Miller v. International Paper Company Brief for Appellants

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Paul Brest and Iris Brest Oral History

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F or t u b  F ifth  C ircu it  

No. 25016

J am es  P . Mi leer , et al.,

v.
Appellants,

I n tern ation al . P aper C o m p a n y , et al.,
Appellees.

appeal  from t h e  u n ited  states district  court for t h e

SOUTHERN DISTRICT OF MISSISSIPPI

BRIEF FOR APPELLANTS

J ack  G reenberg 
J am es M. N abrit , III 
R obert B elton  
G abrif.lle  A . K ir k

10 Columbus Circle 
New York, New York 10019

M arian  E. W rig h t  
R euben  V. A nderson 
P a u l  A . B rest 
I ris B rest

538V2 N. Parish Street 
Jackson, Mississippi 39202

Attorneys for Appellants
A lbert  J . R o sen th al

435 West HGth Street 
New York, New York 10027 

Of Counsel



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I N D E X

Statement of the Case ..................................................... 1

Specification of Errors ..................................................... 3

A rg u m en t  :

L The District Court erred in dismissing the ac­
tion as untimely ................. .................................  3

A. Notice from EEOC is a prerequisite to a 
civil suit under Title VII ..............................  5

13. Appellants did not lose their right to bring 
a civil action because EEOC failed to notify 
them within 30 (or 60) days after they filed 
their charges ...................................................  9

II. The District Court erred in holding that this 
action could not be maintained as a class action 15

A. A class action is maintainable under Title
V I I .........................     17

B. Named plaintiffs may represent a class the
members of which have not pursued the ad­
ministrative remedies of Title V I I ..............  20

III. The District Court erred in assessing appel­
lants for $250 attorneys fees and costs, pay­
able to appellee International Paper Company 25

C onclusion  ...................................      29

Certificate of Service ...............   30

PAGE



11

A ppen d ix  :

Order in Lea v. Cone Mills .................................. . la

Order in Robinson v. Lorillard .............................. 3a

PAGE

T able of Oases

Anthony v. Brooks, 65 LRRM 3074 (N.D. Ga. 1967) ....7,19

Bowe v. Colgate-Palmolive Co., 272 F. Supp. 332 (S.D.
Ind. 1967) ........................................................................ 19

Choate v. Caterpillar Tractor Co., 274 F. Supp. 776
(S.D. 111. 1967) ..............................................................  7

Cunningham v. Litton Industries, 66 LRM 2697 (C.D.
■ Cal. 1967) .........' .............................................................  7

■\

Dent v. St. Louis-San Francisco Ry. Co., 265 F. Supp.
56 (N.D. Ala. 1967) ............................................... on, 7, lOn

Evenson v. Northwest Airlines, Inc., 268 F. Supp. 29 
(E.D. Va. 1967) ........................................................ 5n, lOn

Griggs v. Duke Power Co., 67 LRRM 2616 (M.D. N.C. 
1967) ..............................................................................19,22

Hall v. Werthan Bag Corp., 251 F. Supp. 184 (M.D.
Tcnn. 1966) .................................................14,18,19, 21, 22

Hicks v. Crown-Zellerbach Corp., No. 16638 (E.D. La. 
June 13, 1967) .........................................................19,21,24

International Chemical Workers Union v. Planters 
Manufacturing Co., 259 F. Supp. 365 (N.D. Miss. 
1966) ...................... .................................................... -•••• 8

Jenkins v. United Gas Corp., 261 F. Supp. 762 (E.D.
Tex. 1966) ......................     ™

PAOE

iii

Lance v. Plummer, 353 F.2d 585 (5th Cir. 1965), cert.
den., 384 U.S. 929 (1966) .............................................  19

Lea, et al.'v. Cone Mills Corp., No. C-176-D-66 (M.D.
N.C. June 27, 1967) ....................................................... 22

Mondy v. Crown-Zellerbach Corp., 271 F. Supp. 258
(E.D. La. 1967) .................................................5n, 6, 9, 21n

Moody v. Albemarle Paper Co., 271 F. Supp. 27 (E.D.
N.C. 1967) .......................................................... 5n, 7,19, 22

Quarles v. Philip Morris, Inc., 271 F. Supp. 842 (E.D.
Va. 1967 .................................. ................................... lOn, 21

Quarles v. Philip Morris, Inc., 67 LRRM 2098 (E.D.
Va. 1968) ......................... :.... :......................................19,21

Reese v. Atlantic Steel Co., 67 LRRM 2475 (N.D. Ga.
1967) ..............................................................................7,10n

Robinson v. P. Lorillard Co., Case No. C-141-G-66 
(M.D. N.C. January 26, 1967) ......................... :.........  19

Skidmore v. Swift & Company, 323 U.S. 134 (1944) .... 8

Udall v. Tallman, 380 U.S. 1 (1965) .............................. 8 '
United States v. Jefferson County Board of Education,

372 F.2d 836 (1966), aff’d en banc 380 F.2d 896 (5th 
Cir. 1967) ....................................................■-..................  8

Ward v. Firestone Tire & Rubber Co., 260 F. Supp. 579 
(W.D, Tenn. 1966) .....................................................7, lOn

S tatutes

42 U.S.C. §2000e-5(a) ............

Civil Rights Act of 1964 ........ .

29 C.F.R. §1601.25(a) and (b)

.............. -.....  U3

............... 3,17,19

3n, 5n,10,lOn,14



IV

Federal Rules of Civil Procedure, Rule 18(a) ............. 15n

Federal Rules of Civil Procedure, Rules 23(a) and 
23(b)(2) ........................................................................17,18

PAGE

Federal Rules of Civil Procedure, Rule 30(a) .............. 27

O th e r  A u th o rities

Advisory Committee Note to amended Rule 23, 86 Sup.
Ct. No. 11, Yellow Supp. at 34 (1966) (reprinted in 
28 U.S.C.A., F.R.C.P. 17-33, following Rule 23) ....... 19

Berg, Equal Employment Opportunity under the Civil 
Rights Act of 1964, 31 Brooklyn L. Rev. 81 (1964) .... 8

CCH Employment Practices Guide 17,252 ..................  20
Commission Decision 11/23/65 .......................................  7

31 Fed. Reg. 14255 (Nov. 4, 196j6) .................................. 13

110 Cong. Rec. 2805 (daily ed. 2/10/64) ......................  11

110 Cong. Rec. 12295 (1964) ...........................................  5n

1 Davis, Administrative Law Treatise, Sec. 5.06 (1958) 8
EEOC, First Annual Report .........................................  24

General Counsel Opinion 10/25/65 ................................ 5n

Hill, Twenty Years of State Eair Employment Practice 
Commissions: A Critical Analysis with Recommen­
dations, 14 Buffalo L. Rev. 22 (1964) .................... . 12n

Norgren and Hill, Toward Fair Employment (1964) .... 12n

Opinion Letter 11/17/65 .................................................5n, 7
Opinion Letter 2/3/66 ..................................................... 20

In t h e

Shiite ( ta r t nf Appeals
F or t h e  F if t h  C ircu it  

No. 25616

J am es  P . M il l e r , et al.,
Appellants,

v.

I n tern atio n al  P aper C o m p a n y , et al.,
Appellees.

APPEAL FROM TH E UNITED-STATES DISTRICT COURT FOR TH E 

SOUTHERN DISTRICT OF M ISSISSIPPI

BRIEF FOR APPELLANTS

Statement of the Case

This is an appeal from the order of November 20, 1967, 
of the United States District Court for the Southern Dis­
trict of Mississippi, entering summary judgment for ap­
pellees in an employment discrimination action brought 
under Title VII of the Civil Rights Act of 1964, 78 Stat. 
253, 42 U.S.C. §2000e et seq. (hereinafter sometimes re­
ferred to as “Title V II” ).

In December, 1966, appellants filed charges of discrim­
ination with the Equal Opportunity Employment Com­
mission (hereinafter referred to as “EEOC” or the “ Com­
mission” ), naming as respondents the International Paper



2

Company and the unions which represent the company’s 
employees at its Moss Point, Mississippi plant (R. GO- 
65).1 On May 12, 1967, pursuant to the request of ap­
pellants’ counsel, EEOC wrote to appellants informing 
them of their right “within thirty (30) days of receipt of 
this letter to institute civil action in the appropriate Fed­
eral District Court” (R. 65-73). On “June'9, 1967, appel­
lants filed this action against the appellees (R. 1-15).

On August 3, 1967, and August 4, 1967, the unions 
(R. 42-44) and company (R. 46-47), respectively, filed 
motions to dismiss pursuant to Rule 12 of the Federal 
Rules of Civil Procedure. The district court, per Judge 
William Harold Cox, treated the motion to dismiss as a 
motion for summary judgment and granted the motion, 
holding that the action was untimely filed because it_.was 

^brought more than sixty (60) days after the charges of 
discrimination were filed with the EEOC, and that the 
suit could not be maintained as -a class action. The dis- ~ 
trict court also assessed appellants with costs and attor­
neys fees in the amount of $250 for their failure to appear 
at depositions noticed by the unions on Saturday, July 8, 
1967.

On November 29, 1967, appellants filed a notice of ap­
peal and a motion for a stay of the execution of the 
judgment pending the deposition of the appeal.

1 United Papermakers and Paperworkers, AFL-CIO ; Local No. 
203 of United Papermakers and Paperworkers, AFL-CIO ; Singing 
River Local No; 384 of the United Papermakers and Paperworkers, 
AFL-CIO ; International Brotherhood of Pulp, Sulphite, and Paper 
Mill Workers, AFL-CIO; Local No. 379 of International Brother­
hood of Pulp, Sulphite and Paper Mill Workers, AFL-CIO; Inter­
national Brotherhood of Electrical Workers, AFL-CIO and Local 
No. 181G of International Brotherhood of Electrical Workers, AFL-
CIO.

i

Specification of Errors

1. The district court erred in holding that this suit was 
not timely filed.

2. The district court erred in holding that the appellants 
could not maintain a class action pursuant to Title VII 
of the Civil Rights Act of 1964.

3. The district court erred in assessing appellants with- 
costs and attorneys’ fees payable to the International Paper 
Company for their failure to appear at the depositions on 
Saturday, June 8, 1967.

The District Court erred in dismissing the action as 
untimely.

In December, 1966, pursuant to Section 706(a) of the 
Civil Rights Act of 1964, 42 U.S.C. §2000e-5(a), appellants 
filed charges of discrimination against appellees with the 
Equal Employment Opportunity Commission.

After the expiration of more than sixty (60) days, 
pursuant to 29 C.F.R. §1601.25a(b),2 appellants demanded

2 29 C.F.R. §3601.25a(a) and (b) provides;
a) The time for processing all cases is extended to sixty days 

except insofar as proceedings may be earlier terminated pur­
suant to §1601.19.

b) Notwithstanding the provisions of subsection (a) hereof, 
the Commission shall not issue a notice pursuant to §1601.25 
prior to a determination under §1601.19 or, where reasonable 
cause lias been found, prior to efforts at conciliation with re­
spondent, except that the charging party or the respondent 
may upon the expiration o7 sixty days after'the filing of the 
charge or at any time thereafteigdcnnnid in writing that such

___ notice issue, and the Commission’sliall prompt I)’ issue” .such-  
~~ notice to all parties,,

I



4

that the Commission issue notice to the parties advising 
appellants of their right to tile suit in federal court. As 
a result of this demand, the Commission informed appel­
lants in letters dated May 12, 1967, three months after 
the end of the sixty (GO)-day period (after the filing of 
charges with EEOC), that they may “within thirty (30) 
days of receipt of this letter institute a civil action in 
the appropriate federal district court” (R. 65-73). This 
was the first and only notice that appellants received ad­
vising them of their right to file suit. On June 9, 1967, 
within thirty (30) days of receipt of this notification, 
appellants filed this action in the United States District 
Court for the Southern District of Mississippi.

The district court granted summary judgment for the 
appellees because the action had not been “ timely filed” 
within the requirements of Section 706(e) of Title VII.
In reaching this decision, the court relied on two seemingly 
inconsistent arguments: First, notice from EEOC is not 0 , 
a prerequisite to a civil action under Title VII and appel­
lants erred in failing to sue within the time limits pre­
scribed by its opinion, notwithstanding the absence of 
notice.3 4 Second, although notice is a prerequisite, the Com- (T 
mission’s failure to notify appellants of their right to sue 
within this time period precludes this suit." Neither view 
can be sustained by the language or purpose of the Act 
and both views are contrary to the decisions construing 
the language of the Act.

3 In footnote 2 of the opinion, the court below seems to so hold 
(JR.. 57).

4 “ The charge had to be filed first and it was mandatory that the 
Commission in this case notify the aggrieved person immediately 
if it were unable to obtain voluntary compliance with the act so 
as to entitle the offending [sic] party to file a suit” (R. 58).

5

A. Notice from EEOC is a prerequisite to a civii suit 
under Title VII.

In a footnote, which is nearly all of the opinion on this 
point, the district court hold that thirty (30) days after 
the charges were filed with EEOC each aggrieved party 
was entitled to bring suit within the next thirty (30) days, 
whether or not he has received notice from the Commis­
sion (R. 57).5

“ It, appears that the district court erroneously held that the 
waiting period was only thirty (30) days (R. 57, ii. 2). Although 
Section 706(e) speaks of an initial waiting period of thirty (30) 
days, in unequivocal language it also grants to the EEOC the power 
to extend that period by an additional thirty days:

(e) If within thirty days after a charge is filed with the Com­
mission (except that 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 com­
pliance with this title, the Commission shall so notify the 
person aggrieved and the civil action may, within thirty days 
thereafter, be brought against the respondent named in the 
charge. . . . (Emphasis supplied.)

Early in its history, the Commission began to take the full sixty 
dayrs in all cases, and on October 28, 1966, it embodied this practice 
in its formal regulations:

(a) The time for processing all cases is extended to sixty days 
except insofar as proceedings may be earlier terminated pur­
suant to section 1601.19. 29 C.F.R. §1601.25a(a).

Every court which has considered the remedial scheme of Title 
VII has accepted the Commission’s practice, and the courts have 
unanimously considered the mandatory waiting period to be sixty 
(60) days. See, c.g., Mondy v. Crown-Zcllerbach Corp., 271 E. 
Supp. 258, 261 (E.D. La. 1967); Moody v. Albemarle Paper Co., 
2/1 P. Supp. 27, 29 (E.D. N.C. 1967); Evenson v. Northwest Air­
lines, Inc., 268 P. Supp. 29, 31 (E.D. Va. 1967); Bent v. St. Louis- 
San Francisco By. Co., 265-P. Supp. 56, 58 (N.D. Ala. 1967); see 
also 110 Cong. Rce. 12295 (1964) (Remarks of Senator Humphrey). 
In practice, the Commission has generally taken much more than 
sixty (60) days, and in any event has not sent its notice to the 
aggrieved party until a reasonable time after the sixty (60) days 
had elapsed. See Commission Decision 11/23/65; General Counsel 
Opinion 10/25/65; Opinion Letter 11/17/65. In Bent, supra, the



6

The applicable language of Section 706(e) provides:

. . . the Commission shall so notify the person ag- 
grived and a civil action may, within thirty days 
thereafter, be brought against the respondent named 
in the charge. . . . (Emphasis added.)

y  The district court completely disregarded the clear lan­
guage of Section 706(e) and the extensive precedents 
construing this language which points out that notice 
must issue and a suit be brought within 30 days “ there­
after” and left the notice requirement with no real pur­
pose within the statute’s remedial scheme. Why indeed 
did Congress so clearly require that notification issue prior 
to the bringing of a civil suit by a charging party if the 
charging party may file suit before receiving such notice ?

J  To counsel’s knowledge, with only one exception, every 
court considering the scope of Section 706(e) has held 
that notice from the Commission is a prerequisite to com­
mencement of civil litigation. In Mondy v. Zellerbach 
Cory., 271 F. Supp. 258, 261 (E.D. La. 1967), in direct 
response to the argument made by the court below, it 
was held:

[If an aggrieved party filed suit] without first re­
ceiving the statutory notice, he would be met with 
the objection that he was suing prematurely, since 
42 U.S.C.A. Section 2000e-5(e) says that he may bring

court characterized the sixty (60)-clay limit as directory, rather 
than mandatory, upon the Commission, and all of these cases may 
be regarded as inferentially so holding.

This error is, fundamentally, irrelevant to disposition of this 
appeal, however; for under the rationale of the district court’s 
holding that the aggrieved party must file suit within thirty (30) 
days after the close of the thirty (30)-day waiting period, appel­
lants' suit would be untimely even granting a sixty (60)-day 
waiting period.

7

a civil action after being notified by the Commission 
of its failure to obtain voluntary compliance. There­
fore, he would have to wait until he received the 
statutory notice from the EEOC.

Accord: Dent v. St. Louis-San Francisco Ry. Co., 265 
F. Supp. 56 (N.D. Ala. 1967); Ward v. Firestone Tire do 
Rubber Co., 260 F. Supp. 579 (W.D. Tenn. 1966) (dicta);
Moody v. Atbermarle Paper Co., 271 F. Supp. 27 (E.D.
N.C. 1967); Anthony v. Rrooks, 65 LRRM 3074 (N.D. Ga..
1967); Reese v. Atlantic Steel Co., 67 LRRM 2475 (N.D.
Ga. 1967); Choate v. Caterpillar Tractor Co., 274 F. Supp.
776 (S.D. 111. 1967). Cunningham v. Litton Industries, —■ ^^*<4 
66 LRRM 2697 (C.D. Cal. 1967), holding contrary, sug­
gests no understandable basis for its conclusion, and ap­
pellants respectfully submit that it is incorrect. (On ap­
peal to the United States Court of Appeals for the Ninth 
Circuit.)

Indeed, from the inception of its administration of 
Title VII, EEOC has recognized that notice is a pre­
requisite to a private civil action. Several months after ^ 
the effective date of the Title (July 2, 1965), the General 
Counsel stated unequivocally the Commission’s interpre­
tation of Section 706(e) :

The 30-day period for filing of suits under Section 
706(e) does not commence automatically upon the 
expiration of the statutory period during which the 
Commission is authorized to obtain voluntary com­
pliance; notice by the Commission under Section 706(e) 
is an integral part of the plaintiff’s cause of action, 
consequently, the period within which to file a civil 
action does not commence until notice from the Com­
mission has been received by the person aggrieved. 
Commission Decision, 11/23/65; CC Opin. 10/25/65;
Opin. Hr., 11/17/65.



8

Because this interpretation constitutes a contemporaneous 
and consistent interpretation of a statute by the agency 
charged with its administration, it is entitled to great 
respect by the courts. As early as 1827, the Supreme Court 
acknowledged that administrative constructions are highly 
persuasive guides to statutory interpretation:

In the construction of a doubtful and ambiguous law, 
the contemporaneous construction of those who were 
called upon to act under the law, and were appointed 
to carry its provisions into effect, is entitled to very 
great respect. Edwards’ Lessee v. Darby, 12 Wheat. 
206, 210 (1827).

Recent cases havg reiterated this approach to statutory 
construction. See 1 Davis, Administrative Law Treatise 
Sec. 5.06 (1958), and cases cited; Udall v. Tollman, 380 
U.S. 1 (1965) ; Skidmore v. Swift & Company, 323 U.S. 
134, 139-40 (1944); United States v. Jefferson County 
Board of Education, 372 F.2d 836, 851 (1966), aff’d en 
banc 380 F.2d 896, 902 (5th Cir. 1967); see, Berg, Equal 
Employment Opportunity under the Civil Rights Act of 
1964, 31 Brooklyn L. Rev. 81-82, n. 35 (1964). In Inter­
national Chemical Workers Union v. Planters Manufac­
turing Co., 259 F. Supp. 365, 366 (N.D. Miss. 1966) Chief 
Judge Clayton, then sitting on the Court of the Northern 
District of Mississippi, applied this principle of statutory 
construction to uphold the EEOC’s interpretation of the 
phrase “aggrieved person” in Title V II :

It has long been settled that the practical inter­
pretation of a statute by the executive agency charged 
with its administration or enforcement, although not 
conclusive on the courts is entitled to the highest 
respect. . . . Not only is the Commission’s interpre­
tation of the phrase “aggrieved person” that of the

9

agency responsible for administering (lie Act; it is 
also a contemporaneous construction of the statute 
by those responsible “ for setting its machinery in mo­
tion” and for guaranteeing the efficient working of 
the statute’s machinery while it is “ still untried and 
new.”

B. Appellants did not lose their right to bring a civil 
action because EEOC failed to notify them within 
30 (or 60) days after they bled their charges.

The district court offered the following alternative 
ground for its conclusion that the suit was barred:

The charge had to be filed first and it was mandatory 
that the Commission in this case notify the .aggrieved 
person immediately if it were unable to obtain volun­
tary compliance with the act so as to entitle the 
offending (sic) party to file a suit (R. 57-58).

The court thus seemed to recognize that notice is necessary 
“to entitle” plaintiffs to file a suit, but apparently main­
tained that the Commission’s failure to issue “ timely” 
notice barred appellants from filing suit.

Other courts considering this issue have recognized the 
inconsistency and unfairness of such a holding. In Mondy 
v. Croivn-Zcllcrbach Corp., 271 F. Supp. 258, 261 (E.D. 
La. 1967), EEOC issued notice to the plaintiffs more than 
five months after they had fded the charges. The court 
held that plaintiffs were not thereby barred from bringing 
suit, writing:

Surely, Congress could not have intended for an 
aggrieved party to be denied his remedy under Title 
VII because of the failure of the EEOC to notify him 
within sixty days. We feel that the proper inter­



10

pretation of 42 U.S.C.A. Section 2000e-5(e) is that a 
charging party must file suit within thirty days after 
receipt of the statutory notice from the EEOC regard­
less of the delay before such notice is given to him.

The unfairness of prejudicing a charging party’s right 
of suit because of acts or omissions of EEOC over which 
he has no control is manifest.6

In declaring that it was “mandatory” that the Com­
mission issue notice, the district court may have been 
suggesting, however, that since appellants were entitled 
to demand that notice be sent any time after the sixty 
(60)-day period had run, their failure to make such a 
demand acted as a waiver of their right to bring suit. 
Appellants agree that 29 C.F.R. §1001.25a(b) grants to ag­
grieved parties the right to demand notice immediately 
after the mandatory waiting period has run, and to file

6 In another context— in regard to whether the right to sue under 
Title VII should be denied because EEOC had not engaged in con­
ciliation efforts prior to suit— a number of courts have recognized 
this unfairness, in upholding the right to sue. “ To require more 
would be to deny a complainant the right to seek redress in the 
courts, resulting wholly from circumstances beyond her control.” 
Evenson v. Northwest Airlines, Inc., 268 F. Supp. 29, 31 (E.D. Va. 
1967). Also in Mondy, supra, at 263:

But 42 U.S.C.A. §2000e-5(e) sets out only two requirements 
for an aggrieved party before he can sue: (1) he must file a 
charge with the E.E.O.C., and (2) he must receive the statu­
tory notice from the E.E.O.C. that it has been unable to obtain 
voluntary compliance. There is nothing more that a person 
can do, and this Court will not ask that he be responsible for 
the Commission’s failure to conciliate, as that body’s inaction 
is beyond the control of the charging party.

Accord: Reese v. Atlantic Steel Co., supra; Quarles v. Philip Mor­
ris, Inc., 271 F. Supp. 842, 846-7 (E.D. Va. 1967) ; Ward v. Fire­
stone Tire and Rubber Co., 250 F. Supp. 579, 580 (W.D. Tenn. 
1966) (dicta). Contra: Dent v. St. Louis-San Francisco Railway, 
supra (presently on appeal to this Court).

-r

suit. But that section does not require them to demand 
notice within sixty (60) days or be barred from filing suit.

As originally passed in the House, Title VII gave EEOC 
pow er-to- isstie 'cease-and-desist orders to be enforced 
in the federal courts, ll.lt. 7152, 110 Cong. Rec. 2805 
(daily ed. 2/10/64). When the Senate modified these 
procedures to give the EEOC only informal conciliatory 
powers, it compensated by assuring aggrieved parties a 
right to a day in court. Section 706(e) was designed to 
insure that the right to sue could not be obstructed by 
delays in Commission action. As Senator Javits ex­
plained in reference to the effect the Commission’s failure 
to find reasonable cause had upon charging party’s right 
to sue:

“ Mr. President, this provision gives the Commission 
time in which to find that there exists a pattern or 
practice, and it also gives the Commission time to 
notify the complainant whether it lias or has not been 
successful in bringing about conciliation.

# • #
“But, Mr. President, that is not a condition precedent 
to the action of taking a defendant into court. A com­
plainant has an absolute right to go into court, and 
this provision does not effect that right at all.” 110 
Cong. Rec. 14191 (June 17, 1964).

The experience under older state Fair Employment 
Practice legislation made it clear that conciliation is often 
a slow, complex and cumbersome process/ In fashioning

7 “One administrative weakness observable in virtually all exist­
ing commissions is the tendency, in dealing with exceptionally 
resistance nonconipliers, to prolong conciliation efforts over unduly 
long periods, in preference to involving the public hearing and 
cease-and-desist order procedures. The commissions have exhibited 
this tendency most frequently in eases involving related compliance



1 2

Title VII, Congress was aware that if it placed the in­
formal procedures which it had created under a rigid 
timetable, the usefulness of the Title would be destroyed. 
Xot only would most conciliations be cut short before, 
or just as, they reached a fruitful stage, but the character 
of the entire procedure would be drastically affected. 
Frank and productive discussions would be prevented, 
because both parties would know that litigation was in­
evitable, and the conciliation stage would serve only as 
an empty prelude to resolution of the dispute in court. 
Thus, the parties would often be propelled into court 
before cither so desired. Congress intended no such minor 
role for conciliation, and it took important steps to insure 
that it did not take place in the shadow of the courtroom. 
For example, it expressly provided that nothing said or 
don'e during the informal negotiations may be used in a 
subsequent proceeding (Section 706(a)).

The Equal Employment Opportunity Commission has 
confronted the difficulties raised by the complex and lengthy 
negotiations which it must undertake, and it has devised 
procedures to deal with them. To this end, Section 
I601.25a(b) of its regulations provides that notice under 
Section 706(e) will not automatically issue after sixty (60)

cases. The reluctance of the commissions to invoke the mandatory 
and legal-sanction features of the FEP laws appears to stem from 
a desire to create and preserve a public image of the governmental 
anti-discrimination effort as primarily a persuasive process, by 
keeping the evidence of coercion at a minimum level. It seems ap­
parent, however, that the net effect of the propensity to stretch out 
the conciliation process is to reduce the commissions’ over-all effec­
tiveness, mainly because it encourages determined noncompliers to 
continue flouting the law, but also because it consumes a dispro­
portionate amount of the commissions’ time and resources.”

Xorgrcn and Hill, Toward Fair Employment (1964), at p. 270. 
See also Hill, Twenty Years of State Fair Employment Practice 
Commissions: .1 Critical Analysis With Recommendations, 14 Buf­
falo L. ltcv. 22 (1064).

13 —

days if there has not yet been a finding as to reasonable 
cause or an effort at conciliation, even though this might 
take considerably longer than the sixty (60)-day waiting 
period.

The effect of this regulation is to allow the conciliation 
process to continue so long as all parties prefer it to the 
public forum; it thus encourages conciliation as an effec­
tive procedure when conditions are ripe for a successful 
settlement. At the same time, it preserves the aggrieved 
parties’ right to sue when they feel that only a court can 
offer adequate relief. This purpose was made clear at 
the time that the Commission announced its rule:

The Commission believes that in general the purposes 
of Title VII are better served by delaying the notifica­
tion under Section 706(e) until the proceedings before 
the Commission have been completed. However, we 
recognize that there may be circumstances under which 
either the charging party or the respondent may de­
sire that the right to bring ah action accrue as promptly 
as possible upon the expiration of the 60-day period, 
and where such a desire is clearly manifested, we 
believe it consistent with the statutory scheme that 
notification issue irrespective of the status of the 
case before the Commission. Accordingly, this amend­
ment is intended to state clearly the circumstances 
under which the Commission will issue notification of 
its failure to achieve voluntary compliance pursuant 
to Section 706(e) of the Act. 31 Fed. Keg. 14255 
(Nov. 4, 1966).

Moreover, the regulation is careful not to leave the re­
spondent at the mercy o f  the charging parly. If the re­
spondent believes that conciliation will lie unfruitful, or 
desires to have his reputation vindicated quickly and



14

publicly after sixty (60) days have passed, lie need only 
demand that notice issue. Under the Commission’s rule 
neither party is at the peril of excessive delay or useless 
negotiations, but fruitful negotiations are not abruptly 
and wastefully brought to an end when both sides wish 
them to continue. The Commission’s regulation gives life 
to both parts of what one court has termed Title V II’s 
“ split personality.”  1I all v. Werthan Bag Corp., 251 F. 
Supp. 184, 187 (M.D. Tenn. 1966).

If appellees were burdened by this delay, if they desired 
an immediate resolution of the charges against them, 
they had only to request that notice be sent to the plain­
tiffs. The Commission’s procedure under 29 C.F.R. 
§1601.25a(b) was open to appellees in this case, and sixty 

_(60) days after the charges were tiled they could have 
^requested EEOC to notify appellants of their right to 
 ̂ sue. ' Appellees chose not to invoke this privilege, per­
haps because they believed that the private and informal 
proceedings would bear fruit. Whatever the reason, ap­
pellees are in no position now to object to appellants’ 
purported lack of timeliness.

For the foregoing reasons appellants respectfully submit 
that the district court erred in holding that their suit 
was untimely filed.

15

II.

The District Court erred in holding that this action 
could not he maintained as a class action.

Appellants’ charges of discrimination (E. 60) fdcd with 
EEOC alleged that appellees had discriminated against 
“ Complainants and Negroes generally” by grouping them 
in segregated lines of progression with the lowest job 
ranks and pay scales, by denying them promotions on 
the basis oi race; by making them take unrelated ex­
aminations as a condition to promotion and advancement; 
by paying them less than whites doing the same jobs 
(R. 62), and by denying them access to the apprenticeship 
program (R. 63). Accordingly, the complaint (It. 1) filed 
on June 9, 1967, was a class action, on behalf of appellants 
and other Negro persons similarly situated who were 
employed or might be employed by International Paper 
Company, Southern Kraft Division, Moss Point, Mis­
sissippi (paragraph IV), averring that appellees dis- 
crimnated against appellants and this class generally, and 
seeking class relief.8

The district court held that the suit could not be main­
tained as a class action, stating:

The action is instituted by and on behalf o f  named 
plaintiffs and other unnamed male Negroes said to 
be too numerous to mention under Civil Rule 23. 
For the reasons hereinafter more specifically as­
signed, it is clear to this Court Ijgat a class action 
cannot he instituted and maintained under the proce­
dural provisions ot this enactment by any anonymous

.inn 
■ 'I .

■I V.ll i -• J > ■ • I -1 f i • * I . Inf nit h 
fr l • . < . I.1 f . • ? * , ’ 'itf ■ f 1 t.r 

f Ilf . (,.<ft • •



16

group of people. Specifically, no person is entitled 
y  to the benefits of the act who has not strictly com­

plied with the conditions precedent to the right to 
institute a suit of this kind in a federal court. Section 
2000e-5(a) (1) makes it abundantly clear that an ag­
grieved person must first file a charge with the 
Equal Employment Opportunity Commission, and that 
such person claiming to be aggrieved shall within 
a given time institute a suit in a United States Dis­
trict Court to redress his grievance, if such action 
is to be instituted. This suit is purely statutory. 
It is a creature of statute and Congress as creator 
of such right of action has strictly and sharply de­
fined its method of enjoyment. No class action may 

V' be maintained in a situation of this kind where it must 
* be shown that each plaintiff has exhausted his ad­

ministrative remedies, and has brought the consequent 
action within the time provided by statute. The ques­
tions of law and fact are thus not common to the 
entire class and the claims and defenses of the repre­
sentative parties are not the same and are not en­
tirely typical of the other claims and defenses as 
required by Civil Rule 23(a). The purpose and effect 
of a class action is incompatible with the require­
ments of this statutory scheme as a condition precedent 
to the right of enjoyment of its benefits. It is ac­
cordingly the considered view of this Court that this 
suit cannot be maintained as a class action (R. 55-56).

It is not clear whether the district court held that no 
class action whatsoever may be brought under Title VII, 
or whether it held that in such an action the class repre­
sented by named plaintiffs must bo limited to persons who 
have previously exhausted their administrative remedies; 
accordingly, appellants discuss these issues separately.

17

A. A class action is maintainable under Title VII.

The uncontroverted averments of the complaint bring it 
squarely within the requirements of Rules 23(a) and 

,_23.Cb)-(2) of'the Federal Rules of Civil Procedure:

23(a)(1). The class of Negro employees (and prospec­
tive employees) of the Moss Point plant of the Inter­
national Paper Company is plainly so numerous that 
joinder of all members is impracticable.9

23(a)(2). The right to relief for all members of the 
class originates in Title VII of the Civil Rights Act of 
1964 ;10 the class as a whole is injured by the appellees’ 
general policies of racial discrimination in the institution 
and application of tests, promotion and seniority systems.11

23(a)(3). Appellants’ claims arise out of appellees’ 
general policies of discrimination in testing, promotion, 
and seniority.12

23(a)(4). Appellants’ averment that they fairly and 
adequately protect the interest of the entire class13 has 
not been controverted by appellees.

23(b)(2). The appellees’ general policies and conduct of 
discriminating in testing, promotion, and seniority are 
based on the fact that the persons discriminated against 
are employed and potentional employees of the Negro 
race, and it is in terms of this race that the class is defined.14

9 Complaint, III. The number of employees at the Moss Point 
plant is not in evidence; however, the complaint avers that there 
arc over 100. IV (A ).

10 Complaint, I.
“ Complaint, V I (A ) ,  VII.
15 Complaint, V 1. VII.
“  Complaint,  VII

“  * "omplniut 111



18

The relief sought, inter alia, is an injunction prohibiting 
discrimination against appellants and the entire class.

As the court stated in Ilall v. Wertlian Bag, supra, 
at 186: “ [Rjacial discrimination is by definition a class 
discrimination. If it exists, it applies throughout the 
class.” Class actions are the most appropriate device 
for persons challenging and seeking broad injunctive relief 
against racial discrimination. The most appropriate sec­
tion of Rule 23 of the Federal Rules of Civil Procedure 
for the maintenance of his class action is (b)(2). Indeed, 
this action is the model which (b )(2) was designed to 
include. The comment of the advisory committee which 
prepared the new Rule 23 makes this crystal clear.

Subdivision (b )(2). This subdivision is intended to 
* reach situations where a party has taken action or 

refused to take action with respect to a class, and 
final relief of an injunctive nature or of a correspond­
ing declaratory nature, settling the legality of the 
behavior with respect to the class as a whole, is 
appropriate. Declaratory relief ‘corresponds’ to in­
junctive relief when as a practical matter it affords 
injunctive relief or serves as a basis for later in­
junctive relief. The subdivision does not extend to 
cases in which the appropriate final relief relates ex­
clusively or predominantly to money damages.

Action or inaction is directed to a class within the 
meaning of this subdivision even if it has taken 
effect or is threatened only as to one or a few members 
of the class, provided it is based on grounds which 
have general application to the class.
Illustrative are various actions in the civil-rights field 
where a party is charged with discriminating unlaw­
fully against a class, usually one whose members are

19

incapable of specific enumeration. (Advisory Com­
mittee Note to amended Rule 23, 86 Sup. Ct. No. 11, 
Yellow Supp. at 34 (1966) (reprinted in 28 U.S.C.A., 
F.R.C.R, ,17-33, following Rule 23). (Emphasis 
added.))

The Fifth Circuit Court of Appeals in Lance v. Plummer, 
353 F.2d 585 (5th Cir. 1965), cert, denied. 384 U.S. 929 
(1966), a case interpreting Title II of (he Civil Rights 
Act of 1964, has ruled that a class action may be main­
tained in actions arising under that Title. Title II (dealing 
with public accommodations) authorizes in Section 204(a) 
a private action by a. “person aggrieved” by unlawful dis­
crimination. Title VII is virtually identical in this respect 
to Title II, including the use of the same term “ person . . . 
aggrieved” . The Fifth Circuit stated:

“ We do not find this argument persuasive. . . . We
conclude that Congress did not intend to do away with
the right of named persons to proceed by a class action
for enforcement of the rights contained in Title II of
the Civil Rights Act.” 353 F.2d at 591.

*

To counsel’s knowledge, every court that has considered 
the question has held that a class action can be maintained 
under Title VII. Hall, v. Wertlian Bag Carp., supra; 
Hicks v. Crown-Zellerbach Corp., No. 16638 (E.D. La. 
June 13, 1967); Moody v. Albemarle Paper Co., 271 F. 
Supp. 27 (E.D. N.C. 1967); Robinson v. / ’. Larillard Co., 
Case No.'C-141-0-66 (M.D. N.C. January 26, 1967); An­
thony v. Brooks, 65 LRKM 3074 (N.l). kti. 1967); Brians 
v. Puke Power Co.. 67 LRKM 2616 (M.D. VC. 1967); 
Quarles v. Phihji Monis. toe,, 67 1,1,'|»M 2",,M ( )•; D. \’n 
ODD). v r „ l , r o ,  273 r  Kuril 332
 ̂S ! * 1 ? »j ] ) I*i J • tt 11»> 9 v / » 9 ,{ 1 /.i * (' t ‘S; j



2 0

that a class action could be maintained under Title VII, 
but held that the case before him was, on its facts, in­
appropriate for the class action procedure.

Nothing in the text of Title VII or its legislative history 
speaks against class actions, and, indeed, the Equal Em­
ployment Opportunity Commission in an Opinion Letter 
(February 3, 1906) explicitly provides:

“ A person claiming to be aggrieved who brings suit 
under Section 706(e) of Title VII may maintain a 
class action, pursuant to the provisions of Rule 23(a), 
Federal Rules of Civil Procedure. Other employees 
of the employer may intervene as parties plaintiff, 
notwithstanding the fact that they did not file a charge.” 
CCI1 Employment Practices Guide 17,252, p. 7371.

Constructions and interpretations by agencies charged with 
the administration of federal statutes are entitled to great 
weight. See the discussion in argument I, supra, pp. 8-9.

B. Named plaintiffs may represent a class the members 
of which have not pursued the administrative reme­
dies of Title VII.

To hold that a class action can be maintained under 
Title VII, but that each member of the class must have ex­
hausted the administrative remedies provided by Title 
VII, is to hold, for all practical purposes, that a class action 
cannot be maintained under Title VII. The class which ap­
pellants represent is partly composed of Negro persons 
similarly situated who may be employed by the appellee 
company in the future and an injunction is sought enjoining 
the appellees from discriminating against appellants and 
members of the class in the future. The persons who may

21

be employed and who may be subjected to racial discrimina­
tion are not yet sufficiently defined so as to enable each 
of them to file charges with EEOC. Tims, the basic and 
significant question before this Court must be whether a 
class action can be maintained by persons (such as the 
appellants herein) who have exhausted flic administrative 
remedies, on their own behalf and on behalf of others 
similarly situated but who themselves have not pursued 
the administrative remedies of Title VII.

At least five district courts have recognized that, in 
class actions under Title VII, the class may be composed of 
persons who have not filed charges with EEOC.16 In Hall 
v. Werthan Bag Corp., supra at 188 the court stated:

What this court conceives to be the true purpose of 
this requirement would not be served by restricting the 
class for whose benefit this action may be maintained 
to only those Negro employees or would-be employees 
of the defendant who have resorted to the Commission, 
that is, to Robert Hall alone, for he is admittedly the 
only such person who has exhausted Commission pro­
cedure.

The identical conclusion was reached by Judge Ileebe in 
Hicks v. Crown-Zellerbacli, supra. There, Judge Ileebe 
permitted a class action to be maintained and permitted 
a plaintiff who had filed a charge with EEOC to represent 
all employees in the Box Plant, even though no other em­
ployee had filed a charge with EEOC. In Quarles v. Philip 
Morris Co., supra, a class action was maintained by (wo 
Negio plaintiffs. One plaintiff alleged (hat he was denied 
a transfer lie sought because of his race and color. The

i ( / v .  i t  „ /  V ( ' m i n i  / <  V, r  i , 1  " T )  J.' S i i t u i
f . . . .  -  . .  , . . .  ’ • ' . ' 11 V



2 2

second plaintiff alleged that the company paid him a lower 
wage rate for a job comparable to jobs performed by white 
employees who were paid at a higher rate of pay. The 
court allowed a class action to be maintained and permitted 
plaintiffs to represent and to introduce evidence concerning 
Negro persons who were discriminated against in hiring 
and in promotion. In holding that a class action could be 
maintained, Judge Butzner stated: “ [T]he effect of the 
court’s ruling was to hold that each member of the class 
was not required to pursue administrative relief for the 
correction of the same employment practices.” at 2099.

Implicit in the decisions in both Lea, et al. v. Cone Mills 
Corp., No. C-176-D-66 (M.D. N.C. June 27, 1967), and 
Griggs v. 'Duke Power Co., supra, is a finding that a class 

-> action may be maintained in behalf of persons who them­
selves have not filed charges with EEOC. In Moody v. 
Albemarle Paper Company, supra at 29, the court held 
that: “ [A] 11 potential parties in a class action seeking relief 
under the act [Title VII] are not required to have all 
joined in as a group or class in the prior written complaint 
to the Commission.” The court indicated it was following 
the rationale of Hall in this respect. If it is not a pre­
requisite for a named plaintiff to have filed a charge with 
EEOC, most certainly, it should not be a prerequisite for 
a member of the class represented by the plaintiff.

The statute and legislative history do not speak directly 
to the issue, but, as the court in Hall v. Wertlian Bag Corp., 
supra, at 186-187, noted, they are suggestive:

Section 706(i), for example, provides for a form of 
supervision by the Commission over matters arising 
as a result of a court’s order entered in a Title VII 
proceeding which suggests that Congress contemplated 
a scope of relief reaching beyond the limited interests

- 2 3

of the single “person aggrieved.” Likewise, Section 
706(g) provides that a court “ may enjoin the respon­
dent from engaging in such unlawful employment 
practice, and order such affirmative action as may be 
appropriate, which may include reinstatement or hiring 
of employees, with or without back pay * * * .” And as 
one commentator has observed, “This language is sub­
stantially unchanged from that in Section 707(e) of 
the Ilouse-passed bill, and in the context of that bill 
it clearly meant that the court should enjoin the sub­
sequent commission of unlawful employment practices 
in as broad terms as would have been proper for a 
cease-and-desist order under the NLBA.”

[There is] a dichotomy in the philosophy underlying 
the enforcement provisions of Title V II: emphasis 
is placed primarily on protection of persons subject to 
discrimination rather than on protection of the public 
interest, but for the protection of persons subject 
to discrimination, Congress apparently envisioned a 
rather broad scope of relief similar to that which would 
be necessary for the protection of the public interest. 
A privately instituted class action is unique in its 
adaptability to Title V II’s split personality.

The administrative.remedies provided by Title VII serve 
the function of notifying the respondent of the charges 
made against him, and giving him, the complaining party, 
and the EEOC the opportunity to work out the grievances 
through conciliation, in private, with the hope that mutual 
agreement can be achieved. But conciliation goes beyond the 
particular grievance of the complaining party:

The Commission’s conciliation program was based on 
a two-fold objective; firstly, to obtain prompt and 
appropriate relief for the charging party, and secondly, 
lo seek a remedy for the underlying problem o f  dis-



24

crimination. A charge of job discrimination is fre­
quently a symptom of wide-spread disease. By its 
very nature, discrimination is often not personal but 
generalized, often not an act of individual malice but 
more an element of a pattern of customary conduct. 
This discrimination may be limited Jo a small depart­
ment, or extend to an entire industry or region. EEOC 
conciliation approaches the individual complaint on 
the grounds that it may lead to improving the employ­
ment status for every individual who has felt the 
press of discrimination.

The foundation upon which the Commission’s con­
ciliation is based, as well as its starting point, is the 
finding that reasonable cause exists for the discrimina- 

0 tion charge. The question of whether there has been 
discrimination or not is, then, not posed by the concilia­
tor ; he works on the solution of the specific problem 
of discrimination, as well as the underlying problems 
related to it. EEOC, First Annual Report, p. 17.

Where, as in the present case, the issues raised on behalf 
of the class—the plant-wide practice of discrimination in 
testing, promotion, and seniority—were raised by the 
parties in the charge of discrimination to the EEOC, their 
subsequent suit cannot properly be limited to personal 
relief. As Judge Heebe held in Hides v. Crown Zellerbach 
Corp., supra, at 6-7:

Once the administrative remedy has been fairly ex­
hausted by one person as to an issue, we see absolutely 
no need, and in fact only wasted effort, in requiiing 
that before the Court act broadly as to that issue, 
every person affected thereby initiate and prosecute 
a complaint which will not be successful. Nor requiring 
[sic] these certainly purposeless administrative pro-

l

cccdings deprive the employer of nothing—he cannot 
be heard to say that lie might have decided to bow 
to the persuasive powers of the Commission of other 
complainants had been filed, for the opportunity to 
voluntarily comply was not only presented once and 
refused, but remains always open during the pendency 
of the judicial proceedings.

For the foregoing reasons, appellants submit that a 
class action may be maintained under Title VII and the 
class may be composed of persons similarly situated who 
themselves have not filed charges with EEOC.

III.

The District Court erred in assessing appellants for 
$250 attorneys fees and costs, payable to appellee Inter­
national Paper Company.

The district court ordered that appellants be assessed 
with all costs, including “ a reasonable attorney’s fee to 
defendant, International Paper Company, in the amount of 
$250.00, for failure of plaintiffs to appear at a deposition 
on July 8, 1967” (R. 75).16 The facts relevant to the im­
position of this penalty are as follows.

On June 28, 1967, the appellee unions filed a Notice to 
Take Deposition Upon Oral Examination of all appellants, 
the depositions to begin “ on Wednesday, July 5, 1967, begin­
ning at 2:00 P.M. on said day, and continuing thereafter 
from day to day as the depositions may be adjourned and 
until the depositions of each of said Plaintiffs named herein 
shall have been completed. . . .” (R. 25). Depositions began

" I n  its (It, fiH) mid jiidi’ iiif-iit (It 751. I fir dr.triVf
« rrrn iipou** !v  st.’i t r s  fh / i f  / t j*|h ||mfM•. f<» ur  /if n
'I-ruriri j  "



26

on July 5, and continued on Thursday and Friday, July 6 
and 7. The unions called appellant J. P. Miller as their 
first witness on July 5, and continued their examination of 
Miller on Thursday and Friday, completing it at 6:25 P.M. 
Friday afternoon (R. 39).

At the resumption of depositions on Friday afternoon 
(R. 37), and again at the close of depositions that day (R. 
3S, 40), appellants’ counsel informed counsel for appellees 
that they would be unable to continue the depositions on 
Saturday. Miss Kirk, one of the counsel for appellants, had 
other, urgent business that could not be delayed (R. 51). 
Mrs. Brest, the other counsel, also had urgent business, and 
she fell ill with a kidney infection on Friday and was re­
quired to remain in bed for several days thereafter (R. 53).

•> Counsel for appellants had attempted to arrange for 
another attorney to take over, but without success (R. 53). 
They stated that they were “willing to proceed after the 
weekend” or at any other convenient time (R. 40). Appel­
lees would not agree to postponing resumption of the depo­
sitions to a later date. Rather, Mr. Pyles, counsel for the 
appellee unions, “announced and insisted”

to everybody that I will be here in the morning at 
9:00 A.M. to continue the taking of these depositions 
and I assure you that if I and the Court Reporter are 
the only ones here, I shall ask the plaintiffs to show 
cause. I intend to put the witnesses on the stand and 
examine them (R. 39).

Counsel for the Company stated that they would also be 
present. Appellants’ counsel made it clear that they could 
not appear on Saturday, and in appellees’ presence, in­
structed the appellants-deponents not to appear since their 
counsel could not be present (R. 40-41).

27

True to their word, appellees had a court reporter pres­
ent on Saturday (R. 20-21). On July 20, 1967, the appellee 
company filed a motion to dismiss, and for costs, expenses, 
and attorneys fees, based upon appellants’ failure to at- 

~tend the depositions on Saturday, July 8 (R. 21-22); July 
20, 1967, appellee unions filed a motion to dismiss on the 
same grounds (R. 26-30). The district court declined to 
dismiss the action, but assessed appellants with a $250 
penal ty.

Rule 30(a) of the Federal Rules of Civil Procedure re­
quires that a notice of deposition “ state the time . . . for 
taking the depositions.” The appellee unions noted deposi­
tions to “ continue from day to day” until depositions of all 
of appellants had been completed. Appellants do not object 
per se to the use of the intentionally indefinite phrase 
“ from day to day” , but contend that if it is to be used 
in lieu of specific dates, it must be construed in the context 
of ordinary business practice. Appellants respectfully sub­
mit that the court may take judicial notice that Saturday, 
though not an official holiday, is also not an ordinary busi­
ness day for attorneys. This is not to say that lawyers do 
not work on Saturdays (and sometimes on Sundays as 
well), but the work is usually internal—“catching up” on 
the week’s business—and lawyers’ offices, like the courts, 
are usually closed for regular business on Saturday. Ab­
sent some agreement among counsel, or the unopposed ex­
plicit specification of Saturday in a notice of deposition, 
“from day to day”  cannot properly be construed to include 
Saturday. ^

Of course there may be special circumstances, such as 
the inability of counsel to take depositions on weekdays, 
oi the necessity of immediate discovery for emergency 
disposition of the matter in suit, which make weekends 
appropriate days for 111«• taking of d ep osition ", tbit there



28

were no special circumstances in the case at bar. Appellees 
were in no hurry. Indeed, although appellees planned to 
take the depositions of all of appellants (R. 25), by the 
afternoon of Friday, July 7, the appellee unions had com­
pleted their examination of only the first of the five appel­
lants (R. 53; deposition of J. P. Miller (not transcribed)); 
neither the appellee company nor appellants had yet ex­
amined him; and appellees were not planning to resume 

s/ taking of depositions on Monday, but rather were planning 
to recess the taking of the depositions for approximately 
three weeks (R. 40, 53).

Until Friday afternoon, July 7, appellants had no rea­
son to expect that appellees would insist on continuing 
the taking of 'depositions on Saturday. Appellees argued 

a to the district court below that appellants should, at that 
point, have moved for a protective order pursuant to 
Rule 30(b) of the Federal Rules. But it would have been 
virtually impossible to file papers, or even to find one 
of the two judges in the Southern District of Mississippi 
for presentation of an oral motion, on Friday afternoon. 
Indeed, had appellants adjourned the Friday afternoon 
depositions for this purpose, appellees would legitimately 
have complained to the court of the time and expense, 
since Mr. Adams had come from Mobile for the deposi­
tions, and since the unions had hired, and had present, 
a court reporter.

Even assuming, arguendo, the appellants’ counsel acted 
impropSSly in failing to proceed with the depositions on 
Saturday, the award of $250 counsel fee to the appellee 
International Paper Company was excessive and improper. 
Appellants unequivocally stated at the close of the Friday 
session that neither counsel nor appellants themselves 
would lie present Saturday. Appellees’ expenses in hiring 
a court reporter to appear on Saturday, and in appearing

.
" |

I

20 —  --------------------------------------------------------------

themselves, wore foolish and wasteful—not only did ap­
pellees fail to mitigate damages; what expenses they in­
curred were entirely of their own making. Finally, as­
suming that appellants were liable to pay attorneys fees 
to anyone, it was certainly not, as the court ordered, to 
the International Paper Company, which neither noticed 
the depositions nor filed any document joining in the notice 
filed by the appellee unions. The unions did not move for 
damages or attorneys fees.

CONCLUSION

For all the foregoing reasons, the order of the district 
court dismissing the action as untimely filed, holding that 
it cannot be maintained as a class action, and assessing 
appellants with $250 in costs and attorneys fees, should 
be reversed.

Respectfully submitted,

J ack  G reenberg 
J am es M . N abrit , III 
R obert B elton  
G abrielle  A . K irk

10 Columbus Circle 
New York, New York 10019

M arian  E. W righ t  
(Reu ben  V. A nderson 

, P a u l  A . B rest 
I ris B rest

538V2 N. Parish Street 
Jackson, - Mississippi 39202

Attorneys for Appellants
A lbert J. Rosenthal

135 W est llfith  SI reel 
New York, New York 10027



30

Certificate of Service

This is to certify that the undersigned, one of Appel­
lants’ attorneys, on this date, May — , 1968, has served 
two copies of the foregoing Brief for Appellants on 
Honorable C. W. Ford, Post Office Box 100, Pascagoula, 
Mississippi; Honorable Robert F. Adams, Post Office Box 
1958, Mobile, Alabama; Honorable Warren Woods, 1735 
K Street, N.W., Washington, D.C. 20006; Honorable Ben 
Wyle, 2 Park Avenue, New York, New York 10016; Sher­
man an<l Dunn, 1200 East 15th Street, N.W, Washington, 
D.C. and Honorable Dixon L. Pyles, 507 Last Pearl Stieet, 
Jackson, Missisisippi/by United States air mail, postage 
prepaid.

................................
l  A ^ A t t o r n e y  for Appellants

T - r
r > r d/.nrd .v.’ -i-, ----------vv' ;

, V x .  »  C I t Ai ' Co.<r ir-"- ■ y  L / ’

i
1\ .

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I



j

i

I
i

i

Order in Lea v. Cone Mills

I n the United States D istrict Court 

F or the M iddle District of North Carolina

(j REENSBORO D IVISIO N

C i v i l  A c t i o n  No. C-176-D-66

S hirley Lea, R omona P innix and A nnie T innin ,

Plaintiffs,
v.

Cone M ills Corporation, a corporation,

Defendant.

Order

This cause coining on to bo heard before the undersigned 
upon motion of defendant to dismiss and for a determina­
tion whether this cause may be prosecuted as a class action 
and upon motion of plaintiffs to strike defendant’s demand 
for trial by jury and to inspect the record of part of de­
fendant’s answers to plaintiffs’ interrogatories 22, 24, 26 
and 51, which were ordered filed under seal with the Clerk 
of Court, and it appearing to the Court upon the pleadings, 
exhibits, briefs and arguments of counsel for both parties 
that the defendant’s motion to dismiss and motion for deter­
mination by the Court that this is not a proper class action 
should be denied. It further appears to the Court that 
plaintiffs’ motion to inspect the record of answers to in­
to, rotatories ordered to be filed under seal should be denied 
and that the ( our! should defer ruling upon plaintiffs’ 
motion to strike demand for jury trial until final pre trial 
ronf.-r.

In.



2a

Order in Lea v. Cone Mills

It is , therefore , ordered, adjudged and decreed :

1. That defendant’s motion to dismiss be and the same 
is hereby denied.

2. That this is a proper class action and may be prose­
cuted as such pursuant to Rule 23(a), (b)(2) of the Federal 
Rules of Civil Procedure. The Court finding that this is 
a proper class action under Rule (b) (2), no notice to mem­
bers of the class need be given at this time.

Pursuant to Rule 23(c) the Court finds that the class 
here involved are all Negroes who are or who might be 
aifected by any racially discriminatory policies or prac­
tices of defendant, should the Court find any such practices, 

'at defendant’s Eno Plant in Hillsborough, North Carolina.
This ruling is conditional and may be amended, modified 

or altered at any time prior to. final determination of this 
cause on the merits.

3. That plaintiffs’ motion to inspect the answers of 
defendant to plaintiffs’ interrogatories 22, 24, 26 and 51 
which were ordered filed under seal with the Clerk of Court 
be and the same is hereby denied.

4. That ruling by the Court on plaintiffs’ motion to 
strike defendant’s demand for jury trial be deferred pend­
ing the final pre-trial conference of this case.

This 27th day of June, 1967.
E ugene A. G ordan 

J udge, U n ited  S tates D istrict  Court

Approved as to form:

Counsel for Defendant

Counsel for Plaintiffs

3 a

In t h e  U n ited  S tates D istrict  C ourt 

F or t h e  M iddle D istrict  of N orth C arolina  

.Greenshoro D ivision 

Case No. C-141-G-66

Order in Robinson v. Lorillard

D oroth y  P. R obin son , et al., 

vs
Plaintiff,

P. L orillard  Co m p a n y ,

Defendant.

M em oran du m

This matter was scheduled for hearing in the United 
States Courtroom, Greensboro, North Carolina, on January 
19, 1967, on all pending motions and objections to inter­
rogatories. J. Levonne Chambers, Esquire, Robert Belton, 
Esquiie, and Sammie Chess, Esquire, appeared as counsel 
for the plaintiff; Thornton II. Brooks, Esquire, Robert G. 
Sanders, Esquire, and Larry Thomas Black, Esquire, ap­
peared as counsel for the defendant; Frank Schwelb, Es­
quire, and Miss Monica Gallagher appeared as counsel for 
the intervenor.

lhc luling of the Court on the various motions and ob­
jections is as follows;

T]lf> objection filed October 10, 1906, by (be defendant 
Tobacco Workers International ITiion AFL (TO, to Inter­
rogator v 13, winch interrogatory, among other'*, win filed



4a

2. The motion, filed November 23, 1966, of the plaintiff 
to require further answers of P. Lorillard Company to 
Interrogatories 18-25 inclusive so as to have the answers 
include the period between July 2, 1964, to September 23, 
1966, the Interrogatories having been filed September 29, 
1966, is allowed, limited, however, to answers concerning 
the Greensboro Plant, and the motion is denied as to Inter­
rogatory 36.

3. The motion of the defendants filed November 8, 1966, 
by the Tobacco Workers International Union AFL-CIO, 
and Tobacco .Workers International Union AFL-CIO, 
Local 317, to dismiss under Rule 12 of the Federal Rules of 
Civil Procedure is denied.

4. The motion of the defendant P. Lorillard Company, 
filed November 1, 1966, to dismiss under Rule 12 of the 
Federal Rules of Civil Procedure is denied.

5. With respect to the motion of the defendants Tobacco 
Workers International Union, AFL-CIO, and Tobacco 
Workers International Union, AFL-CIO, Local 317, motion 
that the Court determine whether the action may be prose­
cuted as a class action pursuant to Rule 23, et seq. of the 
Federal Rules of Civil Procedure, it is the considered 
judgment of the Court that this case is properly a class 
action and in category a Rule 23 (a) (b) (2) action. Accord­
ingly, counsel for the plaintiff will prepare and present to 
the Court a proposed Order, first presenting same to 
counsel for the defendant, in order that objections, if any, 
may first be made by the defendants. The proposed Order 
will state that it is conditional and subject to alteration or

Order in Robinson v. Lorillard

5a - —

amendment at any time prior to the final decision on the 
merits.

Also, counsel for the plaintiff will prepare and present to 
the Court an Order incorporating in all respects the ruling 
of the Court on the respective motions and objections, first 
presenting a copy of same to counsel for the defendants and 
the intervenors.

I, Graham Erlacher, Official Reporter of the United States 
District Court for the Middle District of North Carolina, 
do hereby certify that the foregoing is a true transcript 
from my notes of the entires made in the above-entitled 
Case No. C-141-G-66,. before and by Judge Eugene A. 
Gordon on January 19, 1967, in Greensboro, North Caro­
lina; and I do hereby further certify that a copy of this 
transcript was mailed to each of the below-named attorneys 
on January 26, 1967.

Given under my hand this 26th day of January, 1967.

G rah am  E rlach er  
Official Reporter

cc.: J. Levonne Chambers, Esq.
Robert Belton, Esq.
Sammie Chess, Esq.
Thornton R. Brooks, Esq.
Robert G. Sanders, Esq.
Larry Thomas Black, Esq.
Frank Schwclb, Esq.
Miss Monica Gallagher

Order in Robinson v. Lorillard