Walker v. Pilot Freight Carriers, inc. Brief for Appellee

    IN THE

Unitei* Cattrt of Kppmlz
FOR THE FOURTH CIRCUIT

No. 12,155

CHARLES W. WALKER,

vs.

PILOT FREIGHT CARRIERS, INC.,

Appellant

Appellee

On Appeal from the United States District Court for the 
Western District of North Carolina at Charlotte

BRIEF FOR PILOT FREIGHT CARRIERS, INC.

Brown H ill Boswell, J r .
J. W. Alexander, Jr . 
Attorneys for the Company

Of Counsel:
Blakeney, Alexander & Machen 
Charlotte, North Carolina

APR 22 1968

SAMUEL W. PHILLIPS
CLERK



IN D EX

Preliminary _____________________________________  1
The Memorandum of Decision Below _____________  2
The Statute _____________________________________  2
Argument _______________________________________  3

I. The Statute Establishes that an Attempt to 
Achieve Voluntary Compliance Through 
Conciliation Is to Precede Court Action_______  3

II. Legislative History is Conclusive Evidence
that Conciliation Efforts Must Precede Suit____ S

III. The Commission Has Interpreted the Act to
Require Conciliation Efforts Prior to S u it______ 12

IV. The Appellant’s Argument that the Concili­
ation Prerequisite is “Unfair and Unreason­
able” Should Be Addressed to Congress 
rather than the C o u rt___ _____________   13

V. This Court, and Others, Have Expressed 
Approval of Dent—a Leading Case Holding 
that Conciliation Efforts Are a Jurisdic­
tional Prerequisite to S u it___________________ 14

Conclusion ____________________________________ 19

CITATIONS
Cases:

Brown v. Gaston Dyeing Machine Co.,
(W.D. N.C. Mar. 22, 1968) _____________   ..17

Choate v. Caterpillar Tractor Co.,
274 F. Supp. 776 (S.D. 111. 1967)____________ S, 16

Clemons v. United States, 245 F. 2d 298
(6th Cir. 1957) ______________________________ 12

Page

i



4, 7,9, 14
Dent v. St. Louis-San Francisco Ry. Co.,

265 F. Supp. 56 (N.D. Ala. 1967) .....
Evenson v. Northwest Airlines, Inc.,

268 F. Supp. 29 (E.D. Va. 1967)___________ 17,
Hall v. Werthan Bag Corp., 251 F. Supp. 184

(M.D. Term. 1966)_____________________ 9, 10,
Johnson v. Seaboard Air Line Railroad Company, 

(W.D. N.C. Jan. 25, 1968)__________________2,
Lee v. Observer Transportation Co.,

(W.D. N.C. Mar. 22, 1968) ___________________
Mastro Plastics Corp. v. National Labor Relations 

Board, 350 U.S. 270 (1956) ___________________
Mickel v. South Carolina State Employment

Service, 377 F. 2d 239 (4th Cir. 1967)__________
Mickel v. South Carolina State Employment 

Service, — F. Supp.— , CCH Employment 
Practices Guide 59111 (D.S.C. Feb. 22, 1968)..16,

Mondy v. Crown Zellerbach Corp., 2 71 F. Supp.
258 (E.D. La. 1967) ______________________ 17,

Moody v. Albemarle Paper Co.,2 1 1 F. Supp. 27 
(E.D. N.C. 1967) ___________________________

National Labor Relations Board v. Bata Shoe Co.,
377 F. 2d 821 (4th Cir. 1967) ________________

National Labor Relations Board v. Lion Oil Co.,
352 U.S. 282 (1957) _________________________

Quarles v. Philip Morris, Inc., 2 71 F. Supp. 842 
(E.D. Va. 1967) _________________________ 17,

Robinson v. P. Lorillard (M.D. N.C. Jan. 26,1967)_
Russell-Newman Mjg. Co. v. National Labor

Relations Board, 370 F. 2d 980 (5th Cir. 1966)—

18

16

17

17

. 4

15

17

18

17

13

. 4

18
.17

13



Page
Sanford’s Estate v. Commissioner,

308 U.S. 39 (1939) __________________________ 12
Switchmen’s Union v. National Mediation Board,

320 U.S. 297 (1943) _________________________ 14
United Steelworkers v. R. H, Bouligny, Inc.,

382 U.S. 145 (1965) _________________________ 14
United States v. Bennett, 186 F. 2d 407 

(5th Cir. 1951) ______________________________ 12
Walker v. Pilot Freight Carriers, Inc.

(W .D .N .C. Jan. 25, 1968)____________________ 17

Statutes:
Civil Rights Act of 1964,

Title VII, §706, 42 U.S.C. §2000e-5____________  2
Legislative History:
House Report No. 570 on H.R. 405, 88th Cong.,

1st Sess. (1 9 6 3 )_________________________    5
House Report No. 718 on H.R. 10065, 89th Cong.,

1st Sess. (1 9 6 5 )______________________________ 6
Rep. Celler:

110 Cong. Rec. 2566 (Feb. 8, 1964)____________  6
Sen. Clark:

110 Cong. Rec. 12595 (June 3, 1964)___________  8
Sen. Humphrey:

110 Cong. Rec. 13088 (June 4-9, 1964)_________  8
110 Cong. Rec. 13082 (June 9, 1964)__________ 11
110 Cong. Rec. 14188 (June 17, 1964)__________ 18

Sen. Javits:
110 Cong. Rec. 14191 (June 17, 1964)________ 9, 10
110 Cong. Rec. 13089-13090 (June 9, 1964)_____ 11

iii



Rep. Lindsay:
110 Cong. Rec. 1638, 2S6S (Feb. 1, 8, 1964) 6

110 Cong. Rec. 15876 (July 2, 1964)___________  8

Sen. Morse:
110 Cong. Rec. 14190 (June 17, 1964) _________  7

Sen. Muskie:
110 Cong. Rec. 12617 (June 3 ,1 9 6 4 )___________  7

Rep. O’Hara:
110 Cong. Rec. 2566 (Feb. 8, 1964) ___________  6

Sen. Saltonstall:
110 Cong. Rec. 12690, 14443 (June 4, 17, 1964)-... 8 

Miscellaneous:

Norgen & Hill, Toward Fair Employment,
264 (1 9 6 4 )__________________________________ 11

Report of the Committee on Equal Employment 
Opportunity Law, Section of Labor Relations 
Law, American Bar Association, 145 (1 9 6 7 )------- 13

Sanford Jay Rosen, The Law & Racial 
Discrimination in Employment, 53 Calif.
L. Rev. 729 (1965) ___________________________11

Sutherland, Statutory Construction §4703 _________  4

Sovern, Legal Restraints on Racial Discrimination 
in Employment (1966) --------------------------------5, 11

Vass, Title VII, Legislative History, 7 Boston
College Ind. & Comm. L. Rev. 431 (1 9 6 6 )-------- -- 5

31 Fed. Reg. 14255 (Nov. 4, 1966 )_______________12

29 C.F.R. §1601.2 5 a ______________________-_____12

Page

iv



IN  THE

Ittttefr States (ta rt 0! Kppmla
FOR TH E FOURTH CIRCUIT

No. 12,155

CHARLES W. WALKER, 

vs.

PILOT FREIG HT CARRIERS, INC.,

Appellant

Appellee

On Appeal from the United States District Court for the 
Western District of North Carolina a t Charlotte

BRIEF FOR PILOT FREIGHT CARRIERS, INC.

PRELIMINARY

The case and the issue, as stated by the appellant, are 
substantially correct.

One question is presented to the Court for decision: 
Whether the Equal Employment Opportunity Commission, 
after deciding that reasonable cause exists to believe an 
employer has violated Title VII of the Civil Rights Act 
of 1964, must endeavor to resolve the alleged grievance 
by informal methods of conference, conciliation, and per-

1



2

suasion, prior to notifying the complainant that he may 
institute court proceedings.

That the Commission must attempt such conciliation as 
a condition precedent to court action is made clear from 
the statute and the legislative history.

THE MEMORANDUM OF DECISION BELOW 
The Order dismissing the plaintiff-appellant’s action 

was based upon the District Court’s concurrently issued 
“Memorandum of Decision” in Johnson v. Seaboard Air 
Line Railroad Company, a copy of which is reprinted in 
the appellant’s Appendix, 27a-33a.

THE STATUTE
The relevant statute is set out in full in the appellant’s 

Appendix, 55a-56a. In pertinent parts, it reads:
Title VII, §706, 42 U.S.C. §2000e-5
“ (a) Whenever it is charged in writing under oath by 

a person claiming to be aggrieved . . . that an employer 
. . .  has engaged in an unlawful employment practice, the 
Commission shall furnish such employer . . . with a copy 
of such charge and shall make an investigation of such 
charge. . . .  If the Commission shall determine, after 
such investigation, that there is reasonable cause to be­
lieve that the charge is true, the Commission shall en­
deavor to eliminate any such alleged unlawful employ­
ment practice by informal methods of conference, con­
ciliation, and persuasion.

“ (e) If within thirty days after a charge is filed with 
the Commission . . . ( . . .  such period may be extended 
to not more than sixty days upon a determination by the 
Commission that further efforts to secure voluntary 
compliance are warranted), the Commission has been 
unable to obtain voluntary compliance with this sub­
chapter, the Commission shall so notify the person ag-



3

grieved and a civil action may, within thirty days there­
after, be brought against the respondent. . . . Upon re­
quest the court may, in its discretion, stay further pro­
ceedings for not more than sixty days pending the ter­
mination of . . . the efforts of the Commission to obtain 
voluntary compliance.”

ARGUMENT

I. The Statute Establishes that an A ttem pt to  Achieve 
Voluntary Compliance Through Conciliation 

Is to  Precede Court Action
At the very outset, the appellant is inescapably met with 

the elementary proposition that the fundamental purpose 
of conciliation is to avoid litigation. Undeniably, if con­
ciliation is to follow litigation, then its whole purpose is de­
feated and the effort of Congress to require it is reduced to 
an idle gesture. We are not confined to history in proving 
this point. I t is clearly manifested in the wording of the 
statute, and it was recited again and again in the legislative 
history of the Act, which will be discussed later.

In seeking to have the Court adopt the unnatural view 
that conciliation may follow litigation at the election of a 
litigant, the appellant first seeks to persuade the Court to 
read and construe subsection (e) standing alone and not in 
conjunction with subsection (a). That argument entirely 
overlooks subsection (a), as well as other pertinent lan­
guage in subsection (e).

The words of subsection (a) of Section 706 are clear 
that if the EEOC finds reasonable cause to believe the 
charge is true, it “shall endeavor” to eliminate the practice 
by “informal methods.” This point is admitted by the 
appellant.

The words of subsection (e) of Section 706 further 
establish, as the court below stated, that “After this effort



4

is made by the Commission it then becomes its duty to 
report its failure to the aggrieved party who may then 
institute action in court.”1 Subsection (e) gives the Com­
mission power to extend conciliation beyond 30 days if 
“further efforts to secure voluntary compliance are war­
ranted.” “Further efforts” clearly indicates that Congress 
contemplated that initial endeavors had already gone be­
fore. Also, after an action has been commenced in the dis­
trict court, subsection (e) authorizes the EEOC to request 
the court to stay proceedings pending “the termination” 
of the efforts of the Commission “to obtain voluntary com­
pliance.” This language adds proof that conciliation efforts 
must have begun before suit was filed.

“It not only speaks of The termination’ of conciliation 
but was likewise explained in Congress as authorizing a 
stay pending ‘further efforts at conciliation by the Com­
mission,’ [110 Cong. Record 15866 (July 2, 1964)] and 
it therefore is to authorize a stay for the termination or 
continuation of conciliation efforts, not for their initia- 
tiori ^ Dent v. St. Louis-San Francisco 

Ry. Co., 265 F. Supp. 56, 62 
(N.D. Ala. 1967)

Applying elementary rules of statutory construction, 
Section 706 must be read as a whole, for its true meaning 
to be gained. “Each part or section should be construed 
in connection with every other part or section to produce a 
harmonious whole.”2 Reading subsection (a) with subsec­
tion (e), the conclusion is inescapable that conciliation 
efforts must precede suit. This conclusion was reached by

1Emphasis has been supplied to quotations unless otherwise indi­
cated.

22 Sutherland, Statutory Construction §4703; Mastro Plastics 
Corp. v. National Labor Relations Board, 350 U.S. 270, 285 
(1956); National Labor Relations Board v. Lion Oil Co., 352 U.S. 
282, 288 (1957).



5

Professor Sovern of the Columbia Law School and legal 
consultant to the NAACP Legal Defense and Education 
Fund.

“The structure of §706, with its linkage of the indi­
vidual suit to Commission conciliation, leads naturally 
to the conclusion that the complainant cannot sue until 
the Commission takes the steps specified, could not have 
been lost on Congress. . .

Sovern, Legal Restraints on Racial 
Discrimination in Employment,
82 (1966)

In sum, “resort to the remedy of conciliation is a juris­
dictional prerequisite to the right to file a civil action. . . . 
The plain language of the statute requires it. . .

Choate v. Caterpillar Tractor Co.,
274 F. Supp. 776,779 (S.D. 111.
1967)

II. Legislative History Is Conclusive Evidence 
that Conciliation Efforts Must Precede Suit

From beginning to end, in both the House and Senate, 
it was explained that a civil action could not be brought 
without efforts to achieve voluntary compliance by con­
ciliation.

The House Labor Committee Report explained that 
“maximum efforts be concentrated on informal and volun­
tary methods of eliminating unlawful employment prac­
tices before commencing formal procedures.”1 A member 
of the House Judiciary Committee explained that “ the

1House Report No. 570 on H.R. 405, 88th Cong., 1st Sess. 
(1963). H.R. 405 became Title VII of the Civil Rights bill in the 
House Judiciary Committee. See Vass, Title VII, Legislative His­
tory, 7 Boston College Ind. & Comm. L. Rev. 431, 433 (1966).



6

procedures are carefully spelled out. . . . They command 
that there first be voluntary procedures.”1

On at least two occasions, Congress thoroughly consid­
ered and then rejected proposals that litigants be per­
mitted to proceed with court action before conciliation is 
attempted. Thus, the original bill expressly provided that 
a civil action could be brought “ in advance” of concilia­
tion efforts “if circumstances warrant,” but this clause was 
eliminated “to make certain” that there will be resort “ to 
conciliatory efforts” before court action. 110 Cong. Rec. 
2566, 2576 (Feb. 8, 1964) (Rep. Celler, Chairman of the 
Judiciary Committee).

“ [SJtriking the language would make it clear that an
attem pt would have to be made to conciliate . . . before
an action could be brought in the district court.”

110 Cong. Rec. 2566 (Feb. 8, 1964) 
(Rep. O’Hara)

The bill was passed by the House as amended.
Final proof is found in the fact that in 1965 Congress 

again was urged to enact a law which would permit litiga­
tion “in advance” of conciliation.2 And again Congress re­
jected such proposal. There can be no denying that the 
appellant is here seeking by court decree to acquire pre­
cisely that which legislative proponents sought and failed 
to get from the Congress. As is more fully noted below, 
this is not the proper forum for securing such “rights.”

The appellant concedes that conciliation efforts were a 
prerequisite to a civil action under the bill as passed by the 
House. But the appellant argues that the conciliation pre­
requisite was eliminated by the Dirksen compromise. To 
support this argument, the appellant points to the fact that

a110 Cong. Rec. 1638, 2565 (Feb. 1, 8, 1964) (Rep. Lindsay).
2House Rep. No. 718 on H.R. 10065, 89th Cong., 1st Sess. 

(1965).



7

the compromise substituted the “person aggrieved” for the 
Commission as the party authorized to bring the civil 
action.

The appellant’s argument is in “patent disregard for the 
fact that the procedure under the compromise was ex­
plained, just as was the House Bill, as authorizing the in­
stitution of a civil action only after conciliatory efforts by 
the Commission.”1 I t was explained in reference to the con­
ciliation step:

“ [W ]e have leaned over backwards in seeking to pro­
tect the possible defendants by means of all the pro­
cedures referred to—those of conciliation, arbitration, 
and negotiation ” „ „  Cong Rec 14190 (Jlme I7j

1964) (Senator Morse)

“If efforts to secure voluntary compliance fail, the 
person complaining of discrimination may seek relief in 
a federal district court.”

110 Cong. Rec. 12617 (June 3,
1964) (Senator Muskie)

“ [A]n aggrieved party may initiate action under the 
provisions of the bill on a federal level. In such cases, 
provision is made for Federal conciliation in an effort to 
secure voluntary compliance with the law prior to court 
action.

“The point of view of this section is to permit one who 
believes he has a valid complaint to have it studied by 
the Commission and settled through conciliation if possi­
ble. The Court procedure can follow.

“In Massachusetts, we have had experience with an 
arrangement of this sort for 17 years and as I recall,

iDent. v. St. Louis-San Francisco Ry. Co., 265 F. Supp. 56, 59- 
60 (N.D. Ala. 1967).



8

approximately 4,700 unfair practice complainants have 
been brought before our Massachusetts Commission 
Against Discrimination. Only two of them have been 
taken to court for adjudication. That procedure is the 
basis and theory of this part of the bill and that is why 
I support it.” n 0  Cong Rec 1269Q  ̂ H191 Q une

4, 17, 1964) (Senator Saltonstall)

“Those of us who have worked upon the substitute 
package have sought to simplify the administration of 
the bill . . .  in terms of seeking a solution by mediation 
of disputes, rather than forcing every case before the 
Commission or into a court of law.

“We have placed emphasis on voluntary conciliation 
— not coercion.

“The amendment of our substitute leaves the investi­
gation and conciliation functions of the Commission 
substantially intact.

“Section 706(e) provides for suit by the persons ag­
grieved after conciliation has failed.”

110 Cong. Rec. 13088, 14443, 
12722-12723 (June 4-9, 1964) 
(Senator Humphrey)

Furthermore, the Dirksen compromise was “a further 
softening of the enforcement provisions of Title V II,”1 and 
placed “greater emphasis . . .  on arbitration and voluntary 
compliance than there was in the House bill.”2 Therefore 
it would be contrary to logic to construe the compromise 
as placing less emphasis on voluntary compliance than did 
the House bill.

1110 Cong. Rec. 12595 (June 3, 1964).
2110 Cong. Rec. 15876 (July 2, 1964).



9

The appellant’s brief ignores all of the above history 
relating to the compromise. Its failure to deal with this 
history is unexplainable, for all of it was quoted in the 
Dent case,1 which was heavily relied on below. Not only 
that, the appellant makes the utterly false assertion that 
most of the items of legislative history relied upon below, 
and in Dent, were from the House, “at a time when the 
bill still provided for judicial enforcement only a t the suit 
of the Commission” (Appellant’s brief, p. 8). The state­
ments quoted above, from the Senate clearly show the 
appellant to be in error.

Virtually the sole item of legislative history pointed to 
by the appellant is a statement made by Senator Javits 
(Appellant’s brief, pp. 9-10). That statement was not ad­
dressed to the present issue. The subject of Senator Javits’ 
statement was a complainant’s right to sue when the Com­
mission has not found reasonable cause and thus when the 
statutory provision for conciliation does not come into op­
eration. 110 Cong. Rec. 14191 (June 17,1964); see Hall v. 
Werthan Bag Corp., 251 F. Supp. 184 (M.D. Tenn. 1966).

“It should be added that it would be most unrealistic 
to take the inconsistent comments by . . . [Senator 
Javits] as an accurate reflection of the legislative intent, 
both because they were addressed to the situation where 
the Commission finds no reasonable cause and hence has 
no occasion to undertake conciliation and because they 
can hardly detract from the force of the expressions of 
the legislative intent regarding conciliation as a pre­
requisite to suit where there is a finding of reasonable

cause' Dent v. St. Louis-San Francisco Ry.
Co., 265 F. Supp. 56, 60 (N.D. Ala.
1967)

1Dent. v. St. Louis-San Francisco Ry. Co., 265 F. Supp. 56 (N.D. 
Ala. 1967).



10

The appellant cites the Hall1 case as having found the 
statement of Senator Javits “persuasive” (appellant’s* 
brief, p. 10). But a reading of that case clearly shows that 
the court found Senator Javits’ statement persuasive only 
on the question of “whether a person claiming to be ag­
grieved may institute a court action in the event that the 
Commission determines that the charge of discrimination 
is without merit and therefore does not attempt to obtain 
voluntary compliance” 251 F. Supp. at 187. Where the 
Commission has found reasonable cause, the court in Hall 
stated:

“It seems clear, therefore, that the requirement of 
resort to the Commission was designed to give the dis­
criminator opportunity to respond to persuasion rather 
than coercion, to soft words rather than the big stick 
of injunction. . . . ”

251 F. Supp. at 188

Furthermore, the appellant’s quotation of Senator Javits 
is fully consistent with the expressions of other senators 
that conciliatory efforts are a prerequisite when reasonable 
cause is found, for he said:

“The only thing this title gives the Commission is 
time in which to find that there has been a violation 
and time in which to seek conciliation. . .

110 Cong. Rec. 14191 (June 17,
1964) (Senator Javits)

On another occasion, when Senator Javits spoke in the 
context of the issue here, he stated: “We know that com­
pliance in a particular situation may be better obtained by 
conciliation and accommodation, and that is the very pur­

1Hall v. Werthan Bag Corp., 251 F. Supp. 184 (M.D. Tenn. 
1966). 4



11

pose of the substitute package.” He assured the Senate that 
fears of this proposal are unwarranted because “in the 13 
industrial states of the North, since the first law of this 
kind was passed, there have been 19,439 cases” and “only 
18 have actually gone to court.” 110 Cong. Rec. 13089- 
13090 (June 9, 1964).

The statement of Senator Javits as to the experience of 
the States, and the previously quoted statement of Senator 
Saltonstall, show that the Senate was relying heavily on the 
experience of state fair employment practice laws. Senator 
Humphrey stated that the compromise was “based upon 
the accumulated experience of 25 States which have fair 
employment practice laws.” 110 Cong. Rec. 13082 (June 9, 
1964).

“ [S jtate  and local FEP Commissions have relied 
heavily on conciliation and voluntary compliance 
through informal proceedings—as on the federal level, 
only last resort, has been made to formal action.”

Sanford Jay Rosen, The Law &  
Racial Discrimination in Employ­
ment, 53 Calif. L. Rev. 729, 778 
(1965)

Only in those states whose laws have the “in advance 
thereof” clause—which was deleted from the federal bill 
—may court action be brought prior to conciliation efforts. 
See Sovern, Legal Restraints on Racial Discrimination in 
Employment, 24 (1966).; Norgren & Hill, Toward Fair 
Employment, 264 (1964).

In summary, the appellant’s argument that complainants 
may sue prior to conciliation efforts on the part of the 
Commission is patently contrary to the clearly-expressed 
intent of Congress, in both the House and the Senate, and 
it was properly rejected by the district court.



12

III. The Commission Has In te rp re ted  the Act to 
R equire Conciliation Efforts p rio r to Suit

Section 706(e) provides that if the Commission has been 
unable to obtain voluntary compliance, it shall so notify 
the complainant, who may bring a civil action within 30 
days. The notification in this case was sent prior to any 
conciliation effort. At that time the Commission had issued 
no interpretation upon whether an effort to conciliate must 
precede the issuance of such notice.1 * * *

In 1966, the Commission squarely faced the issue with 
a Regulation stating that it “shall not issue a notice . . . 
when reasonable cause has been found, prior to efforts at 
conciliation with respondent. . . .” 29 C.F.R. §1601.25a.

The appellant, brief, p. 14, points to a proviso in this 
Regulation that upon the expiration of 60 days the charg­
ing party may demand the notice and the Commission 
“shall promptly issue such notice.” From this language, 
the appellant argues that the Commission has interpreted 
the statute not to require conciliation. This argument is 
without support. The Commission explained, in publishing 
this Regulation that Section 706(e) contemplates that 
such notification occurs subsequent to efforts at concilia­
tion. 31 Fed. Reg. 14255 (Nov. 4, 1966). Also, the pur­

1The appellant argues, brief, pp. 13-14v that the Commission 
had “contemporaneously interpreted” the statute to allow notifica­
tion prior to efforts at conciliation. But it is clear that no such
“contemporaneous interpretation” exists. The two''General Counsel 

Tipinions'eTfecTBy the appellant cannot establish an administrative 
interpretation, for they have “no more binding or legal force than 
the opinion of any other lawyer.5"" United. States v. Bennett, 186 F.
2d 407, 410 (5th Cir. 1951). Nor is the fact that the notice issued 
prior to conciliation efforts an administrative interpretation. San­
ford’s Estate v. Commissioner, 308 U.S. 39, 49-51 (1939);
Clemons v. United States, 245 F. 2d 298 (6th Cir. 1957).

...i



13

pose of the proviso was merely to allow notification prior 
to completion of conciliation.1

IV. The A ppellant’s A rgum ent that the Conciliation
Prerequisite  is “ U nfair and U nreasonable”  Should 

Be Addressed to Congress ra th e r than the  Court
The appellant argues that the conciliation prerequisite 

is “obviously unfair,” and upon that basis would have this 
Court brush aside the words of the statute, the administra­
tive interpretation, and all of the legislative history. The 
alleged “unfairness” is that conciliation “may be” impossi­
ble to achieve, and that to require a conciliation effort, 
would “postpone for several months” complainants’ rights 
to begin court actions (appellant’s brief, pp. 10-12). Fur­
ther, the appellant asserts that conciliation is an inade­
quate administrative remedy, and may be bypassed for 
that reason. ■—̂

It would be a sad state of affairs if courts allowed efforts 
at conciliation to be bypassed merely because of the possi­
bility that they would not be fruitful. The fact that con­
ciliation “may be” impossible to achieve is no reason for 
failing to attempt it. As the states’ experience has proved, 
efforts at conciliation eliminate all but a handful of cases. 
Nor can the heavy caseload of the Commission excuse the 
lack of conciliation efforts. Statutory requirements cannot 
be sacrificed in the name of dispatch. See National Labor 
Relations Board v. Bata Shoe Co., 377 F. 2d 821, 834 
(4th Cir. 1967); Russell-Newman Mjg.  Co. v. National 
Labor Relations Board, 370 F. 2d 980 (5th Cir. 1966).

luThe Commission stated that its purpose behind the regulation 
is to clarify and establish its view that completion of conciliation 
is not a prerequisite to filing suit under Title VII.” Report of the 
Committee on Equal Employment Opportunity Law, Section of 
Labor Relations Law, American Bar Association (1967), p. 145.



14

An even more forceful answer to the appellant’s argu­
ment is that only Congress can amend the statute to allow 
court actions to be filed in advance of conciliation efforts. 
As is noted above, Congress has twice heard arguments 
that the present enactment is inadequate and should be 
altered to allow for the procedure which the appellant 
seeks to follow. In rejecting this proposal, Congress has 
made a determination that the requirement of efforts at 
conciliation preceding litigation is fair and reasonable. The 
Court should not undertake to upset this decision of Con­
gress.

Congress was entitled to prescribe the method for en­
forcement of the right which it created and it has done so 
by establishing conciliation efforts to aid in bringing about 
voluntary settlement before resort to the courts.

“Congress for reasons of its own decided upon the 
method for the protection of the ‘right’ which it created. 
I t  selected the precise machinery. . . . [ I ] t  is for Con­
gress to determine how the rights which it creates shall 
be enforced. Switchmen’s Union v. National

Mediation Board, 320 U.S. 297,
301 (1943)

In sum, the policy arguments offered by the appellant 
“however appealing, are addressed to an inappropriate 
forum” and “ought to be made to the Congress and not to 
the courts.” United Steelworkers v. R. H. Bouligny, Inc., 
382 U.S. 145, 150-151 (1965).

Y. This Court, and O thers, Have Expressed Approval 
of Dent—-a Leading Case H olding tha t Conciliation 

Efforts Are a Jurisdictional P rerequisite  to Suit
Dent v. St. Louis-San Francisco Railway Company, 265 

F. Supp. 56 (N.D. Ala. 1967) is a leading case reaching



15

the conclusion that conciliation efforts must precede court 
action, and the appellant concedes that it is squarely in 
point.

Contrary to assertions made by the appellant that the 
Dent case stands alone, this Court and others have ex­
pressed approval of the reasoning and conclusion reached 
in Dent. In Mickel v. South Carolina State Employment 
Service, 377 F. 2d 239 (4th Cir. 1967), this Court statecl:

“In a recent well-considered case, Dent v. St. Louis- 
San Francisco Ry. Co., . . .  it was held that conciliation 
attempts were a ‘jurisdictional prerequisite to the insti­
tution of a civil action under Title VII and that the 
actions instituted without this prerequisite must accord­
ingly be dismissed.’ . . . This conclusion also finds sup­
port in Hall v. Werthan Bag Corporation, 251 F. Supp. 
184 (M.D. Tenn. 1966). . . .

“The decision in Dent, supra, painstakingly discusses 
the legislative history of this portion of the Civil Rights 
Act. The opinion presents overwhelming authority culled 

. from Congressional committee reports and the state­
ments of key legislators to support the conclusion that 
Congress intended that persons claiming discrimination 
in employment should first exhaust their remedies within 
the Commission created for that purpose. Furthermore, 
the original bill contained a clause permitting the bring­
ing of civil actions prior to seeking conciliation but this 
provision was eliminated by a House amendment in 
order to insure that conciliatory efforts would be made.”

377 F. 2d 239, 242 (4th Cir. 1967) 
cert. den. Oct. 9,1967, 57 LC 59115

This Court’s decision in Mickel affirmed summary judg­
ment in favor of one of the two defendants involved. Sub­



16

sequently the district court dismissed the case as to the 
other defendant because the EEOC had made no con­
ciliation effort.

“ [A]t  least some effort by the Commission at con­
ciliation is necessary as a judicial prerequisite to the in­
stitution of a civil action under Title VII of the Civil
Rights Act. Mickel v. South Carolina State

Employment Service, —  F. Supp.— , 
CCFI Employment Practices Guide 
59111 (D.S.C. Feb. 22,1968)

Similarly, the case of Choate v. Caterpillar Tractor 
Company, 274 F. Supp. 776 (S.D. 111. 1967), is directly 
in point. That case approves Dent as “a lucid and exten­
sive analysis of the legislative intent.” After discussing 
this Court’s Mickel decision, and Hall v. Werthan Bag 
Corp., supra, the court stated:

“All of those decisions are considered as consistent 
in holding that resort to the remedy of conciliation is a 
jurisdictional prerequisite to the right to file a civil 
action. This court agrees with that construction of the 
Act. The plain language of the statute requires it. . . .”

274 F. Supp. at 779

These cases clearly establish the absolute falsity of the 
appellant’s assertion, brief, p. 15, that “with a single ex­
ception, courts considering the issue here presented have 
reached a conclusion contrary to that of the court below.”

From a glance at the appellant’s brief, pp. 15-16, his 
contention that conciliation may be bypassed, appears to 
have the support of nine district court decisions. However, 
this appearance of strength is appearance only, and fades 
quickly upon closer examination.



17

Of the five decisions (from four district judges), the 
appellant cites from district courts within this circuit, 
three1 were decided before this Court’s decision in Mickel, 
including the decision2 3 by Judge Butzner upon which 
appellant places most reliance. Since Mickel, there have 
been five decisions (from two district judges) from district 
courts in this circuit which have held that conciliation 
efforts may not be bypassed.8

I t  is also noteworthy that several of the cases cited by 
the appellant did not involve the issue presented here. 
These cases were concerned not with the bypassing of con­
ciliation efforts altogether, but rather with whether con­
ciliation must be completed before suit is filed. In Moody 
v. Albemarle Paper Co., 271 F. Supp. 27 (E.D. N.C. 1967), 
the court stated “no further formal efforts toward concilia­
tion by the Commission are necessary” before suit. So also, 
in Mondy v. Crown Zellerbach Corp., 271 F. Supp. 258 
(E.D. La. 1967), the facts were clearly that the EEOC 
had made efforts to conciliate the complaints. The plain­
tiffs distinguished the Dent case on that basis and argued 
that they should not be required “to await the conclusion 
of such efforts before bringing their action.”4 Again, in

1Robinson v. P. Lorillard, Civ. No. C-141-G-66 (M.D. N. C. 
Jan. 26, 1967); Evenson v. Northwest Airlines, Inc., 268 F. Supp. 
29 (E.D. Va. Mar. 17, 1967); Ouarles v. Philip Morris, Inc., 271 
F. Supp. 842 (E.D. Va. Apr. 11, 1967).

2Quarles v. Philip Morris, Inc., supra.
3Mickel v. South Carolina State Employment Service, CCH Em­

ployment Practices Guide 119111 (D. S.C. Feb. 22, 1968); Johnson 
v. Seaboard Air Line Rr. Co. (W.D. N.C. Jan. 25, 1968); Walker 
v. Pilot Freight Carriers, Inc. (W.D. N.C. Jan. 25, 1968); Brown 
v. Gaston Dyeing Machine Co. (W.D. N.C. Mar. 22, 1968); Lee v. 
Observer Transportation Co. (W.D. N.C. Mar. 22, 1968).

4Plaintiffs’ brief in opposition to defendants’ motion to dismiss.



18

Evenson v. Northwest Airlines, Inc., 268 F. Supp. 29 (E.D. 
Va. 1967), the court pointed out that the Act does not re­
quire that the “EEOC had to exhaust all means of con­
ciliation prerequisite to a civil suit,” but that it only had 
to make an endeavor prior to suit. “ ‘To endeavor’ means 
to attempt or to undertake.” 268 F. Supp. at 31-32. Quarles 
v. Philip Morris, Inc., 271 F. Supp. 842 (E.D. Va. 1967) 
was similar, in that the Commission advised the complain­
ant that “conciliation efforts of the Commission have not 
achieved voluntary compliance,” that “ the Commission 
was unable to undertake extensive conciliation activities” 
and that “additional conciliation efforts will be continued 
by the Commission.” 271 F. Supp. at 845.

The most arresting fact about all of the cases cited by 
the appellant is their lack of analysis of the legislative his­
tory. Nowhere in them is there to be found any analysis 
of this history,1 which was so pointedly and accurately dis­
cussed in the Dent case, and this Court’s Mickel decision.

In balance therefore, the appellant cannot escape the 
fact that in Mickel this Court found the Dent case to be 
a “painstaking discussion” of the legislative history pre­
senting “overwhelming authority” for the conclusion that 
conciliation efforts are a jurisdictional prerequisite to court 
actions under Title VII and that “actions instituted with­
out this prerequisite must accordingly be dismissed.”

1Mondy v. Crown Zellerbach Corp., 271 F. Supp. 258 (E.D. La. 
1967) passed over the legislative history as being inconclusive. The 
Court doubted the history because of the statement by Senator Javits, 
previously explained, and a statement by Senator Humphrey that 
“the individual may bypass the Commission” entirely, at any time. 
110 Cong. Rec. 14188 (June 17, 1964). Senator Humphrey’s 
statement has been discredited from all sides. It has been conceded 
in Dent that Senator Humphrey was in error, and the appellant in 
this case places no reliance upon his statement.



19

CONCLUSION

Upon all of the foregoing, the appellee, Pilot Freight 
Carriers, Inc., respectfully requests the Court to affirm the 
district court.

Brown H ill Boswell, Jr .
J. W. Alexander, J r.
Attorneys for Pilot Freight Carriers, Inc.