Alpha Portland Cement Company v. Reese Reply Brief for Appellant

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IN THE
UNITED STATES COURT OF APPEALS 

FOR THE 
FIFTH CIRCUIT

ALPHA PORTLAND CEMENT COMPANY, 
Defendant-Appellant,

vs.
WILLIE C. REESE,

Plaintiff-Appellee.

NO. 74-1290

On Interlocutory Appeal From the United States District 
Court For the Northern District of Alabama

REPLY BRIEF FOR APPELLANT ALPHA PORTLAND CEMENT COMPANY

William F. Gardner
Sydney F. Frazier, Jr. ..
Cabaniss, Johnston, Gardner, Dumas & O Neal 
1900 First National-Southern Natural Blag. 
Birmingham, Alabama 35203

Attorneys for Appellant 
Alpha Portland Cement Company



REASON FOR THIS REPLY BRIEF
Appellate courts may well regard reply briefs as a 

manifestation of the proposition that "Some lawyers, like some 
women, are uneasy unless they have the last word."-*- However,
we believe this reply is needed, particularly in view of the
• • 2importance of the issue to be decided by this case.

ANALYSIS
A. ASSERTIONS AS TO THE FACTS:

1. The plaintiff's "statement of facts" asserts with 
reference to the charge filed by the plaintiff that "The 
substance of tne cnarge was, ‘Discnarged because of race.'" 
(Plaintiff's brief, page 7). This is a delicately-phrased way 
of expressing it. The stipulated fact of the matter is that 
"The sole claim raised by the plaintiff's charge was 'Discharge 
because of race.'" [(R. 19). See also the charge itself at R. 29)

2. The plaintiff's statement of the case asserts 
that the Commission found reasonable cause on the plaintiff's 
discharge claim "and that the Company had engaged in unlawful

1. Wiener, Briefing and Arguing Federal Appeals , page 266 .
2. It should be noted that the Plaintiff-Appellee's brief 

was filed in blue covers, although Rule 32 provides for the use 
of red covers for the Appellee's brief. The result is that the 
briefs for both Appellant and Appellee are in blue covers.



2 .

employment practices in violation of Title VII of the Civil 
Rights Act of 1964." (Plaintiff's brief, page 3). By design 
or inadventence, this characterization creates the impression 
that the Commission considered issues other than the plaintiff's 
discharge. The undisputed facts are that the only issue considered 
by the Commission was the plaintiff's discharge claim and that 
the only finding by the Commission was that there was reasonable 
cause to believe the Company had engaged in "an unlawful employment 
practice" (singular and not plural as erroneously stated by the 
plaintiff's brief) regarding the plaintiff's discharge. (See the 
Commission's decision at R. 30-31).

3. The plaintiff says that the issue is the maintainability 
under the Civil Rights Act of 1866 of class allegations including 
discharge." (Plaintiff's brief, page 2). There is no such issue.

The complaint contains no class action allegation regarding the 
subject of discharge. For that matter, the Commission itself did 
not make any finding regarding any discharge other than that of the 
plaintiff. The single and only allegation regarding"discharge" 
consists of the plaintiff's claim concerning his discharge in 
1969. (See the complaint at R. 3-7). Nevertheless, if the 
complaint had contained class action allegations regarding the subject 
of discharge, we would have agreed that it would have been appropriate 
for class action treatment both under Title VII and the 1866 statute 
because this subject has been considered by the Commission and



3..
complies with the rule that "'no issue >7111 -be the subject of a 
civil action until the EEOC has first had the opportunity to attempt 
to obtain voluntary compliance."^ But there "was no rsuch allegation.

B. LEGAL THEORIES:
1. The plaintiff places considerable reliance on the 

proposition that the Civil Rights Act of 1866 provides an 
independent remedy and was not repealed by ‘Title VII of the 
Civil Rights Act of 1964. {Plaintiff's brief/ pages 8—12).
This is only remotely relevant to the issue before the Court.
There is not the least dispute with the proposition that the
Civil Rights Act of 1866 provides an independent remedy, and
there accordingly is no dispute with the plaintiff's right to
litigate the discharge claim both under Title VII and the 1866
statute. The point of the case is not whether the 1866 statute provide
an independent remedy, but rather whether the addition to a Title
VII case of an alternative allegation of jurisdiction under the
1866 statute jives a plaintiff the completely independent right
to litigate class action issues which have not been considered
by the Commission and therefore cannot be maintained under Title

VII.

3. Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970).



4.
2. According to the plaintiff's brief, we argued that 

the law in the Fifth Circuit is not settled as to whether a 
plaintiff may sue directly under the 1866 statute without having 
any "reasonable excuse" for by-passing the Commission. (Plaintiff's 
brief, pages 14-16). The plaintiff's assertion is incomprehensible. 
In the belief that it would be helpful to the Court as background 
in analyzing the issue presented, our brief contained, as a 
preface to the argument, a review of the principles which have 
been established up to the present time,^ and this review included 
the fact that the Court at first expressed seeming approval of 
the Seventh Circuit's "reasonable excuse" doctrine.5 (Pages 
17-21 of our brief). This was not an argument, and was not even 
in the Argument section of our brief. It was both intended and 
expressly presented as a review of where the law had been in order 
to assist the Court in determining where the law should go on 
the issue presented, and for the plaintiff to characterize it as an 
"argument" and then argue against it does nothing but inject

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irrelevant and needless confusion into the case.

4. Pages 7-21 of our brief.
5. Beverly v. Lone Star Lead Construction Co., 437 F.2d 1136 

(5th Cir. 19?T)~ discussing Waters v. Wisconsin Steel Works,
427 F.2d 476 (7th Cir. 1970), cert, denied, 400 U.S. 911 (1970).

6. We could have referred the Court to our review of the subject 
in our article in the Alabama Law Review [Gardner, The Development 
of the Meaning of Title VII of the Civil Rights Act of 1964,
23 Ala. L. Rev. 451, 458-462 (1971)] but reviewed the subject in 
our brief for convenient reference.



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3. The plaintiff concedes, as necessarily he must, 

the well-established principle that an issue may not be 
litigated under Title VII unless it is at least like or related 
to the issues considered by the Commission since, as this Court 
expressed it, "Title VII clearly contemplates that no issue will 
be the subject of a civil action until the EEOC has first had the 
opportunity to attempt to obtain voluntary compliance." Sanchez v. 
Standard Brands, Inc., 431 F.2d 455 (5th Cir. 1970). Instead, 
while professing to agree that the Sanchez case is "good law", the 
plaintiff contends that it must be limited to cases in which the 
complaint is based on Title VII alone and does not contain 
an alternative ai_inarration nnd<?r* the 1866 stetii'f'o s (Plaintiff's 
brief, page 17).

The fallacy inherent in the plaintiff's position is 
obvious. The fact is that there is no longer any such thing 
as a complaint alleging racial discrimination in employment 
which is based on Title VII alone. To appreciate the dimensions 
of the result which the plaintiff is asking the Court to reach, 
it is essential to recognize the reality that the issue before 
the Court is created by a technique of pleading. As 
a practical matter, a complaint alleging racial discrimination 
under Title VII only is an extinct species. The procedure 
now is that a stock-form allegation of alternative jurisdiction 
under the 1866 statute is added to these complaints as a



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patter of course, together with any and all stock form class 
action allegations which occur to the plaintiff’s attorney.
In this case, as an example, the only issue which the 
plaintiff ever asserted and the only issue which the Commission 
ever considered and conciliated concerned his discharge in 1969, 
and it was not until the complaint was prepared for filing in 
Federal Court that the allegations regarding hiring, job assign­
ments, and job classifications were raised.

It cannot be doubted that the result here being sought
by the plaintiff would eliminate the Sanchez principle as a
viable proposition. While on the one hand paying lip-service
to this principle by referring to it as "good law", the
plaintiff is at the same time asking the Court to abolish it
and set the stage for the continued and expanded use of the stock-
form alternative §1981 allegation for the assertion in the
Federal Courts of class action allegations which the Commission
has never had the opportunity to attempt to conciliate. It is
accurate to say that the plaintiff's position is based on the
philosophy immortalized in the tale of the walrus who befriended

7the oysters for the purpose of eating them up.
4. The reliance which the plaintiff placed in the District 

Court on Hill v. American Airlines, Inc., 479 F.2d 1057 (5th Cir. 
1973) is renewed in the plaintiff's brief here. Our brief pointed

7. Lewis Carroll, The Walrus and the Carpenter.



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out that the Hill case was concerned only with the plaintiff's 
individual claims, that the District Court was erroneously led by 
the plaintiff to extend the decision to the point of obligating 
the Court to allow the maintenance of the newly-raised class action 
allegations, and that the error of this result was shown by this 
Court's recent application of the Sanchez principle in Smith v. 
Delta Air Lines, 486 F.2d 512 (5th Cir. 1973), which, like the 
present case, was an action under Title VII with an alternative 

allegation under 51981.®
The plaintiff has responded to this point by the assertion 

that "the 'like or related' principle established in Sanchez 
has only been applied to claims filed pursuant to Title VII", 
citing, inter alia, the decision in Smi th v. Delta Air Lines. 
(Plaintiff's brief, page 17). The facts are that the complaint in 
Smith v. Delta Air Lines was prepared by the same attorneys who 
prepared the complaint in this case, that it contained the stock- 
form §1981 alternative allegation, and that this Court held with 
respect to the newly-raised class action issues that "the trial 
court should proceed to a determination of whether the claims made 
adequately stated a class action within the contemplation of this 
Court in Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th Cir. 
1970)." (486 F. 2d at 515).

8. Pages 30-32 of our brief.



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5. The contention which the plaintiff urged and the 

District Court accepted with manifest reluctance was that the 
courts are "obligated" by the completely independent right theory 
to allow the newly-raised class action allegations to proceed under 
the §1981 alternative allegation although they admittedly could 
not be litigated under Title VII. As the plaintiff's brief 
accurately says, "the Court below clearly expressed its displeasure 
at being compelled to allow the class claims to proceed." 
(Plaintiff's brief, page 5).

Now that the case is in this Court, however, the plaintiff 
has moved instead to the position that the maintainability of class 
action allegations not raised during the pendency of the Commission 
proceedings could and should be determined by the District Court 
under the standards set forth in Rule 23. (Plaintiff's brief, 
pages 31-34 and 38-39). Indeed, the plaintiff's brief even 
concludes with the proposal that "the case [should be] remanded 
for further proceedings subject to the requirements of Rule 23." 
(Plaintiff's brief, page 39).

This change in the plaintiff's position can most accurately 
be viewed as an attempt to avoid the issue presented by the 
appeal. The critical point is that the plaintiff's proposal to 
remand the case subject to the requirements of Rule 23 does 
not answer the important question presented by the appeal. When 
the case was in the District Court, the plaintiff contended that 
the District Courts must allow newly-raised class action issues 
to be maintained under the alternative §1981 allegation, the 
district Court reluctantly accepted this contention, and that



9.
is the issue now before the Court of Appeals.

6. The plaintiff asserts that Title VII and the 1866 
Civil Rights Act are "independent, co-existing remedies which 
may be pursued simultaneously or separately." (Plaintiff's brief, 
page 11). There is no disagreement from us that these statutes 
are independent and co-existing remedies, but this does not 
provide any light on the question of whether an averment of 
alternative jurisdiction under the 1866 statute compels the 
Courts to allow the maintenance of class action allegations which 
may not be maintained under Title VII consistent with the Sanchez 
principle.

In contrast, the point which is relevant, and which the 
plaintiff has steadfastly avoided, is that the remedies provided 
by Title VII and the 1866 statute are to be harmonized, both 
in the interest of consistency and in the interest of effectuating 
the policies expressed by Congress in enacting these statutes.
This Court expressed the point in harmonizing the Civil Rights 
Act of 1866 with the Civil Rights Act of 1964 and 1968 in a housing 
case, Lee v. Southern Homes Sites Corp., 444 F.2d 143 (5th Cir. 
1971). As the Court said through Judges Wisdom, Tuttle, and 
Ingraham:

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10 .

"[I]n fashioning an effective remedy for the rights 
declared by Congress one hundred years ago, courts 
should look not only to the policy of the enacting 
Congress but also to the policy embodied in closely 
related legislation. Courts work interstitially 
in an area such as this.

"In adjudicating the shape of the remedies 
for violations of 42 U.S.C. §§1981, 1982, courts 
must give weight to the actions of Congress in 
enacting the sections of the 1964 and 1968 Civil 
Rights Act aimed at very similarly defined social 
problems." (444 F.2d at 146).
This principle was similarly applied in the recent 

decision in Howard v, Lockheed-Georgia Co., 42 U.S.L.W. 2532, 7 
FEP Cases 671 (N.D. Ga. 1974). In that action under Title VII 
and §1981, the plaintiff argued that he was entitled to use 
the §1981 allegation to seek personal injury and punitive 
damages allegedly resulting from racial discrimination in employment 
even if such damages were not recoverable under Title VII. Judge 
Moye rejected this argument on the ground that Title VII and 
§1981 are to be harmonized with one another and that it would be 
inconsistent to allow §1981 to be used to reach a result which 
is not allowable under Title VII. As the Court expressed it:



11.
"[I]t appears that this circuit, while recognizing 
Section 1981 as an independent jurisdictional
basis for employment discrimination suits, --
encourages harmonization of the remedies
to be afforded under it and Title VII. --
Were this Court to allow the recovery sought in the 
instant action under Section 1981, such a conflict would 
indubitably be created; for to judicially legislate 
a concurrent and broader remedy under Section 1981 would 
invite every plaintiff asserting a claim for racially 
discriminatory employment practices to ignore the remedy 
which Congress sc c c t r e f u i l y  uOj i s u u c Lc u  xn TxLlc VII.
Why should a claimant genuinely participate in the 
conciliation procedures of Title VII, or his attorney 
advise him to do so, when larger awards await if he 
refuses and proceeds to suit? Such a holding would 
frustrate the clear intent of Congress that racial bias 
problems be resolved by conciliation. This the Court 
declines to do."
So also here, the plaintiff's attempt to use the alternative 

§1981 allegation to litigate class action issues which cannot be 
litigated under Title VII is directly in conflict with the policy, 
as expressed by this Court, that the Civil Rights statutes of the 
Reconstruction era and of today are to be harmonized with one
another.



12.
7. The plaintiff's reliance on the legislative history 

of Title VII as enacted in 1964 and amended in 1972 is not only 
misplaced but disregards the intended purposes which would be 
nullified by the result sought by the plaintiff.

There is no dispute with the fact that "the legislative 
history of Title VII manifests a Congressional intent to allow 
an individual to pursue independently his rights under both Title 
VII and other applicable state and federal statutes." That is 
simply a restatement of the proposition that a plaintiff has an 
independent remedy for his claims under the Civil Rights Act of 
1866. But the right of a plaintiff to use the 1866 statute to 
litigate his claims is hardly equivalent to the position that 
the Courts must allow the 1866 statute to be used for the litigation 
of class action claims which have never been considered by the 
Commission.

Moreover, there can be no doubt that the plaintiff's 
position is in direct conflict with the following considerations 
which were explicitly articulated by the Congress in amending 
Title VII by the enactment of the Equal Employment Opportunity 
Act of 1972:

First, the House-Senate Conference Report expressed the 
intention that civil actions would thenceforth be handled by the 
Commission under the right to sue authority given to it by the



13.

amendment rather than by private action suits. As the
Conference Report's Section-by-Section Analysis of H.R. 1746 L
Equal Employment Opportunity Act of 1972 expressed the point,
"It is hoped that recourse to the private lawsuit will be the
exception and not the rule, and that the vast majority of
complaints will be handled through the offices of the EEOC

gor the Attorney General, as appropriate."
The result which the plaintiff is asking the Court to 

reach is irreconcilable with this Congressional purpose, for it 
would allow private attorneys to use the 1866 statute to prosecute 
private lawsuits on class action issues which not only are thereby 
taken out of the Commission's hands but as well are never even

raised before the Commission.
Second, as criticized as it may be by those who seemingly 

would prefer to have cases litigated in the Courts rather than 
conciliated by the Commission, the indisputable fact is that 
Congress has expressed its preference for conciliation. As the 
Supreme Court said this Term in Alexander v. Gardner-Denver Co.,lf)

9. This explanation is set forth in Legislative History of 
the Equal Employment Opportunity Act of 1972 (Prepared by the 
Subcommittee on Labor of the Senate Committee on Labor and Public 
Welfare, 1972), page 1847.

10. 42 U.S.L.W. 4214 (1974).



14.

-Cooperation and voluntary compliance were selected as the 
preferred means for achieving this goal. *o this end. Congress 
created the Equal Employment Opportunity Commission and 
established a procedure whereby existing State and local employment 
opportunity agencies, as well as the Commission, would have an 
opportunity to settle disputes through conference, conciliation, 
and persuasion before the aggrieved party was permitted to file

a lawsuit."
So also did the Senate’s consideration of the 1972

amendment include the point that:
"A cursory review of the legislative history of 
Title VII specifically shows that the Congress 
intended that the filing of lawsuits by aggrieved 
individuals would be a 'last resort’ after the 
Commission has exhausted its conciliation efforts.

"This desirable objective has been thwarted 
and frustrated by Commission procedures which 
permit the filing of lawsuits by charging parties 

| without any finding of' probable cause by the Commission
and without any efforts on its part to conciliate at

11. legislative History of the Equal Employment Opportunity,^ 
of 1972, pages 1469-147CK



15.

Obviously enough, it would be entirely inconsistent 

with this preference which Congress has expressed to allow 
the result of using an alternative allegation under the 1866 
statute for the litigation of class action claims which the Commission 
has not had the opportunity to consider, much less to conciliate.12

C. POLICY CONSIDERATIONS:
Since this Court will be the first appellate court

to answer the question presented, our brief submitted the 
policy considerations which deserve to be evaluated in resolving 
the question.13 The plaintiff's response to these policy 
considerations only emphasizes the ill-advised choice of policy

which he is asking the Court to adopt.
This is vividly illustrated by the plaintiff's response 

to the point that the use of an alternative 51381 allegation 
to raise new class action claims is inconsistent with the 
preference for conciliation which Congress expressed in 1964 
and reiterated in 1972.14 The plaintiff's response consists 
of the astounding position that this Court should disregard 
the role of conciliation because "Many Title VII class action 
claims arrive in Court never having been the subject of

12. Compare Republic Steel Coro,, v^ Maddox, 379 U.S.
and Andrews v. L5m^Fille & Nashville R. C q ^  for ihewhere~the-Court applied the preference expressed by Congress for the 
settlement of contract disputes under the grievance procedure as 
opposed ?o litigation. Astte Court said in the Andrews case in 1972

"In Republic Steel v. Maddox, 379 U.S. 650 (1965), the
Court deduced from the Labor Management Relations Act 
a preference for the settlement of disputes m  accordanc 
with contractually agreed upon arbitration procedures.

13. Pages 37-53 of our brief.
Pages 45-49 of our brief.14.



16.
conciliation. Section 1981 claims can scarcely have a lesser
standing-- ." (Plaintiff's brief, page 29). The poor policy
which the plaintiff is urging on the Court is obvious. In explicit 
terms, the plaintiff takes the position that conciliation is useless 
anyway and should be brushed off by the Courts in favor of 
litigation. This certainly reflects the preference of those 
who are pressing for the carte blanche litigation of cases, 
but it is equally certain that it is contrary to the policy, 
as expressed by this Court, that "the EEOC was intended to and 
does play an important role in the legislative scheme. Potential 
litigants are absolutely required to take a step which affords 
them at least an opportunity to reach a more amicable settlement 
out of court.

Similarly/ the plaintiff only weakly answers the 
considerations showing the adverse consequences on the absent 
members of the class of the plaintiff's idea of using the stock-form 
alternative §1981 allegation to determine the rights of the cliss.^
As an example, the plaintiff does not even try to deny that the 
litigation of class action claims under §1981 would mean less potential 
back pay recovery for the members of the class since the statute of

15. Beverly v. Lone Star Lead Construction Co., 437 F.2d 1136 (5th 
Cir. 1971).

16. Pages 38-45 of our brief.



17.
limitations applicable to §1981 is less than the statute of 
limitations which Congress provided for Title VII by the 1972 

amendment.

CONCLUSION
The plaintiff states his position as being that a plaintiff

has the "completely independent right" to maintain class action 
claims under the alternative §1981 allegation. Given the 
practicalities of the matter, the more accurate view of the issue 
is whether stock-form class action allegations can be added when 
the complaint is drafted for filing in Federal Court and be 
maintained by the use of the pleading technique of adding an 
alternative §1981 allegation. For the Court to adopt this position 
would result in the elimination of the Sanchez principle as a viable 
proposition in every case alleging racial discrimination, and it 
would establish a rule of lav/ v/hich would be contrary to the 
Congressional preference for conciliation and for the concentration 
of enforcement in the Commission as opposed to private lawsuits 
and would as well be detrimental to the rights of the class.

Respectfully submitted

William F. Gardner

Sydney F. -Frazier, Jr.
^c- ,Sryx̂ -v V

Attorneys for Appellant 
Alpha Portland Cement Company

Cabaniss, Johnston, Gardner, Dumas & O'Neal 
1900 First National-Southern Natural Bldg. 
Birmingham, Alabama 35203



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CERTIFICATE OF SERVICE
18.

I hereby certify that a copy of the above and foregoing 
Reply Brief has been served by United States mail, postage 
prepaid, on Mr. U. W. demon, Adams, Baker & demon, 2121 Building, 
2121 Eighth Avenue North, Birmingham, Alabama 35203, and 
Mr. Kenneth Dious, Suite 2030, 10 Columbus Circle, New York,
New York 10019, attorneys for plaintiff-appellee.

A VidThis the X day of May, 1974.