Johnson v. Seaboard Air Line Railroad Company Brief and Appendix for Defendant-Appellee

    BRIEF AND APPENDIX FOR DEFENDANT-APPELLEE

U N IT E D  STA TES COURT O F A PPEA LS 

For the Fourth Circuit

No. 12,154

RAY JOH N SO N ,
Appellant,

vs.

SEABOARD A IR  L IN E  RAILROAD COMPANY, 
a Corporation,

Appellee.

Appeal from  the United States District Court for the 
Western District o f North Carolina, Charlotte Division

BRIEF AND APPENDIX FOR DEFENDANT-APPELLEE 
SEABOARD AIR LINE RAILROAD COMPANY

APR 17 1968
;■ ViMUEL W. PHILLIPS 

CLERK

T h om a s A s h e  L o ckhart  
W . T hom as R ay 
J o h n  S. Ca nsler  
Ca nsler  & L ockhart  

910 North Carolina National 
Bank Building
Charlotte, North Carolina 28202

J o h n  W . W eldon 
500 W ater Street 
Jacksonville, Florida 32202 

Attorneys for Appellee

The Press of Lawyers Printing Company, Incorporated, Richmond, Virginia 23207



INDEX

PAGE

QUESTIONS PRESENTED............................................................. 2

STATEMENT OF FACTS...............................................................  2

ARGUMENT

I OPENING STATEMENT........... .. ...........................  7

II THE PROCEDURES ESTABLISHED BY
CONGRESS IN THE ACT TO AFFORD 
THE COMMISSION THE OPPORTUNITY 
TO ATTEMPT BY ADMINISTRATIVE 
ACTION TO CONCILIATE UNLAWFUL 
EMPLOYMENT PRACTICES WITH A 
VIEW TO OBTAINING VOLUNTARY 
COMPLIANCE HAVE NOT BEEN MET 
AND THE COURT IS WITHOUT JURIS­
DICTION TO CONSIDER JOHNSON’S 
MULTIPLE CAUSES.................................................  8

III CONCLUSION............................................................  15

APPENDIX

December 10, 1965 letter from Railroad to J o h n so n ................  19

January 1, 1966 letter from Johnson to Commission................  20

August 8, 1966 letter from Commission to R a ilro a d ........... .. . 23

Affidavit of S. M. Duffer, September 22, 1967 ......................... 23,24

Supplemental Affidavit of C. E. Mervine, Jr., and
Exhibit A th e re to ....................................................................  25,26,27



PAG E

TABLE OF CITATIONS

CASES

Choate v. Caterpillar Tractor Co., 274 F. Supp. 776, 1967 . . . .  14

Dent v. St. Louis-San Francisco Railway Company, et al., 
Defendants. Equal Employment Opportunity Commission, Inter- 
venor. 265 F. Supp. 56, 1967 ...................................................7,10,13

Evenson v. Northwest Airlines, Inc. and Equal Employment 
Opportunity Commission, Intervenor, 268 F. Supp. 29, 1967 . . .  11

Hall v. Werthan Bag Corporation, 251 F. Supp. 184, 1966...........  10

Mickel v. South Carolina State Employment Service andxor 
Exide Battery Service, 377 F. 2d 239, 1967 .................................7,8

Moody, et al. v. Albemarle Paper Company, et al., and Equal 
Employment Opportunity Commission, 271 F. Supp. 27, 1967 12, 13

Quarles v. Philip Morris, Inc., 271 F. Supp. 842, 1967 . . . .  12,13

Stebbins v. Nationwide Mutual Insurance Company, 382 F.
2d 267, 1967 ........................................................................................ 8



In The

U N ITE D  STA TES COURT OF A PPEA LS

For the Fourth Circuit

No. 12,154

RAY JOHNSON,
Appellant,

vs.

SEABOARD AIR L IN E  RAILROAD COMPANY,
Appellee.

Appeal by Plaintiff from  the United States District Court 
for the Western District o f North Carolina 

Charlotte Division
Honorable Woodrow W . Jones, Judge Presiding

BRIEF FOR DEFENDANT, SEABOARD AIR LINE 
RAILROAD COMPANY



2

Q U ESTIO N  PR ESEN TED

Where the Equal Employment Opportunity Commission1 
gave notice to Ray Johnson2 it had neither undertaken nor 
concluded conciliation efforts with respect to Johnson’s 
charge, that the Seaboard Air Line Railroad Company3 
had violated Title V II of the Civil Rights Act of 19644 in 
dismissing Johnson from Railroad’s employ, did the Trial 
Judge err in dismissing Johnson’s civil action on the ground 
that resort to the remedy of conciliation is a jurisdictional 
prerequisite to the right to file and maintain a civil action 
under the Act?

STA TEM EN T OF FACTS

Johnson was discharged as an employee of the Railroad 
on December 10, 1965, “for conduct unbecoming an em­
ployee and conduct bringing discredit on” the Railroad, 
as developed in the formal investigation held on November 
29, 1965 in Atlanta, Georgia (Defendant’s Appendix, 
hereinafter referred to as “D X ”, (p, 1).

Johnson was present at the Railroad’s investigation of 
the charge he had been convicted of drunk driving, and he 
was furnished with a copy of the transcript of the pro­
ceedings (R. pp. 98-107).

1 hereinafter called “Commission”'.

2 hereinafter called “Johnson”.

8 hereinafter called “Railroad”.

4 hereinafter called “Act”.



3

By letter dated January 1, 1966, Johnson complained to 
the Commission,

i ( >}c 5jc 3jc

“I feel that the dismissal is a denial of my constitu­
tional rights as guaranteed under the Fourteenth 
Amendment to the U. S. Constitution and Title V II 
of the Civil Rights Law—the section on Prohibited 
Employer Practices.

“I am respectfully asking for an investigation of the 
causes for my dismissal and your aid in a fight for 
reinstatement.

Yours truly,
Ray Johnson”8

By Decision dated July 18, 1966, the Commission found, 

“Summary of Charges

“The Charging Party, a Negro, alleges discrimination 
on the basis of race in that he was discharged for filing 
complaints with various federal agencies protesting the 
discriminatory treatment given him as a porter in the 
Respondent Company’s employ.
* * *
“Decision

“There is reasonable cause to believe that the Re­
spondent violated Title V II of the Civil Rights Act 
of 1964 in dismissing the Charging Party from its 
employ.”6

6 full text of Johnson’s letter appears “DX”, p. 20.

6 full text of Commission Decision found in Plaintiff’s Appendix, hereinafter 
referred to as “PX”, pp. 3a-5a.



4

By letter dated August 8, 1966, the Commission in­
formed the Railroad of its Decision and told the Railroad, 

* *
“A conciliator appointed by the Commission will con­
tact you soon to discuss means of correcting this dis­
crimination and avoiding it in the future.

* *”7

According to the uncontradicted Affidavit of the Railroad’s 
Director of Personnel, S. M. Duffer, dated September 22, 
1967, immediately before oral argument and submission 
of this case to the Trial Judge on September 27, 1967, 
no conciliator had contacted the Railroad with respect 
to the alleged unlawful employment practice, and there had 
been no effort whatever at conciliation by the Commission, 
contrary to the Commission’s letter to the Railroad ap­
proximately fourteen months prior thereto. (See Affidavit, 
DX, pp. 22-23).

The Commission wrote Johnson two letters dated August 
:8, 1966, one letter informed Johnson of the Commission’s 
finding of “reasonable cause” to believe the Railroad had 
■engaged in an unlawful employment practice in dismissing 
him from the Railroad’s employ, and in that letter the 
Commission told Johnson the Commission will,

“* * * attempt to eliminate this practice by con­
ciliation as provided in Title VII. * * *”8

In the Commission’s other letter to Johnson the same day 
the Commission told Johnson,

7 full text of letter appears DX, p. 21.

8 full text of letter appears PX, p. 6a.



5

“Due to the heavy workload of the Commission, it has 
been impossible to undertake or to conclude conciliation 
efforts in the above matter as of this date. However, 
the conciliation activities of the Commission will be 
undertaken and continued. * * *’'9

On September 7, 1966, Johnson instituted the present 
cause alleging his discharge by the Railroad in violation o f 
the Act and praying the Court to order his reinstatement in 
employment with the Railroad. In addition, Johnson 
purports to bring a class action “on his own behalf and on 
behalf of others similarly situated” and alleges multiple 
acts of discrimination by the Railroad against “other Negro 
employees and members of plaintiff’s class with respect 
to the terms, wages, conditions, privileges, advantages and 
benefits of employment with defendant, to wit:

A. Negro employees are hired primarily for and re­
stricted to the job classification of train porter and are 
paid lower wages and denied privileges and benefits of 
employment given to white employees performing the 
same or similar jobs.
B. Defendant maintains separate lines of seniority for 
Negro and white employees and denies Negro em­
ployees the opportunity of advancement to higher pay­
ing positions and conditions of employment, the design, 
intent, purpose and effect being to continue and pre­
serve the defendant’s long standing policy, practice, 
custom and usage of limiting the employment and pro-

9 full text of letter appears PX, pp. la-3a. 10

10 Johnson’s Complaint, sub-paragraph D of paragraph VII and paragraph 2 
of the prayer for relief, PX, pp. 10a, 12a.



6

motional opportunities of Negro employees of the de­
fendant because of race or color.

C. Defendant maintains separate facilities and con­
ditions for its Negro and white employees, the design, 
purpose and effect being to maintain and perpetuate 
the separate job opportunities, conditions and priv­
ileges of the employees on the basis of race and 
color.”11

The pertinent portions of the Act necessary to consider 
this case are,

“§2000e-5. Enforcement provisions— Charges by per­
sons aggrieved or member of Commission; 
copy of charges to respondents; investiga­
tion of charges; conference, conciliation, 
and persuasion for elimination of unlawful 
practices; prohibited disclosures; use of 
evidence in subsequent proceedings; pen­
alties

(a ) Whenever it is charged in writing under oath by 
a person claiming to be aggrieved * * * that an 
employer * * * has engaged in an unlawful employ­
ment practice, the Commission shall furnish such em­
ployer * * * with a copy of such charge and shall 
make an investigation of such charge, provided that 
such charge shall not be made public by the Com­
mission. If  the. Commission shall determine, after such 
investigation, that there is reasonable cause to believe 
that the charge is true, the Commission shall endeavor 11

11 Johnson’s Complaint, paragraph VII and sub-paragraph A, B and C 
thereof, PX, p. 9a.



7

to eliminate any such alleged unlawful employment 
practice by informal methods of conference, concilia­
tion, and persuasion. * * * (emphasis added)
;{< >{s

(e) If  within thirty days after a charge is filed with 
the Commission * * *, the Commission has been un­
able to obtain voluntary compliance with this sub­
chapter, the Commission shall so notify the person 
aggrieved and a civil action may, within thirty days 
thereafter, be brought against the respondent named in 
the charge (I )  by the person claiming to be ag­
grieved * * *”

ARGUM ENT

I

O PEN IN G  STA TEM EN T

The Trial Judge, himself a former member of the Con­
gress, assiduously studied the voluminous briefs filed in the 
trial court and conducted his own research as to (1) the 
purposes of the Act, (2) the remedies provided by the Act, 
and (3) the Congressional intent in its enactment, and he 
reached the same general conclusion as did the court in 
Dent v. St. Louis-San Francisco Railway Company, et al, 
265 F. Supp. 56 at 61 (1967), that “some effort or attempt 
to obtain voluntary compliance, however minimal” is a 
jurisdictional prerequisite to suit in the federal courts. This 
Circuit has held that conciliation efforts are a part of the 
administrative remedy prescribed by the Act, citing and 
discussing the Dent case with approval, in Mickel v. South 
Carolina State Employment Service and/or Exide Battery



8

Service, 377 F.2d 239 (1967) and Stebbins v. Nationwide 
Mutual Insurance Company, 382 F.2d 267 (1967). Hence, 
the Memorandum of Decision and Order appealed from are 
consistent with the rule in this Circuit, that an aggrieved 
party must exhaust administrative remedies before going 
to court, and Judge Jones did not err in dismissing John­
son's civil action on the facts of this case.

W e ask the Court to keep in mind (1) that Johnson’s 
charge to the Commission in the first instance, (2) the 
Commission's Summary of the Charges, and (3) the 
Commission’s Decision, all were concerned solely with 
Johnson’s dismissal from the employ of the Railroad. How­
ever, when the suit was filed Johnson’s dismissal and rein- 
tatement are a minor part of his complaint, the overwhelm­
ing thrust of which consists of broadside allegations of 
essentially every defined unlawful employment practice an 
employer could possibly engage in because of an individual’s 
race. See 42 U.S.C. 2000e-2(a).12

II

T H E  PRO CED U RES ESTA B LISH ED  BY CON­
GRESS IN  T H E  ACT TO A FFO R D  T H E  COMMIS­
SION T H E  'O PPO R TU N ITY  TO A TT EM PT BY 
A D M IN ISTR A TIV E ACTION TO CONCILIA TE 
U N LA W FU L EM PLO Y M EN T PRA CTICES W IT H  
A V IEW  TO O BTA IN IN G  V OLUNTARY COM­
PLIA N CE H A V E NOT BEEN  M ET AND T H E  
•COURT IS W IT H O U T  JU R ISD IC TIO N  TO CON­
SID ER  JO H N SO N ’S M U L TIPLE CAUSES.

12 see again Johnson’s January 1, 1966 letter to the Commission, the Com­
mission’s Decision of July 18, 1966, and sub-paragraphs A, B and C of 
paragraph VII of the complaint, the pertinent portions of which appear in the 
.Railroad’s Statement of Facts, supra.



9

The first opportunity this Circuit had to consider Section 
706 of the Civil Rights Act of 1964, 42 U.S.C. §2000e-5 
was in the Mickel case where the plaintiff had made a 
charge to the Commission of a violation of the Act by a 
state employment agency, and then sued both the agency 
and the purported employer. The Court could have de­
cided and disposed of the Mickel case on either of two 
preliminary questions, (1) whether a party to a suit under 
the Act must have been the “respondent named in the 
charge filed with the Commission”, or (2) whether the 
employment agency against whom the charge was filed 
with the Commission was the agent of the prospective em­
ployer for purposes of filing the charge with the Commis­
sion under the Act. However, this Court went considerably 
further than these questions and examined into, as did the 
Trial Judge below, the purpose of the Act and the Con­
gressional intent. This Court acknowledged the dual pur­
pose of the Act, namely conciliation first, and coercion 
second when it said,

“Congress has provided that persons aggrieved by 
unlawful practices should first attempt to have the 
Commission settle the matter in an atmosphere of 
secrecy without resorting to the extreme measure o f 
bringing a civil action in the congested federal courts.” 
(emphasis added)

By the above statement we understand this Court is 
saying that Congress was anxious to effect compliance 
with the various provisions of the Act on a voluntary basis 
and that resort to the coercive atmosphere of the courts 
should be had only after efforts at voluntary compliance 
have failed.



10

This Court in the Mickel case also recognized and 
adopted the underlying principle of the Dent case, that 
conciliation attempts are a jurisdictional prerequisite to the 
institution of a civil action under the Act, when it said,

“In a recent well-considered case, Dent v. St. Louis - 
San Francisco Ry. Co., 265 F.Supp. 56 (N.D. Ala. 
Mar. 10, 1967), it was held that, conciliation attempts 
were a ‘jurisdictional prerequisite to the institution 
of a civil action under Title V II and that the actions 
instituted without this prerequisite must accordingly 
be dismissed.’ The court dismissed an action under 
Title V II because plaintiff had not resorted to the 
Commission’s conciliation procedures prior to court 
action. This conclusion also finds support in Hall v. 
Werthan Bag Corporation, 251 F.Supp. 184 (M.D. 
Tenn. 1966).”

That Congress intended exhaustion of administrative 
remedies within the Commission by persons claiming dis­
crimination in employment prior to bringing civil actions 
is abundantly clear from the research of the courts in Dent 
and Mickel, where in the latter the Court said,

“The decision in Dent, supra, 265 F.Supp. 56, pains­
takingly discusses the legislative history of this portion 
of the Civil Rights Act. The opinion presents over­
whelming authority culled from Congressional com­
mittee reports and the statements of key legislators 
to support the conclusion that Congress intended that 
persons claiming discrimination in employment should 
first exhaust their remedies within the Commission 
created for that purpose. Furthermore, the original 
bill contained a clause permitting the bringing of civil



11

actions prior to seeking conciliation but this provision 
was eliminated by a blouse amendment in order to 
insure that conciliatory efforts would be made.4”13

The only other reported decision of this Court directly 
dealing with the question presented in this appeal is the 
Stebbins case where before Circuit Judges Sobeloff, Bryan 
and Winter, in a Per Curiam opinion affirming summary 
judgment against a Negro employment applicant, the Court 
said it had reviewed both the legislative history of the 
Act, as well as its language, and concluded,

“* * * Congress established comprehensive and de­
tailed procedures to afford the EEOC the opportunity 
to attempt by administrative action to conciliate and 
mediate unlawful employment practices with a view 
to obtaining voluntary compliance. The plaintiff must 
therefore seek his administrative remedies before 
instituting court action against the alleged discrim­
inator.” 382 F. 2d 267 at 268.

Evenson v. Northwest Airlines, Inc. and Equal Employ­
ment Opportunity Commission, 268 F. Supp. 29 (1967) 
is heavily relied upon by Johnson in his brief, but is clearly 
distinguishable from the Johnson case because in Evenson:

1. Prior to filing suit on January 20, 1966, on Decem­
ber 16, 1965, or prior thereto, a Commission rep­
resentative had discussed the complaint (to the

13 fn. 4 from the above quotation from the Mickel case stated, “Representative 
Celler, sponsor of the bill and Chairman of the Judiciary Committee which 
reported upon it favorably, explained that the deletion was made to insure 
‘that there will be a resort by the Commission to conciliatory efforts before 
it resorts to a court for enforcement.’ 110 Cong. Rec. 2566 (1964).”



12

Commission) with a representative of the Com­
pany for the purpose of urging the Company to 
comply with the Act.

2. The Commission notified the complaining party 
“that conciliation efforts had failed”.

3. In construing the provisions of 42 U.S.C. §2000e- 
5 (a) as to the obligation of the Commission to 
endeavor to eliminate such alleged unlawful em­
ployment practice by informal methods of con­
ference, conciliation, and persuasion, the Court, 
noting that the Commission had endeavored to 
employ such methods, said, “ ‘To endeavor’ means 
to attempt or to undertake.”

Not only are all three of the foregoing fact conditions 
impossible in the Johnson case, but in Johnson the Com­
mission notified him it had been impossible “to undertake” 
conciliation efforts due to the Commission’s heavy work­
load. Moreover, the court’s definition of “to endeavor” in 
the Evenson case is one of the exact points contended by 
the Railroad in this case. Hence, the Railroad urges that 
the Evenson case is consistent with the Dent case and the 
Memorandum of Decision of Judge Jones in this case, as 
applied to the facts in Johnson’s case.

Plaintiff Johnson also relies upon Quarles v. Philip 
Morris, Inc., 271 F. Supp. 842 (1967) and Moody et al v. 
Albemarle Paper Company, 271 F. Supp. 27 (1967), but 
again there is a substantial and controlling difference 
between the facts in the Johnson case where the Com­
mission frankly told Johnson it had not undertaken con­
ciliation because its workload was too heavy,14 and the facts

14 see Railroad’s Statement of Facts, supra, and full text of Commission’s 
letter, PX, pp. la-3a.



13

of the Moody and Quarles cases where the Commission 
notified the aggrieved party voluntary compliance had not 
been effected or achieved. The most obvious distinguishing 
feature between the Johnson case, and the Quarles and 
Moody cases is the substance of the Commission’s notice 
to the aggrieved party. In Quarles and Moody the Com­
mission’s notice led the complaining party to believe con­
ciliation endeavors had been initiated at least, but in the 
Johnson case the Commission openly told Johnson it had 
not undertaken conciliation, and he forthwith filed suit. 
Moody, Quarles and Dent agree that sub-paragraphs (a ) 
and (e) of 42 U.S.C. §2000e-5 under the general heading 
of “Enforcement provisions” must be construed together.

In addition to his attempt to assert that the Act as well 
as its legislative history and the court decisions interpreting 
the Act do not require “conciliation” as a jurisdictional 
prerequisite to institution of a civil action, Johnson urges 
two reasons for not requiring “conciliation” in his case, 
(1) the administrative remedy is inherently inadequate or 
ineffective, and (2) he has done all that the Act requires 
of him before allowing him to institute suit. W ith respect 
to the adequacy of the administrative remedy of concilia­
tion, fit cannot be said that conciliation is inherently in- 

' adequate or ineffective, since it has been tried. This same 
argument was advanced in the Dent case, where the court 
said . it has never been the function of the courts to dis­
regard statutory requirements on the basis of which side 
can present the most moving emotional argument and 
pointed out that the complaining party was not being de­
prived of his day in court, saying,

he will be entitled to proceed with a civil action 
once the prerequisite of conciliation has been satisfied, 
if, indeed, conciliation should not resolve the dispute. 
Furthermore, Congress did not lose sight of the un­



14

fairness which would result to parties against whom 
charges are filed if they could be brought into court 
without the conciliation step, and the courts certainly 
should not lose sight of this fact.” 265 F.Supp. 56 
at 62.

The adequacy of conciliation as an effective remedy to 
Johnson’s claim will not be known until it is tried. W ith 
respect to Johnson’s contention that he has done everything 
he could to meet the requirements of the Act entitling him 
to bring suit, the Railroad says that I'm addition to the 
protection of the employee/applicant against the unlawful 
employment practices defined in the Act, another sub­
stantial purpose of the Act is the protection of the public 
through the protection of both the employee and the em­
ployer, which is accomplished first by means of “con­
ciliation” designed to effect voluntary compliance, and 
second by means of “coercion”, i.e. litigation. ; As stated 
in the Hall case, the Act has a “split personality”, and the 
interests of the public and the alleged discriminator must 
also be protected by the courts. As recently stated by the 
court in Choate v. Caterpillar Tractor Co., 274 F. Supp. 
781 (1967),

“* * * The statutory purpose of preventing discrim­
ination in employment is tempered by an equally 
cogent need to protect employers and other persons 
subject to the Act’s mandate from subjection to the 
burden of frivolous charges, claims and demands.
jjc

15 it should be noted that the court in the Choate case quotes with approval 
from the Dent, Hall and Mickel cases, that conciliation is a jurisdictional 
prerequisite to court action.



15

III

CONCLUSION
In conclusion, the Railroad urges that both “the letter 

and the spirit” of the Act require exhaustion of the ad­
ministrative remedies provided by the Act prior to suit 
in the federal courts. Conciliation efforts are an essential 
ingredient of these administrative remedies, and a juris­
dictional prerequisite to suit in the federal courts. The 
jurisdictional prerequisite of conciliation is lacking in each 
of the multiple claims included in Johnson’s complaint in 
the suit, the fact being that the only charge made to the 
Commission was his dismissal from the Railroad’s employ. 
Johnson’s dismissal was the sole charge investigated by 
the Commission and included in its decision, and the Com­
mission gave Johnson advance notice it had not undertaken 
to eliminate the alleged unlawful employment practice, i.e. 
Johnson’s dismissal, by informal methods of conference, 
conciliation and persuasion, on the patently irresponsible 
premise its workload was too heavy.

For the reasons herein set forth, as well as the Mem­
orandum of Decision of the Trial Judge, the Order ap­
pealed from should be affirmed.

Respectfully submitted,
T hom as A sh e  L ockhart  
W. T hom as R ay 
J o h n  S. Cansler  
Cansler  & L ockhart

910 North Carolina National 
Bank Building
Charlotte, North Carolina 28202 

J o h n  W. W eldon 
500 W ater Street 
Jacksonville, Florida 32202 

Attorneys for Appellee





A PPEN D IX





19

Letterhead of

SEABOARD A IR L IN E  RAILROAD COMPANY 
Office of Superintendent

Georgia Division

C. H. Lineberger 
Superintendent

990 Chattahoochee Avenue, N.W.
Atlanta, Georgia 30318

December 10, 1965 4f

T-1012

Certified Mail—Return Receipt Requested
Mr. Ray Johnson
Train Porter
503 Boyette Street
Monroe, N. C.

You are hereby dismissed, effective this date, from the 
service of the Seaboard Air Line Railroad Company for 
conduct unbecoming an employee and conduct bringing 
discredit on the Seaboard Railroad, as developed in formal 
investigation held on November 29, 1965 in Atlanta, 
Georgia.

A transcript of the investigation referred to is attached.

Please turn in to Mr. E, C. Miller, Trainmaster at 
Monroe, any Company property you have in your posses­
sion, including annual passes Nos. ER  9400, 9401 and 9402 
favor yourself, your wife and son Raymond H. Johnson.

s / C. H. L ineberger  
C. H. L ineberger  
Superintendent



20

503 Boyte Street 
Monroe, North Carolina 
January 1, 1966

To The Chairman
Equal Employment Opportunity Commission 
Washington, D. C.

Dear S ir :

The writer of this letter is Ray Johnson, Train Porter 
(with 25 years seniority) of the Seaboard Airline Rail­
road Company until notified of my dismissal from the 
services on December 10, 1965. This notification came two 
days after I began a 26 day vacation period.

This dismissal, I feel is a punishment for my protests 
against illegal practices of the railroad; i.e. I have been 
classified in a way which has. for 25 years been a dep­
rivation as well as adversely affecting my status as an 
employee of the Railroad.

Although the reason given by the company is the result 
of a conviction of a misdemeanor: The incident which led 
to the conviction took place while I was off duty from 
work and not on company property. I lost no time off from 
w ork; nor was I negligent in my duties.

I feel that the dismissal is a denial of my constitutional 
rights as guaranteed under the Fourteenth Amendment 
to the U.S. Constitution and Title V II of the Civil Rights 
Law—the section on Prohibited Employer Practices.

I am respectfully asking for an investigation of the 
causes for my dismissal and your aid in a fight for rein­
statement.

Yours truly,
R ay J o hn son



21

Letterhead of

e q u a l  e m p l o y m e n t  o p p o r t u n i t y
COM M ISSION 

Washington, D. C. 20506 

In Reply Refer to:

5-12-3850

Seaboard Air Line 
Railroad Company 
Richmond, Virginia

Gentlemen:
This will inform you that, after investigation, the Equal 

Employment Opportunity Commission has determined that 
there is reasonable cause to believe that you have engaged 
in an unlawful employment practice within the meaning 
of Section 703 of the Civil Rights Act of 1964. A copy 
of the Commission Decision is enclosed.

A conciliator appointed by the Commission will contact 
you soon to discuss means of correcting this discrimination 
and avoiding it in the future.

Under Section 1601.24 of the Procedural Regulations of 
the Equal Employment Opportunity Commission, “Nothing 
that is said or done during and as a part of the endeavors 
of the Commission to eliminate unlawful employment prac­
tices by informal methods of conference, conciliation, and 
persuasion may be made a matter of public information 
by the Commission without the written consent of the 
parties, or used as evidence in a subsequent proceeding.”



22

' Since the charges in this case were filed in the early 
phases of the administration of Title V II of the Civil Rights „ 
Act of 1964, the Commission has been unable to conduct 
a conciliation during the sixty day period provided in Sec­
tion 706. The Commission is, accordingly, obligated to ad­
vise the charging party of his right to bring a civil action 
pursuant to Section 706(e).

Nevertheless we believe it may serve the purposes of the 
law and your interests to meet with our conciliator to see 
if a just settlement can be agreed upon and a lawsuit 
avoided.

We are hopeful that you will cooperate with us in 
achieving the objectives of the Civil Rights Act and that 
we will be able to resolve the matter quickly and satis­
factorily to all concerned.

Very truly yours,

s /  K e n n e t h  F. H olbert 
K e n n e t h  F. H olbert

Acting Director of Compliance

A FF ID A V IT

RAY JOHNSON,
Plaintiff,

vs.

SEABOARD A IR L IN E  RAILROAD COMPANY, 
a corporation,

Defendant.



23

S. M. D U FFER, being first duly sworn, deposes and 
says:

1. Fie is Director of Personnel of Seaboard Coast Line 
Railroad Company, successor to Seaboard Air Line Rail­
road Company, with which predecessor Company he also 
was Director of Personnel, and is fully authorized and 
empowered to make this Affidavit on behalf of the de­
fendant.

2. (a ) By letter dated August 8, 1966, the Equal Em­
ployment Opportunity Commission advised Seaboard Air 
Line Railroad Company that the Commission had decided 
there was “reasonable cause” to believe the defendant had 
engaged in an unlawful employment practice within the 
meaning of Section 703 of the Civil Rights Act of 1964 
with respect to the plaintiff, and in the second paragraph 
of that letter, the Equal Employment Opportunity Com­
mission advised the defendant,

“A conciliator appointed by the Commission will con­
tact you soon to discuss means of correcting this 
discrimination and avoiding it in the future.” (em­
phasis added)

(b) Contrary to the advice contained in said letter, no 
conciliator has contacted the defendant with respect to the 
alleged unlawful employment practice, and there has been 
no subsequent effort whatever at conciliation by the Equal 
Employment Opportunity Commission.

A copy of said letter and the Commission Decision are 
attached as Exhibits A and B hereto.1

1 Exhibits A and B appear in PX, pp. 1A and 3A.



24

3. In paragraph 3 of the plaintiff’s “Charge of Dis­
crimination” to the Equal Employment Opportunity Com­
mission, he stated that the discrimination complained of 
took place on July 6, 1965, and the Charge of Discrimination 
was dated, subscribed and sworn to on January 12, 1966, 
and marked received by the Equal Employment Oppor­
tunity Commission on January 14, 1966, all as appear from 
the facsimile copy of the Charge of Discrimination hereto 
attached as Exhibit C.

4. As a former employee of the defendant, the plaintiff 
was a Passenger Train Porter, and the terms, conditions 
and provisions of the plaintiff’s employment were deter­
mined according to the agreement between the defendant 
and the International Association of Railway Employees, 
which appears as Exhibit A to the defendant’s Motion filed 
herein on September 20, 1967, and such terms, conditions 
and provisions of employment were not determined by 
agreement direct between the plaintiff and the defendant. 
Plaintiff made no appeal from the termination of his em­
ployment as provided in said agreement. A total of forty- 
one members of said association are employed by the de­
fendant.

s /  S. M. D u ffe r

S. M. D u ffer

Sworn to and subscribed before me 
this 22nd day of September, 1967.

S. W. W orley 
Notary Public

My commission expires: 7/17/70 

(Affix Notary Seal here)



25

FILED  
Oct. 9, 1967 

Thos. E. Rhodes, Clerk 
U. S. District Court 

W estern Dist. of N. C.

RAY JOHNSON,
Plaintiff,

vs.

SEABOARD A IR  L IN E  RAILROAD COMPANY, 
a corporation,

Defendant.

SU PPLEM EN TA L A FFID A V IT 
OF C. E. M ERV IN E, JR. ON 

D E F EN D A N T’S M OTION TO DISM ISS

C. E. M ERVINE, JR., being first duly sworn, deposes 
and says:

1. He is Director of Labor Relations of Seaboard Coast 
Line Railroad Company, and is fully authorized and em­
powered to make this Supplemental Affidavit on behalf of 
the defendant.

2. The defendant has more than 22,546 employees, and 
negotiates with 20 bargaining agencies, a. list of which 
appears as Exhibit A hereto, in arriving at the compensa­
tion, terms, conditions, advantages, privileges, benefits 
and provisions of employment for the employment of more 
than 19,610 of said employees, the compensation, terms, 
conditions, advantages, privileges, benefits and provisions



26

of employment for more than 2,936 employees being de­
termined by direct arrangement or negotiation between 
the defendant and each such employee.

s / C. E. M e r v in e , Jr.
C. E. M e r v in e , J r.

Sworn to and subscribed before me 
this 5th day of October, 1967.

Carolyn  R. F ra n c is  
Notary Public 
My Commission Expires:
Notary Public, State of Florida at Large 
My Commission expires July 13, 1971

(Affix Notary Seal Here)

Exhibit A

1. Brotherhood of Locomotve Engineers.

2. Brotherhood of Locomotive Firemen and Enginemen.

3. Order of Railway Conductors and Brakemen.

4. Brotherhood of Railroad Trainmen.

5. Brotherhood of Railway, Airline and Steamship 
Clerks, Freight Handlers, Express and Station Em­
ployees.

6. American Train Dispatchers Association.

7. Brotherhood of Maintenance of W ay Employees.

8. Brotherhood of Railroad Signalmen.

9. Transportation-Communication Employees Union.



27

10. Brotherhood of Sleeping Car Porters.

11. Hotel & Restaurant Employees & Bartenders Interna­
tional Union.

12. American Railway Supervisors Association.

13. Brotherhood Railway Carmen of America.

14. International Brotherhood of Electrical Workers.

15. Sheet Metal W orkers’ International Association.

16. International Association of Machinists and Aero­
space Workers.

17. International Association of Railway Employees.

18. International Brotherhood of Firemen & Oilers.

19. Railroad Yardmasters of North America, Inc.

20. The International Brotherhood of Boilermakers, Iron 
Ship Builders, Blacksmiths, Forgers and Helpers.