Culpepper v. Reynolds Metals Company Brief for Appellant

    In t h e

1 niUh States CSInurt nf Appeala
F ob t h e  F if t h  C ibctjit 

No. 27,547

S a m u e l  C u l p e p p e r ,

Plaintiff-Appellant-Cross Appellee,

R ey n o ld s  M etals  C o m p a n y ,

Defendant-Appellee-Cross Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION

BRIEF FOR APPELLANT

H ow ard  M oore, J r .
P eter  E. R in d s k o p f

8591/2 Hunter Street, N.W. 
Atlanta, Georgia 30314

J a c k  G reen berg  
N o r m a n  C . A m a k e r  
R obert B e l to n  
Y il m a  M a r t in e z  S in g er  

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellant

A lb e r t  J . R o s e n t h a l  
435 W. 116th Street 
New York, New York 10027 

Of counsel



I N D E X

Statement of the Issues Presented ........ ...................... . 1

Statement of the Case  ................................. .................  2

Statement of the Pacts .......................... ...... ..................  5

A r g u m e n t—

I. 42 US.C. §1981 Affords an Independent Basis for 
Jurisdiction in This Action ................... ..............  10

II. The District Court Had Jurisdiction Over Ap­
pellant’s Individual Title Y II Claim ................... 22

III. Preliminary Injunction Is Appropriate Individual
Relief Under Title YII ..........................................  25

A. District Courts May Issue Preliminary In­
junctions on Behalf of Individuals ............... 25

B. Appellant Is Entitled to a Preliminary In­
junction ....................... .............. ........................... 32

IY. The Class Is Entitled to a Preliminary In­
junction ........................... .........................................  38

PAGE

C o n clu sion 40



11

T able  oe A u t h o r it ie s

Cases: page

Antonopulos v. Aerojet-General Corporation, 295 F.
Supp. 1390 (E.D. Calif. 1968) ......... ........................... 25

Armstrong v. Board of Education of City of Birming­
ham, Jefferson County, Alabama, 323 F.2d 333 (5th 
Cir. 1963) .................................... .............................28n, 37n

Baldwin v. Morgan, 251 F.2d 780 (5th Cir. 1958) ...... , l ln
Bell v. Hood, 327 U.S. 678 (1946) .................................. 28n
Bossier Parish School Board v. Lemon, 370 F.2d 847

(5th Cir. 1967) ................................................................ 17
Burt v. Congress of Racial Equality, 375 U.S. 829 .......  33

Civil Rights Cases, 109 U.S. 3 (1883)  .................... 15,16
Clarke v. Smith, 38 U.S. 195 (1839) ..........................  28
Colbert v. H-K Corp., 59 CCH Lab. Cas. j[9192 (N.D.

Ga. 1968) ............................................    l ln
Congress of Racial Equality v. C. H. Douglas, 318 F.2d 

95 (5th Cir. 1963), cert, denied ..................................  33

Dobbins v. Local 212, IBEW, 292 F. Supp. 413 (S.D.
Ohio 1968) ........................................................................ lln

Ethridge v. Rhodes, 268 F. Supp. 83 (S.D. Ohio 1967)..33, 36

Kendrick v. American Bakery Co., 59 CCH Lab. Cas. 
TT9146 (N.D. Ga. 1968) ......................................   lln

Hicks v. Crown Zellerbach, 59 L.C. H9188 (E.D. La,
1968) ..........................   29

Hodges v. United States, 203 U.S. 1 (1906) .......14,15n, 20
Hurd v. Hodge, 334 U.S. 24 (1947) ..................................  12n

In re Parrott, 1 Fed. 481 (C.C. Cal. 1880) ...............19,20
Inge v. Twentieth Century Fox Film Corp., 143 F. 

Supp. 294 (S.D.N.Y. 1956) 27n



I l l

PAGE

International Chemical Workers Union v. Planters 
Manufacturing Co., 259 F. Supp. 365 (N.D. Miss. 
1966) .............................. ..................................................  24

Jenkins v. United Gas Corporation, 400 F.2d 28 (5th
Cir. 1968) ................................................................. .....  31n

Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968)..11,12n,
13n, 14,15,17,18 

20, 21, 22n

Local 53, Asbestos Workers v. Volger, 59 CCH Lab.
Cas. 1J9195 (5th Cir. 1969) ..................... _.26n, 28, 29, 32, 35

Louisiana v. United States, 380 U.S. 145 (1965) .......  35
Lucom v. Atlantic National Bank of West Palm Beach,

354 F.2d 51 (5th Cir. 1965) ..........................................  lln

Miller v. International Paper C o.,------F .2d -------- (5th
Cir. 1969) ......................... ......... .................................... 21

Mitchell v. De Mario Jewelry, 361 U.S. 288 (1960) .... 28

Newman v. Piggie Park Enterprises Inc., 390 U.S. 400
(1968) ............................... ...............................................  3In

Newton v. Employers Liability Assurance Corpora­
tion, 107 F.2d 164 (4th Cir. 1939) ........................... . 30

Norman v. Missouri Pac. R.R., 58 CCH Lab. Cas. 
119144 (E.D. Ark. 1968) ................................................ I2n

Oatis v. Crown Zellerbach, 398 F.2d 496 (5th Cir. 1968) 31n

Pettway v. American Cast Iron Pipe Company, No. 
25826 (5th Cir. 1969) ........................ ................ ...........  28

Posadas v. National City Bank, 296 U.S. 497 (1936).. 13n,
22n



iv

Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D.
Va. 1968) ............................................................... ........ 35,38

Skidmore v. Swift, 323 U.S. 134 (1944) ....................... 24
Stell v. Savannah Chatham County Board of Educa­

tion, 318 F.2d 425 (5th Cir. 1963) ......... ................. 28n, 37n

United States v. Alabama, 304 F.2d 583 (5th Cir. 1962),
aff’d 371 U.S. 37 ..............................................................  27n

United States v. Bibb County Democratic Executive
Committee, 222 F. Supp. 493 (M.D. Ga. 1962) .......  28n

United States v. Cruikshank, 25 Fed. Cas. 707 (No. 14,
897), aff’d 92 U.S. 542 ....... ............ ..................................  15n

United States v. Jefferson County Board of Educa­
tion, 372 F.2d 836, affirmed with modifications on re­
hearing en banc 380 F.2d 385, cert, denied sub. norm 
Caddo Parish School Board v. United States, 389

PAGE

U.S. 840 (1967) ............................................................  28n
United States v. Local 189, United Papermakers & 

Paperworkers, 282 F. Supp. 39 (E.D. La. 1968)..31, 35, 38
United States v. Morris, 125 F.2d 322 ........................... 15n
United States v. Raines, 189 F. Supp. 121 (M.D. Ga.

1960) ...................................    28n
United States v. Rhodes, 27 Fed. Cas. No. 16, 151 (C.C.

Ky. 1866) ..........................................................................  20

Walker v. Blackwell, 360 F.2d 66 (5th Cir. 1966) .......  l ln

Statutes:

28 U.S.C. §1292(b) ............................................................  10

28 U.S.C.A. §1651 ..............................................................  27

29 U.S.C.A. 101-115 ................................................   32



V

42 U.S.C.A. §1981 (E.S. §1977) ...... ......... ........ 1,2,3,4 ,10
lln , 12,14, 
17,19, 22n

42 U.S.C. §1982 (E.S. §1978) .........................11,12, 14, 22n

42 U.S.C.A.—
§2000e-5 .................................................................. 23, 25, 31
§2000e-5(g) ............................   26,30, 32
§2000e-5(h) .......................... ..................................26, 31, 32
§2000e-6.................................    25

Eule 23, F.B.C.P. .. ...............................    3

Buie 65, F.E.C.P................................................................. 27

Other Authorities:

110 Cong. Eec. 13171 June 12, 1964 ............. ..... ...............  29

Cong. Globe, 39th Cong., 1st Sess. 1159-60 (1866).......... . 19

Cong. Globe, 39th Cong., 1st Sess. 1833 (1866) ........... 18

7 Moore’s Federal Practice, 2nd ed., ff65.04[l] ........... 27

Sen. Exec. Doc. No. 2, 39th Cong., 1st Sess., Vol. II, 21,
32 (1866) ...................................................................    I8n

“ Slavery” , 20 Encyc. Britt. 773 (1957) ...........................  20

J. tenBroek, Equal Under Law, 177-91 (1965 ed.)

PAGE

18n



1 st t h e

Inttefc Btntm  (Hiwrt nf Appeals
F ob t h e . F if t h  C ir c u it  

No. 27,547

S a m u e l  C u l p e p p e r ,

Plaintiff-Appellant-Cross Appellee,

R ey n olds  M etals  C o m p a n y ,

Defendant-Appellee-Cross Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 

ATLANTA DIVISION

BRIEF FOR APPELLANT

Statement of the Issues Presented

1. Whether 42 U.S.C. §1981, enacted as part of the Civil 
Rights Act of 1866 as that statute has been construed 
by the United States Supreme Court, furnishes a basis 
for relief against racial discrimination in private em­
ployment independent of the relief available under Title 
V II of the Civil Rights Act of 1964, 42 U.S.C. §2000e 
et seq. 2

2. Notwithstanding appellant’s claim under 42 U.S.C. 
§1981, the district court erred in dismissing appellant’s



2

claim under Title Y II for Ms asserted failure to file 
timely charges of racial discrimination with the E.E. 
O .C .

3. Whether Title V II of the Civil Rights Act of 1964 re­
stricts the inherent equity powers of a District Court 
to award preliminary injunctive relief to an individual 
litigant.

4. Whether the District Court erred in refusing to grant 
preliminary injunctive relief to appellant and the class 
appellant represents.

Statement of the Case

This is an employment discrimination action brought 
under 42 U.S.C. §1981 (hereinafter sometimes referred to 
as the Civil Rights Act of 1866) and Title VII of the Civil 
Rights Act of 1964, 42 U.S.C. §2000e et seq. (hereinafter 
sometimes referred to as Title V II).1 2 This appeal is from 
an order entered January 8, 1969 (App. 37a) vacating and 
re-entering in its entirety an order and opinion previously 
entered December 27, 1968 (App. 16a).2 In its opinion, the 
district court held that a claim for relief against purely 
private racial discrimination in employment could not he 
predicated on 42 U.S.C. §1981 (spelled out in more detail 
in its later opinion of January 20); that, moreover, appel­
lant’s individual claim under Title V II must he dismissed

1 The ease is one of first impression in this court on the question 
of whether 42 U.S.C. §1981 is a basis for relief against discrimina­
tion in private employment independent of Title VII. There are 
district court decisions on the question one of which is now on 
appeal to the Eighth Circuit, see n. 7 infra.

2 By order entered January 20, 1969 (App. 39a) in response 
to a motion to amend or alter the previous order (App. 38a) 
that 42 U.S.C. §1981 was not available as a basis for relief against 
the discrimination alleged.



3

for failure to file timely charges with the EEOC; that un­
der Title VII the court does not have the power to grant 
a preliminary injunction to an individual litigant and that 
although preliminary injunctions may issue in favor of the 
class the litigant represents, such relief was not here 
warranted (App. 16a).

Appellant’s complaint, filed October 24, 1968, alleged that 
his rights under Title VII of the Civil Eights Act of 1964 
and Section 1981, 42 United States Code, were violated by 
the company’s (1) awarding the job of “ relief slitter oper­
ator”  to a white employee with less seniority and no better 
qualifications; (2) refusing and continuing to refuse to 
give him the proper and normal instructions required to 
master the job; (3) threatening to discharge employees 
willing to give him the required training; (4) offering to 
settle his grievance over the assignment of a white em­
ployee with far less seniority and no better qualifications 
on terms and conditions which tended adversely to affect 
his status; and (5) discriminating against Negro employees 
generally (App. 4a-7a). Pursuant to Rule 23 of the Fed­
eral Rules of Civil Procedure, appellant filed this action 
on his behalf and on behalf of “ others similarly situated”— 
Negroes seeking equal employment opportunities without 
discrimination on the ground of race or color (App. 3a). 
In the amendment to the complaint, appellant also com­
plained about the discrimination resulting from the appel­
lee’s use of departmental, as opposed to plant, seniority 
which resulted in the assignment of only a few Negro em­
ployees to jobs in the higher paying categories, even though 
the majority of Negro employees have as much or more 
seniority than the whites assigned to such jobs (App. 14a).

The court below conducted an evidentiary hearing on 
appellant’s application for a preliminary injunction to 
protect himself and the class he represents from further



4

acts of racial discrimination (App. 44a-332a). The court 
thereafter ruled that the company’s failure to award Cul­
pepper the job applied for was a completed act as of the 
date of this occurrence and appellant was, therefore, barred 
from maintaining- this action to vindicate his individual 
rights by his failure to file a charge with the Equal Em­
ployment Opportunity Commission within ninety days af­
ter this occurrence (App. 20a). The court found that it 
had jurisdiction inasmuch as the charge when it was filed 
with E.E.O.C., was timely as it related to the right of the 
class represented by appellant to seek redress of an “ al­
legedly discriminatory system, rather than one isolated 
instance because such a violation is continuous in nature” 
(App. 21a, 22a), but ruled nevertheless that “ the remedy 
of temporary injunction is inappropriate for individual 
relief and nowhere authorized by the Act” (App. 24a). The 
court further determined that the remedy of temporary 
injunction is appropriate on behalf of the class but denied 
such relief on the grounds that the evidence adduced at 
the hearing did not constitute a “ clear showing of a broad 
discriminatory practice” (App. 24a-27a).

Notice of appeal was filed January 27, 1969 (App. 42a). 
The court granted appellant’s motion to strike the Com­
pany’s jury demand. The court further held that it had no 
jurisdiction under Section 1981, 42 United States Code, 
because there was no evidence that the company had “com­
mitted or omitted to do any act under color of law” (App. 
21a). This latter ruling was affirmed in the order denying 
Culpepper’s motion to alter or amend (App. 39a); and 
petition for interlocutory appeal of this ruling was filed.

The appellee has cross appealed from the lower court’s 
rulings that a proper class action over which the court 
had jurisdiction was stated and that appellee was not 
entitled to a jury trial.



5

Statement of the Facts

On or about July 15, 1967, appellant filed a charge of 
racial discrimination under oath with the Equal Employ­
ment Opportunity Commission complaining of certain acts, 
policies and practices of the appellee, Reynolds Metals 
Company (hereinafter sometimes referred to as the “ Com­
pany” ), made unlawful under Title VII of the Civil Rights 
Act of 1964 (App. 6a, 103a). By its decision dated July 
19, 1968, the Commission advised appellant that it found 
reasonable cause to believe that the practices alleged by 
him had been committed by the Company. In a letter dated 
September 28, 1968, the Commission notified appellant 
that defendant’s compliance with Title V II had not been 
accomplished and that he was entitled to institute a civil 
action for relief (App. 104a). On October 24, 1968 the 
complaint and motion for preliminary injunction in this 
action were filed (App. 6a, 9a).

Reynolds Metals Company is an aluminum manufacturer 
engaged in interstate commerce within the meaning of 
Title V II (App. 11a). The plant, which is divided into 
three main departments— receiving, fabrication and paint­
ing,—is primarily concerned with the cutting, shaping, and 
painting of aluminum siding (produced by its Alabama 
plant) which constitute the final process before delivery 
to the customer (App. 201a, 202a). The appellant, Samuel 
Culpepper, a 48 year-old Negro, was originally employed 
at appellee’s Atlanta “ Colorweld” plant, (formerly South­
ern Iron and Roofing Co.), in 1955 (App. 13a, 74a). He 
now works in the fabrication department as a “decoder 
operator” at $2.62 per hour (App. 93a, 122a). This job 
classification is the highest wage rate within the fabrica­
tion department other than a slitter operator which carries 
15 cents per hour more (App. 94a).



6

This is a anion plant and has been since 1956 (App. 
77a). By virtue of present and prior agreements between 
appellee and the International Brotherhood of Fireman 
and Oilers, each employee holds “plant seniority” (appel­
lant is 8th) and “departmental seniority” (appellant is 
5th)3 (App. 16a). Each new job opening is filled on the 
principles of “qualifications and seniority.” (App. 79a) 
Each new job or vacancy in an existing job is posted or 
bulletined by management for a period of twenty-four hours 
and interested employees bid the job by signing the bul­
letin. Priority for the job opening is based first on 
departmental seniority. Failure of an applicant with de­
partmental seniority to qualify opens the bid to employees 
in other departments based on plant seniority. The senior 
bidder is granted a twenty-day trial period to qualify. 
(App. 212a) If he successfully completes the trial period, 
he is deemed qualified and promoted. If not, the next senior 
bidder is granted a trial period and similarly until a bidder 
is qualified.

The only job within the fabrication department higher 
than that presently held by Culpepper is that of slitter 
operator. (App. 242a, 315a) The slitter machine is a cut­
ting device which takes a coil of a wider width and cuts 
it into any number of narrower widths on a continuous 
basis. (App. 203a) The work involved relates to trans­
lation of an order to the machine by attaching spacers 
(down to 1/64" in size) and shims (down to .001" in size) 
between the cutting knives. Interpolating charts are avail­
able at all times and are actually used by the operator 
for ordinary requirements and to make the necessary “ set 
ups” for each order, some of which require as much as two 
hours (App. 132a-140a, 147a).

See also Plaintiff’s Exhibit 14.



7

Culpepper unsuccessfully bid the job for the first time 
in the fall of 1962. (App. 78a) The job was awarded to 
a white employee with far less seniority in violation of 
the contract which provides that jobs shall be awarded on 
the basis of qualifications and seniority. (App. 79a, 80a) 
Culpepper grieved the awarding of the job to the junior 
white employee. In April 1963, the job was again posted 
and Culpepper bid again.4 * (App. 273a, 306a) This time, 
however, Culpepper was granted the twenty-day trial 
period in May and June 1963, since his grievance, filed in 
the Fall of 1962, had not been settled. (App. 79a-81a) 
Under the threat of summary determination by the plant 
manager that he was disqualified, Culpepper accepted an 
additional ten-day training period in July of 1963 (App. 
81a, 148a, 149a). This trial period was a sham, unfair 
and racially discriminatory. Appellant was at no point 
given training on the 48-inch slitter machine, the machine 
regularly in use in 1963, 1967 and today. (App. 224a) 
Throughout the trial period, Culpepper was assigned to a 
slower 36-inch slitter machine. (App. 148a, 149a, 204a) This 
36-inch slitter was more intricate than the 48-inch slitter 
used by the regular slitter operator and thus “ setting it 
up” for the job at hand was harder, took longer. (App. 
204a) After Culpepper completed his period of training, 
the 36-inch slitter machine was never used again at the 
Atlanta plant and was subsequently removed. (App. 128a, 
309a) The training he was given was not 20 consecutive 
days (App. 81a, 111a), which is the usual procedure (App. 
219a, 220a); and, in fact, the person in charge of teaching

4 It is worthy of note that a great deal of mystery surrounds 
this Notice of bid (Defendant’s Exhibit 5), which was the basis
for appellant’s selection for the trial period (App. 307a). The 
original of this bid has not been located (App. 307a); it does not 
show the names of the persons who signed the bid; and when 
appellant was disqualified, the job which had been the basis for 
the notice of bid vanished (App. 272a, 308a, 309a).



8

appellant the job lost interest after six days. (App. 109a, 
315a) Appellee purports to justify its determination of 
disqualification by introducing production records which 
were compiled for the purposes of this lawsuit (App. 222a) 
—production records which compare appellant’s production 
with that of an experienced slitter operator and do not 
take into account the experience of the comparison oper­
ator (App. 225a); the thickness of the material worked 
on, a factor which influences output per man hour (App. 
311a); and the fact that appellant was working on a slower, 
more intricate machine (App. 222a-223a).6

On December 29, 1964, the job was posted again, but 
Culpepper, who was eighth in plant seniority and fifth in 
departmental seniority, did not bid because it involved 
night work. (App. 82a)

On March 20, 1967, the job of “relief slitter operator” 
was posted. This opening was to qualify someone to 
serve as a slitter operator for the regular employee during 
vacations, absences, and, in this instance, union contract 
negotiations. (App. 207a, 209a, 309a) Only plaintiff and 
two white employees hid on the job, with Culpepper hold­
ing seniority based on the union contract. (App. 211a). 
In spite of appellant’s seniority, the job was awarded to 
Arthur Collins, a white man, on March 28, 1967.6 (App. 
86a, 87a, 210a) Collins immediately began his trial period 
and was subsequently deemed qualified on the machine,

6 That only white persons have been assigned to work the slitter 
machine (App. 82a, 229a) cannot escape observation and is not 
without significance. It must also be noted that management really 
had no standards on what “ qualified” performance was (App. 
216a); no rules to separate product of Trainer from Trainee so 
as to ascertain how the trainee was doing (App. 217a) ; that selec­
tion for the trial period was admittedly subjective (App. 223a).

6 And this in spite of the fact that it is unclear whether or not 
Arthur Collins signed the bid (App. 84a, 85a, 311a).



9

even though there were no standards by which qualifia- 
cation was determined; no ascertainment of whether the 
work product that qualified him was that of the trainee 
or the trainer. (App. 211a, 214a-216a)

Under the union contract, Culpepper pursued his griev­
ance procedure by filing his complaint with the union on 
April 4, 1967. (App. 88a) Following the prescribed course, 
of charges, meetings, etc., management issued a formal 
reply on May 5, 1967, in which it offered Culpepper a 
90-day position as slitter helper at helper’s rates with 
opportunity to bid should there be a future opening. The 
helper’s rate of pay is approximately 25 cents less per 
hour than the decoder’s rate of pay appellant was already 
earning. (App. 90a-95a) This offer, which constituted 
another independent act of discrimination cognizable under 
Title VII, was refused inasmuch as it “ discriminate(d) 
against [appellant] with respect to his . . . terms [and] 
conditions . . .  of employment” and “ otherwise adversely 
affect (ed) his status as an employee, because of [his] 
race . . . ” (App. 92a, 95a, 96a) Management’s position, 
however, was that Culpepper had been given the prior 
trial in 1963 to qualify as slitter operator and was deemed 
not qualified under the circumstances described above. 
(App. 211a) Within 90 days of this discriminatory offer, 
appellant filed his complaint with E.E.O.C.



10

ARGUMENT

I.

42 U.S.C. §1981 Affords an Independent Basis for 
Jurisdiction in This Action.

In his complaint filed in the district court, the appellant 
specifically asked for redress for deprivation not only of 
rights secured by Title VII of the Civil Rights Act of 
1964, but also of rights secured by 42 U.S.C. 1981 (Compl. 
Paras. I, II, X I(4 )). (App. 2a, 3a, 8a) The court below 
held that the latter statute did not confer jurisdiction.

In its original opinion, the district court stated: “ The 
allegations attempting to invoke 42 U.S.C.A. §1981 ff. as 
an independent basis of jurisdiction without regard to the 
90-day period do not change the result. There is no evi­
dence whatever that defendant committed or omitted any 
act under ‘color of state law’ essential to such actions.” 
(App. 21a, n. 2) On plaintiff’s motion to amend or alter 
order, the court adhered to its original ruling, but stated 
that “ the trial courts need direction in this respect. . . 
Admittedly, this is a difficult question and along with the 
other questions specifically outlined in the previous order, 
the court is of the opinion that they are controlling and 
as to which there is substantial ground for difference of 
opinion. . . .” (App. 40a, 41a) Leave for an immediate 
appeal was accordingly granted pursuant to 28 U.S.C. 
§1292(b).

42 U.S.C. §1981 (R.S. §1977) reads as follows:

All persons within the jurisdiction of the United 
States shall have the same right in every State and 
Territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal bene­



11

fit of all laws and proceedings for the security of 
persons and property as is enjoyed by white citizens, 
and shall be subject to like punishment, pains, penal­
ties, taxes, licenses, and exactions of every kind, and 
to no other. (Emphasis supplied)

Were it not for the recent decision of the Supreme Court 
of the United States in Jones v. Alfred H. Mayer Co., 392 
U.S. 409 (1968), this Court would be faced with a difficult 
question: whether the statute applies to purely private 
discrimination. It is respectfully submitted, however, that 
this issue is now foreclosed by Jones.

Jones v. Alfred H. Mayer Co. involved a refusal to sell 
a home to a Negro, because he was a Negro. The Supreme 
Court held that such refusal violated 42 U.S.C. §1982 (R.S. 
§1978), which reads as follows:

“All citizens of the United States shall have the 
same right, in every state and Territory, as is enjoyed 
by white citizens thereof to inherit, purchase, lease, 
sell, hold, and convey real and personal property.”

The very question posed in the instant case—whether the 
statute applies if there is no state action7-—was squarely

7 The court below refers to three decisions of this Court which 
suggest that state action is an element in a cause of action brought 
under 42 U.S.C. §1981 or related sections. Baldwin v. Morgan, 
251 F.2d 780 (5th Cir. 1968); Lucom v. Atlantic National Bank 
of West Palm Beach, 354 F.2d 51 (5th Cir. 1966) and Walker v. 
Blackwell, 360 F.2d 66 (5th Cir. 1966). None of these cases in­
volved employment discrimination under 42 U.S.C. §1981, and all 
of them were decided before Jones v. Mayer Co., supra.

There are also three recent district court cases, in addition to 
the instant case, in.which the applicability of 42 U.S.C. §1981 to 
employment discrimination was presented. In Dobbins v. Local 212, 
IBEW, 292 F.Supp. 413 (S.D. Ohio 1968), §1981 was held appli­
cable despite the absence of state action, in reliance on Jones v. 
Alfred II. Mayer Co., supra. In Colbert v. E. K. Corp., 59 CCH 
Lab. Cas. 9192 (N.D. Ga. 1968); Kendrick v. American Bakery



12

before the Supreme Court. It replied unequivocally, in the 
affirmative.8

It is impossible for this question to he answered one 
way as to 42 U.S.C. §1982 and another way as to 42 U.S.C. 
§1981. The provisions of what are now these two sections 
were originally joined together in the same section of the 
same statute, Section 1 of the Civil Eights Act of 1866, 14 
Stat. 27. Later, they were separated when the 1866 Act 
was re-enacted in the Enforcement Act of 1870, 16 Stat. 
140, 144, and remained separated in the codification of the 
Revised Statutes in 1874. But the Supreme Court has spe­
cifically found no intention to alter the scope of the 1866 
Act when it was re-enacted in 1870, much less to limit its 
coverage to state action.9

Co., 59 CCH Lab. Cas. §9146 (N.D. Ga., 1968) and Norman v. 
Missouri Pac. R.R., 58 CCH Lab. Cas. §9144 (E.D. Ark., 1968) 
(appeal pending), causes of action based on §1981 were dismissed 
without discussion because of the absence of allegations of some 
“color of state law.” In none was attention given to the impact of 
the Jones ease on this premise.

8 The question might also be phrased in terms of whether §1982 
protects only a Negro’s right to purchase real estate from a seller 
willing to sell to him, or whether it also protects him against the 
discriminatory refusal of a seller unwilling to sell to him because 
of his race. This is, of course, the precise counterpart of the ques­
tion whether §1981 protects a Negro employee from the discrim­
inatory refusal of an unwilling employer to enter into an employ­
ment contract i.e., the promotion to a more responsible, better 
paying job that he would be willing to make with a white man. 
The affirmative answer to the question under §1982 in Jones vir­
tually compels the identical answer to the question under §1981 
in the instant ease.

9 The 1866 Act was re-enacted some two years after ratification 
of the Fourteenth Amendment. It is quite true that some members 
of Congress supported the Fourteenth Amendment “ in order to 
eliminate doubt as to the constitutional validity of the Civil Rights 
Act as applied to the States.” Hurd v. Hodge, 334 U.S. 24, 32-33. 
But it certainly does not follow that the adoption of the Fourteenth 
Amendment or the subsequent readoption of the Civil Rights Act 
were meant somehow to limit its application to state action. The



13

In its original form, Section 1 of the 1866 Act (392 U.S.
436-37), the statute read as follows:

Be it enacted by the Senate and House of Repre­
sentatives of the United States of America in Con­
gress assembled, that all persons born in the United 
States are not subject to any foreign power, excluding 
Indians not taxed, are hereby declared to be citizens 
of the United States; and such citizens, of every race 
and color, without regard to any previous condition of 
slavery or involuntary servitude, except as a punish­
ment for crime whereof the party shall have been 
duly convicted, shall have the same right, in every 
State and Territory in the United States, to make and 
enforce contracts, to sue, be parties, and give evidence, 
to inherit, purchase, lease, sell, hold, and convey real 
and personal property, and to the full and equal bene­
fit of all laws and proceedings for the security of per­
son and property, as is enjoyed by white citizens, and 
shall be subject to like punishment, pains, and penal­
ties and to none other, any law, statute, ordinance, 
regulation, or custom, to the contrary notwithstanding. 
(Emphasis supplied.)

legislative history furnishes not the slightest factual basis for any 
such speculation and the conditions prevailing in 1870 make it 
highly implausible. For by that time most, if not all, of the former 
Confederate States, then under the control of “ reconstructed” 
legislatures, had formally repudiated racial discrimination and 
the focus of Congressional concern had clearly shifted from hostile 
statutes to the activities of groups like the Ivu Klux Klan operating 
wholly outside the law.

Against this background, it would obviously make no sense to 
assume, without any historical support whatever, that Congress 
made a silent decision in 1870 to exempt private discrimination 
from the operation of the Civil Rights Act of 1866. “ The cardinal 
rule is that repeals by implication are not favored.” Posadas v. 
National City Bank, 296 U.S. 497, 503. All Congress said in 1870 
was that the 1866 law “ is hereby-reenacted.” That is all Congress 
meant. (Jones v. Mayer Co., supra, 392 U.S. at 436-37, footnotes 
omitted).



14

The right “to make and enforce contracts” was contained 
in the same string of enumerated rights as the right “ to 
inherit, purchase, lease, sell, hold, and convey real and 
personal property.” It is therefore inconceivable that Con­
gress could have meant to protect the right to buy prop­
erty against individual action, but to safeguard the right 
to contract only against state action.

Moreover, the Supreme Court in Jones v. Alfred H. Mayer 
Co., supra, expressly dealt with the interrelationship be­
tween the provisions forbidding discrimination in the sale 
of real estate and those forbidding discrimination in enter­
ing into contracts. The defendant-respondent in that case 
had relied in part on Hodges v. United States, 203 U.S. 1 
(1906), a case reversing a conviction of individual white 
men who had terrified a group of Negroes to prevent them 
from working in a sawmill. No state action was involved. 
If the Supreme Court had thought the property provisions 
of 42 U.S.C. §1982 were to be treated differently from the 
contract provisions of 42 U.S.C. §1981, it could have easily 
distinguished Hodges on that ground. It carefully avoided 
doing so; instead, it took the much more difficult path of 
partly overruling Hodges.10

10 As the Supreme Court said in Jones:
“ The terrorizers were convicted under 18 U.S.C. §241 (then 

Revised Statutes §5508) of conspiring to prevent the Negroes from 
exercising the right to contract for employment, a right secured by 
42 U.S.C. §1981 (then Revised Statutes §1977, derived from §1 of 
the Civil Rights Act of 1866, see n. 28, supra). Section 1981 pro­
vides, in terms that closely parallel those of §1982 (then Revised 
Statutes §1978), that all persons in the United States “shall have 
the same right. . . to make and enforce contracts, to sue, be parties, 
give evidence, and to the full and equal benefit of all laws and 
proceedings for the security of persons and property as is enjoyed 
by white citizens. . . .” (Emphasis added [by the Court]).

“ This Court reversed the conviction. The majority recognized 
that “one of the disabilities of slavery, one of the indicia of its 
existence, was a lack of power to make or perform contracts.” 
203 U.S., at 17. And there was no doubt that the defendants had



15

The other issue with which the Court was concerned in 
Jones—whether discrimination in the purchase of property 
was a badge of slavery and might therefore be prohibited 
by Congress under the authorization clause of the Thir­
teenth Amendment—is closely bound up with the question 
of what Congress intended to prohibit when it enacted 
Section 1 of the Civil Rights Act of 1866. In discussing 
the Civil Rights Cases, 109 U.S. 3 (1883), while not pass­
ing on the present validity of their holding that social 
discrimination was not a badge of slavery, the Court cited 
with approval the dicta in that case to the effect that 
inability to make and enforce contracts as well as to pur­
chase property were incidents of slavery. 392 TJ.S. at 441, 
n. 78. It is interesting to note that the same paragraph 
in the Civil Rights Cases that referred to those disquali­

deprived their Negro victims, on racial grounds, of the opportunity 
to dispose of their labor by contract. Yet the majority said that 
“no mere personal assault or trespass or appropriation operates to 
reduce the individual to a condition of slavery,” id,., at 18, and 
asserted that only conduct which actually enslaves someone can 
be subjected to punishment under legislation enacted to enforce 
the Fifteenth Amendment. Contra, United States v. Cruikshank, 
25 Fed. (Cas. 707, 712 (No. 14,897) (dictum of Mr. Justice Brad­
ley, on circuit), aff’d, 92 U.S. 542; United States v. Morris, 125 
F. 322, 324, 330-331. Mr. Justice Harlan, joined by Mr. Justice 
Day, dissented. In their views, the interpretation the majority 
placed upon the Thirteenth Amendment was ‘entirely too narrow 
and . . . hostile to the freedom established by the supreme law of 
the land.’ 203 U.S., at 37. That interpretation went far, they 
thought, ‘towards neutralizing many declarations made as to the 
object of the recent Amendments of the Constitution, a common 
purpose of which, this Court has said, was to secure to a people 
theretofore in servitude, the free enjoyment, without discrimina­
tion merely on account of their race, of the essential rights that 
appertain to American citizenship and to freedom.” Ibid.

The conclusion of the majority in Hodges rested upon a concept 
of congressional power under the Thirteenth Amendment irrecon­
cilable with the position taken by every member of this Court in 
the Civil Rights Cases and incompatible with the history and pur­
pose of the Amendment itself. Insofar as Hodges is inconsistent 
with our holding today, it is hereby overruled. (392 U.S. at 442-43 
n. 78).



16

fications as incidents of slavery also stated that the Civil 
Rights Act of 1866 was intended to wipe them out:

The long existence of African slavery in this country 
gave us very distinct notions of what it was, and what 
were its necessary incidents. Compulsory service of 
the slave for the benefit of the master, restraint of 
his movements except by the master’s will, disability 
to hold property, to make contracts, to have a stand­
ing in court, to be a witness against a white person, 
and such like burdens and incapacities, were the in­
separable incidents of the institution. Severer punish­
ments for crimes were imposed on the slave than on 
free persons guilty of the same offences. Congress, as 
we have seen, by the Civil Rights Bill of 1866, passed 
in view of the Thirteenth Amendment, before the Four­
teenth was adopted, undertook to wipe out these bur­
dens and disabilities, the necessary incidents of slav­
ery, constituting its substance and visible form; and 
to secure to all citizens of every race and color, and 
without regard to previous servitude, those fundamen­
tal rights which are the essence of civil freedom, 
namely, the same right to make and enforce contracts, 
to sue, be parties, give evidence, and to inherit, pur­
chase, lease, sell and convey property, as is enjoyed 
by white citizens. (109 U.S. at 22) (Emphasis sup­
plied).

The court below questions the applicability of the right 
“to make and enforce contracts” to employment discrim­
ination cases, by stating “Nor is the normal claim before 
the Equal Employment Opportunity Commission based on 
contract” . (App. 40a) Of course, we are not now con­
cerned with claims before the Equal Employment Oppor­
tunity Commission, but with rights under a statute en­
acted almost a century before the EEOC was conceived.



17

But more importantly, the instant ease is based, in part, 
not on breach of contract but on discriminatory refusal 
to enter into a contract or at least to enter into a contract 
for anything better than a menial job. Employment dis­
crimination cases are generally not “based on contract” , 
but on refusal to contract. And so is 42 U.S.C. §1981.

The ruling of the court below overlooks what meaning 
is to be given the phrase “to . . . enforce contracts.” Also 
at issue in the instant case is whether or not appellant, as 
a third party beneficiary, can enforce the terms of the 
collective bargaining agreement between the appellee and 
the union—which agreement required appellee to award 
the bid for relief slitter operator to appellant, (App. 79a) 
See Bossier Parish School Board v. Lemon, 370 F.2d 847 
at 850 (5th Cir. 1967).

There can be little doubt that one of the primary con­
cerns—perhaps the single most important concern—that 
motivated the 1866 Civil Eights Act was that Negro em­
ployment opportunities be improved. In Jones, the Su­
preme Court noted that

the Congressional debates are replete with references 
to private injustices against Negroes—references to 
white employers who refused to pay their Negro 
workers, white planters who agreed among themselves 
not to hire freed slaves without the permission of 
their former masters, white citizens who assaulted 
Negroes or who combined to drive them out of their 
communities (392 U.S. at 427-28) (footnotes omitted).11

11 See also the report of Carl Schurz, which the Court char­
acterizes as “ one of the most comprehensive studies then before 
Congress” (392 U.S. at 428) :

There appears to be another popular notion prevalent in the 
south, which stands as no less serious an obstacle in the way 
of a successful solution of the problem. It is that the negro 
exists for the special object of raising cotton, rice, and sugar



18

Since the issue in Jones was the right to purchase prop­
erty, not the right to enter contracts, the Court sought 
out quotations from the legislative history bearing most 
closely on discrimination in property rights. But the in­
tention of Congress to protect the newly freed slaves’ 
employment rights is much more readily demonstrable. 
For example, see the comments of Representative Lawrence 
in the debate on the 1866 Act:

It is idle to say that a citizen shall have the right to 
life, yet deny him the right to labor, whereby alone 
he can live. It is a mockery to say that a citizen may 
have a right to live, and yet deny him the right to 
make a contract to secure the privilege and the re­
wards of labor. (Cong. Globe, 39th Cong., 1st Sess. 
1833 (1866).

for the whites, and that it is illegitimate for him to indulge, 
like other people, in the pursuit of his own happiness, in his 
own way. . . .
It would be presumptuous of me to speak of the future with 
absolute certainty; but it may be safely assumed that the same 
causes will always tend to produce the same results. As long 
as a majority of the southern people believe that “ the negro 
will not work without physical compulsion,” and that “ the 
blacks at large belong to the whites at large,”  that belief will 
tend to produce a system of coercion, the enforcement of which 
will be aided by the hostile feeling against the negro now 
prevailing among the whites, and by the general spirit of 
violence which in the south was fostered by the influence of 
slavery exercised upon the general character. It is, indeed, 
not probable that a general attempt will be made to restore 
slavery in its old form, on account of the barriers, which such 
an attempt will find in its way; but there are systems inter­
mediate between slavery as it formerly existed in the south, 
and free labor as it exists in the north, but more nearly related 
to the former than to the latter, the introduction of which will 
be attempted.
(Sen. Exec. Doc, No. 2, 39th Cong., 1st Sess., Yol. II, 21, 32 
(1866)). See also J. tenBroek, Equal under Law 177-91 
(1965 ed.).



19

The comments of Representative Windom also demon­
strate the concern with employment rights, and strongly 
suggest that protection of the Negro in his employment 
relationship was not merely one of a number of types of 
contract rights sought to be protected but was in fact 
the main reason for inclusion in the statute of the right to 
make and enforce contracts:

Its [the bill’s] object is to secure to a poor, weak 
class of laborers the right to make contracts for their 
labor, the power to enforce the payment of wages, and 
the means of holding and enjoying the proceeds of 
their toil.

Planters combine together to compel them [Negroes] 
to work for such wages as their former masters may 
dictate, and deny them the privilege of hiring to any 
one without the consent of the master; and in order 
to make it impossible for them to seek employment 
elsewhere, the pass system is still enforced. . . .  Do 
you call a man free who cannot choose his own em­
ployer or name the wages for which he will work?” 
(Cong. Globe, 39th Cong., 1st Sess., 1159-60 1866 h

While there were few early cases involving the ques­
tion whether the right to contract in the Civil Rights Act 
of 1866 includes employment rights, what authority there 
is supports plaintiff’s position. In In Re Parrott, 1 Fed. 
481 (C.C.Cal. 1880), the court invalidated California laws 
that prohibited domestic corporations from hiring Ori­
entals. The court declared that the right to contract pro­
vided by Section 1877 of the Revised Statutes (now 42 
U.S.C. §1981) applied to labor contracts, going on to say:

. . .  it appears that to deprive a man of the right to 
select and follow any lawful occupation—that is, to 
labor, or contract to labor, is he so desires and can



20

find employment—is to deprive him of both liberty 
and property, within the meaning of the fourteenth 
amendment and the Act of Congress [R.S. 1977] (1 
Fed. at 510).12

See also the dissent of Justice Harlan in Hodges v. United 
States, 203 U.S. 1, 36 (1906), now presumably given fresh 
life by the partial overruling of the majority decision in 
that case, by Jones v. Alfred H. Mayer Co., 392 U.S. 409, 
443, n. 78 (1968).

And respect should be accorded to a decision (by Justice 
Luayne of the Superior Court, on circuit) in the very year 
in which the statute was adopted:

It is urged that this [the Civil Rights Act of 1866] 
is a penal statute and to be construed strictly. We 
regard it as remedial in its character, and to be con­
strued liberally, to carry out the wise and beneficial 
purposes of congress in enacting it. United States 
v. Rhodes, 27 Fed. Cas. No. 16,151, at 785, 788, (C.C. 
Ky. 1866).

Above all, it should be recognized that this is a much 
easier case than was Jones. From the standpoint of a 
slave, the central fact of slavery was the type of work 
relationship it established, not its peripheral aspects such 
as the disqualification of the slave from the right to own 
property. There have been systems of slavery in which 
the slaves could own private property—e.g., in ancient 
Greece. See article on “Slavery” in 20 Encyc. Britt. 773 
(1957). Yet what makes us call this system “ slavery”  was 
the fact that the slave had no freedom to contract con­

12 Parrott, of course, involved state action. But it is in point in 
disposing of the argument suggested by the court below (App. 40a), 
that the right to make and enforce contracts provided in the statute 
was not intended to apply to employment discrimination cases.



21

cerning his employment. On the other hand, there have 
been many groups partly or totally disqualified from prop­
erty ownersip in many societies, down to recent times: 
married women, or in some cases all women; infants, 
aliens. Yet such disqualifications are never characterized 
as slavery.

In short, the salient feature of slavery was the labor 
relationship it established; everything else was peripheral.

If discriminatory refusal to sell property to a Negro 
is “a badge and incident of slavery,” as the Supreme Court 
held in Jones, how much more so is a discriminatory re­
fusal to employ a Negro in anything better than a menial 
job or to refuse on racial grounds to advance him to a job 
in accordance with an existing union-management contract f 
If Congress intended in the Civil Eights Act of 1866 to 
eliminate the vestiges of slavery, what clearer example is 
there of what was meant to be rooted out than the limit­
ing of the opportunity of the newly freed slaves to be 
something more than “hewers of wTood and drawers of 
water” ? As stated so eloquently by this court in Miller 
v. International Paper Co., 407 F.2d 1325 (5th Cir. 1969):

In conclusion, it may be observed that on the sur­
face the present case concerns only the meaning of cer­
tain statutory provisions. But beneath the legal facade 
a faint hope is discernible rising like a distant star 
over a swamp of uncertainty and perhaps of despair. 
Those who love their work may sometimes forget 
that a successful human community requires the per­
formance of many vapid and colorless tasks. Even 
the most tedious physical labor is endurable and in a 
sense enjoyable, however, when the laborer knows 
that his work will be appreciated and his progress 
rewarded. “Work without hope,” said Coleridge, 
“draws nectar in a sieve, And hope without an object



22

cannot live.”  The ethic which permeates the Ameri­
can dream is that a person may advance as far as his 
talents and his merit will carry him. And it is un­
thinkable that a citizen of this great country should 
be relegated to unremitting toil with never a glimmer 
of light in the midnight of it all.13

II.

The District Court Had Jurisdiction Over Appellant’ s 
Individual Title VII Claim.

In his complaint, appellant alleged, inter alia, that on 
or about March 20, 1967, he signed a bid for the position 
of Relief Slitter Operator, a position which has never been 
held by a Negro; that on or about March 28, 1967, the posi­
tion was awarded to a white employee with far less se­
niority; that he filed a grievance with the union on or 
about April 4, 1967; and that on or about May 5, 1967, 
appellee offered to settle the grievance. (Compl. Paras. 
VI, V II; Am. Compl., Para. VIII, App. 4a, 5a, 14a) The 
appellant, upon learning the discriminatory terms of ap­
pellee’s offer to settle the grievance,14 filed a charge with

13 The court below did not hold that 42 U.S.C. §1981 was re­
pealed by implication through the adoption of Title VII of the 
Civil Rights Act of 1964. Title VII very closely resembles in its 
structure Title VIII of the Civil Rights Act of 1968, the fair 
housing law which the Supreme Court in Jones held did not repeal 
42 U.S.C. §1982 by implication. The mood of Congress and of the 
Nation in 1964, following the assassination of President Kennedy, 
was certainly not to cut back on any existing civil rights laws. 
And, as stated in Posadas v. National City Bank, 296 U.S. 497, 503 
(1936) (and quoted with approval in Jones (392 U.S. at 437)), 
“ The cardinal rule is that repeals by implication are not favored.”

14 The offer “ allowed” appellant to work on the Slitter as a 
helper at a lower rate of pay for three months and then, if the 
job were to become vacant, and if appellant’s bid were to be 
accepted, appellee could “ allow” appellant the twenty-day trial 
period for the job of Relief Slitter Operator.



23

the Equal Employment Opportunity Commission on or 
about July 15, 1967. (Compl., Paras. X, Am. Compl., Para. 
VIII, App. 6a, 14a) The District Court held that appellant 
had not complied with 42 U.8.C. § 2000e-5, which provides 
that an unfair employment charge be filed within ninety 
days after the alleged unlawful practice occurs.

In its original opinion, the court below asked whether 
the failure to award the job to appellant on March 28, 1967 
was “ an isolated transaction or whether the entire circum­
stances involving the grievance procedure, etc. are con­
tinuing in nature.” (App. 19a) The court concluded that 
such failure was not continuing but was a completed act 
when effected, so that the July 15 charge was untimely. 
(App. 20a)15 16 This ruling, appellant respectfully submits, 
is in error.

Appellant’s charge of July 15, 1967, complained of both 
incidents—the failure to award him the bid and the offer 
which placed unlawful conditions on his right to advance­
ment.16 Appellant, a layman, unschooled in the intricacies 
of continuing violation interpreted his woes as such. And 
this interpretation is really the only one that makes situa­
tion sense. An employee is conditioned to pursuing rem­
edies he might have under the collective bargaining- 
agreement. He ought not be penalized for pursuing a 
course which may relieve the burden of fair employment

15 However, the court below also held that the lawsuit could 
proceed as to the class alleged in the complaint, for such a claim 
“ is, by nature, a continuing violation . . .” (App. 21a, 22a).

16 In the Charge of Discrimination he filed with the EEOC, he 
explained the unfair thing done to him:

In April 1967, I bid on the highest job in my department. 
I was told that I would have to take a cut in pay in order to 
be considered for the job at the end of a 90 day “trial period.” 
I have worked for the company twelve years and I am qualified 
to perform this position. I believe that I am a victim of racial 
discrimination.



24

complaints before the EEOC and ultimately before the 
courts.17

It is worthy of note that the EEOC interpreted appel­
lant’s charge as a continuing one. As the EEOC is the 
agency responsible for carrying out the provisions of the 
Act, its interpretations are entitled to weight. Skidmore 
v. Swift & Co., 323 U.S. 134 (1944); International Chemi­
cal Workers Union v. Planters Manufacturing Co., 259 
F. Supp. 365, 366 (N.D. Miss. 1966).

In the alternative, the transaction of May 5, 1967, which 
imposed terms and conditions which tended adversely to 
affect appellant’s status as an employee was another dis­
criminatory act on the part of appellee, about which ap­
pellant timely complained in his charge of July 15, 1967.18 
As will be recalled, on or about May 5, 1967, appellee made 
an offer to settle appellant’s grievance. Appellant’s con­
tention then and now is that this offer imposed terms and 
conditions tending adversely to affect appellant’s status 
as an employee. How else is one to interpret an offer 
calling for a reduction in pay of twenty-five cents per hour 
less than appellant’s regular pay, for a period of ninety 
days—keeping in mind that the union contract specified 
that in all promotions, seniority would govern; that ap­
pellant was the most senior employee who had bid for the 
opening; that heretofore, employees trying to qualify for 
the job were paid slitter’s rates (fifteen cents per hour 
more than appellant’s regular p a y ); that these kinds of 
conditions had not been imposed on white employees ; and 
that in the final analysis, all that was offered was an 
opportunity to bid again if and when the job were again 
posted.19 (App. 92-98a; 79a)

17 The lower court found this argument “not without logic.” 
(App. 20a).

18 See fn. 16, supra.
19 See also Plaintiff’s Exhibit 12.



25

Also, it must be remembered that we deal here not with 
businessmen-plaintiffs or plaintiffs accustomed to consult­
ing lawyers about their rights. This law is a remedial one 
and:

. . . the Congressional purpose would not be furthered 
by making plaintiffs of the kind with which we are 
concerned, members of the working class who are gen­
erally without substantial higher education, dot every 
“i” and cross every “t” on their way to the courthouse. 
Antonopoulos v. Aerojet-General Corporation, 295 F. 
Supp. 1390, 1395 (E.D. Calif. 1968).

In Antonopulos, the district court for the eastern district 
of California held the requirement of Title V II that charges 
be filed within 90 days after a discriminatory layoff was 
directory and not an absolute prerequisite to filing suit 
based on that layoff where there were extenuating circum­
stances justifying the delay.

III.

Preliminary Injunction Is Appropriate Individual Re­
lief Under Title VII.

A. District Courts May Issue Preliminary Injunctions on 
Behalf of Individuals.

While the court below recognized that broad prelim­
inary relief was available in Title VII actions instituted by 
the Attorney General under 42 U.S.C. §2000e (6), and in 
private actions seeking' class relief, the court concluded 
that in private actions proceeding under 42 U.S.C.A. 
§2000e-5, “ the remedy of temporary injunction is inappro­
priate for individual relief and nowhere authorized by the 
Act.” (App. 24a) This ruling constitutes an unduly nar­
row and totally unwarranted restriction on the inherent



26

power of federal courts to grant appropriate relief to 
private litigants in Title Y II actions. Section 2000e-5(g) 
reads as follows:

I f  the court finds that the respondent has intention­
ally engaged in or is intentionally engaging in an un­
lawful employment practice charged in the complaint, 
the court may enjoin the respondent from engaging in 
such unlawful employment practice, and order such 
affirmative action as may be appropriate, which may 
include reinstatement or hiring of employees, with or 
without back pay (payable by the employer, employ­
ment agency, or labor organization, as the case may be, 
responsible for the unlawful employment practice). 
Interim earnings or amounts earnable with reasonable 
diligency by the person or persons discriminated 
against shall operate to reduce the back pay otherwise 
allowable. No order of the court shall require the 
admission or reinstatement of an individual as a mem­
ber of a union or the hiring, reinstatement, or promo­
tion of an individual as an employee, or the payment 
to him of any back pay, if such individual was re­
fused admission, suspended, or expelled or was refused 
employment or advancement or was suspended or dis­
charged for any reason other than discrimination on 
account of race, color, religion, sex or national origin 
or in violation of section 704(a).

The lower court’s interpretation of §2000e-5(g) overlooks 
the broad equity powers inherent in district courts; the 
“ large measure of discretion” vested in district courts to 
ensure compliance with the A ct;20 and the relevance of 42 
U.S.C.A. §2000e-5(h).

20 See Local 53, Asbestos Workers v. Vogler, —— F,2d ___
59 C.C.H. Lab. Gas, ^9195 (5th Circuit, 1969), infra.



27

Broad equity powers are inherent in district courts. See 
28 U.S.C.A. §1651. The ruling of the court below incor­
rectly assumes that absent an explicit bestowal of power 
to issue a preliminary injunction, district courts may not 
on their own issue such an injunction. (App. 23a, 24a) In 
fact, a district court sitting in a case which it has char­
acterized as one involving and protecting the “ public in­
terest,” as one presenting issues “purely equitable” (App. 
32a-34a), certainly and inherently has broad powers and 
duties in fashioning appropriate and effective remedies— 
both preliminary and permanent. And to abdicate this 
function of awarding a preliminary injunction is totally 
to overlook Professor Moore’s admonition regarding pre­
liminary injunctions:

The public interest is a factor to be considered. When 
an injunction is sought and the grant would aid the 
public interest the latter factor is highly relevant. 
7 Moore’s Federal Practice ft 65.04 [1]. (Emphasis sup­
plied.)

Unless the statute specifically excludes it, the court is bound 
by the Federal Rules of Civil Procedure which permit pre­
liminary relief. Rule 65, Fed. R. Civ. P. Indeed, when­
ever equity has jurisdiction to grant an injunction by final 
decree it has jurisdiction to grant a preliminary injunc­
tion;21 further, once Congress has vested jurisdiction of 
the cause in a District Court, such Court has, in the ab­
sence of statutory limitations, all of the traditional powers 
and facilities of a court of equity;22 and where a federal 
statute establishes a general right to sue, federal courts

21 Inge v. Twentieth Century Fox Film, Corn., 143 F Sudd 294
(S.D.N.Y. 1956). F'

22 United States v. Alabama, 304 F.2d 583, 591 (5th Cir 1962) 
aff’d. 371 U.S. 37.



2 8

may use any available remedy to make good the wrong 
done,23 As has been said, time and again, the aim of equity 
is to adapt judicial power to the needs of the situation. 
There is inherent in the courts of equity a jurisdiction to 
“give effect to the policy of the legislature.” Clark v. Smith, 
38 U.S. 195 (1839); Mitchell v. DeMario Jewelry, 361 U.S. 
288 (1960).

Here the matter at stake is the fulfillment of a national 
policy to eradicate practices by which Negroes and other 
minority groups were effectively denied the right to an 
equal employment opportunity. It was this evil that brought 
about the statute; it is inconceivable that in its enactment 
Congress meant to grant less than effective judicial tools 
to combat it.24 *

Furthermore, this Court has very recently recognized 
that district courts were invested with a “large measure 
of discretion” to ensure compliance with the Act. Local 53,
Asbestos Workers v. Vogler, —— F.2d------, 59 C.C.II. Lab.
Cas. |f 9195 (5th Cir. 1969); Pettway v. American Cast Iron 
Pipe Company, No. 25826 (5th Cir. 1969). Other district 
courts have recognized their authority to issue preliminary

23 Bell v. Hood, 327 U.S. 678, 684 (1946).
24 Relief in matters of public, rather than private, interests may 

be quite different from that ordinarily granted. United States v. 
Baines, 189 F. Supp. 121, 134 (M.D. Ga. 1960), dealing with the 
broad remedial powers of the Civil Rights Act of 1957. Note that 
in the context of school desegregation suits mandatory orders have 
been issued and approved, requiring admission in accordance with 
specific plans. United States v. Jefferson County Board of Educa­
tion, 372 F.2d 836, aff’d with modifications on rehearing en banc, 
380 F.2d 385, cert, denied sub. nom. Caddo Parish School Board 
v. United States, 389 U.S. 840 (1967). And finally, see the pre­
liminary relief awarded in school desegregation cases, Stell v. 
Savannah Chatham County Board of Education, 318 F.2d 425
(5th Cir. 1963), Armstrong v. Board of Education of City of 
Birmingham, 323 F.2d 333 (5th Cir. 1963); in voting cases, 
United States v. Bibb County Democratic Executive Committee 
222 F. Supp. 493 (M.D. Ga. 1962).



29

injunctions in favor of a Title V II individual litigant. 
Ilichs v. Grown Zellerbach, 59 C.C.H. Lab. Cas. If 9188 (E.D. 
La. 1968)25

The ruling of the court below is in serious question, 
given the recent decision of Local 53, Asbestos Workers v. 
Vogler, supra. In Vogler, this Court by implication agreed 
that preliminary relief could issue in favor of an indi­
vidual plaintiff. Granted that Vogler, as finally decided, 
concerned only a Title V II action initiated by the United 
States (since by this time the three individual plaintiffs 
were out of court for failure to file timely charges),26 still 
the Court at no point intimated that the very broad pre­
liminary relief granted in the action was applicable only 
to actions brought by the United States.27 Instead, the 
Court, using broad and general language, stated:

I f  Local 53 wishes to read a forceful prohibition 
against discrimination, it need look no further than 
the Civil Rights Act itself. 59 C.C.H. Lab. Cas. 9195 
(5th Cir. 1969).

and held that district courts must employ equitable princi­
ples in fashioning relief under Title VII. The Court, af­

26 One should, at this juncture, take note of relevant legislative 
history. Senator Tower attempted to amend Title VII so that the 
remedies named therein be considered exclusive. This attempt met 
defeat. 110 Cong. Ree. 13171 June 12, 1964.

26 On November 25, 1966 three individual plaintiffs instituted 
this Title VII action in the District Court; on December 15, 1966 
the United States filed a complaint under Title VII, alleging a 
pattern or practice of discrimination. These two cases were con­
solidated.

27 It should also be noted that the Fifth Circuit intimated no 
view on the propriety or impropriety of the temporary restraining 
order issued by the district court in the action by the three in­
dividual plaintiffs before dismissal of their action for failure to 
file timely charges. (See page 5 and footnote 7 of the slip opinion 
in Local 53, Asbestos Workers v. Vogler.)



30

ter quoting 42 U.S.C. §2000e-5(g), the very section this 
appeal focuses upon, approved the very broad preliminary 
relief28 granted by the district court and said, unequivo­
cally :

In formulating relief from such practices the courts 
are not limited to simply parroting the Act’s prohibi­
tions. . . .  The District Court was invested with a 
large measure of discretion in modeling its decree to 
ensure compliance with the Act. . . .

The district court below, after setting out this same 
jurisdictional section in its entirety, stated that the exer­
cise of such powers in favor of an individual litigant pre­
supposes a final determination on the merits, i.e. that dis­
trict courts may issue only permanent injunctions. (App. 
23a) This notion gives a very strained and limited mean­
ing to the words, “ the court may enjoin.” An ancient canon 
of construction is that “ the old law, the mischief, and the 
remedy must be considered, and that the statute under 
construction must be given an interpretation if possible, 
which will suppress the mischief and advance the remedy.” 
Newton v. Employers Liability Assurance Corporation, 
107 F.2d 164 (4th Cir. 1939). Applying this canon to the 
instant statute makes crystal clear that the district court’s 
interpretation of may enjoin must fall. Title Y II read as 
a whole forbids such a restrictive interpretation. The

28 The Court thus approved an order by Judge Christenberry 
which not only enjoined the union from further exclusion of 
Negroes and Mexican Americans but also prohibited use of mem­
bers’ endorsements, family relationship or elections as criteria for 
membership; ordered that four individuals be admitted to mem­
bership and nine others be referred for work; ordered the develop­
ment of objective membership criteria and prohibited new members 
other than the four until developed; and ordered continuation of 
chronological referrals for work, with alternating white and negro 
referrals until objective membership criteria are developed. (Slip 
op., pp. 5, 6).



31

United States District Court for the Eastern District of 
Louisiana assumed (and we think correctly) that injunc­
tive remedies (permanent or temporary injunction, re­
straining order or other order) were available to indi­
vidual litigants under §706 when it held that the anti­
injunction provisions of the Norris-LaGuardia Act did not 
obtain in a Title VII suit by the Attorney General:29 30

To hold injunctive remedies against such unlawful 
union practices available to individuals under §706 
and not to the Attorney General. . . . under §707 would 
be inconsistent and irrational, and destructive to the 
national achievement of the basic aims of Title VII. 
United States v. Local 189, United Papermakers & 
Paperworkers, 282 F. Supp. 39 (E.D. La, 1968). (Em­
phasis supplied)

It would be similarly “ inconsistent and irrational, and de­
structive to the national achievement of the basic aims of 
Title V II” to hold that the gamut of injunctive remedies 
are available to the Attorney General but not the private 
litigant—both of whom seek vindication of a public right.39

Finally, a careful reading of Section 2000e-5 as a whole 
reveals that Congress intended for courts to issue prelim­
inary relief; else, why should §2000e-5(h) have followed

29 And this was the holding in spite of the fact that §706 of 
Title VII authorizing private suits contained an express [42 
U.8.C.A. §2000e-5(h)] exemption from the anti-injunction provi­
sions of the Norris—La Guardia Act, while §707 which authorizes 
civil actions by the Attorney General, does not.

30 Title VII actions are public in nature and have been thus 
characterized by this Court: The suit is therefore more than a 
private claim by the employer seeking the particular job . . . that 
individual, often obscure takes on the mantel of the sovereign. 
Newman v. Piggie Park Enterprises, Inc,, 390 U.S. 400 (1968); 
Oatis v. Crown Zellerbach, 398 F.2d 496 (5th Cir. 1968); Jenkins 
v. United Gas Corporation, 400 F.2d 28 (5th Cir. 1968).



32

§2000e-5(g)f Section 2000e-(li) explicitly states that the 
anti-injunction restrictions of the Norris-La Guardia Act, 
29 U.S.C.A. 101-115 shall not apply with respect to civil 
actions brought under this section.*1

The district court’s construction of its powers vis-a-vis 
private litigants proceeding under Title VII is totally un­
warranted, totally unsupported, given the purposes and 
language of the statute, given the teachings on equity 
powers.

B. Appellant Is Entitled to a Preliminary Injunction.

The appellant, who has worked for defendant since 1955 
(App. 16a), seeks to vindicate his right to be considered 
for a promotion to a better paying job without regard to 
the color of his skin, without regard to race. If the job 
which he desires and to which he deserves promotion is 
filled by someone with less seniority and qualifications, it 
will cause irreparable harm to appellant because the inci­
dents and privileges will be foreclosed forever, and the 
employer should be preliminarily enjoined from filling the 
position with such an employee, provided, however, that 
the less senior employee could be given training for the 
position without prejudice to the right of the employer to 
refuse to award the position permanently to such employee 
should appellant ultimately prevail. The value of relief 
cannot be seriously questioned. See Vogler v. McCarty,
------F. Supp. —— (E.D. La. 1967), aff’d Local 53, Asbestos
Workers v. Vogler,------ F .2d------- , 59 CCH Lab. Cas. H9195 31

31 Section 2000e-5(h) reads:
The provisions of the Act entitled “ An Act to amend the 

Judicial Code and to define and limit the jurisdiction of courts 
sitting in equity, and for other purposes,” approved March 23, 
1932 (29 U.S.C. 101-115), shall not apply with respect to civil 
actions brought under this section.



33

(5th Cir. 1969); Ethridge v. Rhodes, 268 F. Supp. 83 (S.D. 
Ohio 1967).

The appellant is aware that to qualify for a preliminary 
injunction, he must establish a prima facie case. Congress 
of Racial Equality v. C. H. Douglas, 318 F.2d 95 (5th Cir. 
1963), cert, denied; Burt v. Congress of Racial Equality, 
375 U.S. 829 (1963). Appellant contends he has met this 
burden. The EEOC investigation found “ reasonable cause 
to believe that [appellee] is violating Title VII of the Civil 
Bights Act of 1964,” in refusing to award appellant the 
position for which he bid. (App. 6a) The collective bar­
gaining agreement clearly required the appellee to provide 
training in March, 1967, to appellant for the position of 
Belief Slitter Operator. (App. 79a)32 * Yet the position was 
awarded to a white employee with far less seniority than 
the appellant. (App. 5a, 11a, 105a) Appellant was number 
eight on the seniority list, while the promoted white em­
ployee was thirty-nine. (App. 6a, 12a.)

Testimony adduced at the hearing on appellant’s motion 
for preliminary injunction further established the follow­
ing: The Company’s manager admitted that in awarding 
the 1967 bid to the white employee with less seniority than 
appellant he “acted on past history”—the fact that appel­
lant had been disqualified before (in 1963) as not being

32 The Slitter Operator in March, 1967, Mr. William Jackson 
Ennis, a white man, whose job it was to train the person awarded 
the 1967 bid, testified at the hearing on the motion for preliminary 
injunction that he felt appellant was mistreated when he was 
denied the bid (App. 170a). Ennis had wanted to move to the 
Paint Line Department but, the plant manager had pressured 
him to stay because he did not want a Negro on that job (App. 
172a, 173a). Ennis was willing to train appellant (App. 174a) 
but not willing to take the responsibility for finding him qualified 
for fear of reprisals by fellow white employees (App. 175a, 176a).
Indeed, Ennis was threatened with discharge if he trained the 
appellant (App. 182a, 183a, 187a).



34

able to do the job. (App. 224a) But the prior trial given 
to the appellant was a sham33—unfair and discrimina­
tory34 and the position for which appellant tried out in

38 It is undisputed that appellant was the senior employee who 
bid for the position of Slitter Operator in 1962; that although the 
terms of the contract required award of the Trial period to 
qualify for the job to appellant, he was bypassed in favor of a 
white employee (App. 78a, 79a, 321a). Appellant then filed a 
grievance, protesting this discrimination (App. 80a, Plaintiffs Ex­
hibit 1). The grievance was resolved in March, 1963, when it was 
agreed appellant would be given a period of training on the Slitter 
the next time a bid was posted (App. 81a). On April 22, 1963, 
such a bid was posted (App. 273a, 306a, Defendant’s Exhibit 5). 
However, a great deal of mystery surrounds this Notice of Bid 
(Defendant’s Exhibit 5) which was the basis for appellant’s selec­
tion for a trial period (App. 307a). The original has not been 
located (App. 307a); it does not show the names of the persons 
who signed the bid; and although appellant’s selection was based 
on this bid, when appellant was disqualified, the job which had 
been the basis for the notice of bid vanished (App. 272a, 308a, 
309a). Query what meaning can be given to the “ training period” 
for a vanishing job?

34 The record is replete with testimony showing that the trial 
period given appellant was racially discriminatory. The record 
shows that no real effort was made to teach him the job; the 20 
day period given appellant was not 20 consecutive days (App. 81a, 
111a) which is the usual procedure (App. 219a, 220a) ; after the 
first six days, the person in charge of teaching Culpepper seems 
to have lost his desire to teach (App, 109a, 315a). In fact, appel­
lee seems to have gone out of his way to make the job hard. The 
machine on which appellant trained, a thirty-six inch Slitter is 
more intricate and considerably slower than the forty-eight inch 
Slitter used by the regular Slitter operator (App. 112a, 256a, 157a, 
204a). This as well as the experience possessed by the regular 
Slitter operator (App. 224a) and the failure to take into account 
the thickness of the material worked upon, a factor which influences 
output per man hour (App. 310a, 311a), quite naturally and not 
unexpectedly resulted in the lower production figures for appel­
lant compiled by the appellee for this lawsuit (App. 295a, 298a). It 
is worthy of note that although appellant’s production was com­
pared with that of the regular Slitter operator working a faster 
easier Slitter to “prove” disqualification, no such comparison was 
ever attempted for the white employee awarded the bid in 1967 
(App. 226a). And, the only real use made of this 36 inch Slitter 
was appellant’s “ training” (App. 128a, 309a).



35

1963 vanished when appellant was disqualified (App. 309a), 
The district judge agreed that that trial was a sham (App. 
309a, 321a); but the court felt it had no power to correct 
this presently— “I ’m not in the business of seeing that 
everybody gets second chances . . . ” (App. 329a) How­
ever, all that appellant has ever sought and is now seek­
ing is one chance—without racial discrimination—to try 
to qualify for the better paying position. Appellee can­
not rely on appellant’s alleged “prior disqualification,”— 
which in fact was discriminatorily determined, to deny 
today appellant’s rights, under Title VII, to be free from 
racial discrimination in employment. The circumstances 
of this case show that appellee’s admitted reliance in 1967 
on a past discriminatory act is perpetuating the conse­
quences of past discrimination against appellant and is 
unlawful under Title V II of the Civil Rights Act of 1964. 
See Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D. 
Va. 1968); United States v. Local 189, United Papermakers 
<ft Paperworkers, 282 F. Supp. 39 (E.D. La. 1968); Local 
53, Asbestos Workers v. Vogler, supra. As this Court suc­
cinctly noted in Volger:

Where necessary to ensure compliance with the Act, 
the District Court was fully empowered to eliminate the
present effects of past discrimination —— F .2 d ------ ,
59 CCH. Lab. Cas. H9195 (5th Cir. 1969). See also 
Louisiana v. United States, 380 U.S. 145 (1965).

When the injury done to the appellant by not granting 
the preliminary injunction is weighed against the poten­

Moreover, only white persons have ever been assigned to work 
the Slitter machine (App. 82a). It must also be noted that manage­
ment really had no standards on what “ qualified” performance 
was (App. 216a) ; no rules to separate product of trainer from 
trainee so as to ascertain how the trainee was doing (App. 217a) 
and that selection for the trial period was admittedly subjective 
(App. 223a).



36

tial harm to the appellee from granting such an injunction, 
the former greatly outweighs the latter. Although appel­
lant might be awarded back pay in a final decision on the 
merits, he would nonetheless be caused irreparable harm 
by delay in obtaining relief for he could not make up for 
the training and experience lost during this period. That 
is, the gap in this area would widen, and since as a person 
becomes older it becomes harder and harder to catch up, 
the potential development would never be made up. As 
the court in Ethridge v. Rhodes said in an analogous 
situation:

“Moreover, while the statutory provisions may serve 
to redress the pecuniary damage resulting from dis­
crimination, they do not take a single step toward 
mending the psychological damage to both the party 
discriminated against and others in the class he rep­
resents. It is evident from the testimony of the several 
sociologists who appeared as witnesses in this case 
that discrimination in the area of employment stunts 
the educational and technical potential development 
of the class subject to such inequities. This Court is 
also mindful of the evidence submitted by experts in 
cases dealing with discrimination in other areas of 
life. Such evidence pointed out that segregation and 
discrimination not only denote inferiority of the class 
discriminated against, but also retard the development 
of that class, and that in cases in which this type of 
activity receives the sanction of the government, the 
impact is even greater. See, e.g., Brown v. Board of 
Education, 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 
(1955) ; 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, 38 
A.L.R.2d 1180 (1954). Injuries of this kind are not 
subject to any sort of monetary valuation. Thus, the 
pecuniary awards allowed under the federal and state



37

statutes provide no adequate remedy.” 268 F. Supp. 
83 at 88, 89 (1967)

In the present case, appellant has been denied relief for 
almost two years. Delay in securing constitutional and 
statutory rights has been a factor which prompted courts 
to issue preliminary injunctions.35 36

While appellant would be irreparably harmed by delay 
in this case, the appellee would be harmed little or not at 
all by the granting* of a preliminary injunction. At most 
the appellee would lose the money spent in training the 
appellant if he were in fact unable to learn either the job 
of Relief Slitter Operator or Slitter Operator; probably, 
however, appellant will be able to learn the job if given 
training, and the appellee will have a more valuable 
worker in his employ. In any event the appellee would 
not be required to do anything it was not already obli­
gated to do by the contract and by the law prohibiting 
discrimination in employment practices.

35 In a school desegregation case in which litigation had been 
pending for three years, the court granted an injunction pending 
an appeal restraining the board of education from requiring segre­
gation of the races in the schools although the Court did not re­
quire a sehool desegregation plan at that point. Armstrong v. 
Board of Education of City of Birmingham, Ala., 323 F.2d 333
(5th Cir. 1963). Similarly in Stell v. Savan?mh— Chatham County 
Board of Education, 318 F.2d 425 (1963) this Court held that the 
trial court had abused its discretion in not granting a preliminary 
injunction requiring the school board to make a prompt start to 
desegregate schools.



38

IV.

The Class Is Entitled to a Preliminary Injunction.

The lower court, conceding- that unlike the individual 
claim, the class action aspect of a Title V II suit afforded 
a “ proper basis” for preliminary relief, held that because 
appellant had not made a “clear showing of a broad dis­
criminatory practice,” such relief would be denied. (App. 
24a) In this the court erred.

The evidence is clear that use of departmental seniority 
at the plant continues the effects of past discrimination 
and is therefore unlawful under Title VII. Courts have 
held that where the seniority system has the effect of 
perpetrating discrimination and concentrating the effect 
of past years of discrimination against Negro employees 
with present placement of Negroes in inferior position 
for promotion, that present result is prohibited by Title 
V II and such seniority system must be replaced with an­
other. United States v. Local 189, United Papermakers 
and Paperworkers, 282 F. Supp. 39 (E.D. La. 1968); 
Quarles v. Philip Morris, Inc., 279 F. Supp. 505 (E.D. Va. 
1968). As the court in Quarles said:

Congress did not intend to freeze an entire generation 
of Negro employees into discriminating patterns that 
existed before the act. Quarles, supra, at 516

The court below found, and appellant concurs, that while 
thirteen out of the fifteen top employees in plant-wide 
seniority are Negroes, including the first five, apparently 
only five out of the first fifteen in seniority on the paint 
line36 are Negro, with the highest being fifth.37 In fabri­

36 The paint line was the last department integrated in 1959 
(App. 26a, 237a).

37 The testimony of Mr. James Culpepper, a Negro, reveals that 
although he is number 4 on the plant-wide seniority roster (App.



39

cation, Negroes occupy twelve out of the first fifteen (high­
est f irst); in receiving, Negroes likewise occupy twelve out 
of the first fifteen (highest third). (App. 25a, 26a) The 
court also found that “undoubtedly,” the presence of white 
employees in the first positions in the paint line and in 
receiving is a “holdover from older days far antedating 
the Civil Eights Act of 1964.” (App. 26a) The court then 
said that the “apparent thrust” of the evidence is that 
there is an “ imbalance for Negroes in departmental se­
niority, as compared to plant-wide seniority.” * 38

This, however, totally misses the point. The point is that 
the departmental seniority system in use at the plant con­
tinues to the present day, the effects of past discrimination 
against Negro employees, in contravention of the dictates 
of Title VII of the Civil Rights Act of 1964. United States 
v. Local 189, supra. This not only must, but easily can be 
remedied by the use of plant, rather than departmental, 
seniority. The class is entitled to a preliminary injunc­
tion, enjoining the continued discrimination against Negro 
employes by use of a departmental seniority system.

192a) he is only Number 7 in the Paint Line seniority roster (App. 
192a); and that Mr. Frank Pittman, a white man with less seniority 
than Mr. James Culpepper, is first in the Shipping and Receiving 
Line and holds the highest paying job in the plant (App. 197a, 
198a, 199a).

38 The apparent thrust of the testimony of Mr. James McLain, 
a Negro, is that he is number five on the plantwide seniority roster 
(App. 237a) that he was a machine operator in the fabrication 
department, earning $2.47 per hour (App. 234a); that if he were 
to move into the Paint Line, where the job would pay $2.69 per 
hour (App. 237a), he would become number twenty-three or twenty- 
four on the Paint Line seniority roster.

Mr. McLain further testified that the machine operator job pays 
less than the deeoiler operator job (App. 234a), although it is no 
less difficult (App. 235a); he stated that this is because when the 
Union first came to the plant, the slitter operator and deeoiler 
operator jobs were white jobs; the machine operator, Negro jobs. 
The lower court’s comments on these three jobs are worthy of note 
(App. 235a, 236a). There are presently four or five Negroes as 
machine operators (App. 237a).



40

CONCLUSION

For all the foregoing reasons, the order of the district 
court should be reversed.

Respectfully submitted,

H ow ard  M oose , J b .
P e t e s  E. R in d s k o p f

859% Hunter Street, N.W. 
Atlanta, Georgia 30314

J a c k  G reen berg  
N o r m a n  C. A m a k e r  
R obert B e lto n  
V il m a  M a r t in e z  S in g er  

10 Columbus Circle 
New York, New York 10019

Attorneys for Appellant

A lb e r t  J . R o se n t h a l

435 W. 116th Street 
New York, New York 10027 

Of counsel



MEILEN PRESS INC. —  N. Y. C. 219