Whiteside v. Southern Bus Lines, Inc. Brief for Appellant

    IN  THE

(Emort of %  Intfrib ?b

October Term, 1973

No. 73-1543

W illie J ohnson, J r., Petitioner, 
y.

R ailway E xpress Agency, I nc., B rotherhood of 
R ailway Clerks Tri-State L ocal and Brotherhood 

of R ailway Clerks L ily of the Valley L ocal,
Respondents.

REPLY BRIEF OF RESPONDENTS BROTHERHOOD OF 
RAILWAY CLERKS TRI-STATE LOCAL AND BROTH­

ERHOOD OF RAILWAY CLERKS LILY OF THE 
VALLEY LOCAL TO BRIEF FOR THE UNITED 

STATES AS AMICUS CURIAE

J ames L. H ighsaw 
Highsaw & Mahoney 
Suite 506
1015 Eighteenth. Street, N. W. 
Washington, D. C. 20036 

Attorney for Respondents 
Brotherhood of Railway 
Clerks Tri-State Local and 
Lily of the Valley Local

November 22,1974

P ress of B yron S . A d am s  P rinting , I nc ., W ashington , D . C.



IN  THE

Bnpxmx (&mxt 0! %  Mmtxb Btntxz
Octobee Teem, 1973

No. 73-1543

W illie J ohnson, J b., Petitioner,
v .

R ailway E xpeess Agency, I nc., Bbotheehood oe 
R ailway Glebes Tri-State Local and Brotherhood 

of Railway Clerks L ily of the Valley L ocal,
Respondents.

REPLY BRIEF OF RESPONDENTS BROTHERHOOD OF 
RAILWAY CLERKS TRI-STATE LOCAL AND BROTH­

ERHOOD OF RAILWAY CLERKS LILY OF THE 
VALLEY LOCAL TO BRIEF FOR THE UNITED 

STATES AS AMICUS CURIAE

The Brotherhood of Railway Clerks Tri-State Local 
and Brotherhood of Railway Clerks Lily of the Valley 
Local, among the respondents in the above-entitled case, 
siibmit this brief to the Court in reply to the brief filed 
by the United States as amicus curiae.



2

I

THE RES JUDICATA ASPECTS

The amicus brief (page 6) correctly states that the 
District Court dismissed all claims against the respond­
ent Local Unions on res judicata grounds. However, 
such brief (page 6 and footnote 3) incorrectly states 
that the Court of Appeals did not address itself to re­
spondents’ res judicata contentions, that the union re­
spondents assert res judicata here as an alternative 
ground for affirming the judgment below, and that 
since the res judicata issue was not decided by the 
Court of Appeals, this Court could remand that issue 
for consideration if the tolling question is decided in 
petitioner’s favor.1

The Court of Appeals did not address itself to the 
res judicata aspects of the case in its original decision 
because it found a lack of jurisdiction (105a-113a). 
However, that Court did address itself to the issue on 
the petition for rehearing. In its opinion on that peti­
tion, footnote 1 (115a), the Court of Appeals stated as 
follows:

“ We agree with the District Court that the un­
ions have a complete defense on the grounds of 
res judicata, and that the company likewise has 
such defense only so far as the claim of improper 
supervisory training is concerned. ’ ’

Moreover, the Local Unions did not, as the amicus 
brief states, urge in their own brief res judicata as an 
alternative ground for affirming the judgment below. 
The Local Union respondents addressed themselves in

1 The amicus brief also states in footnote 3 that the United 
States takes no position on the merits with respect to res judicata.



3

their brief to this Court on the res judicata aspects of 
the ease only because the petitioner’s brief (page 8) 
requested this Court to remand the res judicata issue 
to the Court of Appeals for reconsideration and clari­
fication. The brief of the Local Unions pointed out 
that the petition for a writ of certiorari in the present 
case requested this Court to review the ruling of the 
Court below affirming the dismissal of the petitioner’s 
claims under both statutes against the unions on the 
grounds of res judicata, and that this Court did not 
grant the request. Uo petition for rehearing with re­
spect thereto was filed by petitioner. The Local Un­
ions, therefore, took the position in their brief (page 
12) that the denial by this Court of the petition for 
certiorari on the res judicata issue constitutes a final 
judgment in the case in favor of the respondent unions 
and there is now no issue before this Court which can be 
remanded to the Court of Appeals with respect to these 
local unions regardless of what decision the Court may 
make with respect to the tolling issue.2

2 There are also other inaccuracies in the statement of facts in 
the amicus brief. On page 5 the amicus brief states that the 
Commission’s conciliation efforts failed to bring respondents into 
voluntary compliance and that in January 1971 the Commission 
accordingly issued petitioner a right-to-sue notice and that peti­
tioner brought suit pursuant to this notice. The record does not 
show what, if any, efforts the Commission undertook with respect 
to conciliation. On page 6 the amicus brief states that peti­
tioner was unable to obtain an attorney within the 30 days allowed 
him by the District Court’s order of January 14, 1972. The record 
does not show what, if anything, petitioner did during these 30 
days to obtain counsel. I t shows only that on February 17, 1972, 
attorney William E. Caldwell wrote to the District Court advising, 
among other things, that petitioner had contacted him regarding 
representation (45a).



4

II
THE TOLLING ISSUE

The amicus brief argues that an applicable state stat­
ute limiting the time within which an action may be 
brought under Section 1981 of Title 42 of the United 
States Code should be tolled by the filing and pendency 
of a Title Y II charge before the Federal Equal Em­
ployment Opportunity Commission because such a re­
sult serves the Congressional objective of conciliation 
and premature judicial intervention without offending 
the policies underlying statutory limitations.

The record does not support the conclusion that the 
application of the tolling principle in the present case 
serves any such Congressional objective because there 
is no record with respect to EEOC conciliation efforts. 
Moreover, as applied to future actions the argument is 
a theoretical one made without regard to the realities 
of the situation as set forth in the brief of the Local 
Union respondents.

The entire amicus brief is predicated on the assump­
tion that the purposes of Title Y II are, if at all pos­
sible, to conciliate discrimination disputes and avoid 
Court actions. Although the desirability of concilia­
tion undoubtedly helped to mold Title YII, the fact is 
that the statute itself comes very close to totally shoot­
ing down conciliation by the provision that a right-to- 
sue letter may be obtained after 180 days even if no 
conciliation has been undertaken. This is particularly 
true in light of the fact (amicus brief page 10) 
that because of a large backlog of cases and limited 
budget, the EEOC often is unable to initiate compli­
ance efforts ever within the limitation periods of state 
statutes of limitations. The amicus brief argues that, 
because of this fact, unless the running of the state stat­



5

ute is tolled with respect to Section 1981 by the filing of 
a discrimination charge with the EEOC, many ag­
grieved individuals would he compelled to bring suit 
prematurely under Section 1981 and thereby risk dis­
ruption of conciliation efforts. However, the combina­
tion of the Congressional action in permitting a suit 
within 180 days without conciliation plus the inability 
of the EEOC1 to act within the period of state statutes 
of limitations (usually one to three years) has created 
strong incentives for aggrieved individuals to bring 
suit without any conciliation efforts. The situation 
set forth by the amicus brief, therefore argues strongly 
against the tolling principle rather than in support of 
it. The argument of the amicus brief that the policy of 
Title V II in favor of voluntary resolution of employ­
ment discrimination claims should be accommodated by 
application of the tolling principle is, as a practical 
matter, substantially meaningless.

The amicus brief also argues that the application of 
the tolling principle in this situation would not offend 
policies underlying statutory limitation periods. 
Again, this argument is made almost in a total vacuum 
without any regard to realities. The amicus brief con­
tends that the timely filing of a Title V II charge 
promptly puts respondents on notice with respect to a 
discrimination claim. While an EEOC notice does 
indicate that there is a claim, such a notice provides no 
details. Moreover, there is no guarantee of even such a 
sparse notice because Federal Courts have held in the 
decisions cited at page 15 of the respondent unions’ 
brief that the EEOC does not have to serve the re­
spondent with such a notice prior to the institution of a 
Title V II suit. The cases cited by the union re­
spondents show that a defendant may not even know



6

there is a discrimination claim until suit is filed against 
Mm in Court, much less the substance of the claim.3 
Thus, defendants are and can be surprised and prej­
udiced by delay in the institution of a civil action 
pending EEOC action or inaction. In the realities of 
the situation either one of two things will occur. The 
plaintiff: may request a right-to-sue notice on the 181st 
day after the filing of the charge on shortly thereafter 
so that the Title Y II provisions have served no pur­
pose other than the mechanical one of filing the charge, 
or the plaintiff may sit and wait for concilation wMeh 
may never come because of governmental inadequacy. 
As a consequence, the suit which is finally filed without 
concilation may very well be filed years after the 
claimed discrimination. Thus, a defendant may be 
litigating matters wMch occurred years before. In 
the present case, the original charge was filed on May 
31, 1967 (15a), and referred to alleged discrimination 
substantially prior thereto and the original complaint 
was not filed in Court until March of 1971. Even in 
1971 defendants would have been litigating charges 
many years old. This situation is bad enough as ap­
plied to Title Y II actions and it creates a very strong 
reason why the tolling principle should not be applied 
to Section 1981 actions with respect to EEOC charges. 
The application of such principle will not aid concilia­
tion if the plaintiff promptly asks for a right-to-sue 
letter and it will completely defeat the purposes of the 
statutes of limitations against litigating stale claims if

3 BE,AC is a party to just such a ease now pending before the 
United States District Court for the Eastern District of Virginia 
(Coleman v. Seaboard Coast Line Railroad, et al. (Civil Action 
No. 173-73-B)), wherein it learned of a claim when the complaint 
was filed. The District Court agreed with the cited cases and, 
among other things, refused to remand for conciliation.



7

the plaintiff waits for conciliation which never comes. 
The amicus brief, in arguing that the application of the 
tolling principle would not defeat the purposes of 
statutes of limitations, did not address itself at all to 
this problem.

Equities are obviously a two-way street. There is 
no equity for defendants who can be victims of 
frivolous discrimination claims in basing the law upon 
a theoretical principle of conciliation by the Federal 
Commission when the statute and the realities of admin­
istration make conciliation difficult if not impossilbe. 
Nor is there any merit to an argument that equitable 
considerations weigh in favor of a plaintiff who has 
made timely assertion of his rights in a manner that 
puts a defendant on notice and allows him to protect 
himself from prejudice when the realities of the sit­
uation are that in practice it does not do so.

CONCLUSION

I t  is respectfully submitted that the amicus brief 
does not demonstrate any basis for granting the relief 
requested by the petitioner nor does it even address 
itself to the substantial real problems that are involved.

Respectfully submitted,

J ames L. H ighsaw 
Highsaw & Mahoney 
Suite 506
1015 Eighteenth Street, N. W. 
Washington, D. C. 20036 

Attorney for Respondents 
Brotherhood of Railway 
Clerks Tri-State Local and 
Lily of the Valley Local

November 22, 1974