Alpha Portland Cement Company v. Reese Appendix

    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



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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

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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

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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.

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• 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:

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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.

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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.

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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

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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.

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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.,

-  ) 
) 
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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

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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,

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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.

)
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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.

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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

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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

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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.

)
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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.

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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
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-  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 _

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(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
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- 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
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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 • 
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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

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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'/

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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
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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:

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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

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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

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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.