Bernard v. Gulf Oil Company Brief of the Equal Opportunity Commission, Amicus Curiae, on Rehearing En Banc

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■TA3LS Pc'’ CONTENTS Page
STATEMENT Of INTEREST ........................... 1

STATEMENT......................................... 2
ARGUMENT

THE PANEL'S REVERSAL Of THE 
SUMMARY JUDGMENT SHOULD NOT
3E DISTURBED.........................  6

CONCLUSION II

TA3LE Of AUTHORITIES

CASES : Page ( s )_
Alexander v. Gardner Denver Co.,

415 U.S . 3 6 ( 197 4 )............................ 3

Bradshaw v. Zoological Societv,
559 f.2 106 5 ( 9th Cir. 1973).................  6

Coles v. Pennv, 531 f.2d 509
(D.C. Cir. ‘ 1976 ).............................. 7

EEOC v. Occidental Life Insurance Co.,
43? U.S. 3 55 ( 19 75 ) ..........................  3

EEOC v . Liberty Loan Coro.,
534 f.2d 353 ( 3th Cir. 1973)................. 9

fowls r v. Blue 3ell, Inc. , 59 6 f.2d 1275 
(5cn Cir. 1979) (ren and reh en banc 
denied).......................................  3

Garner v. E.f. DuPont DeNemours and Co
533 f .2d oil (4th Cir. 1975)

Lacy v. Chrysler Corp., 533 f .2d 353
(3th Cir. 1975) (en banc) , cert, denied, 
429 U.S. 959 (1975).....................

Lynn v . Western Gillette, 
564 f.2d 1232 (9th Cir. 1977 ) o



Page(5 } :Casas;
McGuire v. Aluminum Co. of America.

542 P . 2 d 43 (TEH Cir. 1975)..................
Page v . U.S. Industries, Inc.,

555 P.2d 346 (5 on Cir. 1977),
cert denied , 42 3 U.S. 1045 (1973)............

Tuft v. McDonnell Douglas Com. ,
517 P.2d 1301 (3th Cir. 197 5 )
cert denied , 423 U.S. 1052 (1976)............

Turner v . Texas Instruments, Inc. ,
556 P . 2d 1349 (5 th Cir. 1977)................

Weaver v. Joseoh Schlitz Brewing Co.,
551 P . 2d 122 (5th Cir. 1977).................

White v . Dallas Independent School 3oard,
581 P.2d 556 (5th Cir. 1973)
( e_n banc ).....................................

Williams v. Southern Gas Co.,
529 P .2d 433 (10th Cir. 1976),
cert denied, 429 U.S. 959 (1976).............

Wilson v. Snaron Steel Coro.,
549 P.2d 276 (3rd Cir. 1 977 ).................

ZamQuto v. American Teleohone and Telecraon Co., 
544 P . 2d 1 333 ( 5th Cir. 1977 )..... ..........

Statutes:
§ 706 (c), Civil Rights Act of 1964

42 U.S.C. 200 0e -3(c).................

'o

o

7

7

5 , 6

10

II



IN THE UNITED STATES COURT Of APPEALS 
fOR THE FIFTH CIRCUIT

No. 77-1502

WESLEY ?. BERNARD, et al.,
Plaintiffs-Appellants

v .

GULF OIL COMPANY, at al.,

Defendants-Appellass

On Appeal from the United States District Court 
for the Eastern District of Texas

BRIEF OF THE
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, 
AMICUS CURIAE, ON REHEARING SN BANC

STATEMENT OF INTEREST

The Equal Employment Opportunity Commission is the 
agency established by Congress to administer, interpret, 
and enforce Title VII, Civil Rights Act of 1964, 42 U.S.C 

2000e e_t sea. ( 1976 ), and other federal fair employment 
statutes. It has previously participated in this apoeal 
as amicus curiae, by the filing of a orief upon which
it now primarily relies.



Although the issue it addressed, whether the 
Commission's administrative procedures in processing 
appellants' claims can properly serve as the oasis for 
precluding them from seeking relief in the courts, was 
correctly decided by the Panel, EEOC does wish to 
supplement its prior arguments since the order granting 
rehearing e_n oanc operates to vacate the majority opinion 
and judgment under local rule 17 of this Court.

STATEMENT
This is an appeal -from orders in a Title VII and 

42 CJ. 3 . C. §1931 class action pronibiting counsel from 
communicating with potential class members without prior 
court approval and entering summary judgment in favor of 
Gulf Oil and defendant unions on procedural grounds.
The facts and Commission's views concerning the "gag
are stated in the brief filed by the United States.
This supplemental memorandum discusses contentions made 
by Gulf and the unions in their petition for rehearing 
attacking the unanimous Panel decision reversing the 
entry of summary judgment.

The history of this litigation insofar as it relates 
to summary judgment appears in the Commission's initial 
brief in this appeal. We summarize it here.

In 1967 Wesley 3ernard and more than forty other 

black employees filed cnarges with the Equal Employment 
Opportunity

2



Commission alleging that Gulf Oil, with the cooperation 
of Local 4-23 of the Oil, Chemical and Atomic workers 
International Union, had violated Title VII with respect
to use of employment tests , transfers, promotions , and
other terms and conditions of employment. Copies of the
charges were served on Gulf and the Union in August,
1967. After a broad investigation (A. 34, 33) and a
finding of reasonaole cause, the Commission engaged
in conciliation until February 1975, involving all
aspects of Gulf’s employment practices at its Port
Arthur, Texas, facility. (A. 34, 38)

In February 1975, plaintiffs Bernard, Brown,
and Johnson, as well as other charging parties, received
a letter from the EEOC stating that defendants did not

wish to conciliate. The letter did not state that EEOC
nad finished processing the cnarges. In fact, it had
not. For the next year, tne Commission was actively
reviewing the Gulf files in anticipation of a oossible

1/
pattern-and-oractice suit against Gulf. On Marcn 2, 1976, 

the Commission decided not to sue. Tne letter the Commission 
sent plaintiffs the year before, however, assured them that 
the ninety-day period for filing their suit would not commence

1/ The EEOC's internal memorandum reflecting 
not to sue is attached.

its decision

3



until they received, upon request, formal Notice-of-Right- 
to-Sue (A. 98 , 102).

Although the February letter stated that the Commision's 
efforts to settle plaintiffs' claim had to date proved 

unsuccessful, the Commission continued conciliation discussion 
with Gulf on the basis of a Commissioner's charge filed agains 
Gulf in September 1967, and against Local 2-23 in August 1968,

regarding many of the same issues raised by the plaintiffs,

as well as allegations of sex discrimina tion As a result

of these discussions , the Commission and Gui f entered into

a conciliation agreement on April 14, 1975 (A. 15-28).
This suit was filed May 18, 1976, within ninety 

days of plaintiffs' receipt of formal Motice-of-Right- 
to-Sue from the EEOC.

In entering summary judgment, the district court 
held 1) the Title VII claim untimely because plaintiffs 
failed co file suit within ninety days of receiving 
EEOC's February 1975 letter stating that conciliation 
had failed, 2) the §1981 claim untimely under Texas' 

two-year statute of limitations, and 3) the invocation 
of laches, with respect to both the §1981 and Title VII 
claims, "most compelling" (A. 131-185).

The unanimous Panel reversed on all grounds. It 
found that under Zambuto v. American Telephone and

4



Telegraoh Co., 544 s'.2d 1333 (5 th i-i- j.97/), e nd o ;_ne _ - ir̂ in 
Circuit decisions, tine EEOC february 1975 letter did 
not trigger the running of the ninety-day statute of 
limitations because the Commission1s processes had no.

cause the letter, by info rming the recipi en

e t y dav period woul d no t begin to run unt i !

he formal dotice-of -Right -to-Sue, was

s lead ing". 596 f .2d 1249 , 1254. As to the

the Panel held tha t because the complain

intinuing course of unlawf ul conduct and

: nor the unions had d ispu ted this claim

i evidence, summary judgme nt was unsupport ed

The Panel rejectea the argument that a

:hailenging a curren tlv unlawful practice

if the practice was adopt ed more than two

: r . Id finally, on the question of lache 3 ,

:ld that plaintiffs' pref erenee for awaiti ng

administrative resolution of their charges was consiscen' 

with Title VII's structure and reasonaoie. It held 
that whatever prejudice Gulf and the unions may have 
suffered was caused by their own actions, notably 
the destruction of relevant records in direct violation 

of SEOC record-keeping guidelines. IcL at 1257-1253.

- 5 -



ARGUMENT
THE PANEL'S REVERSAL OP THE SUMMARY 
JUDGMENT SHOULD NOT 3£ DISTURBED.

A. Title VII Statute of Limitations
In holding that Title VII's ninety-day statute

of limitations does not run until the Commission informs
the person aggrieved of the completion of its administra
processes— which occurs only when tne Commission decides
not to sue—  the Panel followed substantial precedent

2/
in this Court and the unanimous holdings of the seven

3/
other courts of appeal which have considered the matte 

The EEOC procedures involved in this case , and in 
the cases on which the Panel relied, no longer exist. 
Under procedures adopted by the Commission in mid-1975,
persons aggrieved are no 
ation fails. Thus, they 
information contained in

longer informed when concili-
no longer receive the confusing
the February 1975 letters to tn

2/ Page v. U.S. Industries, Inc., 556 P.2d 346 (5th Cir 
1977), cert.~denied  ̂ 434 U .5. I0"45 (1973); Turnsr v. 
Texas Instruments, Inc., 556 F.2d 1349 (5th Cxr. 1977); 
Zambuto v. American Telephone and Telegraph Co., 544 
P . 2d 1333 ( 5th CTFT 1 977 )
3/ Bradshaw v . Zoological Society, 569 ?.2d 1065,1057 
(9th Cir. 1973); Lynn v . Western Gillette, 554 P .2 d 1232 
(9th Cir. 1977); weaver v. Josepn Schlxtz Brewing Co., 
551 P .2d i22 (6th Cxr. 1977); Garner v . E.P. DuPont 
DeNemours and Co., 533 P.2d 611 (4tn Cir. 1976); Lacy v. 
Chrysler Corp. , 533 F.2d 353, 355-59 (3th Cir. 1975)
(e_n banc) , cert. denied, 429 U.S. 959 (197 5); Tuft 
v. McDonnell Douglas Corp., 517 P.2d 1301, 1303-10 
(3 th Cxr. 1 9 7 5 ), cert. denied, 423 U.S. 1052 (1975); 
(Pootnote Continued)

6



charging parties. The only notice now sent to persons 

aggrieved are the formal Notices-of-Right-to-Sue when
ir charge ends —  that is, w n en

o sue on the ir behalf . Thus r

rom the "two- 1 o ~ ra < " o r o c e d u■r hi

will not recur .
In any event, to the extent that the decisiori3 i - i. - ~Z v-l

on by the Panel hold that persons aggrieved should not 
be penalized for relying on "patently misleading" 
information given them by the government, this Court, 
sitting e_n banc, has already adopted that principle, 
citing the cases on which the Panel opinion relied.
See White v. Dallas Independent School Board, 561 P .2d 

556, 562 (5th Cir. 1973). In light of the unanimous 
precedent, EEOC abandonment of the procedures, and 
this Court’s prior consideration of the matter in 

White, the Panel opinion is correct.
3. Lacne s

The Panel holding that laches will not apply 
when persons aggrieved by unlawful employment practices 
await the completion of EEOC processing of their charges 
is consistent with Title VII's statutory scheme. Congress

(Pootnote Continued)
3/ McGuire v . Aluminum Co. of America, 542 P.2d 43 
(7th Cir. 1976); Will lams v . Southern Gas Co. , 529 P .2 d 
433, 4 3 6-37 ( 10 th Cir. 1975), cert. denied , 429 d . 
(1976). See Wilson v. Sharon Steel Corp., 549 P.2 
23 0 ( 3rd Cir. 1977). Cf. Coles v. Pennv, 531 P.2 a 509, 
513-17 (D.C. Cir. 1975)

7

o
. 

U
J



A i . x 5 n d 0 rclearly preferred concii iation to 1 itigation,
v. Gardner Denver Co. , 415 U .3,. 3 5, 44 (1974)
Commission suit to private actions. EEOC v. Occidental 
Life Insurance Co., 432 CJ. 3 . 355, 366 (1975). The 
Panel holding tnat plaintiffs should not be penalized
for exhausting the' administrative orocess serves both

4/'
of those congressional purposes.

Plaintiffs' reliance on the EEOC's processes was 
unquestionably reasonable. The long delay in completing 
the administrative process was largely attributable 
to frequent discussions between EEOC and Gulf concerning 
settlement of the claims. At it was, tnose discussions 
were successful. In 1975 EEOC and Gulf entered a concili­
ation agreement concerning most of the practices challenged 
in the private charges. Although the plaintiffs in this 
suit were dissatisfied with the relief obtained by she
4/ In their petition for rehearing, Gulf and the union 
complain that the Panel's decision immunizes a Title 71 
plaintiff from the effects of lacnes so long as his 
complaint rests in the hands of the EEOC. Private 
parties are rightfully protecced while the Commission 
diligently pursues settlement of their charges. As this 
Court recognized in Powler v. Blue 3ell, Inc. , 595 P .2d 1275 
(1979) (reh and reh en banc denied);

.. althougn the doctrine of laches 
may be availaole in some cases to 
bar the EEOC from cringing suit, this 
bar arises only if t.ne EEOC has delayed 
unreasonably after it has completed 
(footnote Continued)

3

t-H 
Ul



£SOC :nev reasonably anticipated that the Commission's 
continued discussions with Gulf could lead to an 
agreement which would obviate this litigation. Their 
reliance on EEOC negotiations was therefore entirely 
proper.

In their petition for rehearing. Gulf and t.ne unions 
claim Chat the Panel opinion holds them accountants 
for destroying records and argues that it is unreasonaoie 
for them to store relevant records for a period of years 
in compliance with EEOC regulations. Neither Gulf nor 
the unions applied for exemption from the record­
keeping regulations even though § 7 0 6 (c) of Title VII,

Footnote
1/

Continued
conciliation efforts . We can perceive
no reason to require or ivate plaintiffs
to file suit before the EEOC completes
conciliation efforts i f tne EEOC itself
is no* so constrained. 5 96 if.2d at 1279

De fend an t3 cl1 so suggS3swU thatl the Pa.n *—1 n» 3 no Id ing
i 5 Ineonsis £en t w 1 ti in ca3Ti3 tlhat apol ied 1 3cn 6 3 £0
Ti tle VI I ac£ j.ons orougn tl bY tn0 £EOC The se arTi dX 3 —
C inguish abl Cl from the ipS*-ant case . In r*EOC V . L iLO
Loan Corp. , 53 4 tf•2 d 35 3 3tlh C 1 V* 1973) / f 0 z examp ie ,
tn<n o mm iss ion ' s unexpl ain6d f ailur- s> to 0ropS3 'Tlv COnduc t
its investigation accounted for a four and one-half year 
delay during which the defendant company experienced 
virtual disintegration and lost evidence crucial to its 
defense. That case, and t.ne rest cited, deal only wit.n 
the propriety of invoking laches against the EEOC, which 
alone controls t.ne pace of its administrative procedures 
and litigation. Neither they nor the instant case reac.n 
the issue of whether inexcusable governmental delay 
should be imputed to blameless private plaintiffs.

- 9 -



3/42 U.s.c. 2 0 0 0 e-3 (c) , expressly permits employers ana 
unions to apply to the Commission and the courts for 
exemotions if the regulations impose undue na_d^hip 
in individual cases. In this case, moreover, Gulf destroyed 
relevant documents as early as 1969, 596 E.2a at 1257, and 
kect destroying records even though it knew that the CEOC 
until March 1976 was processing a ^oniniiosone. s cna_ge 
raising most of the same claims as the private charges. 
Whatever orejudice Gulf may have suffered by ics reckless 
destruction of records, therefore, was at its own hands.

5 7 §709(c) reads in part:
Ev3 ry employer. . . sna 1 1 ( 1 ) mak .a and kee
record s relevant »-0 the d  ̂t a rmina +- i0ns
of whe ther unlawf u1 empioymen t orac ic25
have been or are bdaing commit ted ,
( 2 ) Pta 3 0 £V3 such y~ecords for 3 UCh p i-
oras , and ( 3) mak a such •repor 13 tne y*e fr om
a s the Comm iss ion 3hail P resc r ibe by
r eguia tion or ordey*, afV ar publ ic h6 ar m g  ,
as r easonabl e , necPissar Y F or appr OP Vi a ra
f 0 r the enfo r c 3 men£ of th is 3uccn a p Lm  ̂"
or the regul at ion.3 or orde r s u Oul r*euryde r

Any employer. . . which believes that the
application to it of any regulation or 
order issued under this section would 
result in undue hardship may apply to 
the Commission for an exemption from the 
application of such regulation or order, 
and, if such application for an exemption 
is denied, bring a civil action in the 
United States district cour; for the 
district where such records are kept.
. . . the Commission or tne court . . .
may grant appropriate relief. . .

1 0



C0NCLU3I0M
The Court should adopt the Panel opinion and 

judgment vacating summary judgment in favor of Gulf 

and the unions.
Respectfully submitted.

LEROY D. CLARK 
General Counsel
JOSEPH T. SDQIN3 
Associate General Counsel
LUTZ ALEXANDER PRAGER

SUsAN BUCKINGHAM REILuY 
Attorneys
EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION 
2401 S Street, N .W . 
vvasnington, D.C. 20505 
(202) 534-5150

1 1



ATTACHMENT



EOUAL ; P L O Y . V E N T  C \ ‘TZ:~. . U N !  . Y CO.V. !v! i £ 3 i  O N  

W A S H I N G T O N .  O . C .  20500

\p? ;.<q  pj\ yr) r jy
in nC/n_Y »-«n U* to

TO: Eduardo ?e:.a,
Office o-= n r-.rrvr' T -I *

ra ̂  *• Q V* 
-

Lorsroo Ramirez, P.cgio; 
Dallas Regional Office

FROM:

Herbert McClees, District Dirccrt 
Houston District office

. . .  W * ' /David W . Z u 9 s c h v;e r a t. < ■ //;, > /
Assistant General Couhsef 
Trial Litigation Branch (Hq.)

SULJECT: Termnination of 70/ Review or Guir Refineiy Ccro

The ourpose or this memorancum is 
terminated, as unproductive, our 707 r 
corp. for the reasons stated or

advise you that v 
evisv. of the abc 

rig attached rr.emcit3.p.cv
dated 2/5/78, from Samuel J. 

:o the natter.
[arris, the Senior .rial

cc: William L. Robinson
Associate General Counsel

Samuel J. Harris 
Senior Trial Attorney

t



CERTIFICATE 0? SERVICE

I hereby certify that copies of the foregoing brief 

were today served by first class nail on the following 

counsel of record:
CARL A. PARKER, ESQ. STELLA M. MORRISON, ESQ.
449 Stadium Road 1015 East Gulfway Drive
Port Arthur, Texas 77640 Port Arthur, Texas 77640

WILLIAM G. DUCK, ESQ. 
SUSAN R. SEWELL, ESQ. 
U.S. JONES, ESQ.
P.0. Box 3725 
Houston, Texas 77001

ULYSSES GENS THIBODEAUX, ESQ.
425 Alamo Street
Lake Charles, Louisiana 7060
CHARLES E. COTTON, ESQ.
Suita 500
348 Barcr.ne Street
New Orleans, Louisiana 70601

BARRY L. GOLDSTEIN, ESQ. 
Suite 940
806 15th Street, N.W. 
Washington, D.C. 20006
JACK GREENBERG, ESQ. 
PATRICK O. PATTERSON, ESQ. 
10 Columbus Circle 
New York, New York 10019

(

SUSAN BUCKINGHAM REILLY 
Attorney
EQUAL EMPLOYMENT OPPORTUNITY 

COMMISSION 
2401 E Street, N.W. 
Washington, D.C. 20506 
(202)' 534-6150

October 22, 1979