employees in the Lily of the Valley Local than the 
dues were for the white employees in the Tri-State Local. 
Plaintiff further generally alleges that as a Negro employee 
the unions were not giving proper and diligent representa­
tions to their grievances.

26. Answer same as No. 25.

27. Plaintiff did not file a formal grievance.

28. Not applicable.

29. Plaintiff does not recall the exact date he received 
notice from the Federal Equal Employment Opportunity 
Commission but the date of notice for thirty (30) days in 
which to institute a civil action was January 15, 1971.

30. Yes.

31. Plaintiff has been employed by Kroger, Inc. since 
April of 1968 and prior to April of 1968 he had numerous 
part time jobs and is unable to recall the exact dates or 
names of employers for that period of time. Plaintiff is

Appendix E
(To Motion of Defendants Tri-State Local, etc.)



89a

employed as an order puller with Kroger at the present 
time. Plaintiff has not been fired by any employer since 
leaving employment of the Railway Express Agency.

32. Plaintiff lives at 4325 Loral Cove.

33. Plaintiff’s age is 33.

34. Plaintiff has completed high school education.

35. Yes.

36. Not applicable.

37. a) Driver.
b) Bid for one year on the above job before obtain­
ing same.

38. Yes.

39. Plaintiff requests the Court to enjoin the defendants 
BRAC Locals from continuing the practice of discrimina­
tion in dues charged Negro and white employees; in failing 
to give grievances of Negro employees proper and diligent 
consideration; and failing to give Negro employees equal 
opportunity for advancement to supervisory positions.

41. Supervisor.

42. Plaintiff is unable to answer as he is not aware of 
any raises which may have been awarded since his termina­
tion with Railway Express or what the present rate of pay 
is for employees of Railway Express.

Appendix E
(To Motion of Defendants Tri-State Local, etc.)



90a

43. Plaintiff does not at this time recall the names and 
addresses of persons who have any knowledge of the matter 
set forth in the supplemental complaint other than the 
name of Thomas Thornton.

Appendix E
(To Motion of Defendants Tri-State Local, etc.)

Respectfully submitted,

Robert E. Rose 
Attorney for plaintiff, 
Willie Johnson, Jr.



91a

Appendix G

(To Motion of Defendants Tri-State Local, etc.)

I n  th e  U nited  S tates D istrict C ourt 

F or th e  W estern  D istrict of T ennessee  

W estern  D ivision  

Filed June 14, 1971

C ivil  C-71-2 
T homas T hornton ,

Plaintiff,
v.

REA E xpress, I n c . ; B rotherhood of R ailway Clerks T r i- 
S tate L ocal; an d  B rotherhood  of R ailway Clerks 
L ily  of t h e  V alley L ocal,

Defendants,
—AND-

C iv il  C-71-66 
W illie  J ohnson , J r .,

v.
Plaintiff,

REA E xpress, I nc . ; B rotherhood of R ailway Clerks T r i- 
S tate L ocal; an d  B rotherhood of R ailway Clerks 
L ily  of th e  V alley L ocal,

Defendants.



92a

Order W it h  R espect to M otions to D ism iss and 
M otions eor S ummary  J udgment

Upon consideration, and after argument of counsel, it 
is hereby ordered:

1. Insofar as plaintiffs in both cases sue under Civil 
Rights statutes other than the Civil Rights Act of 1964, 
such claims are dismissed for the reasons that there is 
no Federal statute of limitations governing those claims, 
that therefore the Tennessee statute of limitations of one 
year would apply, and both of these claims were barred 
by such statute at the time they were filed.

2. The motions to dismiss in both cases on the ground
that the thirty-day letter filed within the thirty-day period 
is not sufficient to satisfy the requirement that a com­
plaint be filed within thirty days following the issuance 
of said letter are overruled. See opinion of Judge Harry 
W. Wellford, Joeanma Becktm v. Tennessee Hotel, (W.D. 
Tenn. 1971) attached hereto. Cf. Rice v. Chrysler Corp., 
—  F.Supp.----- , 3 FEP Cases 436 (E.D. Mich. 1971).

3. The motion of the defendant Union locals for sum­
mary judgment will be granted on the grounds that from 
the undisputed facts plaintiffs have no grounds for relief 
against said Unions under the Civil Rights Act of 1964.

4. The motions of REA Express, Inc. for summary 
judgment with respect to the claim of dismissal for not 
giving plaintiffs supervisory training are granted on 
the ground that from the undisputed facts plaintiffs have 
not shown any discrimination in this respect.

Appendix G
(To Motion of Defendants Tri-State Local, etc.)



5. The motions of REA Express, Inc. for summary 
judgment with respect to the claim of both plaintiffs of 
discriminatory discharge and with respect to plaintiff 
Johnson’s claim of denial of equal promotional oppor­
tunities and discrimination in job assignment be and the 
same are hereby denied.

Enter this 14th day of June, 1971.

Appendix G
(To Motion of Defendants Tri-State Local, etc.)

(Illegible)

B ailey  B rown 
Chief Judge



94a

M otion o f th e  D efendan t Rea E xpress, Inc. to  Dismiss 
th e  C om plaint o r in  th e  Alternative to  G rant Judgment

I k  t h e  U k it e d  S tates D istr ic t  C ourt 

F or t h e  W e st e r n  D istr ic t  oe T e n n e s s e e  

W e st e r n  D iv isio n  

No. C-72-183

[Title omitted in printing]

Comes now the defendant, REA Express, Inc. and moves 
this Court to dismiss the Complaint in the above entitled 
cause, or in the alternative to grant said defendant sum­
mary judgment on the following grounds:

(1) That the Court lacks jurisdiction of the subject 
matter of the Complaint by reason of the fact that this 
action was not brought within 30 days after plaintiff was 
notified of his right to sue as required by Section 706(e) 
of the Civil Rights Act of 1964, nor was this action brought 
within thirty (30) days of the dismissal without prejudice 
of plaintiff’s previously filed suit in Cause No. C-71-66, 
which cause was dismissed without prejudice on the 15th 
day of February, 1972. That the instant suit was not filed 
until May 31,1972, in excess of 100 days after the dismissal 
of the previous suit. That there is no applicable tolling 
provision or saving statute which would allow the re-filing 
of this suit in such an untimely manner, and that this suit 
is barred by the limitation provided in the enabling Act.

(2) That your defendant is entitled to a summary judg­
ment as to any claims of the plaintiff under Civil Rights



95 a

Motion of the Defendant REA Express, Inc., etc.

Statutes other than Title VII of the Civil Eights Act of 
1964, and as to claims made under the allegations of para­
graph V of the Complaint herein on the ground that such 
matters were decided by the United States District Court 
for the "Western District of Tennessee, "Western Division 
in Cause No. C-71-66 in a manner adverse to the plaintiff 
by order of the Court on June 14, 1971, and such matters 
are res adjudieata.

This motion is based upon the Complaint in the present 
cause, upon the motion of the defendants’ Brotherhood of 
Bailway Clerks Tri-State Local and Brotherhood of Rail­
way Clerks Lilly of the Valley Local in Cause No. C-72-183, 
and all documents of record in Cause No. C-71-66.

Respectfully submitted,

B u r c h , P orter & J o h n so n

/ s /  By S a u l  C. B elz

Saul C. Belz



96a

A m endm ent to  M otion o f D efendan ts Tri-S tate Local 
and  Lily o f tlie  Valley Local o f th e  B ro therhood  of 
Railway, A irline and  S team ship C lerks to  D ism iss the  

C om plaint o r  in  th e  A lternative to  G rant Said 
D efendants Sum m ary Judgm ent

1st t h e  U n it e d  S tates D istr ic t  C ourt 

W e ster n  D istr ic t  oe T e n n e s s e e  

W e st e r n  D iv isio n  

No. C-72-183

[Title omitted in printing]

Come now the defendants Brotherhood of Railway, Air­
line and Steamship Clerks Tri-State Local and Lily of the 
Valley Local (BRAC Locals) and amend the Motion here­
tofore filed in this cause on July 25, 1972 for the dismissal 
of the Complaint or for the granting of a Summary Judg­
ment, as follows:

These defendants adopt and reiterate the grounds for 
dismissal of the Complaint or the granting of a Summary 
Judgment set forth in the Motion of the defendant REA 
Express, Inc., setting forth the absence of jurisdiction over 
the subject matter of the Complaint in this Court, by reason 
of the failure of the plaintiff to bring his action within the 
time provided in the governing statutes.

For said reason, in addition to those set forth in their 
earlier motion, these defendants pray that the cause he



97a

Amendment to Motion of Defendants Tri-State Local, etc.

dismissed as to them, or that the Court grant a Summary 
Judgment to these defendants.

Respectfully submitted,

James L. Highsaw
1015 18th Street N. W.
Washington, D. C. 20036

George E. Morrow 
705 Union Planters National Bank 
Building
Memphis, Tennessee 38103 
Attorneys for Defendants BRAG Locals

Of Counsel:
H ig h sa w  & M a h o n ey  
1015 18th Street N. W. 
Washington, D. C. 20036
M a r t in , T a te , M orrow  &  

M arston , P.C.
705 Union Planters National 

Bank Bldg.
Memphis, Tennessee 38103

September 6, 1972



98a

I n  t h e  U n it e d  S tates D istr ic t  C ourt 

F or t h e  W e st e r n  D istr ic t  of T e n n e sse e  

W e st e r n  D iv isio n  

No. C-72-183
Filed, January 25, 1973, Clerk, U.S. District Court, 

Western District of Tennessee

Order on Defendant Motions fo r  Judgment

W il l ie  J o h n s o n , J r .,

vs.
Plaintiff,

R ailw ay  E xpress A gency , I n c ., B rotherhood  of R ailw ay  
Cler k s  T r i-S tate L ocal, a n d  B rotherhood  of R ailw ay  
Cler k s  L ily  of t h e  V alley  L ocal,

Defendants.

This is an action brought by a former employee of Rail­
way Express Agency, Inc. (REA) against that carrier 
and two local lodges of the BRAC, i.e., the Tri-State Local 
and the Lily of the Valley Local (BRAC Locals) alleging 
violations of the civil rights of the plaintiff under federal 
statute. Jurisdiction is asserted pursuant to the provisions 
of Title VII of the Civil Rights Act of 1964 (42 U.S.C.A.., 
Section 2000e, et seq.), the provisions of other federal 
statutes protecting civil rights set forth in 42 U.S.'S.C., 
Sections 1981, 1982 and 1988, and the provisions of Title 
28 of the United States Code, Section 1343. The complaint 
asks for injunctive relief, compensatory damages, and



99a

the award of costs of the action together with reasonable 
attorneys’ fees.

Paragraph VIII of the present complaint states that 
“this is the second complaint filed by plaintiff against 
defendants REA and Union Locals concerning the matters 
set forth herein and seeking the relief requested herein.” 
Said paragraph VIII then goes on to recite the following 
facts with respect to the prior complaint:

“On February 12, 1971, this Court entered orders 
appointing Robert E. Rose as attorney for plaintiff 
and allowing plaintiff’s ‘Notice of Right to Sue’ Letter 
be filed and treated as a complaint on a pauper’s oath, 
which documents were docketed as Civil No. C-71-66. 
Subsequently, on March 18, 1971, a ‘Supplemental 
Complaint’ was filed on plaintiff’s behalf by his court- 
appointed attorney. Defendant REA filed its answer 
on March 29, 1971, and defendant Union Locals filed 
their answer on April 6, 1971. Thereafter, the case 
was set for trial on August 18, 1971. On April 30, 
1971, defendants Union Locals filed a motion to dis­
miss or in the alternative for summary judgment, 
with supporting affidavits and memoranda of law. 
May 11, 1971, defendant Union Locals propounded 
43 numbered interrogatories to plaintiff. June 3, 1971, 
defendant REA filed a motion to dismiss or in the 
alternative for summary judgment, along with sup­
porting affidavits and memoranda of law. No memo­
randa or affidavits were ever filed on behalf of plain­
tiff in opposition to defendants’ motions.

On June 30, 1971, the Honorable Bailey Brown, 
Chief Judge of this Court, entered an order on de­
fendants’ motions, which: (1) dismissed plaintiff’s 
claims insofar as they were based on statutes other

Order on Defendant Motions for Judgment



100a

than Title VII of the Civil Rights Act of 1964 ; (2) 
granted summary judgment to defendant Union 
Locals; (3) granted summary judgment to defendant 
REA ‘with respect to the claim of dismissal for not 
giving plaintiffs supervisory training’, (4) denied de­
fendant REA’s motion with respect to plaintiff’s 
charge of discriminatory discharge and plaintiff’s 
claim of denial of equal promotion opportunities and 
discriminatory job assignments; (5) denied the defen­
dants’ motions to dismiss on the grounds that filing 
the ‘Notice of Right to Sue’ letter did not constitute 
the filing of a complaint within the time allowed. 
This order was a consolidated ruling in plaintiff’s 
case and in No. C-71-2 (Thomas Thornton v. the same 
defendants).”

The complaint, with respect to prior history of this dis­
pute, also sets out in substance that plaintiff’s appointed 
counsel, Mr. Rose, failed to take discovery and to prepare 
the case for trial, and being dissatisfied with plaintiff’s 
cause of action and his refusal to settle, was permitted by 
Judge Brown to withdraw as counsel (purportedly with­
out notice to plaintiff) within a few weeks before the date 
fixed for trial. Plaintiff further asserts and the record 
bears out in the prior action that Judge Brown directed 
the Court Clerk to notify plaintiff that if he did not obtain 
another counsel within 30’ days his claim would be dis­
missed without prejudice.

Plaintiff’s present counsel after being contacted (for the 
second time) by plaintiff within the prescribed 30 day 
period wrote to Judge Brown within a day or two after 
this period had elapsed, requesting an additional 30 days 
for plaintiff to secure legal representation. The Court

Order on Defendant Motions for Judgment



101a

had, however, on the 30th day (February 16, 1972) entered 
an order dismissing the ease without prejudice. This ac­
tion has been subsequently filed on May 31, 1972.

At no time did plaintiff Johnson appeal to the United 
States Court of Appeals for the Sixth Circuit the order of 
Judge Brown dated June 14, 1971, granting the BRAC 
Locals summary judgment with respect to the claims upon 
Title VII of the Civil Rights Act of 1964 and dismissing 
plaintiff Johnson’s claims based upon other federal statutes.

Plaintiff’s Claim Against Defendant Unions
This action clearly involves the same parties and the 

same subject matter of dispute as were before Judge 
Brown.1 Unless plaintiff can establish a basis for us to 
act otherwise, the doctrine of res adjudieata would bar 
his bringing this claim again after a final disposition by 
Judge Brown. Sopp v. Gehrlin, 236 F.Supp. 823 (W.D. 
Pa. 1964) and Burton v. Peartree, 326 F. Supp. 755 (E.D. 
Pa. 1971); Vassos v. Societa Trans-Oceania, 272 F.2d 182 
(2nd Cir. 1960), cert, denied, Haldane v. Wilhelmina Helen 
King Chagnon, 345 F.2d 601 (9th Cir. 1965). We do not 
subscribe to any theory that because of alleged poor or 
improper representation, absent fraud or wrongdoing on 
defendant’s part, that a civil litigant should be permitted 
a “second bite at the apple” after an adverse ruling in a 
prior proceeding resulting in an unappealed final decision 
of a court assertedly having proper jurisdiction. Of course, 
if Judge Brown had no such jurisdiction of the parties, 
neither do we. The motion of defendant unions, either for 
dismissal, or for summary judgment, is granted on grounds 
of res judicata. Other grounds are discussed hereinafter. 1

Order on Defendant Motions for Judgment

1 The complaints in both causes are substantially similar.



102a

Plaintiff’s Claim Against REA
1. Plaintiff’s claims of violation of his civil rights under 

42 IT.S.C. 1981 through 1988 were properly dismissed and 
are here dismissed because barred by the applicable Ten­
nessee one year statute of limitations. Ellenburg v. Shep­
herd, 406 F.2d 1331 (6th Cir. 1968) and Mulligan v. 
Schlachter, 389 F.2d 231 (6th Cir. 1968). In addition, 
plaintiff’s cause of action under these sections would be 
subordinate to provisions of the Eailway Labor Act wThich 
governs the defendant employer (and the defendant unions). 
See also Oliphant v. Brotherhood Firemen, et al., 262 F.2d 
359 (6th Cir. 1958) cert, denied, 359 U.S. 935. No effort 
was made by plaintiff to protect or assert his rights under 
the administrative procedures available under that Act. As 
to all claims of plaintiff other than those asserted under 
Title VII of the 1964 Civil Rights Act, then, the cause of 
action is barred under the statute of limitations defense 
asserted by all defendants and because plaintiff did not 
pursue his administrative remedy under the Railway Labor 
Act. 2

2. Judge Brown’s previous order of June 14, 1971, 
granted defendant EEA’s motion for summary judgment 
after a hearing with respect to plaintiff’s claim regarding 
lack of supervisory training “on the ground that from 
the undisputed facts plaintiff[s] have not shown any dis­
crimination in this respect—” Judge Brown considered the 
affidavits and evidence before him and dismissed plaintiff’s 
claim in this particular. We hold that Judge Brown’s 
ruling was a final disposition and constitutes res adjirdicata 
as to this aspect of plaintiff’s claim.

Order on Defendant Motions for Judgment



103a

3. It is also asserted that plaintiff has failed to comply 
with jurisdictional requirements of the Equal Employ­
ment sections of the Civil Eights Act. Judge Brown ruled 
that under the then circumstances of the case the “30 day 
provision” of the act did not bar plaintiff’s claim because 
he relied in part upon the Court for advice as to how to 
file his claim of unlawful racial discrimination and simply 
filed his notice or letter from Equal Employment Oppor­
tunity Commission giving him the right to sue within the 
requisite 30 day period. This Court in Beckum v. Ten­
nessee Hotel, Cause C-70-417, ruled similarly on the same 
issue on May 6, 1971. In Beckum, supra, however, we did 
not rule as to whether this procedure met minimal require­
ment of F.E.Civ. P. 8a(2). Further complications ensued 
in this case after Judge Brown’s initial ruling on the 30 
day statutory requirement and plaintiff’s suit was dis­
missed without prejudice,2 February 16, 1972. Plaintiff’s 
counsel wrote Judge Brown again on May 5, 1972,2 3 request­
ing reinstatement of the cause explaining the financial in­
ability of plaintiff, and also seeking vacation of the Court’s 
previous order. This Judge Brown declined to do since 
the case “has long since been dismissed”.4

Considering all the circumstances of the matter, we find 
reluctantly that plaintiff has failed to meet statutory 
requirements and that his refiling should have taken place 
within 30 days after Judge Brown’s February 16, 1972 
order. The Chief Judge extended unusual consideration 
to plaintiff that would not have been granted ordinary civil

2 It is noted, however, that notice had been issued to plaintiff 
that his case would be dismissed if he did not obtain a lawyer by 
the appointed time.

3 See Exhibit to complaint.
4 See Exhibit to complaint.

Order on Defendant Motions for Judgment



104a

litigants and we cannot hold under the circumstances that 
Title YII Civil Rights Act requirements imposed by Con­
gress may be indefinitely extended by the Courts. Defen­
dant REA’s motion to dismiss will therefore he granted. 
See Goodman v. City Products Corp., 425 F.2d 702 (6th 
Cir. 1970), Brady v. Bristol-Myers, Inc., 332 F.Supp. 995 
(E.D. Mo. 1971).

It should also be observed that the Equal Employment 
Opportunity Commission in this case was perhaps partially 
at fault in the handling of plaintiff’s complaint because 
of the long 4 year delay involved in processing the com­
plaint before issuance of the right to sue notice. It is 
regrettable that plaintiff’s complaint should be dismissed 
without a hearing on its merits by reason of the circum­
stances alluded to in this order.

We, nevertheless, grant all defendants’ motions and dis­
miss the complaint filed herein for the reasons stated, but 
at the cost, under the circumstances, of REA.

H abry W . W ellfobd  
U n it e d  S tates D istb ic t  J udge

Date: 1/24/73
A T r u e  C opy .

A ttest  :

W . L uoyd J o h n so n , Cler k  

/ s /  B y  A. A. B rown

Order on Defendant Motions for Judgment



105a

No. 73-1306
UNITED STATES COURT OF APPEALS 

F or t h e  S ix t h  C ir c u it

Opinion of the United States Court o f Appeals
for the Sixth Circuit

W il l ie  J o h n s o n , J r .,

v.
Plaintiff-Appellant,

R ailw ay  E xpress A g en cy , I n c ., B rotherhood  oe R ailw ay  
C ler k s  T r i-S tate L ocal a n d  B rotherhood  oe R ailw ay  
C ler k s  L il y  oe t h e  V alley  L ocal,

Defendants-Appellees.

a p p e a l  p r o m  t h e  u n i t e d  s t a t e s  d is t r ic t  c o u r t  f o r  t h e

W ESTERN DISTRICT OP TENNESSEE, W ESTERN DIVISION

Decided and Filed November 27, 1973.

Before W e ic k , Circuit Judge, O ’S u l l iv a n , Senior Circuit 
Judge, and A l l e n ,* District Judge.

W e ic k , Circuit Judge. This appeal is  from an order of 
the District Court dismissing plaintiff’s complaint which 
alleged employment discrimination.

Plaintiff-appellant, Willie Johnson, filed timely charges 
with Equal Employment Opportunity Commission (EEOC) 
in 1967 in which he alleged that his employer, Railway

* The Honorable Charles M, Allen, Judge, United States District 
Court for the Western District of Kentucky, sitting by designation.



106a

Express Agency, Inc. (REA), discriminated against him 
with regard to seniority rules and job assignments. John­
son further asserted that he had been discharged by REA 
because of his race (black). Johnson also charged the 
Brotherhood of Railway Clerks Tri-State Local and the 
Lily of the Valley Local with maintaining segregated 
Locals.

On December 22, 1967 EEOC tiled a report concluding 
that the company and the unions had engaged in discrimi­
natory practices; however, it was not until January 15, 
1971 that Johnson received his notice of right to sue letter 
from EEOC. Initially Johnson was unable to retain a 
lawyer to file suit authorized by the letter. On February 
12, 1971 District Judge Bailey Brown allowed Johnson to 
file the EEOC notice-letter with the Clerk as satisfying the 
duty to institute suit within thirty days from date of re­
ceiving notice. Judge Brown further allowed Johnson to 
proceed in forma pauperis and appointed an attorney to 
represent him. The court-appointed attorney filed an 
amended complaint on March 18, 1971, setting forth in 
more detail Johnson’s claims.

At this point both defendants moved for summary judg­
ment supported by affidavits. The unions also propounded 
to plaintiff interrogatories, which he answered. Plaintiff 
submitted no affidavits in opposition to these motions.

On June 14, 1971 the Court entered an order which—
(1) dismissed all claims based on statutes other than Title 
VII of the 1964 Civil Rights Act as barred by Tennessee’s 
one-year statute of limitations,
(2) denied the defendants’ claims that the filing of the 
EEOC notice-letter was insufficient to meet the thirty-day 
filing requirement,

Opinion of the United States Court of Appeals
for the Sixth Circuit



107a

(3) granted the two unions’ motions for summary judg­
ment, holding that the plaintiff had no claim against them 
under the 1964 Civil Eights Act,
(4) granted the motion of REA for summary judgment re­
garding improper supervisory training, and
(5) denied EEA’s motion for summary judgment regarding 
Johnson’s claims of discriminatory discharge, denial of pro­
motional opportunities, and discrimination in job assign­
ment.

After this ruling, REA offered Johnson one hundred fifty 
dollars in settlement of the case; Johnson refused. Subse­
quently the case was assigned for trial and Johnson’s court- 
appointed attorney, with the Court’s permission, withdrew 
from the case on January 14, 1972. On that date the Clerk 
of the District Court, acting pursuant to the Court’s direc­
tion, wrote a letter to Johnson giving him thirty days in 
which to obtain a new attorney or have his case dismissed 
without prejudice. Johnson did not obtain a new attorney 
within such time, and on February 16, 1972 Judge Brown 
entered an order dismissing the action without prejudice. 
We need not determine the propriety of this order because 
it was a final order from which no appeal was taken.

On February 17, 1972 William Caldwell, now one of 
Johnson’s lawyers, wrote to Judge Brown informing him 
that he, Caldwell, was looking for financial support which 
would enable him to take Johnson’s case. The letter was 
clearly not an announcement that Caldwell was his counsel; 
the letter stated only that he might be Johnson’s counsel 
at some point in the future. Later Caldwell found such 
financial support and did undertake to represent Johnson. 
On May 31, 1972 a second complaint, was filed against REA

Opinion of the United States Court of Appeals
for the Sixth Circuit



108a

and the unions, with Caldwell acting as counsel for John­
son.

All of the defendants moved for dismissal or, in the 
alternative, for summary judgment. The case was assigned 
to District Judge Wellford, who ruled on these motions on 
January 25, 1973. First, the Court dismissed Johnson’s 
claims against the unions on grounds of res judicata, hold­
ing that the present suit involved the same parties and the 
same subject matter decided in the first action where sum­
mary judgment was granted by Judge Brown. Second, the 
Court held that Johnson’s claims of violation of his civil 
rights under 42 U.S.C. §§ 1981 through 1988, were barred 
by Tennessee’s one-year statute of limitations. Third, the 
Court found that Johnson did not pursue properly his 
administrative remedies under the Railway Labor Act. 
Fourth, the Court held that res judicata barred Johnson’s 
claims against REA on the issue of supervisory training. 
Fifth, the Court ruled that Johnson’s failure to refile a 
lawsuit within thirty days from February 16, 1972 (the 
date of dismissal without prejudice) resulted in a failure 
to comply with the thirty-day filing requirement.

We will deal first with the thirty-day filing requirement 
since failure to meet it results in a lack of jurisdiction. 
Goodman v. City Prods. Corp., 425 F.2d 702 (6th Cir. 1970).

Johnson contends that he was not required to file suit 
within thirty days after dismissal without prejudice. He 
argues that the only statutory requirement is that he file 
his original suit within thirty days after receipt of his 
notice-letter. We disagree. We rely on our decision in 
Bomer v. Ribicoff, 304 F.2d 427 (6th Cir. 1962), and the 
decision in McClendon v. North American Rockwell Corp.,

Opinion of the United States Court of Appeals
for the Sixth Circuit



109a

2 CCH Employment Prae. Dec., Par. 10,243 (C.D. Cal. 
1970).

In Bomer, plaintiff’s request for increased benefits under 
the Social Security Act was denied on August 4, 1959. He 
was advised that he could file a civil action within sixty 
days, challenging this determination, since there was a 
statutory procedure for such challenge within that time 
span. He filed such suit on September 30, 1959. On May 5, 
1960, on his motion his case was dismissed without prej­
udice. Plaintiff later refiled his action on May 1, 1961. The 
Government moved to dismiss, contending that the plaintiff 
failed to commence suit within sixty days after notice of the 
final decision on August 4,1959. The District Judge granted 
the Government’s motion and dismissed the case. In affirm­
ing, Judge Shackelford Miller wrote for a unanimous court :

An action dismissed without prejudice leaves the 
situation the same as if the suit had never been brought. 
A. B. Dick Co. v. Marr, 197 F.2d 498, 502, C.A. 2nd; 
cert, denied, 344 U.S. 878, 73 S.Ct. 169, 97 L.Ed. 680, 
rehearing denied, 344 U.S. 905, 73 S.Ct. 282, 97 L.Ed. 
699; Bryan v. Smith, 174 F.2d 212, 214, C.A. 7th. In 
the absence of a statute to the contrary a party cannot 
deduct from the period of the statute of limitations the 
time during which the action so dismissed was pending. 
Humphreys v. United States, 272 F.2d 411, 412, C.A. 
9th; Willard v. Wood, 164 U.S. 502, 523, 17 S.Ct. 176, 
41 L.Ed. 531; DiSabatino v. Mertz, 82 F.Supp. 248, 
249-250, M.D.Pa.

The right of action here sought to be enforced is 
one created by statute and is limited by the provisions 
thereof as to the time within which the right must be

Opinion of the United States Court of Appeals
for the Sixth Circuit



110a

asserted. Such conditions operate as a condition of li­
ability rather than as a period of limitation and there 
can be no recovery unless the condition precedent is ful­
filled. Zeller v. Folsom, 150 F.Supp. 615, 617, X.D.X.Y..; 
Coy v. Folsom, 228 F.2d 276, 279-280, C.A. 3rd; Ewing 
v. Risher, 176 F.2d 641, C.A. 10th; Scott v. Railroad 
Retirement Board, 227 F.2d 684, 686, C.A. 7th. (304 
F.2d at 428, 429)

Additionally, in Kington v. United States, 396 F.2d 9 (6th 
Cir. 1968), we held that filing of previous actions in state 
and federal courts, which were voluntarily dismissed, did 
not toll the two-year statute of limitations of the Federal 
Tort Claims Act. 28 U.S.C. §2401 (b).

McClendon, supra, is the case factually closest to the one 
at bar. There, plaintiff received a right to sue letter on 
January 15, 1968, and filed an action on January 19, 1968 
which was dismissed without prejudice on September 9, 
1969. On October 29, 1969, fifty days later, the plaintiff 
filed another complaint, identical to the first. Defendant 
moved for dismissal on the ground that the court lacked 
subject matter jurisdiction since the complaint was not 
filed within thirty days following receipt of the right to 
sue letter.

In McClendon the District Court noted that the effect of 
voluntary dismissals without prejudice, absent a savings 
statute, was to create a situation the same as though the 
suit had never been brought, The Court stated:

Even assuming that the jurisdictional time period 
should begin to run anew as of the date of voluntary 
dismissal was entered, such a position would be of no

Opinion of the United States Court of Appeals
for the Sioc-th Circuit



111a

benefit to plaintiff in this case. Dismissal was ordered 
on September 9, 1969. Suit, however, was brought on 
October 29, some fifty days later. Thus even if the 
Section 706(e) time period of thirty days was tolled 
by the first suit, plaintiff’s new suit would still be 
jurisdictionally defective. 2 CCH E. P. Dec. at 974.

Although Bomer and McClendon are authority for the 
proposition that the filing of a suit which was dismissed 
without prejudice did not toll the thirty-day filing require­
ment of Title VII, the District Court was of the view that 
the complaint should have been refiled within thirty days 
after such dismissal. But, even extending the time an ad­
ditional thirty days, the new suit was still jurisdictionally 
defective because it was not filed within that time.

We are of the opinion that the District Court was clearly 
correct in holding that at a minimum Johnson had to file 
the new case within thirty days from the date of dismissal 
without prejudice.

Any other holding would result in plaintiff's having no 
time limitation to refile in this type of an action after the 
action had been dismissed without prejudice. Such latitude 
for a plaintiff would create uncertainty, delay in processing 
his claim, and the possibility of stale claims being pursued. 
Here, the claim was already stale before the initial suit 
was filed. 42 U.S.C. § 2000e-5(e) was meant to eliminate 
such possibilities.

Any error that was committed was an error in favor of 
appellant Johnson. He failed to comply even with the 
District Court’s liberal interpretation of the requirement 
by his failure to file within thirty days after dismissal. The

Opinion of the United States Court of Appeals
for the Sixth Circuit



112a

Opinion of the United States Court of Appeals
for the Sixth Circuit

Title VII claims are thus barred since the Court was with­
out jurisdiction to hear the charges set forth in the new 
complaint filed on May 31, 1972.

The second question for consideration is whether John­
son’s claims under 42 IT.S.C. §§ 1981, 1982 and 1983, were 
time-barred by a Tennessee statute of limitations. Both 
Judge Brown’s first ruling and Judge Wellford’s later 
order found that these claims were time-barred. We agree. 
It is the duty of Federal Courts to apply the state statute 
of limitations most analogous to these actions. Appellant 
agrees with this but differs only as to what is the most 
analogous statute.

We feel that the most analogous statute is Title 28, 
Section 304, of the Tennessee Code. It reads as follows:

Personal tort actions — Malpractice of attorneys_
Civil rights actions — Statutory penalties. — Actions 
for libel, for injuries to the person, false imprison­
ment, malicious prosecution, criminal conversation, 
seduction, breach of marriage promise, actions and 
suits against attorneys for malpractice whether said 
actions are grounded or based in contract or tort, civil 
actions for compensatory or punitive damages, or both, 
brought under the federal civil rights statutes, and 
statutory penalties shall be commenced within one (1) 
year after cause of action accrued.

Appellant contends that while this state statute, Section 
304, is appropriate for Sections 1983 and 1985 actions, it is 
not appropriate for § 1981 actions. However, Snyder v. 
Swann, 313 F.Supp. 1267 (E.D. Tenn. 1970), held this 
precise statute applicable to a Section 1981 action.



113a

Appellant further contends that his complaint sounds in 
contract and is governed by a six-year statute of limita­
tions. In our opinion, the complaint sounds in tort rather 
than in contract. Moreover, the very language of the state 
statute refers to “civil actions . . . brought under the 
federal civil rights statutes.” Thus, the tort-contract 
dichotomy does not have to be resorted to, given the pre­
ciseness of the state statute.

Finally on this point, appellant argues that filing of the 
charges with the EEOC tolls the statute of limitations 
under 42 U.S.C. § 1981. We reject this claim. In Williams 
v. Hollins, 428 F.2d 1221 (6th Cir. 1970), we declined to 
toll the statute in a section 1983 action during the time 
when plaintiff was in a Tennessee jail, since Section 301 
of Title 28 of the Tennessee Code did not contain any such 
savings clause. In addition, appellant concedes the Title 
YII and Section 1981 claims are independent. Thus, no 
reason exists for stopping the running of a state statute 
of limitations while a charge is pending before the EEOC.

We have considered other points assigned as error, but 
in view of our disposition of the case they do not require 
discussion.

The judgment of the District Court is affirmed.

Opinion of the United States Court of Appeals
for the Sixth Circuit



114a

No. 73-1306
UNITED STATES COURT OF APPEALS 

F oe t h e  S ix t h  C ir c u it

Filed January 15, 1974, James A. Higgins, Clerk

Order on Petition for Rehearing

W il l ie  J o h n so n , J r.,

vs.
Plaintiff-Appellant,

R ailw ay  E xpress A gency , I n c ., B rotherhood  oe R ailway 
Cle r k s  T r i-S tate L ocal a n d  B rotherhood  of R ailw ay  
Cler k s  L ily  of t h e  V alley  L ocal,

B e f o r e  :
W e ic k , Circuit Judge,

O ’S u l l iv a n , Senior Circuit Judge, a n d  
A l l e n ,* District Judge.

This cause came on to be heard on the petition for 
rehearing, with a suggestion that it be heard en banc; and 
no Judge having requested that a vote be taken on whether 
said petition should be heard en banc, the petition for 
rehearing was referred to and was considered and deter­
mined by the panel.

The basis of the first part of our opinion was that when 
a Title VII (1964 Civil Rights Act) action was dismissed 
without prejudice, the plaintiff against whom the order was

* The Honorable Charles M. Allen, Judge, United States District 
Court for the Western District of Kentucky, sitting by designation.



115a

entered had thirty days to refile the complaint.1 Failure 
to meet this requirement was held to result in a jurisdic­
tional defect.

Appellant’s basic argument in his brief supporting the 
petition for rehearing is that the Tennessee Savings 
Statute, T.C.A. 28-106, grants an entire year after such 
dismissal without prejudice to refile in the State Court. 
Appellant argues that this state statute is applicable be­
cause the federal statute involved gives no guidance as to 
time limitations.

It is clear that in civil rights actions brought under 42 
U.S.C. §§ 1981 through 1988, a state statute of limitations 
is looked to because the federal statute is silent. Madison 
v. Wood, 410 F.2d 564 (6th Cir. 1969). However, Title YII 
of the 1964 Civil Rights Act is far from silent in regard to 
a limitations period for actions brought pursuant to the 
Act. It grants to claimants thirty days from the date of 
receipt of a right-to-sue letter from the Equal Employment 
Opportunity Commission (hereinafter referred to as 
EECO) within which to file suit in the Federal District 
Court.

The state statute of limitations and its savings clause 
are never reached in this case because the federal statute is 
not silent. While the language of the federal statute may 
not cover the situation precisely, it indicates a clear policy 
that should be looked to before a state statute is embraced.

1 The District Court held that many of the issues raised by the 
plaintiff in his second suit were decided against him in the first 
action in which the Court granted summary judgment against the 
plaintiff, and reconsideration was barred by the doctrine of res 
judicata. Johnson did not appeal from these summary judgments. 
We agree with the District Court that the unions have a complete 
defense on the ground of res judicata, and that the company like­
wise has such defense only so far as the claim of improper super­
visory training is concerned.

Order on Petition for Rehearing



116a

The federal statute provides that claimants have thirty days 
from receipt of a right-to-sue letter, to file law suits. If 
they have only thirty days to file initially, it is difficult to 
see why claimants should have more than thirty days to 
refile after dismissal without prejudice, particularly when 
such refiling is ordered by the Court.

The requirement of refiling within thirty days seems 
ample time. A complaint is easily drawn and filed; indeed, 
in this case all that need be done is to refile the original 
complaint. In these cases of alleged employment discrimina­
tion, there is no latent injury waiting to be discovered 
which would justify an extended period of time in which to 
refile. The complainant already knew what his grievance 
was, as it had been pending before EEOC for more than 
three years before he was authorized to file suit in the 
District Court. There is no reason not to expect expeditious 
processing of such claims in accord with a thirty-day 
requirement.

The second basis for our decision was that appellant’s 
civil rights claims under 42 U.S.C. § 1981 were barred by 
the Tennessee one-year statute of limitations, T.C.A. 28-304. 
Appellant’s employment was terminated in June, 1967, and 
the complaint was not filed until March 18, 1971. T.C.A. 
28-304 applies to “civil actions for compensatory or punitive 
damages, or both, brought under the federal civil rights 
statutes. . . .” Appellant appears not to attack the con­
trolling nature of this statute but rather its constitu­
tionality. Appellant argues that the statute is arbitrary 
since it places the same limitations period on all federal 
civil rights statutes.

We see nothing about the statute that violates equal 
protection or due process rights of any individual. T.C.A. 
28-304 is not directed solely at civil rights claims, and even

Order on Petition for Rehearing



117a

if it were, it would not necessarily be arbitrary in a con­
stitutional sense. The statute applies also to a wide variety 
of personal tort actions and to claims of malpractice against 
attorneys.

Appellant relies on Hunter v. Erickson, 393 U.S. 385 
(1969) and suggests that this statute of limitations creates 
an explicit racial classification. This contention is obvi­
ously unfounded because citizens of all races are entitled 
to take advantage of the federal civil rights statutes.

Finally, appellant argues that the filing of his Title VII 
claim with the EEOC tolls the state statute regarding his 
claims under 42 U.S.C. § 1981. In a letter supplementing his 
brief supporting Ms petition for reconsideration, appellant 
cites Macklin v. Spector Freight Systems, Inc., 478 F.2d 
979, 994-95 (D.C.Cir. 1973), in which the Court stated in a 
footnote (n.30) that the filing of charges with the EEOC 
tolled the statute of limitations on a Section 1981 action. 
We decline to adopt this position.

It appears to us that the footnote in Macklin v. Spector, 
supra, is inconsistent with the rationale in the text of the 
opinion. Spector had argued that since no complaint had 
been lodged with the EEOC, plaintiff’s Section 1981 action 
had to be dismissed. The Court held, and we think cor­
rectly, that no exhaustion of EEOC procedures was neces­
sary to bring a Section 1981 claim, because § 1981 consti­
tutes a cause of action separate and independent from a 
Title VII claim. The Court said:

“ . . . Section 1981 and Title VII, in truth, provide for 
such radically different schemes of enforcement and 
differ so widely in their substantive scopes that using 
the policies behind the latter to create procedural bar­
riers to actions under the former would stretch to the

Order on Petition for Rehearing



118a

breaking point courts’ customary duty to accommodate 
allegedly conflicting legislation.” 478 F.2d at 996.

If the two actions “differ so widely in their substantive 
scopes” the filing of one should not toll the statute of 
limitations on the other. The Court suggested in the rele­
vant footnote that the basic reason for such tolling was a 
Congressional desire to favor informal means of accom­
modation provided for under Title VII. We think that 
there is enough flexibility in the federal trial system so 
that conciliation processes will not be destroyed if a Sec­
tion 1981 case is heard while a Title VII claim is being- 
processed. Jenkins v. General Motors Corp., 354 F.Supp. 
1040 (D.Del. 1973).

In Jenkins the Court also held that no tolling effect on 
§ 1981 claims took place with the filing of Title VII charges 
with the EEOC. The Court relied heavily on the reasoning 
in Young v. International Tel. & Tel. Co., 438 F.2d 757 (3d 
Cir. 1971). Young held that Title VII claims and §1981 
claims were separate and independent, and that Title VII 
imposed no jurisdictional barriers to a § 1981 action. We 
agree with this reasoning and with that included in the 
text of the opinion in Macklin v. Spector, supra.

The petition for rehearing is denied.

E n tered  By Order of t h e  C ourt .

/s /  J am es A. H ig g in s  
Clerk

Order on Petition for Rehearing



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