Rachel v. Georgia Reply Brief for Appellants

    Bnpnmt (&mvt nt %  Imfri* BUiza
Octobeb Teem, 1973 

No. 73-1513

I n  t h e

W illie J ohnson, J b.,

— y .—

Petitioner,

R ailway E xpress A gency, I nc., B rotherhood of R ailway 
Clerks T ei-State L ocal and B rotherhood of R ailway 
Clerks L ily of the Valley L ocal,

Respondents.

BRIEF FOR PETITIONER

J ack Greenberg 
J ames M. Nabrit, I I I  
Morris J . Baller 
Deborah M. Greenberg 
E ric S chnapper

10 Columbus Circle 
Suite 2030
New York, New York 10019

W illiam E . Caldwell 
R atner, Sugarmon & L ucas

525 Commerce Title Building 
Memphis, Tennessee 38103 

Attorneys for Petitioner
LOUIS H. POLLAK

Of Counsel



TABLE OF CONTENTS

PAGE

Opinions Below..........................................   X

Jurisdiction ................        2

Questions Presented ........................................................  2

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

Argument ..............        g

Conclusion- ..................    X7

Table op A uthorities

Cases:

Alexander v. Gardner-Denver Co., -----  U.S. ___  39
L.Ed.2d 147 (1974) -------------- ------ ---8, 8n, H ? I2n, 13n

American Pipe and Construction Co. v. Utah, 414 U.S 
538 (1974) ....................... ........................ ...... ........12,13,14

Boudreaux v. Baton Rouge Marine Contracting Co.,
437 F.2d 1011 (5th Cir. 1971) ____ ___________14,15n

Brady v. Bristol Myers, Inc., 459 F.2d 621 (8th Cir.
1972) ................... .................................... ................ . 8n

Brown v. Gaston County Dyeing Machine Co., 457 F.2d 
1377 (4th Cir. 1972), cert, denied, 409 U.S. 982 (1972) 8n 

Burnett v. New York Central R. Co., 380 U.S. 424 
(1965) ....... ............................................ ...... ...... ..12, 13,15

Caldwell v. National Brewing Co., 443 F.2d 1044 (5th
Cir. 1971), cert, denied, 405 U.S. 916 (1972) _______ 8n

Culpepper v. Reynolds Metals, 421 F.2d 888 (5th Cir., 
(1970) ........ ................ ........... ........... ......................16, iOn



XI

EEOC v. E.I. Dupont de Nemours & Co., 373 F.Supp.
1321 (D. Del. 1974) ....................................................  9n

Guerra v. Manchester Terminal Corp., 350 F.Supp. 529 
(S.D. Tex. 1972) ..........................................................  15n

Henderson v. First National Bank of Montgomery, 344 
F.Supp. 1373 (M.D. Ala., 1972) ............. ........... .......  15

Long v. Ford Motor Co., 7 CCH EPD 1(9290 (6th Cir.
1974) ...................................................... ..... ................  8n

LeBeau v. Libby-Owens-Ford Co., 484 F.2d 798 (7th 
Cir. 1973) ................................................................... lOn

Macklin v. Spector Freight Systems, Inc., 478 F.2d 979
(D.C. Cir. 1973) ................. ............ ................7, 8n, 9n, 14

Malone v. North American Rockwell Corp., 457 F.2d 
779 (9th Cir. 1972) ...................................................... I6n

Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 
(5th Cir. 1974) ............. ................................................  I5n

Reynolds v. Daily Press Inc., 5 CCH EPD 1(7991 (E.D.
Ya. 1972) ................... .............. ..... ..................... .....14,15

Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir.
1970), cert, denied, 401 U.S. 948 (1971) .....................  8n

Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th
Cir. 1970) ........... ............................. ........... ................  lOn

Sehiff v. Mead Corp., 3 CCH EPD K8G43 (6th Cir.
1970) ......... ............................................................... . 16

Sullivan v. Little Hunting Park, 396 U.S. 229 (1969) 13n, 15

PAGE



XU

Waters v. Wisconsin Steel Works of International 
Harvester Co., 427 F.2d 476 (7th Cir. 1970), cert.
denied, 400 TT.S. 911 (1970) ........................... _....8n, 9n, 15

Wells v. Gainesville-Hall Comity Economic Oppor­
tunity Organization, Inc., 5 CCII EPD 18541 (N.D.
Ga. 1973) ................................................. .................... 16n

Young v. International Telephone & Telegraph Co., 438

PAGE

F.2d 757 (3d Cir. 1971) ................ .... .........................  8n

Statutes:

Civil Eights Act of 1866, 42 U.S.C. §1981 .............passim

Title VII, Civil Eights Act of 1964, 42 U.S.C. §§2000e 
et seq..... ................................ .................................. passim

Federal Employer’s Liability Act, 42 U.S.C. §§51 et 
seq..... ................................ ...........................................  13

Federal Eules of Civil Procedure, Eule 60(b) ............  7

Tennessee Code Ann. §28-304 .......... ..... ...... ......._.__.6n, 7, 9n



1st t h e

(Emirt at tin? llmtpii &UX?b
October Term, 1973 

No. 73-1543

W illie J ohnson, J r.,

— v.—
Petitioner,

R ailway E xpress A gency, I nc., Brotherhood op R ailway 
Clerks Tri-State L ocal and Brotherhood op R ailway 
Clerks L ily op the Valley L ocal,

Respondents.

BRIEF FOR PETITIONER

Opinions Below
1. District Court’s order in No. C-71-66 dismissing 

claims under 42 TJ.S.C. §1981 and granting summary judg­
ment to union locals and partial summary judgment to 
REA Express1 on Title VII claims, June 14, 1971, re­
ported at 7 CCH EPD U9108 (91a-93a).2

2. District Court’s order in No. C-71-66 dismissing ac­
tion without prejudice, February 16, 1972, reported at 
7 CCH EPD 119109 (47a-48a).

3. District Court’s opinion and order in No. C-72-183 
dismissing refiled complaint, January 25, 1973, reported 
at 7 CCH EPD 1J9110 (98a-104a).

1 Effective June 1, 1970, respondent company’s corporate name 
was changed from Railway Express Agency, Inc. to REA Express, 
Inc. (52a).

2 This form of citation is to pages of the Appendix.



2

4. Opinion of Court of Appeals, November 27, 1973, 
reported at 489 F.2d 525 (105a-113a).

5. Order Denying Rehearing, January 15, 1974, reported 
at 489 F.2d 525, 530 (114a-118a).

Jurisdiction

The Court of Appeals entered judgment on November 
27, 1973. A timely request for rehearing was denied Janu­
ary 15, 1974. The petition for certiorari was filed April 15, 
1974, and was granted on June 3, 1974. This Court’s juris­
diction is invoked under 28 U.S.C. §1254(1).

Questions Presented

Whether the timely filing of a charge of employment 
discrimination with the Equal Employment Opportunity 
Commission pursuant to Section 706 of Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. §2000e-5, tolls the 
running of the period of limitation applicable to an action 
based on the same facts brought under the Civil Rights 
Act of 1866, 42 U.S.C. §1981!

Statement o f  the Case

Petitioner Willie Johnson, Jr., is a black man who claims 
to have been subjected by respondents to racial discrimi­
nation in the terms and conditions of employment.

Petitioner was hired by respondent REA Express, Inc. 
(“REA”) in the spring of 1964 as an express handler in 
Memphis, Tennessee.

On May 31, 1967, petitioner filed a timely charge with the 
Equal Employment Opportunity Commission (“EEOC”) 
charging respondent REA with discriminating against its 
black employees with respect to seniority rules and job 
assignments. He also charged respondent union locals with



3

maintaining racially segregated locals, Brotherhood of Rail­
way Clerks Tri-State Local for whites and Lily of the 
Yalley Local for blacks. On June 20, 1967, respondent REA 
terminated petitioner’s employment, and on September 6, 
1967, petitioner amended his EEOC charge to allege that 
he had been discharged because of his race (14a-16a).

The EEOC issued an investigation report on December 
22, 1967, concluding that REA directed black employees to 
membership in Lily of the Yalley Local and white employees 
to membership in Tri-State Local, that membership dues 
were higher in the black local than in the white local, that 
REA maintained racially segregated job classifications, 
that respondent REA’s seniority and job assignments were 
discriminatory, that REA discriminated against blacks in 
the imposition of disciplinary action, and that petitioner 
was discriminatorily discharged (32a-40a). On March 31,
1970, the EEOC issued a decision finding reasonable cause 
to believe that respondent had violated Title YII of the 
Civil Rights Act of 1964, and on or about January 15, 1971, 
petitioner received from EEOC a notice of his right to 
bring suit within 30 days (8a).

Petitioner was unable to obtain private counsel and Dis­
trict Judge Bailey Brown entered an order February 12,
1971, appointing an attorney to represent petitioner and 
allowing petitioner’s notice of right to sue to be filed as a 
complaint on a pauper’s oath (Civil Action No. C-71-66) 
(8a).

The court-appointed attorney filed a “Supplemental Com­
plaint” alleging violation of Title VII and 42 U.S.C. §§1981 
et seq., and invoking the Court’s jurisdiction under 28 
U.S.C. §1343(4) and 42 U.S.C. §2000e-5f. The complaint, 
filed March 18, 1971, alleged that respondent REA, in con­
junction with respondent union locals, engaged in a policy 
and practice of discriminating against black employees with



4

respect to promotional opportunities and tliat respondent’s 
job assignment and promotion practices served “to main­
tain a preexisting pattern of racial discrimination in em­
ployment”. Petitioner further alleged that he had been 
denied supervisory training and promotion opportunities 
which were accorded to white employees, that respondent 
union locals did not afford black members (including peti­
tioner) the same quality of representation afforded to white 
members, and that petitioner’s discharge was the result of 
respondent REA’s racially discriminatory employment 
practices. Petitioner prayed for preliminary and perma­
nent injunctive relief, back pay, costs and attorney’s fees 
(60a-66a).

Respondents REA and union locals filed their answers 
on March 29 and April 6, 1971, respectively. The case was 
then scheduled for trial on August 18, 1971 (8a). On April 
30 and June 3, 1971, the unions and REA, respectively, 
filed motions to dismiss or in the alternative for summary 
judgment (8a). Petitioner’s court-appointed attorney filed 
no memoranda or affidavits on behalf of petitioner in op­
position to these motions (8a-9a).

Judge Brown entered an order June 30, 1971 which, inter 
alia, 1) dismissed all claims based on 42 XJ.S.C. §1981 as 
barred by Tennessee’s one-year statute of limitations for 
actions “for compensatory or punitive damages, or both, 
brought under the federal civil rights statutes” ; 2) granted 
summary judgment to the defendant unions on the grounds 
that “from the undisputed facts” plaintiffs had no grounds 
for relief under Title VII; and 3) granted REA partial 
summary judgment on the issue of improper supervisory 
training (91a-93a). The case having been rescheduled for 
trial on February 2, 1972, respondent REA served peti­
tioner with interrogatories, filed a pre-trial memorandum 
as required by local rules of court, and took petitioner’s 
deposition. Petitioner’s court-appointed counsel took no



5

discovery, by interrogatories, deposition, or otherwise, 
and filed no pretrial memorandum (9a).

BE A ottered Johnson a settlement of one hundred and 
fifty dollars which Johnson refused. Petitioner’s counsel 
then filed, on January 5, 1972, a motion to be relieved as 
attorney of record on the grounds that petitioner’s case 
was “questionable”, petitioner had not substantiated 
money damages and had not expressed an intention of 
advancing the funds necessary for taking depositions, 
and because petitioner had refused BEA’s settlement 
offer. The clerk of the district court advised petitioner 
by letter dated January 14, 1972 that the motion to with­
draw had been granted, and informed plaintiff that if he 
did “not obtain another counsel to represent [him] “within 
30 days from this date, [his] claim will be dismissed with­
out prejudice” (9a-10a).3

Upon receipt of the clerk’s letter, petitioner, in an 
effort to obtain representation, contacted the Memphis 
EEOC field attorney, the Memphis & Shelby County Legal 
Services Association, the Shelby County Bar Association 
Legal Referral Service, and two private attorneys. Finally, 
toward the end of the 30 days he went to the firm of Rat- 
ner, Sugarmon & Lucas and explained his plight to Wil­
liam E. Caldwell of the firm (10a). On February 17, 
1972 Caldwell wrote a letter to Judge Brown indicating 
that he was attempting* to obtain financial support for 
the litigation and requesting an additional thirty days 
for the petitioner to obtain counsel (45a-46a). However, 
the preceding day, February 16, Judge Brown had en­
tered an order dismissing petitioner’s case “without prej­
udice” (47a.-48a).

3 Petitioner received no notice of a hearing on the motion to 
withdraw and was afforded no opportunity to state his position. 
The court made no finding that petitioner was either unable or 
unwilling to proceed pro se or that petitioner was responsible for 
any delay in bringing the case to trial. No order granting the 
motion to withdraw was ever entered.



6

On May 5, 1972, Caldwell again wrote to Judge Brown 
indicating that the NAACP Legal Defense and Educa­
tional Fund had agreed to pay litigation costs for peti­
tioner, entering an appearance for petitioner, and request­
ing that the order of February 16 he vacated and that the 
case be reinstated on the active docket of the court (49a- 
50a). Judge Brown replied on May 8, 1972 indicating 
that the “proper way to handle this matter would be to 
file a new action since the old one has long been dismissed” 
(51a).

Pursuant to Judge Brown’s letter, Caldwell, on May 
31, 1972, filed a new complaint on petitioner’s behalf 
(Civil Action No. C-72-183), assigned to District Judge 
Harry W. Wellford. The new complaint reiterated peti­
tioner’s original allegations (4a-13a). Respondents REA 
and union locals moved for dismissal or for summary 
judgment on the grounds of untimeliness and res judicata 
(58a-59a, 94a-99a). The district court, per Judge Well- 
ford, entered an order of dismissal on the grounds that 
1) petitioner’s claims under 42 IT.S.C. §§1981 et seq. were 
barred by Tennessee’s one-year statute of limitations on 
“actions for compensatory, or punitive damages, or both, 
brought under the federal civil rights statutes” ;4 2) pe­
titioner had “failed to meet the statutory requirements” 
of Title VII because he failed to refile his suit within 
30 days after Judge Brown’s February 16, 1972 order 
of dismissal without prejudice, 3) Judge Brown’s inter­
locutory order of June 14, 1971 granting summary judg­
ment to respondent union locals and partial summary 
judgment to respondent REA was a “final disposition” 
constituting res judicata, and 4) petitioner’s claims under 
42 IT.S.C. §§1981 et seq. were barred because he had not 
pursued his administrative remedies under the Railway 
Labor Act (98a-104a).

4 Tenn. Code Ann. §28-304.



7

The Court of Appeals, in an opinion by Judge Weick, 
affirmed the order of dismissal, disposing of the case 
on timeliness grounds. First, the court held that peti­
tioner’s claims under 42 U.S.C. §1981 were time-barred 
by the running of the statute of limitations. In reach­
ing* this conclusion as to the Section 1981 claims the Court 
of Appeals held: a) that the applicable statute was the 
one-year limitation contained in Tenn. Code Ann. §28- 
304; and b) that the running of the statute on the Sec­
tion 1981 claims was not tolled by petitioner’s timely filing 
of charges with EEOC. Second, the court held that the 
Title VII claims were jurisdietionally barred because 
at a minimum [petitioner] had to file the new case within 

thirty days from the date of dismissal without prejudice”5 6 
(105a-113a). The Court of Appeals did not discuss the 
issues of res judicata and exhaustion of remedies under 
the Railway Labor Act or an additional question assigned 
for error, the failure of the District Court to grant peti- 
titioner relief from the dismissal without prejudice pur­
suant to Rule 60(b), F.R. Civ. P.

In its opinion denying rehearing, the Court of Appeals 
reaffirmed its initial opinion, stating that Tennessee’s at­
tempted application of a one-year limitation period to all 
civil rights actions, regardless of their nature, is not 
“arbitrary in a constitutional sense” and the statute does 
not create “an explicit racial classification . . . because 
citizens of all races are entitled to take advantage of the 
federal civil rights statutes” (114a-118a). It explicitly 
rejected the holding of Macklin v. Spector Freight Sys­
tems, Inc., 478 F.2d 979, 994-995 n.30 (D.C. Cir. 1973)

5 With regard to Judge Brown’s February 16, 1972 order of dis­
missal without prejudice, the Court of Appeals stated:

“We need not determine the propriety of this order because it 
was a final order from which no appeal was taken” (107a).



8

that the filing of petitioner’s EEOC charge tolled the 
running* of the state statute of limitations on his Section 
1981 claim (114a-118a).6

This Court granted Certiorari to consider the tolling 
question. If petitioner prevails, the issue of the timeliness 
of refiling his Title YII action will be moot since he will 
be able to proceed under Section 1981. We submit that the 
res judicata issue should be remanded to the Court of 
Appeals for reconsideration and clarification,7 and the ex­
haustion issue should be remanded to the Court of Ap­
peals for decision.

Argument

As this Court has pointed out in Alexander v. Gardner- 
Denver,----- TJ.S.------ , 39 L.Ed. 2d 147, 158 (1974), Con­
gress has deliberately created a variety of remedies against 
racial discrimination in employment. It is well established 
that an aggrieved employee can bring suit under 42 U.S.C. 
§1981 (Civil Rights Act of 1866), and that this statute 
creates a right of action independent of that embodied in 
42 U.S.C. §§2000e, et seq. (Title YII of the Civil Rights 
Act of 1964).8

6 In a footnote, the Court stated that it agreed with the district 
court on the res judicata question (114a).

7 The order of summary judgment was interlocutory and was 
limited to petitioner’s Title VII claims (92a).

8 Young v. International Telephone & Telegraph Co., 438 F.2d 
757 (3rd Cir. 1971); Brown v. Gaston County Dyeing Machine 
Co., 457 F.2d 1377 (4th Cir. 1972), cert, denied, 409 U.S. 982 
(1972); Caldwell v. National Brewing Co., 443 F.2d 1044 (5th Cir. 
1971), cert, denied, 405 U.S. 916 (1972) ; Sanders v. Dobbs Houses, 
Inc.' 431 F.2d 1097 (5th Cir. 1970), cert, denied, 401 U.S. 948 
(1971); Long v. Ford Motor Co., 7 CCH EPD 1(9290 (6th Cir. 
1974); Waters v. Wisconsin Steel Works of International Harvester 
Co., 427 F.2d (7th Cir.), cert, denied, 400 U.S. 911 (1970); Brady 
v. Bristol-Myers, Inc., 459 F.2d 621 (8th Cir. 1972); Macklin v. 
Spector Freight Systems, Inc., 476 F.2d 979 (D.C. Cir. 1973). 
See also Alexander v. Gardner-Denver Co., 39 L.Ed. 2d 147, 158 & 
n. 7, 9.



9

Petitioner initiated proceedings under Title VII by filing 
a charge with the EEOC on May 31, 1967, while still em­
ployed by EE A. His employment was terminated on June 
20, 1967. If the one-year statute of limitations which the 
courts below applied to petitioner’s Section 1981 claim were 
not deemed tolled by the filing of his EEOC charge, peti­
tioner would have to have filed suit under this section no 
later than June 20, 1968.9 The EEOC did not issue its 
finding of reasonable cause until March 31, 1970, twenty- 
one months later. The EEOC did not issue a right-to-sue 
letter until January 10,1971, two and one-half years later.10 
It is likely that had petitioner brought suit under Section 
1981 within one year following termination of his employ­
ment, the suit would have reached final disposition long 
before the EEOC completed its processing of petitioner’s 
charge. And as the course of petitioner’s journey through 
the courts illustrates only too well, the road to relief under 
Title VII contains too many procedural pot-holes for the

9 Congress did not enact a statute of limitations applicable to 42 
U.S.C. §1981. Pursuant to 42 U.S.C. §1988, the applicable statute 
of limitations is that which governs the most analogous state action. 
Waters v. Wisconsin Steel Works, supra, 427 F.2d at 488; Macklin 
v. Spector Freight Systems, Inc., supra, 478 F.2d at 994.

The Court below held that the most analogous state statute of 
limitations is Tenn. Code 28-304, which provides a one-year limita­
tion on the commencement of, inter alia, “civil actions for compen­
satory or punitive damages, or both, brought under the federal 
civil rights statutes”. In his Petition for a "Writ of Certiorari, 
petitioner contended that this statute was inapplicable by its 
terms to the case at bar, and that if it were applicable, it would be 
violative of both the supremacy clause of Article VI of the Con­
stitution and the equal protection clause of the Fourteenth Amend­
ment. The Court did not grant certiorari on these questions.

10 The delay in the processing of petitioner’s charge was not 
aberrational. See EEOC v. E l .  Du Pont de Nemours & Co., 373 
F.Supp. 1321, 1329 & n. 6-11 (D. Del. 1974).



10

employee willingly to forego Ms cause of action under 
Section 1981.11

Title VII, on the other hand, is in some instances the 
better remedy under which to litigate employment dis­
crimination claims, particularly for aggrieved individuals 
who can ill afford to pursue their remedy under Section 
1981. In enacting Title VII, Congress created for the bene­
fit of a complainant the EEOC, whose purpose is to investi­
gate and conciliate claims on the complainant’s behalf.12 
It also created an effective judicial enforcement scheme for 
the vindication of complainant’s rights. Under Title VII, 
as amended in 1972, the Commission has the authority to 
sue on behalf of the complainant,13 and to compensate all 
witnesses who appear on behalf of the Commission during 
its investigatory proceeding or in court.14 Furthermore, 
the Act authorizes EEOC to seek “pattern and practice” 
relief including remedies for complainants.15 Moreover, 
an aggrieved party may, as petitioner did in the instant 
case, upon application have the court appoint an attorney 
to assert his claims without the payment of fees, costs, or 
security.16

From the point of view of an individual with limited 
resources, unable to obtain counsel, it is more desirable to 
file a charge under Title VII and thus have made available

11 See, e.g., Sanchez v. Standard Brands, Inc., 431 F.2d 455 (5th 
Cir. 1970) (scope of judicial complaint is limited to scope of 
EEOC investigation which can reasonably be expected to grow out 
of charge of discrimination); LeBeau v. Libby-Owens-Ford Co., 
484 F.2d 798 (7th Cir. 1973) (international union dismissed from 
Title YII action where EEOC charge named only local).

12 42 U.S.C. §2000e-4(a).
13 42 U.S.C. §2000e-5 (f)(1).
14 42 U.S.C. §2000e-4(g) (2).
“ 42 U.S.C. §2000e-6 and 6(c).
16 42 U.S.C. §2000e-5 (f)(1).



11

to him the full resources of the EEOC than to commence 
litigation under Section 1981. As long as he has reason to 
hope that he can get the relief he seeks by resort to the 
EEOC, he should not have to go to the expense of filing suit.

The position taken by the Sixth Circuit Court of Appeals 
is incompatible with the flexible approach to overlapping 
remedies in employment discrimination cases—viz., that 
pursuit of one does not preclude another—taken by this 
Court in Alexander v. Gardner-Denver Co., supra, and, if 
allowed to stand, would both interfere substantially with 
the successful administration of Title VII and be adverse 
to the interests of judicial economy.

In Alexander, this Court held that submission of a claim 
of racial discrimination in employment to arbitration under 
the non-discrimination clause of a collective bargaining 
agreement did not bar the employee from suing his em­
ployer under Title VII. This Court rejected the doctrine 
of election of remedies, stating that “the legislative history 
of Title VII manifested a congressional intent to allow an 
individual to pursue independently his rights under both 
Title VII and other applicable state and federal statutes.” 
39 L.Ed. 2d at 158-59. The Court went on to reject the 
argument that federal courts should defer to arbitral deci­
sions on discrimination claims under certain circumstances, 
observing:

“A deferral rule might also adversely affect the 
arbitration system as well as the enforcement scheme 
of Title VII. Fearing that the arbitral forum cannot 
adequately protect their rights under Title VII, some 
employees may elect to bypass arbitration and insti­
tute a lawsuit. The possibility of voluntary compliance 
or settlement of Title VII claims would thus be reduced, 
and the result could well be more litigation, not less.”

39 L.Ed. 2d at 164.



12

The relationship, in Alexander, between arbitration and 
litigation under Title VII, is analogous to the relationship 
in the instant case between the EEOC fact-finding and 
conciliation processes and litigation under 42 U.S.C. §1981. 
The reasoning that led the Court to accommodate both 
avenues of redress in Alexander applies with equal, if not 
greater, force to the case at bar. It is obvious that the 
necessity of complying with a short statute of limitations 
even though a charge was pending before the EEOC would 
discourage and/or render futile recourse to the Congres- 
sionally favored policy of conciliation,17 “ [t]he possibility 
of voluntary compliance or settlement of Title VII claims 
would thus be reduced, and the result could well be more 
litigation, not less.” Alexander v. Gardner-Denver Co., 
supra, 39 L.Ed.2d at 164. Cf., American Pipe and Con­
struction Co. v. Utah, 414 U.S. 538, 555-56 (1974).

This Court has stated that statutes of limitation are 
“primarily designed to assure fairness to defendants. Such 
statutes ‘promote justice by preventing surprises through 
the revival of claims that have been allowed to slumber 
until evidence has been lost, memories have faded and wit­
nesses have disappeared. The theory is that even if one 
has a just claim it is unjust not to put the adversary on 
notice to defend within the period of limitation and that 
the right to be free of stale claims in time comes to prevail 
over the right to prosecute them.’ Order of Railroad Teleg­
raphers v. Railway Express Agency, Inc., [321 U.S. 342, 
348-49 (1944)].’’’ Burnett v. New Tori Central R. Co., 380 
U.S. 424, 428 (1965). Clearly, the policies underlying the 
statute of limitations applicable to petitioner’s Section 
1981 claims were served by the filing of his EEOC charge.

Where the policies of ensuring essential fairness to 
defendants and of barring a plaintiff “who has slept on his

17 Alexander v. Gardner-Denver Go., supra, 39 L.Ed.2d at 156.



13

rights” are satisfied, statutory periods of limitation should 
he tolled where to do so would lead to the vindication of 
petitioner’s rights, thereby promoting Congressional policy 
embodied in “humane and remedial” legislation, and would 
further the interests of judicial economy. Burnett v. New 
York Central R. Co., supra, 380 U.S. at 428, 434; American 
Pipe and Construction Co. v. Utah, supra, 414 U.S. at 
555-56.18

In Burnett v. New York Central R. Co., supra, petitioner 
had timely filed an action in state court under the Federal 
Employer’s Liability Act, 45 U.S.C. §§51 et seq. After the 
action was dismissed for improper venue, petitioner 
brought an identical action in federal district court. The 
District Court dismissed the complaint on the ground that 
it was barred by the limitation provision embodied in the 
FELA, and the Court of Appeals affirmed. This Court 
reversed, holding that the limitations statute was tolled 
during the pendency of the state action. The Court 
observed that to hold otherwise would discourage FELA 
actions in the courts of certain states, in contravention of 
the intent of Congress, in providing for concurrent state 
and federal court jurisdiction, to protect the plaintiff’s 
right to bring an FELA action, in state court. Id. at 434. 
Similarly, not to permit tolling in the instant case would 
discourage the bringing of actions under Title VII as well 
as Section 1981 where Congress has evidenced an intent to 
protect an employee’s right to do both.19

is While the applicable statute of limitations is a state statute, 
the rules with respect to which statute should be applied and the 
circumstances under which that statute should be tolled are federal 
rules. The rules adopted should be those which best serve the 
policies expressed in the federal statutory scheme. MacJclin v. 
Spector Freight Systems, Inc., supra, 476 F.2d at 994-95 n. 30. Cf. 
Sullivan v. Little Hunting Park, 396 U.S. 229, 239-40 (1969).

19 See Alexander v. Gardner-!)enver Co., supra, 39 L.Ed.2d at 
158 & n. 7, 9.



14

In American Pipe and Construction Co. v. Utah, supra, 
this Court held that commencement of a class action tolled 
the running of the limitation period on actions by mem­
bers of the purported class until the entry of the order 
that the suit could not proceed as a class action. A contrary 
holding would have induced potential class members to 
file protective motions to intervene or to join in the event 
that a class was later found unsuitable, breeding needless 
duplication of motions and depriving class actions of “the 
efficiency and economy of litigation which is a principal 
purpose of the procedure”. Id., 414 U.S. at 553. In the 
case at bar, failure to adopt a tolling rule will require 
employees, who wish to proceed under both Title YII and 
Section 1981, to file two separate actions, resulting in 
economic hardship to the plaintiffs and a further strain on 
judicial resources.

In Macklin v. Spector Freight Systems, Inc., 478 F.2d 
979 (D.C. Cir. 1973) the court, adopting the rule that the 
filing of an EEOC charge tolls the running of the period 
of limitation on a Section 1981 claim, reasoned as follows:

“First, we believe Title YII indicates a recent con­
gressional decision to favor informal methods of 
settlement and conciliation short of litigation in em­
ployment discrimination cases. Plaintiffs, who often 
proceed initially without assistance of counsel and 
bring their complaints first to EEOC in accord with 
this legislative policy, should not be penalized for 
this action when they later sue for relief in District 
Court under both Title YII and §1981, which overlaps 
Title YII. . . . Moreover, we believe the broad pur­
pose of statutes of limitations—prevention of stale 
claims and unfair surprise—are not frustrated by 
adopting the rule of Boudreaux [v. Baton Rouge 
Marine Contracting Co., 437 F.2d 1011, 1017 n. 16 
(5th Cir., 1971)] and Reynolds [v. Daily Press, Inc., 
5 CCH EPD H7991 (E.D. Va. 1972)]. The local and 
Spector were assuredly put on notice while the case



15

was under investigation by the EEOC, for the in­
vestigator’s report indicate that Specter’s records 
were examined and officials of the local interviewed. 
. . . [W]e are not dealing with a clear expression of 
congressional intent as to limitations of <§1981 ac­
tions, for Congress enacted no statute of limitations 
applicable to §1981. As a result we are forced to 
create procedural limitations on such actions as a 
matter of judicial implication. See Waters v. Wis­
consin Steel Works of International Harvester Co., 
[427 P. 2d 476, 488, (7th Cir.), cert, denied 400 U.S. 
911 (1970)]; of. Sullivan v. Little Hunting Park, Inc., 
396 U.S. 229, 239-240 (1969). In this posture it is 
our duty to ensure that the procedural limitations 
we impose are consistent with §1981’s underlying 
“humane and remedial” policy. Burnett v. New York 
Central R. Co., 380 U.S. 424, 427-429 (1965). See 
Misell v. North Broward Hospital District, 5th Cir., 
427 F.2d 468, 473-474 (1970). And we believe the 
underlying policy of justice and interracial accom­
modation imbedded in §1981 is not furthered by 
enmeshing actions under the statute in technicalities 
that operate to the disadvantage of plaintiffs who 
have acted entirely in good faith by taking their 
claims initially to EEOC.”

478 F.2d at 994-95 n. 30.

Other Courts, in reaching the same result, have focused 
on the desirability of avoiding duplication of litigation. 
Henderson v. First National Bank of Montgomery, 344 
F. Supp. 1373 (M.D. Ala. 1972); Reynolds v. Daily Press, 
Inc., 5 CCH EPD 1J991 at 6649-50 (E.D. Va., 1972).20

20 See also, Pettway v. American Cast Iron Pipe Co., 494 F.2d 
211, 255 n. 130 (5th Cir. 1974) : Boudreaux v. Baton Rouge Marine 
Contracting Co., 437 F.2d 1011, 1017 n. 16 (5th Cir. 1971); Guerra 
v. Manchester Terminal Corp., 350 F.Supp. 529 (S.D. Tex., 1972).



16

The Sixth Circuit’s position conflicts in principle with 
its decision in Schiff v. Mead Corp., 3 CCH EFT) ([8043 
(1970) and with those decisions in the Fifth and Ninth 
Circuits and various district courts holding that the 
period of limitation for the commencement of proceed­
ings under Title YII should be tolled for the period dur­
ing which resolution through arbitration or through the 
National Labor Relations Board is attempted.21

Just as, in those cases, the tolling rule was invoked to 
encourage private settlement without litigation, see, e.g., 
Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th 
Cir. 1970), the rule should be applied to the instant case 
to encourage conciliation by the EEOC before resort to 
litigation.

21 Culpepper v. Reynolds Metals Co., 421 F.2d 888 (5th Cir. 
1970); Malone v. North American Rockwell Corp., 457 F.2d 779 
(9th Cir. 1972); Wells v. Gainesville-Hall County Economic 
Opportunity Organization Inc., 5 CCH EPD 1(8541 (N.D. Ga., 
1973; Guerra v. Manchester Terminal Corp., supra.



17

CONCLUSION

For all the foregoing reasons, the judgment of the 
Court of Appeals affirming the District Court’s dismissal 
of petitioner’s claim under 42 TT.S.C. §1981 should be 
reversed.

Respectfully submitted,

J ack Greenberg 
J ames M. Nabrit, III 
Morris J. Baller 
Deborah M. Greenberg 
E ric Schnapper

10 Columbus Circle 
Suite 2030
New York, New York 10019

W illiam E. Caldwell 
R ather, Sugarmon & L ucas

525 Commerce Title Building 
Memphis, Tennessee 38103 

Attorneys for Petitioner

LOUIS H. POLLAK 
Of Counsel



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