Alpha Portland Cement Company v. Reese Appendix
Public Court Documents
June 25, 1973 - June 25, 1973

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Brief Collection, LDF Court Filings. Alpha Portland Cement Company v. Reese Appendix, 1973. b73c90a4-b79a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/5f09fd3b-35e3-4502-bdb9-83a2993480bd/alpha-portland-cement-company-v-reese-appendix. Accessed July 20, 2025.
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APPENDIX IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT NO. 74-1290 ALPHA PORTLAND CEMENT COMPANY, Defendant-Appellant, vs. WILLIE C. REESE, Plaintiff-Appellee Appeal From The United States District Court For the Northern District of Alabama William F. Gardner Sydney F. Frazier, Jr. Cabaniss, Johnston, Gardner, Dumas & 1900 First National-Southern Natural Birmingham, Alabama 35203 O'Neal Bldg. Attorneys for Appellant Alpha Portland Cement Company J i ]•' * i - J 1J lJ 0 0 B c j J 0 0 nLit INDEX Original Document No. Appendix Page No_. Docket Complaint— 8Motion of defendant to dismiss- 3 Order of August 30, 1974 deny ing notion to dismiss and holding in abeyance motion to dismiss class action aspects---------- 4 11 Order of August 10, 1973 on motion for evidentiary hearing-"------- 5 13 Answer------------------------- 6 14 Amendment to motion to dismiss- 7 17 Memorandum Opinion and Order of November 13, 1973 8 9 19 34Amendment to answer- Order of the Court of Appeals granting leave to appeal 10 36 Notice of appeal----------“ 11 37 "SRyjf "• SOUTHERN DIVISION A 7 3 ~ 0 I i / /( ^ CIVIL D O C K E T . ( / UNITED STATES DISTRICT COURT Jury demand date: BASIS: Civil Rights - Employment Title VII - 42 USC 2000e .p. C. Form No. 10GA nor. Trmn or casd WILLIE C. REESE, individually and on behalf of others similarly situated VS. ATTORNEYS — For plaintiff: U. W. demon; Adams, Baker and demon 1630 North 4th Avenue Birmingham, AL 35203 ALPHA PORTLAND CEMENT COMPANY, INC, For defendant: Willi am F. Gardner - Cabaniss, JohnsCon^Cardner A’-CiaYk, I First Nation-Southern Natural Building Birmingham, AL 35203 BTATJSTJCAL. RECORD COOTS 1 DATZ1 NAME OR | RECEIPT NO. ( REC. j DIss. J.S. 5 mailed Clerk Jun.25 Cis« 'AtluIilS | D Clenon Ker & Rec .£9487 15 oo ̂ flun.27 Cr. 100S69 1 15 oo J.S. C mailed Marshal ■., V 1974 Feb. 8 Sk- Cnbaniss, John: ton # Basis of Action: Docket fee ■tec.dl2540 lot.of A.ODeal 5 00 00• Witness fees Feb.13 Cr. 100369 5 Action arose at: Depositions KOT10 rP.̂ -TR TRIAL JS C • f S’ s * ■ AL tAlLd 1 ■ 0 19f/” "June A P R O C E E D IN G S , , n f { ^ M 4 S & n . ‘ ! B S » i s U ’ - V *J»ly 10 H SuSons ind complaint returned executed, W. E, Frtichand served 6/29/73, filed, i n /Order dated August 10, 1973, on motion of defendant for an evidentiary hearing Aug. l3̂ 0ron 8tgnding or opacity of plaintiff to r-aintaln a class action, Chet this motion io tiken under odviacoent until such ticie as an opinion is rendered by the Fifth Circuit Court of Appeals on its en banc hearing in the case of __ Uuff v. N. P. Cass Co., filed end entered (Guin) - c m •< 31 /border, dated August 30, 1973, denying defendant's notion to dismiss the complaint and holding in abeyance defendant's notion to dioniss the class action greets, of this cose pending on evidentiary hearing set on October 17, 1973, at 3:00 p n., in chanbers, filed and entered (Guin) - cm /^Answer of defendant to the complaint filed - ca D*trJudfT Sep. 10 C 8 4 tL never 0 1 -- r---- ,13 TZjnterrogatories of defendant propounded to plaintiff filed 9ft '*7 Amendment to notion to dismiss by defendant filed, cs Nov 14 ""Memorandum Opinion with Order thereon, dated November 13, 1973, overruling * 1 \Aj defendant's amended notion to dlsniss the class ; action aspects of __ plaintiff's complaint, filed and entered (Guin) - cm , . 21 / ̂ /Amendment to anaver of defendant denying the allegations of paragraph II of t 4-a/ co<flp l a l n t separately and severally and denying the allegations o. su.-paragrapna B, C, and D of paragraph VII of the complaint separately and severally, f-lcd ^Certified copy of order of the 0. S. Court of Appeals granting leave to appeal £roal the interlocutory order of the U. S. District Court entered on Novenoer 1A. 7 /''//Notice’of appeal by defendant from interlocutory order of this Court enterca November 14, 1974, filed - cm 8 ) / H i Appeal Bond (250.00) filed Cf i •1 i z " -r.-yrr - r— :rr • 1 FcL^THE^NORTHERiV dISTRICT OF ALABAMA f° SOUTHERN DIVISION WILLIE C. REESE, individually and on behalf of others simi larly situated, Plaintiff, rVS. ALPHA PORTLAND CEMENT COMPANY, INC., Dofenaant. CIVIL ACTION NUMBER CA 73 “ '611 COMPLAINT i * FILED IN CLERK'S OfFlCEl NORTHERN DISTRICT of ALASKA JUN 2 5 ^ ^ K ^ u.st^ t COo.t, ®Yi - jurisdiction of this Court is invoked pursuant to 28 U.S.C. Section 13*13. This i» a suit in e*Ul-*y aUth°ri=ed and instituted pursuant to Title VII of the Act known as „ . . nf -,qC4 " T)2 U.S.C. Sections 2000e et seq.,Civil Rights Act of 19bA, anS ,2 U.S.C. Section 1983.- The Jurisdiction of this court ls invoked to secure protection of and to redress deprivation at vw (a ) T1 tie VII of the Act known as The of rights secured by (a) T^txe icfili » 42 U S C. Sections 2000e et seq.,■ Civil Rights Act of 196U, *»2 U.S.C. s . .. ... .. and other r e l i e f against racial dis *, prOVJLUXilb uu" crimination in employment and CM « • " * * - l providing for the equal rights of oltlsens and all persons f, ,i,hln the jurisdiction of the United States. | ' ■ » ' I! Plaintiff brings this action on his o»n behalf and j! on behalf of others similarly situated pursuant to Rule 23 a (3) of the Federal Rules of Civil Procedure. There are common L i o n s of lau and fast affecting the rights cf o t h e r R.groe I! eeking equal em-loyme„t opportunity .Ithout dlsorlmlnaUon n : the ground of race or color »ho are so numerous as to make ? impracticable to bring them all before this court. » ;j . • . t The interests of said class are adequatelj. relief is sought. m e i! reoresented by plaintiff. Ill This is a proceeding for a preliminary and permanent injunction restrain.-,, defendant from maintaining a policy, practice, custom and usar.e of withholding, denying or attempt ing to withhold or to deny, and depriving or attempting to deprive, or otherwise Interfering, with the rights of the plain- tiff and others similarly situated of equal employment oppor tunities at the Alpha Portland Cement Company. __ , - - . . ^ IV Plaintiff, Ulllle C. Reese, Is a Negro Citizen of the United States, residing In Fairfield, Alabama. On information and belief, defendant, Alpha Portland Cement Company, Inc., Is an Alabama Corporation doing business in the State of Alabama, and the town of Phoenlxvllle, Alabama. VI Defendant Is'an employer engaged In an Industry Which affects Interstate commerce and defendant employs more than thirty-five employees. ; vn : A. Plaintiff, Willie C. Reese, was hired by defen- \ dant as Yardman on May 21, 1969- On June 6, 1969, plaintiff ji „as discharged by defendant to make room for a white person !; who was then hired to fill the vacancy left by reason of ii plaintiffs discharge. B. Defendant limits the employment opportunity of in thp assignment of blacks to lower paying its black employees in the assignment Job classifications because of race. C. Plaintiff and other Negroes have been denied equal employment opportunity because of defendant standing policy, practice, custom and usage of hiring blacks only in certain designated Job classifications. 4 i • D. All of the above stated unlawful employment practices existed prior to June 6, 1969, and have continued by the defendant since that date. _ VIII Plaintiff is qualified to perform the Job from which he was discharged. IX Neither the State of Alabama, nor the town of Phoenixville, has a law prohibiting the unlawful practices alleged herein. On June 10, 1969, plaintiff filed a complaint with the Equal Employment Opportunity Commission alleging denial by defendant of his rights under Title VII of the "Civil Rights Act of 1 9 6 V k2 U.S.C* Sections 2000e et seq. On July 7, 1971, the Commission found reasonable cause to believe that a violation of the Act had occurred by defendant, Alpha Portland Cement Company. On March 26, 1973, the Com mission notified plaintiff that defendant’s compliance with Title VII had not been accomplished within the maximum period allowed to the Commission, and that plaintiff is entitled to maintain a civil action for relief in a United States District Court. \ >■ Plaintiff has no plain, adequate or complete remedy at law to redress the wrongs alleged and this suit for a pre liminary and permanent injunction is his only means of securing adequate relief. Plaintiff and- the class he represents are now suffering and will continue to suffer irreparable injury from defendant's policy, practice, custom and usage as set forth herein. WHEREFORE, plaintiff respectfully prays this Court advance this case on the docket, order a speedy hearing at the earliest practicable date, cause this case to be in every way expedited, and upon such hearing to: o 1. Grant plaintiff and the class he represents a preliminary and permanent injunction enjoining the defendant, Alpha Portland Cement Company, Inc., its agent3, successors, employees, and those acting in concert with them and at their direction, from continuing or maintaining the policy, practice, custom and usage of denying, abridging, withholding, conditioning, limiting or otherwise interfering with the right of plaintiff to employment, and promotion on an equal basis with white employees at defendant's operation in Phoenlxville, Alabama. 2. Grant plaintiff and the class he represents a preliminary and permanent injunction enjoining defendant, Alpha Portland Cement Company, Inc., its agents, successors, employees, and those acting in concert with them and at their direction from continuing or maintaining the policy, practice, custom and usage of denying, abridging, withholding, condition ing, limiting or otherwise interfering with the rights of the plaintiff and others similarly situated to enjoy equal employ ment opportunities as secured by Title VII of the Act known as -The Civil Rights Act of 196H," 42 U.S.C. Sections 2000e et ̂o-> *.u*.,*- - on on theseq., and u.b.o. otcuuu xyvx --- “ basis of race or color, including but not limited to admission to employment on the equal basis with white employees without consideration of race or color. 3. Grant plaintiff and the class the court finds plaintiff to represent back pay from the time the plaintiff or any of the class were denied equal employment opportunities by the defendant because of their race in violation of Title VII, 42 U.S.C. Sections 2000e et seq., and 42 U.S.C. 1981 to the present. 4, Allow plaintiffs their costs herein, including reasonable attorneys' fees and other additional relief as may appeal; to the Court to be equitable and Just. n® fm&wrxr-: 7 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION FILED IN CLERK'S OFFICE NORTHERN DISTRICT Or ALA3AMA JULO 1373 WILLIE C. REESE, Plaintiff, vs. ALPHA PORTLAND CEMENT COMPANY, INC., Defendant. ) CIVIL ACTION * 4) NO. 73-611 ) ) MOTION Comes now Alpha Portland Cement Company, Inc., a corporation, defendant in the above-styled case, and moves the Court as follows, separately and severally: 1. The defendant moves to dismiss the complaint on the ground that it fails to state a claim on which relief can be granted. 2. The defendant moves to dismiss the class action allegations and aspects of the complaint on the ground that the suit is not and cannot be a proper class action by repre sentation by the plaintiff for the reason, as shown by the allegations of the complaint, that the plaintiff was employed by the defendant for a period of approximately two weeks only and was terminated from employment with defendant in 1969. The plaintiff therefore is not a proper class representative with respect to terms and conditions of active employment unless and until it should be established that he was unlawfully discharged and is entitled to reinstatement. <3 3. The defendant moves that the Court hold an evidentiary hearing on the standing or capacity“of the plaintiff to maintain a class action v;ith respect to terms and conditions of employment affecting currently employed employees by determining whether or not the plaintiff was unlawfully discharged and whether or not the plaintiff is entitled to reinstatement. iTTTl iam F. Gardner .. . 1900 First 1-Jational-Southern Natural Bldg Birmingham, Alabama 35203 Attorney for defendant Alpha Portland Cement Company s v/ 3.u CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing motion to dismiss has this day been served by United States mail, postage prepaid, on Mr. U. W. Clemon, Adams, Baker S demon, 1630 - 4th Avenue North, Birmingham, Alabama 35203. This the day of July, 1973. 10 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION WILLIE C. REESE, Plaintiff ) CIVIL ACTION NO. 73-G-611VS ALPHA PORTLAND CEMENT COMPANY, INC., - ) ) > FILED IN CLERK’S OFFICE NORTHERN DISTRICT OF AlASAV.A -AUG 311973 Defendant. ) ORDER This motion came on to be heard on a regularly scheduled motion docket on August 10, 1973, on the motion of the defendant, Alpha Portland Cement Company, Inc., to dismiss the complaint on the ground that it fails to state a claim on which relief can be granted, to dismiss the class action allegations and aspects of the complaint on the ground that the suit cannot be a proper class action by representation by the plaintiff; and the defendant moved that the Court hold an evidentiary hearing on the standing or capacity of the plaintiff to maintain a class action with respect to terms and conditions of employment affecting currently employed employees by determining whether or not the plaintiff was unlaw fully discharged and whether or not the plaintiff is entitled to reinstatement. The Court has considered the motion and is of the opinion that the motion to dismiss the complaint is due to be denied. The Court is further of the opinion that the motion to dismiss the class action aspects be held in abeyance pending an evidentiary hearing on this matter. Accordingly, it is ORDERED, ADJUDGED and DECREED that the defendant's motion to dismiss the complaint be and the same hereby 11 4 n n is denied. Defendant's motion- to dismiss the class action aspects of this case shall be held in abeyance pending an evidentiary hearing hereby set on October 17, 1973, at 3:00 P.M in my chambers. Done this 30th day 'of August, 1973. StatesT"d7st^ct Judge y. Foy Guin, Jr, ii i 5 i i%i l > ; o-5- j IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION WILLIE C. REESE, Plaintiff, vs. ALPHA PORTL7CJD CEMENT COMPANY, INC., Defendant. ) ) - ) ) ) ) ) ) - ) ___ ) O R D E R FILED IN CLERK’S OFFICE NORTHERN DISTRICT Of ALABAMA AUG 1 1973 WILLIAM E. DAVIS CLERK, II. S. DISTRICT COURT,B y , C 4 L 7*>..„-:A.. .■<-rr. *-■.CwmK CIVIL ACTION NO. 73-G-C11 This cause is before the Court on the motion of defendant Alpha Portland Cement Company for an evidentiary hearing on the standing or capacity of plaintiff to maintain a class action with respect to terms and conditions of employment affecting currently employed employees. The Court notes that on banc hearing was held October 30, 1972 in the case of Huff v^ * L ^ _ C a sJL_£°^ The C°Urt iS °f the opinion and the parties agree that it is appropriate to withhold a ruling on the motion of defendant until such time as an opinion is rendered as a result of the en banc hearing by the Fifth Circuit Court of Appeals. Accordingly, it is ORDERED, ADJUDGED and DECREED that the motion of defendant be and the same is hereby taken under advisement until such time as an opinion is rendered by the Fifth Circuit Court of Appeals on its en banc hearing in the case of Huff v^ N. T>. Cass Co._ r 1* Done this United7'Stands Distric^'hludge' IN THE UNITED STATES DISTRICT COURT WILLIE C. REESE NORTHERN DISTRICT OF ALABAMA ' SOUTHERN DIVISION FOR THE ) O' Plaintiff )) CIVIL ACTION VS . No. 73-G-611 ALPHA PORTLAND CEMENT COMPANY, INC., ) Defendant > - A N S W E R The defendant Alpha Portland Cement Company answers the complaint as follows: 1. There is no dispute with the fact that the plaintiff has invoked the statutes referred to in Paragraph I of the complaint. The defendant agrees that the Court has jurisdiction over the action. -- • 2. The allegations of Paragraph II of the complaint are deemed to call for no response from the defendant in view of the Court's Order of August 30, 1973 holding the motion to dismiss the class action aspects of the complaint in abeyance. 3. The action is a proceeding seeking an injunction. With this exception, the allegations of Paragraph III of the complaint are separately and severally denied. 4. It is true that the plaintiff, Willie C. Reese, is a black citizen of the United States. The defendant is without knowledge or information sufficient to form a belief with respect to the plaintiff's residence. 5. , The allegations of Paragraph V of the complaint are true. 1 4 G: The allegations of Paragraph VI of the complaint are true. 7.(a) It is true that the plaintiff, VJillic C. Reese, was hired by the defendant on May 21, 1969. It is not tiue, and defendant denies, that he was discharged "to make room for a white person who was then hired to fill the vacancy left by reason of plaintiff’s discharge." The facts are that the. plaintiff was terminated during the probationary trial period because of unsatisfactory work. . (b)-(d) The allegations set forth in sub-paragraphs B, C, and D of Paragraph VII of the complaint are deemed to call for no response from the defendant in view of the Court’s Order of August 30, 1973, holding the motion to dismiss the class action aspects of the complaint in abeyance. 8. The allegation of Paragraph VIII of the complaint is denied. 9. It is true that the State of Alabama and the Town of Phoenixville (if there is any such town extant) do not have laws covering the subject matter of the complaint. The defenda. is without knowledge or information sufficient to form u belief as to the truth of the remaining allegations of Paragraph IX of the complaint. 10. The allegations of Paragraph X and the prayer for relief are separately and severally denied. Willi&m F. Gardner1900- First National-Southern Natura Birmingham, Alabama 35203 Bldg. Attorney for Defendant Alpha Portland Cement Company 15 / CERTIFICATE OF SERVICE- I hereby certify that a copy of the above and foregoing Answer has this day been served by United States mail, postage prepaid, on Mr. U. W. Clemon, Adams, Baker 6 Clemon, 1630 - 4th Avenue North, Birmingham, Alabama 35203, attorney for the plaintiff. This the \q ^ day of September, 1973. ' 3 r IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OR ALABAMA |f( SOUTHERN DIVISION NORTHERN DISTRICT Or ALABAMA WILLIE C. REESE, Plaintiff, vs. ALPHA PORTLAND CEMENT COMPANY, INC. , Defendant. ) ) ) ) ) ) ) ) ) ) Sr.P2 :: 12?: CIVIL ACTION NO. 73-G-611 W IL L IA M tT. D '- V iS CLEHK/t. S. 0!5'r.7i?».- COURT. ■v tyt't*?'. /■'..■V____OtPUTVtCLf AMENDMENT TO MOTION Comes now the defendant and amends its previously filed motion as follows, separately and severally: 1 . The defendant moves the Court to dismiss the allegations and claims of the complaint other than those regarding the plaintiff’s discharge on the ground that such claims were not raised in the charge filed by the plaintiff with the Equal Employment Opportunity Commission and are not like or related to the claim raised by the plaintirr D e i o r e the Commission. 2. The defendant moves to dismiss the class action allegations and aspects of the complaint on the ground that the plaintiff is not a proper class representative because he is not a member of the class, having been employed by the defendant only as a probationary employee and not as a regular employee. William F . Gardner•1900 First. National-Southern Natural Bldg. Birmingham, Alabama 35203 Attorney for Defendant Alpha Portland Cement Company NOTICE OF HEARING Please take notice that this motion will be brought on for hearing before the Court on October 17, 1973 at 3:00 p.m. before Honorable J. Foy Guin, Jr., United States District Judge of the Northern District of Alabama. _______ CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing Amendment to Motion was served by United States mail, postage prepaid, on Mr. U. W. Clemon, 1630 - 4th Avenue North, Birmingham Alabama 35203, attorney for plaintiff. This the 7-9^ day of < 1973. rr - I S j 1 , j i ; j • l .! J ]-J 11J D 0 D u r: L n U IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION WILLIE C. REESE, Plaintiff, v s . ALPHA PORTLAND CEMENT COMPANY, INC., Defendant. ) ) ) ) CIVIL ACTION NO. 73-611 ) ) FILED IN CLERK’S OFFICE ) NORTHERN DISTRICT OF ALABAMA ) MEMORANDUM OPINION This cause came on to be heard by NOV 1 4 1973 WILLIAM E. DAVIS' CLERK, U. S. DISTRICT COURT, the Court on October 17, 4 1973, on the amended motion of the defendant, Alpha Portland Cement Company,. Inc. , (hereinafter the "Company"), to dismiss the class action aspects of the complaint. Counsel of record for the respec tive parties agreed to stipulate the facts relevant to this pending issue as folluws: r (1) The plaintiff, Willie C. Reese, was hired by the Company on May 21, 1969. As is generally true of industrial plants,-new employees are on a probationary trial period for a specified length of time so the Company can evaluate them and decide whether or not to retain them as regular employees. The probationary period at the Company was 260 hours. The plaintiff was allegedly judged lacking in effort and initiative and was therefore terminated during his probationary period on June 6, 1969; (2) He thereafter filed a charge with the Equal Employ ment Opportunity Commission. The sole claim raised by the plaintiff’s charge was "Discharge because of race." (See Appendix EEOC Decision in Case No. YBIO-119); (3) After the case had remained with the Commission for more than four years, this suit was filed in June of 1973 un LU I S - 2 - Title VII of the Civil Rights Act of 1964 (42 U.S.C. §200Ccet scq.)% and the Civil Rights Act of 1866 (42 U.S.C. §1981). The complaint asserts not only the claim relating to the plaintiff's termi nation in 1969 but also seeks to litigate class action claims relating to job classifications and job assignments. At the time the complaint in this action was filed, >_he standing of a discharged employee to maintain a class action was governed by Huff v. N.D. Cass Co.., 468 F.2d 172 (5th Cir. 1972), which held that a plaintiff who is found to have been lawfully discharged may not be a class representative of present employees. Defendant's original motion to dismiss the class action aspects of this case was based on this point. Since then, the Fifth Circuit has decided the Huff case on rehearing and held en banc that the failure of a plaintiff to establish his own cause of ■action regarding his discharge does not preclude the suit from being a class action, with 'the apparent rationale of this decision the proposition of class- action law that the determination w » of whether there is a class action does not depend on whether the ̂ plaintiff has a cause of action. Huff N. D. Cass Co ,̂ F .2d ____, Civil No. 71-2842 (5th Cir., Sept. 4, 1973). The defendant concedes that the rehearing in the Huff case is dispositive of its position that the plaintiff could not be a class representative because he was lawfully discharged. However, by amended motion, the defendant Company urges that the class action aspects of the complaint should be dismissed on the following grounds: (1) The charges of racially discriminatory job assign ments and classifications were not raised before the EEOC and they are not "like or related" charges within the meaning of Sanchc^ v^ . ct-nnH.rd Brands. Inc.., 431 F.2d 455 (5th Cir. 1970); and _ 20 / - 3 - (2) The plaintiff is not a member of the class on vhose behalf he sues, since his only employment nexus with the defendant Company was that of a probationary employee. I. Yhe first issue raised by the defendant concerns the application of the "like or related" principle established by the Fifth Circuit in Sanchez v . Standard Brands, Inc., supra. The defendant contends that the only charge which the plaintiff filed with the Commission raised only the claim that he had been unlawfully discharged because of race. The defendant concedes that the plaintiff can litigate this claim, but asserts that he cannot litigate the claims regarding job classifications and assignments because these claims were neither raised in the charge filed with the Commission nor are they like or related to the claim raised before the Cornnission* _ . „ . ^ . • . • O ___ V __ ___ V _ n c ̂ A *-V, /-» -? r c u n K o f n r o•me tutu V/UCUJ.L au o — , it as being "what standard is to be utilized in measuring the •proper scope of the complaint." 431 F.2d at 466. The Court then stated that "the scope of the judicial complaint is limited to the •scope' of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination." 431 F.2d at 466. The Court rationalized its holding as follows: "The logic of this rule is inherent in the statutory scheme of Title VII. A charge of discrimination is not ; filed as a preliminary to a lawsuit. On the contrary, the purpose of a charge of discrimination' is to trxgger the investigatory and conciliatory procedures of the EEOC. Once a charge has been filed, the Commission carries out its investigatory function and attempts to obtain voluntary compliance with the law. Only if the EEOC fails to achieve . voluntary compliance will the matter ever become the sub ject of court action. Thus it is obvious that the civil _ action is much more intimately related to the EaOC inv«_stx gation than the words of the charge which originally triggered the investigation." (431 F.2d at 466) o Vk-JL / - A - f h-md the EEOC findings dated July 7,In the case at hand, t M71 indicate that the -cope of the ^ e e t l Setion in this case dld ;ot extend to gucstions o« * * . (See Appendix EEOC Decision in Case No. »«<> classifications. (See nio.119.) This case is analogous to S i M S 6 FEP cases 194 . (D.D.C., 1973), * i c h v,as £ H -- ,F.Supp.---1 , alleging racial discrimination. In that case, the charge m - . . . „ alleged that the plaintiff had been refnsed e»p CO” of race and unlihe this case, raised claims regarding " . 7 , and hiring. The civil action in that case recruitment, testing, t • regarding "compensation, terms, v.*- tn litigate claims regaramg ditions and privileges of employment" and "limiting, segregating, employment opportunities. clas5 action , <-he liVe or related principle, thes • that under the like related , - „..,,cfi they were not u k ccVim,1 d be dismissed because / . .... . . ln so holding, tne a Vim fore the C o m m is s io n . i n to the claims raised before tn c d to the Fifth Circuit's decision in the S a - h ^ r - . - - — - - toû analysis: thc instant case, this "Applying thc Sanc^ga rn Kinsey in has Court finds that f e mat ers all-.^ ^ condltrons - - 7 bs \ r -S 2 5 ̂ h ^ a T S ^ o ^ t heeanse of has "This Court is mindful of the^fact £ a*h“ °aWCand that are generally filed by J ^ eesti£ lished liberal standard^^ consequentially court ions in charges °l disc. for construing factual co. poses of the Civil Rio ' S o n in order to accomplish t h e ^ c r o u s construction of Act 'Nevertheless, even .1 -EOC concerning Legg, ‘*asthe" facts and issues hefore the aEOC^co^ ^ ^ an ' . 15 2 2 clear that the EEOC was not requested to investigate these practices and that litigation 6£ thexr^time in i Title VII enforcement suit at tne pres • , would be unjustified. If parties were grven complete , , t 1-i fixate claims of discrimination neverfreedom to ittigame ciaxiM . . _, _r;ipresented to the EEOC for investigation and concil tion, it would result in the frustration of the S t o r y scheme and policies favoring persuasion and voluntary compliance. (6 FEP^Cas at 198) The courts have consistently held that a claim must be submitted to the Commission in order to provide the Commission uith at least the opportunity to resolve it administratively before the plaintiff files a Title VII suit in federal district court. In Beverly Vy_ T.onc Star Lead Construction CorjL,., 437 F .2d 1136 (5th Cir. 1971), the Court emphasized the important 'role of the Commission in the legislative scheme by stating: takc " { S I ’S ' £ do“n ot°thS t h^parUerSouid1! aliened to bypass this requirement." («7 F.2d at llo9> plaintiff asserts in this case that it is unnecessary for this Court to pass on the Catcher question, inasmuch as this . action is alternatively premised on « U.S.C.A. <1981. This same argument Vas recently raised and soundly rejected by the District Court for the District of Columbia in Kinsey ym heeq, Mason.d_COa, supra, bike this ease, that was a suit brought under Title VII and the Civil Fights Act of 1666. After applying the like or related principle as established by the 5th Circuit in the Sanches ease and holding that the class action claims not related to the claims raised in the charge could not he litigated, the Court then turned to analysis of the plaintiffs argument that these class action claims- could be litigated under the 1866 law. The Court rejected the contention and stated as follows in so holding, (C / 6 "[T]liis Court holds that Section 1981 is not a _ carte blanche authorization to circumvent and under mine the preferred policy of exhausting administrative remedies and utilizing the conciliatory procedures of the EEOC. Accordingly, plaintiff will not be allowed to assert claims under Section 1981 which go beyond his claims of discrimination in hiring, recruitment and testing that were originally raised during the EEOC proceeding." (6 FEP Cases at 199) This precise question was raised before the 5th Circuit in Hill v. American Airlines, Inc., 479 F.2d 1057 (5th Cir. 1973), where the plaintiff brought suit in the district court under both Title VII and Section 1981. The court in Hill stated that: aw " . . . even if we assume that none of the charges was even remotely related to those pressed before the EEOC, Hill still is entitled to pursue his completely independent remedy under,Section 1981 without first negotiating the EEOC administrative channels." (Citations omitted.) (479 F.2d at 1050) (Emphasis added.) The defendant does not contend that Congress intended to repeal §1981, by implication or otherwise, in enacting Title VII. This point was raised in Sanders v. Dob'-s House,' Inc., 431 F.2d 1097 (5th Cir. 1970), and the Court held that: "Since there is no language in Title VII that can remotely be construed as directly repealing §1981, the only means of repeal would be by implication. Repeals by implication, however, are not favored and the intention of the legislature must be clear and manifest . . . Fos-adas v . National Citv Sank, 296 U.S. 497, 503, 56 S.Ct. 349, 352, 80 L.Ed. 351 (1936)." (431 F.2d at 1100) The Court in Sanders cited with approval Waters v ■ Wisconsin Steel Works of International Harvester Company, 427 F.2d 476 (7th Cir. 1970) where this same argvment was raised and rejected by that court by stating that "we are convinced that the two acts can, in large measure, be reconciled and effect given to the Congressional intent in both enactments." 427 F.2d at 485. The Waters Court went on to hold that: "[B]ccouse of the strong emphasis which Congress placed upon conciliation, we do not think that aggrieved persons should be allowed intentionally to bypass the Commission without.good reason. We hold, therefore, that o nr 7 an aggrieved person may sue directly under §1981 if he pleads a reasonaole excuse for his failure to exhaust EEOC remedies." (427 F.2d at 487) The preference of Congress for resolution of disputes by conciliation out of court is shown in the legislative history of Title VII. The Court in Waters lists several reasons why conciliation was favored as follows: "By establishing the EEOC Congress provided an inexpensive and uncomplicated remedy for aggrieved parties, most of whom were poor and unsophisticated. Conciliation also was designed to allcw a respondent to rectify or explain his action without the public condemnation resulting from a more formal proceeding. Furthermore, the absence of direct government coercion was thought to lessen the antagonism between parties and to encourage reasonable settlement. The need for voluntary compliance was stressed since more coercive remedies were likely to enflame respondents or encourage them to employ subtle forms of discrimina tion." (427 F.2d at 486-487) While this Court favors the 7th Circuit's reasoning in the Waters case, this Court feels bound by the 5th Circuit's opinion in Hill v, American Airlines, I'. c., surra. The Court in Hill seems to hold that where an actron is alternatively premised under §1981 that it is unnecessary to pass on the "like or related" principle. The Court states that: "Because the district court has jurisdiction under §1981, it is unnecessary for us to decide whether the charges were reasonably related to those urged before the EEOC, see Sanches v. Standard Brands. Inc., 5 Cir. 1970, 431 F.2d 455, or whether the fact that the acts complained of accrued after the EEOC complaint was filed has any significance, see Danner v. Phillips Petroleum Co., 5 Cir. 1971,.447 F.2d 159, 162, and Edwards v. North American Rockwell Corn., C.D.D. Cal. 1968, 291 F.Supp. 199." (479 F.2d at 1060 N.5) The Hill case is irreconcilable with the Beverly v . Lone Star Lead Constructlon Corp., 437 F.2d 1136 (5th Cir. 1971) wherein the Court discusses the Waters case in footnote 22. The Court states that: "Although it is readily apparent that Congress did not have §1981 in mind when Title VII was enacted, the two statutes are not in irreconcilable conflict; repeal or;/C,0 r - - 8 - ! « i * | by implication, therefore, is not appropriate. Doubtless the two acts are not in entire agreement. We think, nevertheless, that the differences which • " arise may appropriately be resolved on a case by case basis. Waters, supra. One such conflict has already been resolved satisfactorily in Waters. Because of the strong emnhasis on conciliation, comp 1 ainants rr.av not be allowed to by-pass— the ■ Commission vithov.t toad reason. Thus a $1931 __ nl a in tiff must first exhaust his Title VII rcaeoxes nr nlead a'Tcasonabla excuse for failure to oo so, . .. (437 F .2d at 1141 N.22) While this Court feels that this is a logical and correct reconciliation of Title VII and §1981, the Court feels bound by the "completely independent remedy" theory of Hill, since this is the more recent word on this matter, and until further light is shed on this question by the Fifth Circuit. The mere allegation of alternative grounds of juris diction under §1981 allows the plaintiff to completely by-pass the conciliatory procedures under Title VII and allows the plaintiff to frustrate the statutory scheme under Title VII favoring informal persuasion and voluntary compliance. The "completely independent remedy" theory of Hill compels this Court to allow an across-the-board attack on charges of racially discriminatory job assignments and classification where the EEOC has not been requested to investigate these charges nor any like ox* related charge* The Court is of the opinion that this determination involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from this order, pursuant to 28 U.S.C.A. 51262(b), may materially advance the ultimate termination of this litigation. I • I l ' - 9 ___ The defendant Company's second contention is that the plaintiff is not a member of the class on whose behalf he sues, since his only employment nexus with the Company ■was that of a probationary employee. In the recent en banc decision in Huff v. N. D. Cass Co. of Alabama, ___ F.2d ___, (5th Cir. Civil No. 71-2842, Sept. 4, 1973), Judge Godbold, speaking'for a unanimous court, stated that: "This Court is committed to the principle that the standard for determining whether a plaintiff may’ maintain a class action is not whether he will ultimately prevail on his claim. Miller v. Mackey Int11 - Ir.c . , 452 F.2d 424 (C.A. 5, 1971); Johnson v. Georgia Highway Express, Inc., 417 F.2d'1122 (C.A. 5, 1969)." (___ F.2d at ___, Civil No. 71-2842 at 4) In the case at hand, the defendant admits that the plaintiff worked for the Company. -The plaintiff alleges that he has been personally subjected to the abuses of which he complains and for which he seeks relief. The complaint in this case alleges that blacks are hired by the Company only in designated job classifications and that they are assigned only to lower-paying job classifications because of their race. It is of no moment that plaintiff was a probationary employee, since probationary employees are given initial assignments which the plaintiff con tends are racially discriminatory. - ■ This Court recognizes that racial discrimination is in and of itself "class discrimination." Georgia Powder Co. v. EEOC, 412 F .2d 462, 468 (5th Cir. 1969). The Court in Huff states that "we have applied a broad approach to standing, stressing the individual’s role as a private attorney general taking on the mantle of the sovereign." ___ F.2d ___, Civil No. 71-2842 at 8. This Court is of the opinion that the plaintiff meets the requirements of Rule 23 of the Federal Rules of Civil / 10 1 J. 1' J T. ! ] Procedure, and that this action is properly maintainable as a class action. Accordingly, it is therefore ORDERED, ADJUDGED and DECREED that the defendant's amended motion to dismiss the class action aspects of the plaintiff's complaint be, and the same hereby is, overruled. Done this of November 1973. A TRUE COPY WILLIAM E. BA7IS. WOTC - UNHID SJ..2E3 tORTICYUl iJiaiRJCI CP ILASAE* BY: Q-’' ̂ s'/ b m iT Y CLERK V ! —\fIJ 1 J ] 1 - 1* 1 i... --- ------- ---- — '’rsr* A 1' 1' 1'. S i u L .-y CH. “G E O F DISCRIM1NAT*' \ , , I . ts,;. form it (o be used on ly (o file a charge of disc nm.napors f (If you h a .e .1 complaint. M l in liny tu'm .led moil il lo the Et.ual n , r f l IG IO N SEX of N A T IO N A L O X .G IN . fm p lo yn vo l Opportunity Comm ission s Regional O u .ee m your urea on R A C E . C O L O R . R E L IG IO N . SEX . or n a u u .n a i e as soon ay po-' L V . I; must lie m ailed w iih .n DO bays .liter llic dis* crim inatory acl took place. .See jc fJro se s on hack page) : , — . . . • • • Case f i le N o — --- — ------------ (PLEASE P R IS T O R TYPEl _______________• _______________ J ‘> , f/}/jj-in R c f.s>E_1 Your N a m o K u . M rs . M i s S i _ E C ---- ' <vjc«tc '? r / - S r/> f- f - lSlrecl Address_____________ x P _ S _ £ ---- ---------sU - A - U U O . _Pho ne N u m b c i— ___ tX * . .s __ C ity _____ ]£jUJLj=-LJ=J-.--Q- C.xta. r t j-A f j /teL O - _Zip C o d e . 2 W A S THE D ISC R IM IN A T IO N BEC A U SE O f : (Please d ice !; one) Race or Colo: X Religious Creed C National O rig in □ See D 3 W h o discrim inated against yo u ' C iv c 'lh e nam e and address of the em ployer, labor'organ ization..em ploym ent agency and or appro: committee. If more than ono.uist all. / ) _ . , , — /> r . ' • - • ------------------- — ----------------- Street Address. C ity .___Z - JH i- 1 ^ ^ _ State.. . ^ A h . O -/ ? _ 2 ip C o d e . A N D (other parties it a n y i . A Hase you teed this charge w ith a state or local government agency? Yes G SYhcn . G If your che-ge is agamst a company or a union. ho>v m any employees or m embers? CKcr □ Oser 5 0 ^ G The most recent date on ysh.ch this discnmination took p!.*ce. M on th— -D ay_ Ynar / 7 Explain ssha: untair thing yvas clone to sou. H o w w ere o:her persons i.euiew' G n 'e ien tly J (U se ext. - . a. . , l~ .n : (l’A...l y..y . y a* / \ ; j Cr-f'CC^r. £ ^ i:C r li.^ c i & r~ A ' X e g / r > > x i X = 7c>- X u •u *-’- • i . ; -hi m,-. 8 I svsear or affirm that I have read the above charge and tfiat is true'to the best o f m y knowtcdge.'inCormation and lx.-l.ot Date-----.t—:— ---— --- —— ----------------- -— —•---- :------7 "— ' S iO *«IX.» Sul-;:. a m r.'Or.i ‘o n:e thi>. f ■■ .a-tL. _day of- JL > (Ta»iV> If it is (l.ii.cu 'l fur you lo gel a Nntarv Pnhl.i to sign this, sign your ossn name and m ail lo the Regional O m ce. The C o rn u :.- ..•'. . roftu tc . c • *.get (hi* lorm swum to. • V » It * •" ^ • Nat • cro : »!«• o * !<»->>• I>>* 2 9 a— -- — e — ..*.... « •** #*r> *»* * ,r < * •y m t ## V ̂ ̂ • E Q U A L E M P L O Y M E N T O P P O R T U N IT Y C O M M IS S IO N W A S H IN G T O N . D .C . 20503 Willie C. Reese Charging Party v. Case No. YBI0-119 Alpha Portland Cement Company • * Phoeniy.vi.lie, Alabama * . ’ Respondent June 6, 1969 June 10, 1969 August 12, 1969 -----7 2 " 0 0 4 £ T DECISION ______1______ Date of alleged violation: Date of filing of charge: Date of service of charge: SUMMARY OF CHARGE Charging Party alleges that Respondent has. engaged in an unlaw ful employment practice in violation of Title VII of the Civil Rights Act of 1964 by discharging him because of his race (Negro). JURISDICTION , Respondent manufactures cement and cement products for sale and distribution in interstate commerce. It employs approxi mately 125 persons. The charge was filed within the time prescribed by Section 706(d) of Title VII. SUMMARY OF INTOSTICATION Charging Party was hired by Respondent on May 21, 1969 , and discharged on June 6, 1969. Charging Party alleges that he was discharged because of his race. Charging Party, a probationary Yardman, contends, and five witnesses corroborate his testimony, that he was discharged without warning. Respondent's Production Superintendent admits that it is Company policy to make periodic oral corrections to the performance of probationary employees. Charging Party's foreman acinitted that he failed to do so in 30 y ff '1 Alpha Portland Cement Company Page 2 Case Mo. YBIO-119 Charging Party's case. live employees testify that Charging Party was a good worker, that, "If his work was unsatisfactory, all of our work was," and that, "He was faster than I was." One affiant testifies that the foreman (all supervisors are Caucasian) did not care for Charging Party and-negroes generally. He contends that, ". . .' if he could dismiss others, he would. Most of us have too much seniority and are protected by the union for him to bother us." It is Respondent's position that Charging Party was discharged because lie required "excessive supervision" and "failed to demonstrate initiative." The former assertion is cast m r o considerable doubt since Company policy was not followed. - Thus, Charging Party's discharge is unexplained by any circum- _ stance save the opinion testimony of his fellow employees. We credit their testimony. - - ' Although Respondent continues to hire Hegro employees, we find it reasonable to infer that, but for his race, Charging Party would have been afforded, treatment consistent with Respondent's avowed policy, thereby giving him an opportunity to improve his performance if, in fact, it was below Respondent's required standards. DHC1SI0M There is reasonable cause to believe that Respondent^has engaged in an unlawful employment practice in violation of ■ Title VII of tlie Civil Rights Act of 1964, as alleged. Tor the Commission: \ \ i 1 ] .u ] ] J j J D D 0 : i : < l « J u ly 30 , 1071 i 4 . j • i \ i Case I5o. W i l l i e C. yp.IO 110 r iC S D C A lp h a Pni-tlr.nc’, Ccnr.H P h o o i '. i . s v i l l a , h la o a ra C;::’aany 0: B ' 0: 1 - D , o July -j, *971 .... V. f.l'. • • ; ri':~Zlv> c -r^v cot*™* ' ' *•?!*•■> roX 97 ; !V. nllis* . 0 C-nrjG U o . YTJXO n o W i l l i s C . r .ccco V 3 Mv>ha P o r t la n d C cn on t Co-;. t h o o n i" v i l ic , Al.ib.oira D [! i i j nt J r***t »*. *• * /•* w * .. . «.. .# rrio; j A g * Ci::cr V L^ZlWr) ___________ r -j { ; x U l j r-i Li'-. C n • . n t i PPJISMi UNITED STATES DISTRICT COURT nLED |N CLERK'S OFFICE NORTHERN DISTRICT OF ALABAMA NORTHERN DISTRICT OF ALABAMA 2 i 1373 SOUTHERN DIVISION W IL L I A M E . D A V I S WILLIE C. REESE ) ) ) > ) ) ) ) ) ) J Plaintiff CIVIL ACTION vs. NO. 73-G-611 ALPHA PORTLAND CEMENT COMPANY, INC., Defendant AMENDMENT TO ANSWER Comes now defendant Alpha Portland Cement Company and in view of the Court's opinion and order entered on November 14, 1973 files this amendment to its ansv/er previously filed in this case, as follows: 1. The allegations of paragraph II of the complaint are separately and severally denied. 2. The allegations of sub-paragraphs B, C, and D of paragraph VII of the complaint are separately and severally denied.- William F. Gardner 1900 First National-Southern Natural Bldg Birmingham, Alabama 35203 Attorney for Defendant Alpha Portland Cement Company \ 34 r , ■ J 2. CERTIFICATE OF SERVICE I hereby certify that a copy of the above and foregoing Amendment to Answer has this day been served by United States mail, postage prepaid, on Mr. U. W. Clemon, Adams, Baker & Clemon, 1630 - 4th Avenue North, Birmingham, Alabama 35203, attorney for plaintiff. • This the \̂V 'day of November, 1973.-- a I ' j r 35 j J IN THE UNITED STATES COURT OF APPEALS FOH THE FIFTH CIUCUIT U. S. COURT CF Af r-EALS f i l e d FEB 1 1 9 7 4 • EOKAKJD. \Y4 iSlcVDSWORXH CEHitK' „ • No. 73-8364 ALPHA PORTLAND CEMENT COMPANY, Petitioner, versus WILLIE E. REESE, Respondent. On Application for Leave to Appeal from an Interlocutory Order Before GE'iVIN, GODBOLD and CLARK, _ Circuit Judges. BY THE COURT: ' . IT IS ORDERED that leave to appeal from the interlocutory order of the United States District Court for the Northern District of Alabama entered on November 14, 1973,in the .above styled and numbered cause, is hereby GRANTED. A t ru o copy Test: C le r k , U. S, By. H er O r le a n s , EDWARD W.•WADSWORTH Court, of Appeals, Fifth Circuit Deputy Louisiana FEB 1 1374 FILED IN CLERK’S OFFICE NORTHERN DISTRICT OF ALABAMA /-1974 • -WILLIAM E. DAWSjm . U.S. DISTRICT CD| r 'iy cnit COURT IN THE UNITED STATES DISTRICT COUHTuED IN C< FOR THE NORTHERN DISTRICT OF ALABfiKftKRN oistV ic t o f a u ^ SOUTHERN DIVISION ' ALABnf"A WILLIE C. REESE, ) )Plaintiff, ) ) v- ) )ALPHA PORTLAND CEMENT COMPANY,) INC., ) )__________Defendant. _____ ) FEB? 1974 wlliam e. DAVIS u. s. C:STRICT COURT XA 'IP'jy CLERK CIVIL ACTION NO. 73-G-611 NOTICE OF APPEAL TO lilE UNITED STATES COURT OF APPEALS _____ FOR THE FIFTH CIRCUIT Notice is hereby given that the defendant. Alpha P°rtland Cement Company, Inc., pursuant to the granting of its petition for leave to appeal from an interlocutory order, hereby appeals to the United States Court of Appeals for the Fifth Circuit from the following order of the District Court of the United States for the Northern District of Alabama entered in this action: •rnc order entered by the District Court on November 14, 1973, overruling the motion of Alpha Portland Cement Company to dismiss the class action aspects of the complaint. Portland Cement Company, inc. Of Counsel: Cabaniss, Johnston, Gardner, Dumas s O'Neal 1900 First National-Southern Natural Building Birmingham, Alabama 35203 CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing notice was served on Mr. U. W. demon, Adams, Baker & demon, 16 30 - 4th Avenue, North, Birmingham, Alabama 35203, bv deoositing a copy of same in the United States mail, Droperlv addressed and first class .postage prepaid, this 7 daY of February, 1974.