Greenberg, Jack; and Others, 1995, undated - 1 of 114

    No. 87-

I n THE

#upmtu' (Uimrt nf tljp MnxUb States
October Term, 1987

P eners L. Griffin , et al.,

v.
Petitioners,

R ichard L. Dugger, et al.,
Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

J tjlitts L eV onne Chambers 
R onabd L. E llis 
Charles Stephen R alston 
Clyde E . Murphy*

99 Hudson S treet 
16th. F loor
New York, New York 10013 
(212) 219-1900

H arry L. W itte 
J erry G. Traynham

P atterson and Traynham 
1213 Thomasville Road 
P ost Office Box 4289 
Tallahassee, F lo rida 32315 
(904) 224-9181

Counsel for Petitioners

*Counsel of Record



1

QUESTIONS PRESENTED

1. Whether the Court of Appeals 

erred in holding that a layman, filing an 

administrative charge with the Equal 

Employment Opportunity Commission under 

Title VII of the Civil Rights Act of 1964, 
as amended, 42 U.S.C. §2000e et. seq., is 
required to satisfy the requirements of 
Article III standing, in order to have 

that charge investigated and processed by 
the Equal Employment Opportunity 
Commission.

2. Whether the Court of Appeals 
erred in holding that a black employee 

does not have standing to file an 

administrative charge with the Equal 
Employment Opportunity Commission under 
Title VII of the Civil Rights Act of 1964, 

as amended, 42 U.S.C. §2000e et. seq. . 

c o m p l a i n i n g  t h a t  the e m p l o y e r
discriminates against black applicants for



11
employment on the basis of race, where the 
discrimination against applicants 
artificially lowers the number of black 
persons in the workforce, and deprives the 
employee of a nondiscriminatory work 
environment.

3. Whether the Court of Appeals 
erred in holding that a black employee 
does not have standing to litigate, in 
federal court, a claim filed under Title 
VII of the Civil Rights Act of 1964, as 
amended, 42 U.S.C. §2000e et. sea. . 
co mplaining that the employer 
discriminates against black applicants for 
employment on the basis of race where the 
discrimination against applicants 
artificially lowers the number of black 
persons in the workforce, and deprives the 
employee of a nondiscriminatory work 
environment.



iii
4. Whether the Court of Appeals,

violated the principles of Crown. Cork &
Seal v, Parker, 462 U.S. 345 (1983),

United Airlines v. McDonald. 432 U.S. 538 

(1974) and Zipes v. Trans World Airlines. 

ISS•„/ 455 U.S. 385 (1982), by its failure 
to hold that the commencement and 
certification of a class action tolled the 
filing requirements of Title VII for 
putative class members.



IV

PARTIES
The parties to this proceeding are 

Peners L. Griffin, Henry Dejerinett, Alvin 
Smith, John Butler, Raymond W. Gearey, 
Louie L. Wainwright, Richard L. Duggger, 
the State of Florida, the Florida 
Department of Corrections, and a class 
composed of all past, present, and 
potential black employees of the State of 
Florida Department of Corrections.



TABLE OF CONTENTS

QUESTIONS PRESENTED .................  i
P A R T I E S ................................iii

TABLE OF AUTHORITIES....................vi
Jurisdiction .......................... 3

Statutory Provision Involved . . . . .  3
Statement of the C a s e ...............  4

Statement of the F a c t s ...............  8

Reasons For Granting The Writ . . . .  14

I.
Certiorari Should Be Granted 
Because The Court Of Appeals7 
Decision Conflicts With The 
Decision Of Other Courts Of 
Appeal Establishing Standing To 
File A Charge Before The EEOC,
And With The Statutory Purpose 
Of Title VII ............... .. . 16



vi
Page

II.
Certiorari Should Be Granted Because The Decision Of The Court Of Appeals Conflicts With 
This Court's Opinion In 
Trafficante v. Metropolitan Life Insurance Co.. 409 U.S. 205
(1972), And With The Decisions 
Of Other Courts Of Appeal 
Interpreting That Opinion. . . .  30

III.
Certiorari Should Be Granted Because The Decision Of The 
Court Of Appeals Conflicts With This Court's Opinions In Crown.Cork & Seal v. Parker. 462 U.S.
345 (1983), Zipes v. Trans World 
Airlines, Inc. 455 U.S. 385 
(1982) And United Airlines v. 
McDonald, 432 u.S. 385 (1977). . 37

CONCLUSION.............................



V l l

TABLE OF AUTHORITIES
Cases: Pace
Albemarle Paper Co. v.

Moody, 422 U.S.
405 ..........................

Allen v. Amalgamated Transit 
Union, 554 F.2d 876 
(8th Cir. 1977) cert, 
denied 434 U.S. 891 
(1977) .....................

American Pipe &
Construction Co. 
v. Utah, 414 U.S.
538 (1974) .................

Arlington Heights v.
Metropolitan Housing 
Development Corp.,
429 U.S. 252 (1977) ........

Berkman v. City of 
New York, 626 
F.Supp. 591
(E.D.N.Y. 1985) .............

Bowe v. Colgate-Palmolive 
Co., 416 F.2d 711 
(7th Cir. 1969) .............

Castenda v. Partida, 430
U.S. 482 (1977) .............

Coke v. General Adjustment 
Bureau, Inc., 640 
F .2d 584 (5th
Cir. 1981)(en banc) ........

. . .  9

. . 4242



viii

Crown, Cork & Seal v.
Parker, 462 U.S.
345 (1983) . . .  ii, 14, 37, 39, 42

EEOC v. Bailey Co., 563 
F.2d 439 
(6th Cir. 1977) , 
cert, denied, 435
U.S. 915 (1978)............ 18, 33

EEOC v. Mississippi College,626 F.2d 477, 482 
(5th Cir. 1980), 
cert denied, 453

Cases: Page

U.S. 912 (1981)............18, 32
FCC v. Nat. Broadcasting Co., 319 U.S

239 (1943) .............. 23
Foster v. Gueory, 655 

F.2d 1319 (D.C.
Cir. 1981) ................ 26, 28

General Telephone Co. 
of the Southwest
v. Falcon . . 5, 11, 14, 16, 23, 30,

35, 39, 40
Gladstone Realtors v.Village of Bellwood,

441 U.S. 91 (1979) ............ 31
Gooding v. Warner-Lambert Co., 744 F.2d 354 

(3rd Cir. 1984) 41



ix
Cases: Page
Gray v. Greyhound Lines,

545 F .2d 169
(D.C. 1 9 7 6 ) ..................... 33

Griffin v. Dugger, 823
F.2d 1476 (11th Cir. 1987) . 25, 38

Hackett v. McGuire Brothers,
445 F .2d. 442
(3rd Cir. 1 9 7 1 ) ................. 33

Harris v. Amoco Production 
Co., 768 F .2d 669
(5th Cir. 1 9 8 5 ) ............. 24, 41

Havens Realty Corp. v.
Coleman, 455 U.S.
363 (1982) ........... . . . . .  21

Jackson v. Seaboard Coast 
Line Railroad Co. ,
678 F.2d 992 (11th
Cir. 1982)   27

Lilly v. Harris-Teeter 
Supermarket, 720 
F. 2d 326 (4th Cir.
1983) cert, denied
466 U.S. 951 (1984)   27

Meritor Savings Bank 
v. Vinson, 477
U.S. 57 (1986) ................ .. 34

Oatis v. Crown Zellerbach 
Corp., 398 F.2d 496 
(5th Cir. 1968) . . 13, 22, 29



X
Cases: Page
Occidental Life Insurance 

Co. v. EEOC, 432 U.S.355 (1977) .................... 26
Perdue v. Roy Stone 

Transfer Corp.,690 F.2d 1091
(4th Cir. 1982)................ 41

Rogers v. EEOC, 454
F.2d 234 (5th Cir.1971), cert, denied,
406 U.S. 957 (1972)............  34

Sierra Club v. Morton,
405 U.S. 727
(1972)   33

Snell v. Suffolk County,
782 F.2d 1094
(2nd Cir. 1986)........ 13, 27, 28

Sterns v. Consolidated 
Management, Inc.,
747 F.2d 1105
(7th Cir. 1984)................ 42

Steward v. Hannon, 675 F.2d
846 (7th cir. 1982)............  17

Trafficante v. Metropolitan Life Insurance Co., 409 
U.S. 205 (1972) . . . .  19, 30-33, 35

United Airlines v. McDonald,
432 U.S. 538 (1974)........ii, 37

United States v. SCRAP,
412 U.S. 669 (1973) 17



XI

Cases: Page
Vance v. Whirlpool Corp.,

716 F .2d 1010 
(4th Cir. 1983) , 
cert, denied 465_ U.S.
1102 (1984).....................  42

Waters v. Heublein, Inc. 547 
F •2d 466, 469 (9th Cir.
1976), cert, denied, 433
U.S. 915 (1977) . . . . . . .  18, 33

Zipes v. Trans World Airlines,
Inc. 455 U.S. 385 (1982) . . ii, 37,

40
Statutes

§706 of Title V I I ...........16, 32, 35
28 U.S.C. §1254 (1)...................... ..

42 U.S.C. §2000e-5........ .. 32, 33
42 U.S.C. §2000e-5(b) ...............  19
706(a) of Title VII of 

the Civil Rights
Act of 1964 .....................  20

706(b) of Title V I I ............... . 19



xii

Cong. Rec. (H 1862), March
8, 1972 ........................ 21

Section 810 of the Fair
Housing A c t ....................3 2

Title VII of the Civil
Rights Act of 1964, 
as amended, 42 U.S.C.
§2000-e .................... passim

Other Authorities 
Article III of the

Constitution . . 25, 33, 35, 41, 43
Rule 23, Federal Rules

of Civil Procedure........14, 16
U.S. Constitution Art. Ill, § 2 . . .  25
Uniform Guidelines on Employee Selection Procedures,

29 C.F.R. §1607.4(D) ............ 9

Statutes Page



No. 87
IN THE

SUPREME COURT of the UNITED STATES 

OCTOBER TERM, 1987

PENERS L. GRIFFIN, et al.,

v.
Petitioners,

RICHARD L. DUGGER, et al.,

Respondents.

PETITION FOR WRIT OF CERTIORARI TO THE 
UNITED STATES COURT OF APPEALS 

FOR THE ELEVENTH CIRCUIT

Petitioners, Peners L. Griffin, et 
al., respectfully pray that a writ of 
certiorari issue to review the judgment 

and opinion of the United States Court of 

Appeals for the Eleventh Circuit, entered 
on August 7, 1987, rehearing denied 
October 30, 1987. The opinion of the 
court of appeals is reported at 823 F.2d 

1476 (1987) and is set out in the separate



2

Appendix at pages la to 85a. The Order of 
the district court certifying the class, 
entered March 12, 1981, is set out in the 
Appendix at pages 86a to 94a. The Order 
of the district court allowing 
intervention and reaffirming class 
certification, entered July 30, 1982 is 
set out in the Appendix at pages 95a to 
110a. The district court's Memorandum 
Opinion, of August 25, 1983 is unreported, 
and set out in the Appendix at pages 111a 
to 188a.

Jurisdiction
The judgment of the court of appeals 

was entered on August 7, 1987. A timely 
petition for rehearing was filed on 
September 28, 1987, and the order of the 
court of appeals denying the petition for 
rehearing and the suggestion for rehearing 
en banc was entered on October 30, 1987.



3
Jurisdiction of this Court is invoked 

under 28 U.S.C. §1254(1).

Statutory Provision Involved 

(See Appendix page 189a)

Statement of the Case 
This is an action brought under Title 

VII of the Civil Rights Act of 1964, as 

amended, 42 U.S.C. §2000e et s eg. 
Petitioner, Peners L. Griffin, the 
plaintiff below, was at all times relevant 
to these proceedings an employee of the 
Florida Department of Corrections (FDOC). 

This action was commenced in 1979, as a 
class action, charging the defendants with 

maintaining racially discriminatory 
policies with respect to recruitment, 

hiring, assignment, promotion and 

discipline; with maintaining a racially 

biased working environment; and with



4
utilizing an unlawful written entrance 
examination.

The parties submitted a stipulation 
which, together with the record, 
established the factual predicate for the 
court's March 12, 1981 order certifying a
class of "all past, present and potential 
black employees of the State of Florida 
Department of Corrections". (Appendix 
86a)

Following this Court's decision in 
General Telephone Co. of the Southwest v. 
Falcon. 457 U.S. 147 (1982), plaintiffs
and Alvin Smith filed a motion to 
intervene class member Smith, who had 
failed the Correctional Officer I (COI) 
examination after the class was certified. 
The district court permitted Smith to 
intervene and to represent class members 
who had failed the discriminatory
examination.



5
In 1982, the district court held, on 

Motion for Summary Judgment, that the 

entry-level examination for correctional 

officers was unlawful because it had a 

racially disparate impact and, as admitted 

by the FDOC, was not validated. Following 
trial on the remaining issues, notice was 

given to class members affected by the 

test in order to begin stage two relief 
proceedings. More than 1400 persons filed 
claims as a result of the notice.

Pursuant to § 1292 (b), FDOC took an
interlocutory appeal of the district 
court's order certifying the class. In 

August 1987, a divided panel of the 
Eleventh Circuit vacated the class 
certification order, holding that none of 
the three named plaintiffs could properly 

represent a class of individuals who had 

failed the Correctional Officer I
examination.



6
The Eleventh Circuit declared the 

class certification improper, holding that 
while the intervening applicant who failed 
the examination had standing to assert the 
claim, he should not have been allowed to 
intervene on the basis of the incumbent 
employee's EEOC charge.

Although the court acknowledged the 
general rule that an individual who did 
not file an EEOC charge may sue so long as 
a timely charge was filed encompassing the 
claims he seeks to litigate, it found that 
this "single-filing" rule did not justify 
allowing the intervening applicant to 
intervene.

As noted by Judge Hatchett in 
dissent,

[T]he majority has grafted the 
c o n s t i t u t i o n a l  standing requirement for parties litigating in federal district 
c ourt onto the filing 
requirements for persons alleging Title VII claims before



7
the EEOC. Such a requirement 
does not, and never has existed.

Griffin v. Dugger. 823 F.2d at 1494.
In so holding the panel effectively 

limits the scope of an individual's 

standing to file an EEOC charge so as to 

prevent a charging party from challenging 
discrimination that affects him or her as 
a result of an employer's maintenance of a 

discriminatory working environment.

A timely petition for rehearing and 
suggestion for rehearing en banc were 
filed.-1- The petition and suggestion were 
denied by order of the court on October 
30, 1987.

Statement of the Facts 

The Florida Department of Corrections 
(FDOC) operates the state correctional

x The Equal Employment Opportunity 
Commission filed an amicus brief in 
support of the petition for rehearing and 
suggestion for rehearing en banc.



8

system, and at the time of trial employed 
approximately 8,600 persons. More than 
half of these employees are assigned to 
the protective service job category. The 
entry-level position in that career ladder 
is Correctional Officer I (COI).

In April 1971, Petitioner Peners L. 
Griffin became the first black Road Prison 
Officer at the Tallahassee Road Prison, 
operated by the Florida Department of 
Corrections. When Griffin's 1975 charge 
was filed, there were no blacks at all in 
the ranks of the 41 superintendents, 
assistant superintendents, and personnel 
managers, and only one of the 19 
correctional chiefs was black. Pl.Ex.D-8. 
Of the 129 lieutenants (Correctional 
Officer III and Correctional Shift 
Supervisor), only seven were black. 
Pl.Ex.d-6a, Table 2. Given the subjective 
nature of the decision making used in



9
determining promotion and other employment 
related matters, the FDOC's artificial 
limiting of the number of black employees 
hired, directly influenced Griffin's 
ability to be promoted, his exposure to 
discipline, and the quality of his 
professional experience.

The district court's substantive 
determination, that the FDOC's use of the 
Correctional Officer I written examination 
violated Title VII, is not in issue. The 
district court analyzed the impact of the 
test using both the four/fifths rule of 
the Uniform Guidelines on Employee 
Selection Procedures, 29 C.F.R. 
§1607.4(D), and a calculation of the 
standard deviation with respect to 
black/white pass-fail rates, cited by this 
Court in Castenda v. Partida. 430 U.S. 
482, 496 n. 17 (1977). Under both these
methods, the district court found that



10

plaintiffs had established the disparate 
impact of the correctional officer 
examination, and that the defendant had 
failed to provide a justification for its 
use.

In 1975, following two terminations 
which were overturned when administra­
tively challenged, Mr. Griffin filed a 
charge of discrimination with the Equal 
Employment Opportunity Commission (EEOC), 
in "which he alleged discrimination by the 
FDOC against blacks in discipline, hiring, 
promotions, and other employment 
practices.1,2

After requesting a right-to-sue 
letter, Mr. Griffin timely filed a 
complaint in this action on October 15, 
1979. The complaint, filed on behalf of 
himself and others similarly situated, 2

2 Memorandum Opinion, August 25, 
1983, Appendix Ilia, 114a.



11
specifically challenged as discriminatory 

the defendants' policies and practices 

related to recruitment, hiring, assign­

ment, promotion, and discipline; the 
maintenance of a racially biased working 

environment; and, the utilization of 

written entry level examinations which 

have a discriminatory impact on members of 
the class.

On June 17, 1980 Henry L. Dejerinett 
was added as a party-plaintiff. And on 
March 12, 1982 the district court 

certified the case as a class action with 
Messrs. Griffin and Dejerinett represent­
ing a class of "all past, present, and 
potential black employees of the State of 

Florida Department of Corrections".

Following the decision of this Court 
in General Telephone Co. of the Southwest

v. Falcon. 457 U.S. 147 (1982), plaintiffs



12

filed a motion to intervene Alvin Smith,3 
who failed the exam while he was a member 
of the certified class, as an additional 
named plaintiff to represent those in the 
class who had applied for the position of 
correctional officer, failed the written 
entry-level examination, and not been 
hired. The defendants filed a motion to 
vacate the class certification order.

On July 28, 1982, the district court 
denied the defendants7 motion to decertify 
the class, and permitted Smith to inter­
vene, noting that as an unsuccessful 
applicant Smith had an interest in the 
suit, which sought, inter alia. to 
challenge the defendants7 hiring 
practices.

J In July 1982, Intervenor Smith 
also filed a charge with the EEOC challenging the discriminatory impact of 
the correctional officer examination on black applicants for employment.



13
The district court rejected the 

defendants' contention that Smith could 
not be a class representative because he 
had not filed a timely charge with the 
EEOC. Rather, the district court held 
that the charges of discrimination filed 
by Griffin included the hiring claim, in 
addition to promotion, job classification, 
discipline, and termination claims. 
Relying on the Fifth Circuit's single­
filing rule, as articulated in Oatis v. 
Crown Zellerbach Coro.. 398 F.2d 496, 498 
(5th Cir. 1968) , the district court held 
that Smith was not required to satisfy 
additional administrative prerequisites.4

4 The single-filing rule provides that where one plaintiff has filed a valid 
EEOC charge, individuals with claims 
arising out of similar discriminatory treatment in the same time frame may 
proceed in court without satisfying the 
filing requirement. "It would be wasteful, if not vain, for numerous 
employees, all with the same grievance, to have to process many identical complaints 
with the EEOC". Oatis v. Crown Zellerbach



14
See also. Albemarle Paper Co. v. Moodv. 
422 U.S. 405, 414, n.8 (1975).

Applying reasoning similar to that 
used by this Court in Crown. Cork & Seal 
v. Parker. 462 U.S. 345 (1983), the 
district court upheld Smith's motion to 
intervene, finding that while Falcon was 
decided on June 14, 1982, plaintiffs' 
filed their motion to intervene on July 8, 
1982.

This court finds that defendants will not suffer prejudice if 
Smith is allowed to intervene. Defendants have been on notice 
since the institution of this 
action that they must defend 
against hiring claims. The 
parties have conducted discovery regarding the hiring issue, and 
have vigorously litigated this claim as evidenced by the motion 
for partial summary judgment.

corp■. 398 F.2d 496, 498 (5th Cir. 1968). 
The rule "presupposes, of coursie, that the 
subsequent claims are sufficiently similar to the original complaint and the employer 
received adequate notice and an opportunity for conciliation". Snell v. Suffolk County. 782 F.2d 1094, 1100 (2nd Cir. 1986).



15
Order, July 30, 1982, App. 108.

Reasons For Granting The Writ 

INTRODUCTION
The court of appeals judgment is 

based principally on its application of 
Falcon, not to questions related to Rule 
23, Federal Rules of Civil Procedure, but 
to the constitutional requirements for 
standing and the statutory requirements 
for filing an EEOC charge. In so doing, 
as noted by Judge Hatchett in dissent, the 
court failed to distinguish between the 
policy underlying the constitutional 
standing requirement, and the purpose and 
effect of an administrative agency's 
conciliation process.

On appeal, the defendants did not 
deny that they violated Title VII to the 
detriment of thousands of black 
applicants. Rather, they sought and



16
obtained from the court of appeals a 
procedural bar which deprives individual 
class members of their entitlement to 
relief.

I.
CERTIORARI SHOULD BE GRANTED 
BECAUSE THE COURT OF APPEALS' 
DECISION CONFLICTS WITH THE DECISIONS OF OTHER COURTS OF 
APPEAL ESTABLISHING STANDING TO 
FILE A CHARGE BEFORE THE EEOC,
AND WITH THE STATUTORY PURPOSE 
OF TITLE VII
The central issue posed by this case 

is whether the single-filing rule permits 
applicant Smith to proceed pursuant to 
employee Griffin's 1975 charge complaining 
of hiring discrimination. In addressing 
that question, the Eleventh Circuit 
focused on whether Griffin was a proper 
party under Rule 23, Federal Rules of 
Civil Procedure, and Falcon, to represent 
a class of failed applicants in federal 
court, rather than whether Griffin could 
properly charge the FDOC with hiring



17
discrimination before the EEOC, pursuant 
to §706 of Title VII. Plainly, under 
clear prior precedent in the Fifth Circuit 
and elsewhere, Griffin could claim 
personal injury as a result of FDOC's 
hiring practices through the loss of 
benefits arising from association with 
black co-workers in a working environment 
unaffected by discrimination.5

As argued by petitioners below, that injury could fairly be traced to a correctional officer examination which 
eliminated potential black colleagues at a rate six times that of white applicants, and therefore was obviously detrimental to 
the work environment and tended to segregate it. Compare Arlington Heights 
v. Metropolitan Housing Development Corp.. 
429 U.S. 252, 260-64 (1977) (Citing United 
States v. SCRAP. 412 U.S. 669, 688 (1973), 
where the Court held that the injury may 
be indirect, though the complaint must 
indicate that the injury is indeed fairly traceable to the defendant's acts or 
omissions.) In Arlington Heights, the 
Court found such an injury traceable 
between a municipality's discriminatory 
zoning decision and injury to a developer 
who had contracted to build a low-income 
housing project, and also to a prospective 
minority tenant who sought such housing in the village.



18

The Eleventh Circuit's decision in 
this case is in direct conflict with the 
decision of the Seventh Circuit in Steward 
V. Hannon. 675 F.2d 846 (1982). There, in 
an action challenging the use of an 
assistant principal examination given by 
the Chicago Public School System because 
it was racially discriminatory, the only 
plaintiff to have received an EEOC right- 
to-sue letter was a white teacher. The 
court of appeals concluded that Congress 
intended to define Title VII standing as 
broadly as the Constitution permitted. 
Since the white plaintiff alleged in her 
complaint that she was forced to work in 
an environment permeated with racial 
discrimination, she stated a cognizable 
claim under Title VII. Similarly, 
Griffin's complaint alleged that FDOC 
maintained a racially biased working
environment.



19
In Waters v. Heublein, Inc. 547 F.2d 

466, 469 (9th Cir. 1976), cert, denied.
433 U.S. 915 (1977),(white woman had
standing to sue to enjoin employment 
discrimination directed at blacks and 
Hispanic-Americans) , EEOC v. Mississippi 
College, 626 F.2d 477, 482 (5th Cir.
1980), cert denied. 453 U.S. 912 (1981),
(white employee allowed to charge her 
employer with discriminating against 
blacks on the basis of race in recruitment 
and hiring in violation of Title VII) , 
cert. denied. 435 U.S. 915 (1978), and
EEOC v. Bailey Co. . 563 F.2d 439, 451-54
(6th Cir. 1977), (definition of a person 
claiming to be aggrieved under Title VII 
includes a white person, here a white 
employee, who may have suffered from the 
loss of benefits from the lack of 
association with racial minorities at 
work), the Ninth, Fifth and Sixth Circuits



20
relied on this Court's decision in 
Trafficante v. Metropolitan Life Insurance 
Co^, 409 U.S. 205 (1972) to hold that a
white plaintiff had standing to challenge 
discrimination against nonwhite groups.

Section 706(b) of Title VII provides 
that a charge of discrimination may be 
"filed by or on behalf of a person 
claiming to be aggrieved. . ." 42 U.S.C.
§2000e-5(b). In determining that Mr. 
Griffin could not file a charge either on 
behalf of other blacks suffering from 
hiring discrimination, or on behalf of 
himself challenging the discriminatory 
environment in which he was forced to 
work, the Eleventh Circuit gave an 
impermissible reading of the Article III 
standing requirements as applied to the 
filing of an administrative charge under 
Title VII.



21

The Equal Employment Opportunity 
Commission has consistently taken the 
position that all applicants and employees 
have a right under Title VII to a 
discrimination-free working environment, 
as a term or condition of their 
employment.

The Commission interprets Section 706(a) of Title VII of the Civil Rights Act of 1964, to 
mean that any employee has 
standing to file a charge of 
employment discrimination alleging the commission of any 
unlawful employment practice by his employer, because it 
constitutes a term or condition 
of employment for all employees. 
Although the charging party is not a member of the class 
against which the allegedly 
unlawful employment practices 
are directly committed, we 
believe it clear that an 
employee's legitimate interest 
in the terms and conditions of 
his employment comprehends his 
right to work in an atmosphere 
free of unlawful employment 
p r a c t i c e s  a n d  t h e i r  consequences.

Dec. No. 70-09 (1969), 1973 EEOC DEC.
[CCH] f 6026 p. 4049. See also Dec. No.



22
72-0591 (1971), id. at % 6314 P* 4562,
4564; Dec. No. 71-969 (1970), id. at 1
6193 p. 4328, 4329. Brief Of Amicus
Curiae Equal Employment Opportunity 
Commission in Support of Petition For 
Panel Rehearing and Suggestion of In Banc 
Consideration at 9-10. See also, Havens 
Realty Corp. v. Coleman. 455 U.S. 363, 373 
(1982) .

Consistent with this broad 
interpretation of the right of individuals 
to initiate Title VII administrative 
proceedings, Congress amended Title VII in
1972 to allow persons, agencies, and
organizations that may have no
relationship with the party charged, to
file an EEOC charge on behalf of an
aggrieved party.6 Such a charge need not
name the person on whose behalf it is

6
8, 1972.

See. Cong. Rec. (H 1862) , March



23

made, and the aggrieved party may request 
that his or her identity remain 
confidential, although the party filing 
the charge must provide the EEOC with the 
name, address and telephone number of the 
aggrieved person.

As noted by this Court in EEOC v. 
Shell Oil Co. 466 U.S. 54, 68 (1984), "a 
charge of discrimination is not the 
equivalent of a complaint initiating a 
lawsuit". Rather, the purpose of the 
charge is to place the EEOC on notice that 
"someone . . . believes that an employer 
has violated the Title [VII]" id.. and "to 
give prompt notice to the employer" Zipes 
v. Trans World Airlines. Inc., 455 U.S. 
385, 398 (1982). Additionally, "Congress 
not only authorized but requires the 
Commission [EEOC] to investigate charges 
of discrimination", EEOC v. Children's
Hospital. 719 F. 2d 1426, 1428 (9th Cir.



24
1983), see also. 42 U.S.C. § 2000e-5(b),
and conciliation, through the
administrative process, is the favored
route to resolution of Title VII claims.
Foster V. Gueorv. 655 F. 2d 1319, 1321-23
(D.C. Cir. 1981); Snell v. Suffolk Countv.
782 F.2d 1094, 1100 (2d Cir. 1986).

Given the differences between the
policy underlining the Article III cases
or controversies standing requirements,
and the conciliatory purposes of the
policy underlining the statutory scheme of
Title VII, there is little to suggest that
the scope of a charge before an
administrative body, such as the EEOC,
must conform to the dictates of the most
narrow reading of Article III standing.

To  no s m a l l  d e g r e e  
administrative agencies for the 
enforcement of public rights 
were established by Congress 
because more flexible and less 
traditional procedures were called for than those evolved by the courts.



25
FCC_v. Nat. Broadcasting Co. . 319 U.S.
239, 248 (1943) (Frankfurter, J.,
dissenting):

The decision below destroys the
flexibility embodied in the administrative
process, to the detriment of the more than
1,400 claimants who relied upon it. While
acknowledging that Griffin had raised a
testing claim before the EEOC, the court
rejected Smith's assertion of that claim
because of its view that Griffin lacked
the Article III standing necessary to
raise the initial claim before the EEOC.

Griffin never had constitutional 
standing to raise a testing or a 
hiring claim, a fundamental 
requirement underlying the 
single-filing rule: . . . Smith cannot point to Griffin's EEOC 
charge, which arguably contained 
a testing claim brought on behalf of others, to excuse his failure to have filed his own 
testing charge with the EEOC 
when Griffin did not have 
standing to raise the testing 
issue. We cannot permit the



26
single-filing rule to be used to 
circumvent the constitutional 
requirement of standing.

Griffin v. Dugger. 823 F.2d at 1493.
The Eleventh Circuit's decision

explicitly conflicts with the reasoning of
the Fifth Circuit in Harris v. Amoco
Production Co. . 768 F.2d 669, 679 (5th
Cir. 1985), wherein the court held that
the characterization by this Court and
others, of the relevant statutory
provisions as procedural rather than
jurisdictional, "denotes an issue not of
Article III power but of legislative and
judicial method".

The Eleventh Circuit does not make 
clear how its new procedural burden 
enhances the purpose of Congress or aids 
the EEOC conciliation process. Contrary 
to the constitutional requirement that 
federal courts hear only lawsuits



27

involving "cases or controversy",̂  the 
EEOC conciliation process is not designed 
to be adversarial.8 If the EEOC fails to 
bring about a settlement, the consequence 
may be a lawsuit, however the parties are 
not limited by the results of the EEOC's 
investigation, and the court is not bound 
by an EEOC finding of probable cause.

In Oatis v. Crown Zellerbach Coro.. 
398 F. 2d 496 (5th Cir. 1968) , the Fifth 
Circuit established the fundamental

' U.S. Constitution Art. Ill, § 2
As this Court has previously observed, the EEOC,

is a f e d e r a l  
administrative agency charged with the 
responsibility of 
investigating claims of e m p l o y m e n t  
discrimination and settling disputes, if 
possible, in an 
informal, noncoercive fashion.

Occidental Life Insurance Co. v. EEOC. 432 U.S. 355, 365 (1977).



28

principle that a charge of discrimination, 
filed by a single plaintiff, adequately 
exhausts administrative remedies for the 
entire class. See. Albemarle Paper Co. v. 
Moodv. 422 U.S. 405, 414, n.8 (1975).

Where, as here, the charge 
indisputably satisfies the statutory 
purposes of both notice and opportunity to 
settle, there is little purpose in also 
requiring that the charging party have a 
level of standing sufficient to satisfy 
the requirements of Rule 23 and Falcon.

Moreover, several circuits have 
adopted the s i n g 1e-fi1ing rule 
unencumbered by the narrow standing 
requirement imposed by the Eleventh 
Circuit. Foster v. Gueory. 655 F.2d 1319 
(D.C. Cir. 1981) (Where the two claims are 
so similar that it can fairly be said that 
no conciliatory purpose would be served by 
filing separate EEOC charges, then it



29
would be "wasteful if not vain,"... to 
require separate EEOC filings); Lilly v. 
Harris-Teeter Supermarket. 720 F.2d 326 
(4th Cir 1983), cert, denied. 466 U.S. 951 
(1984); Snell v. Suffolk County. 782 F. 2d 
1094, 1100-02 (2d Cir. 1986); Allen v.
Amalgamated Transit Union. 554 F.2d 876, 
882-83, n.9 (8th Cir. 1977), cert, denied. 
434 U.S. 891 (1977); Bowe v. Colgate-
Palmolive Co.. 416 F.2d 711, 719 (7th Cir. 
1969) .

The Eleventh Circuit held that the 
first prong of the single-filing rule 
that "at least one plaintiff must have 
timely filed an EEOC complaint that is not 
otherwise defective" Jackson v. Seaboard 
Coast Line Railroad Co.. 678 F.2d 992, 
1011-12 (11th Cir. 1982) - was met.
However, the court erroneously held that 
the second prong of the rule - the 
similarity of the claims - was not



30
satisfied. In fact, Smith's claim that 
FDOC's entry-level examination for the 
Correctional Officer I position unlawfully 
barred his employment, is so similar to 
Griffin's charge of hiring discrimination, 
that the purposes of the filing 
requirement - the provision of adequate 
notice to the employer, and an opportunity 
for conciliation through the office of the 
EEOC - could not be frustrated by the 
district court's application the single- 
filing rule. See Foster v. Gueorv. supra. 
655 F. 2d at 1321-23 (D.C. Cir. 1981) and 
Snell v. Suffolk Countv. 782 F. 2d 1094, 
1100 (2d Cir. 1986), citing Oatis v. Crown 
Zellerbach Corp.. supra. 398 F.2d at 498.

Petitioner Griffin's valid EEOC 
charge plainly notified FDOC of the hiring 
claim,9 would reasonably have led to an

Indeed the FDOC investigation 
report acknowledges that the hiring claim 
was raised. Similarly as the district



31

investigation of the correctional officer 
examination, and thus permitted the 
parties a first opportunity to settle the 
hiring grievance through the EEOC 
conciliation process.

court held in its Order Certifying Class, March 12, 1981, App. 86a, 105a,
[T] his suit has been litigated for 
years as a class which included 
applicants. See, e.cr. . Documents 54, 
108, and 120. Extensive discovery 
has taken place on the hiring issue. 
See, e.q.. Documents 37, 38, and 43. 
It would be greatly prejudicial, at 
this late date, to exclude potential employees from the class.

See also. Memorandum Opinion, August 25, 1983, App. 114a.



32
II.

CERTIORARI SHOULD BE GRANTED 
BECAUSE THE DECISION OF THE 
COURT OF APPEALS CONFLICTS WITH 
THIS COURT'S OPINION IN 
TRAFFICANTE V. METROPOLITAN LIFE 
INSURANCE CO.. 409 U.S. 205 
(1972), AND WITH THE DECISIONS 
OF OTHER COURTS OF APPEAL 
INTERPRETING THAT OPINION.

The issue presented by this case is 
not whether Griffin could properly 
represent, in federal court, class members 
who failed the Correctional Officer I 
examination. Plainly, under Falcon 
Griffin could not represent that sub­
class. On the other hand, the law is 
equally clear that as an employee Griffin 
has a right to litigate, even before a 
federal court, his employer's maintenance 
of a discriminatory working environment, 
and to show the connection between the 
employer's hiring policies and the injury 
he suffers as a result of those policies.



33
The court of appeals' conclusion 

conflicts with this Court's decision in 
Trafficante v. Metropolitan Life Insurance 
Cô ., 409 U.S. 205, 210 (1972). In 
Trafficante. this Court held that the 
language of §810 of the Fair Housing Act, 
authorizing a "person aggrieved" to file 
suit under the Act, was intended by 
Congress to confer standing to the fullest 
extent permitted by Article III. The 
Court reasoned that since black and white 
tenants of an apartment complex, which 
allegedly discriminated against non­
whites, alleged "injury in fact" in the 
form of the lost benefits of interracial 
association, they had standing to sue. 
See also Gladstone Realtors v. Village of 
Bellwood. 441 U.S. 91 (1979).

The reasoning applied by the Court in 
Trafficante has been consistently applied 
by the courts of appeal to allow broad



34
standing in Title VII cases. In EEOC v,
Mississippi College. 626 F.2d 477, 481-84
(5th Cir. 1980) , the Fifth Circuit held
that a white woman had standing to charge
her employer with race discrimination in
hiring, noting that she was a "person
claiming to be aggrieved," within the
meaning of §706 of Title VII, 42 U.S.C.
§2000e-5, because she "could claim that
the discrimination deprived her of the
benefits arising from association with
racial minorities in a working environment
unaffected by discrimination".

[T ]he strong similarities 
between the language, design, and purposes of Title VII and 
the Fair Housing Act require 
that the phrase 'a person 
claiming to be aggrieved' in 
Section 706 of Title VII must be 
construed in the same manner 
that Trafficante construed the 
term 'aggrieved person' in 
Section 810 of the Fair Housing Act.

Id. at 482.



35
The Eleventh Circuit's opinion 

conflicts with the holdings of other 
courts of appeals which have applied 
Tr a f f icantg in an identical fashion. EEOC 
3L-— Bailey Co. , 563 F. 2d 439, 450-54 (6th
Cir. 1977), cert, denied, 435 U.S. 915 

(1978) and Waters v. Heublei n r 547 F.2d 
466, 469-70 (9th Cir. 1976), cert, denied. 
433 U.S. 915 (1977). See also Hackett v. 
McGuire Brothers. 445 F.2d. 442 (3rd Cir. 
1971)10 (Language of 42 U.S.C. §2000e-5 
"shows congressional intention to define 
standing as broadly as permitted by 
Article III of the Constitution"); Gray 
^ — Greyhound Lines. 545 F.2d 169, 173-75

(D.C. 1976) (Citing Sierra Club v. Morton. 
405 U.S. 727, 734 (1972), for the
proposition that "[Ijnjuries to intangible 
interests fulfill the constitutional

 ̂0 Cited with approval in Trafficante v. Metropolitan Life Insurance Cô ., 409 U.S. 205, 209 (1972).



36
requirements as well as do injuries to 
economic interests."); and Berkman v. City 
of New York. 626 F.Supp. 591, 593-94
(E.D.N.Y. 1985) (Female firefighters had
standing to challenge entry exam since the 
result of discrimination in future hiring 
would leave them an insular minority of 
women who slipped through the department's 
screening practices.). See also. Rogers 
v. EEOC. 454 F. 2d 234, 237-39 (5th Cir.
1971), cert, denied. 406 U.S. 957 (1972), 
cited with approval in Meritor Savinas 
Bank v. Vinson. 477 U.S. 57 (1986),
(Hispanic complainant could raise a claim 
under Title VII by alleging that her 
employer created an offensive working 
environment for employees by giving 
discriminatory service to its Hispanic 
clientele.)

Trafficante and its progeny clearly 
stand for the proposition that in



37
interpreting §706 of Title VII, the 
broadest, not the most narrow, application 
of Article III standing applies. it 
follows that Griffin's assertion of injury 
as a result of the hiring policies of the 
defendant, and his complaint of his 
employer's maintenance of a discriminatory 
work environment, satisfies the standing 
requirements of Article III as set out by 
this Court and applied by the courts of 
appeal.

The impact of Falcon on this process 
is that in order to sustain a subsequent 
across-the-board class action in federal 
court, the original charging party must be 
joined at the litigation stage by an 
additional class representative who not 
only has broad Article III standing to 
litigate the general issue, but is 
specifically appropriate to represent 
absent class members who may have suffered



38

a more direct injury from the same policy.

III.

CERTIORARI SHOULD BE GRANTED 
BECAUSE THE DECISION OF THE 
COURT OF APPEALS CONFLICTS WITH 
THIS COURT'S OPINIONS IN CROWN,
CORK & SEAL V. PARKER. 462 U.S.
345 (1983), 2IPES V. TRANS WORLD 
AIRLINES. INC. 455 U.S. 385 
(1982) AND UNITED AIRLINES V. 
MCDONALD. 432 U.S. 385 (1977)
In failing to recognize intervenor

Smith's status as an appropriate class
representative, the Eleventh Circuit
ignored a line of Supreme Court cases
designed to protect the rights of putative
and actual class members, as well as to
protect the integrity and use of the class
action device. American Pipe &
Construction Co. v. Utah. 414 U.S. 538
(1974), United Airlines v. McDonald. 432
U.S. 385 (1977), and Crown. Cork. & Seal
Co. v. Parker. 462 U.S. 345 (1983).



39

In United Airlines v. McDonald. 
supra. 432 U.S. at 391-392, n.ll, this
Court held that the tolling principle of 
American Pipe & Construction Co. v. Utah, 
supra. applied to both limitations periods 
established by Title VII: the initial 180 
day charge filing period; and the ninety 
day limitation for filing suit following 
the receipt of a right-to-sue letter. The 
Court held that the "critical fact" was 
that the intervenor acted "as soon as it 
became clear to [her] that the interests 
of the unnamed class members would no 
longer be protected by the named class 
representatives." 432 U.S. at 394.

In summarily asserting that Smith had 
not filed a timely charge with the EEOC,11

11 The c o u r t  of a p p e a l s  
determination that Smith had not filed a 
timely charge was in effect De Novo fact 
finding, in that the district court did 
not reach the question of the application 
of the tolling principles explained in 
Crown Cork & Seal Co. v. Parker. 462 U.S.



40
the court of appeals failed even to 
address petitioners' arguments that 
Smith's charge was entitled to timely 
consideration on the basis of these 
holdings.

In Crown, Cork, & Seal Co. v. Parker.
462 U.S. 345 (1983), this Court held:

We conclude, as did the Court in 
American Pipe, that "the 
commencement of a class action 
suspends the applicable statute 
of limitations as to all asserted members of the class 
who would have been parties had 
the suit been permitted to 
continue as a class action. 414 
U.S. at 554, 94 S.Ct. at 766.
Once the statute of limitations 
has been tolled, it remains 
tolled for all members of the putative class until class 
certification is denied. At 
that point, class members may 
choose to file their own suits

345 (1983), and other cases, relying
instead on the single-filing rule. The 
court of appeals, after holding that the single-filing rule was inapplicable here, 
inexplicably failed to address the 
question of equitable tolling, or to remand for further fact-finding by the 
district court. See. Griffin v. Dugger. 
n.8 Appendix 11a.



41
or to intervene as plaintiffs in the pending action.

Id. at 353.
In the case at bar, as soon as it 

became likely, by virtue of this Court's 
holding in Falcon. that Griffin and 
Dejerinett might no longer be able to 
represent his interest, Smith filed a 
separate charge of discrimination with the 
EEOC and sought to intervene in the 
existing action.

At the time that Smith failed the 
Correctional Officer I examination, he was 
a member of the class, represented by 
Griffin and Dejerinett. It follows that 
since a class action had already been 
filed and certified, the 180 day period 
for filing a charge with the EEOC was 
tolled by virtue of the filing of 
Griffin's lawsuit. Therefore, it was not 
until after Falcon and there was a
challenge to the certification that it



42
became necessary for Smith to move to 
protect his independent right to proceed 
against FDOC.

In Zipes v. Trans World Airlines, 
Inc.. 455 U.S. 385, 397 (1982), this Court 
specifically held that the Title VII 
"provision for filing charges with the 
EEOC should not be construed to erect a 
jurisdictional prerequisite to suit in the 
district court." Rather, the Court held 
that this provision was more in the nature 
of a "statute of limitation" subject to 
recognized equitable doctrines and not a 
restriction of jurisdiction. Accord. 
Gooding v. Warner-Lambert Co. . 744 F.2d 
354, 358 (3rd Cir. 1984); Perdue v. Rov 
Stone Transfer Corp., 690 F.2d 1091, 1093- 
95 (4th Cir. 1982); Sterns v. Consolidated 
Management, Inc.. 747 F.2d 1105, 1110-11 
(7th Cir. 1984); Vance v. Whirlpool Corp.. 
716 F.2d 1010, 1012 (4th Cir. 1983), cert.



43

denied 465 U.S. 1102 (1984); Coke v.
General Adjustment Bureau. Inc.. 640 F.2d
584, 595 (5th Cir. 1981)(en banc)

The Fifth Circuit, considering this
line of cases, held:

The import of these cases is 
clear: characterizing a
statutory provision to be 
p r o c e d u r a l  rather than 
jurisdictional denotes an issue not of article III power, but of 
legislative and judicial method 
. . . Where a provision provesto be merely a condition 
precedent to bringing suit 
instead of a source of judicial 
power, the courts can, given the 
appropriate circumstances, e q u i t a b l y  modify their 
application of the statutory terms.

Harris v. Amoco Products Co. . 768 F.2d
669, 679 (5th Cir. 1985).

The Eleventh Circuit's opinion is 
plainly a rejection of the holdings of 
these cases, and raises important 
questions concerning several settled 
principles. In resolving the issues 
presented, a divided panel failed to



44
address the application of Crown. Cork, & 
Seal Co. v. Parker. 462 U.S. 345 (1983), 
and similar cases, which established 
tolling of the statute of limitations for 
putative class members. Ignoring the 
policy underlying the EEOC filing require­
ment, as well as the statutory language 
itself, the court held that the most 
narrow reading of the constitutional 
standing requirement for parties litigat­
ing in federal court applied to persons 
alleging claims before the EEOC. And, 
having applied that narrow view of Article 
III standing, the court of appeals refused 
to allow intervention of a putative class 
member under the single-filing rule.
The panel's decision below severely 
jeopardizes the claims of over 1400 class 
members who have relied for more than a 
decade on the lower court's determination 
of the class status of these proceedings.



45
CONCLUSION

For the foregoing reasons, the 
petition for a writ of certiorari should 
be granted and the decision of the court 
below reversed.

JULIUS LeVONNE CHAMBERS RONALD L. ELLIS 
CHARLES STEPHEN RALSTON CLYDE E. MURPHY*
99 Hudson Street
16th Floor
New York, NY 10013

HARRY L. WITTE 
JERRY G. TRAYNHAM

PATTERSON AND TRAYNHAM 1213 Thomasville Road Post Office Box 4289 
Tallahassee, FL 32315

Counsel for Petitioners
♦Counsel of Record



Hamilton Graphics, Inc.— 200 Hudson Street, New York, N.Y.— (212) 966-4177