Beverly v. Lone Star Lead Construction Corporation Joint Appendix

    I n t h e

United States CEuurt nf Appeals
F oe t h e  F if t h  C ir c u it  

No. 29620

W illia m  J .  B ev eely ,

Plaintiff-Appellant,
Y.

L one S tab L ead C o n stru ctio n  C orporation ,

Defendant-Appellee.

A PPEA L  FRO M  T H E  U N IT E D  STATES D ISTR IC T  COU RT 

FO R T H E  S O U T H E R N  D ISTR IC T OF TEXAS 

H O U S T O N  D IV ISIO N

JOINT APPENDIX

W il l ia m  W . K ilg a rlin

708 Houston Bar Center Building 
723 Main Street 
Houston, Texas 77002

(xA B R IE LL E  K .  M c D O N A L D

1834 Southmore Boulevard 
Houston, Texas 77004

J ack  G reenberg  
N orman  C. A m aker  
W illia m  L . R obinson  
V il m a  M a rtin ez  S in g er  

10 Columbus Circle 
New York, New York 10019



I N D E X

PAGE

Relevant Docket Entries ..............................................  la

Complaint (Plaintiff’s Original Petition) .....................  2a

Answer ......       7a

Defendant’s Motion for Summary Judgment ..............  10a
Exhibit “A”, Annexed to Motion for Summary 

Judgment—
Letter dated May 19, 1969 .................................... 12a
Decision of Commission ........................................  13a

Memorandum and Order, December 31, 1969 .............. 15a

Order, January 21, 1970 ................................................ 20a

Notice of Appeal ..........................................................  21a

Stipulation re Record on Appeal............. ......................  23a

Clerk’s Certificate 24a



Relevant Docket Entries

Complaint filed June 1, 1969 
Answer filed July 18, 1969
Motion for Summary Judgment filed July 31, 1969 
Memorandum and Order filed December 31, 1969 
Order filed January 21, 1970 
Notice of Appeal filed February 18, 1970 
Stipulation re Record on Appeal filed April 29, 1970



2a

Plaintiff’s Original Petition

(Filed June 1, 1969)

UNITED STATES DISTRICT COURT 
S o u t h e r n  D istrict  of T exas 

H ouston  D iv isio n  

C iv il  A ction  N o. 69-H-517

W illia m  J .  B everly ,

vs.
Plaintiff,

L one S tar L ead Co n stru ctio n  C orporation ,

Defendant.

P l a in t if f ’s Or ig in a l  P e t it io n  

T o t h e  H onorable J udge of S aid C o u r t :

C om es N ow  W illia m  J. B everly , hereinafter called Plain­
tiff, and files this, his Original Petition complaining of the 
Lone Star Lead Construction, and for cause of action 
would respectfully show unto this Honorable Court the 
following:

I.
Lone Star Lead Construction Corporation has an agent 

to receive service of citation at its offices at 9200 Market 
Street, in Houston, Harris County, Texas.

II.
This cause of action is brought pursuant to the provi­

sions of Title 42, Section 2000 E, et seq., U.S.C., commonly



3a

Plaintiff’s Original Petition

known as the subehapter on equal employment oppor­
tunities under the 1964 Civil Rights Act. Preliminary to 
filing this cause of action your Plaintiff would show that 
a complaint was duly filed with the Equal Employment 
Opportunity Commission, Washington, D. C. and bore the 
file mark of AU 7-6-475, and that on the 19th day of May, 
1969, your Plaintiff was notified of the action of said Com­
mission and advised that he had the right to bring suit 
in a Court of competent jurisdiction within thirty (30) 
days from said date. Accordingly, your Plaintiff does file 
suit under the applicable provisions of said title and section.

III.
Your Plaintiff alleges that on or about January, 1967, 

while in the employ of American Smelting and Refining 
Company, that he made application for employment with 
Lone Star Lead Construction Corporation, Defendant 
herein, but was advised at that time that there were no 
jobs available and that there were “no applications.” It 
is of interest and some pertinence to this cause to know 
that the Defendant herein is a wholly owned subsidiary 
by Plaintiff’s employer, American Smelting and Refining 
Company, and that while the Houston office of American 
Smelting and Refining Company has One Hundred Forty 
Two (142) persons in its employ, of whom Eighty (80) 
are Negroes, that the entity set up and known as Lone 
Star Lead Construction Corporation, which operates on 
the premises of American Smelting and Refining Com­
pany, and is at most a paper corporation, has no Negro 
employees. Your Plaintiff further alleges that the provi­
sions of subsection 2000 E are applicable in that the De­
fendant herein has a sufficient number of employees to 
bring it under coverage of the act.



4a

Plaintiff’s Original Petition 

IY.
After having been denied employment, and even denied 

the right to make application, your Plaintiff waited until 
he found that other persons, all white, were being employed 
by said Defendant corporation. Accordingly, on June 19, 
1967, your Plaintiff again sought employment with the 
Defendant corporation, at which time he was again told by 
Defendant’s personnel officer that there were no openings 
and that there were no applications to fill out. Plaintiff 
would show that subsequently the Defendant corporation 
hired additional employees, in spite of representations made 
to him, which employees among others include one Robert 
A. Colton, 11922 Broken Bough, Houston, Harris County, 
Texas, who was hired subsequently to June 19,1967.

V .

Your Plaintiff is a Negro. Robert A. Colton is Caucasian. 
Your Plaintiff can but assume that the reason that he was 
refused employment and the reason that he was even de­
nied the right to make application was because of the fact 
that he is a Negro, particularly when it is considered that 
there is not a single Negro employee of Defendant corpo­
ration, and particularly when it be considered that Plain­
tiff’s work record with the parent corporation, American 
Smelting and Refining Company, is an admirable work 
record, in which Plaintiff has proved himself to be a com­
petent employee.

VI.

Your Plaintiff says that under the provisions of Title 
42, Section 2000 E-5 he is entitled to injunctive relief 
from this Court, wherein the Defendant is enjoined from



5a

Plaintiff’s Original Petition

engaging in such unlawful employment practices, that this 
Honorable Court is entitled to order said Defendant to 
hire said Plaintiff, for all back pay dating from June 19, 
1967 to which Plaintiff would be entitled as a differential 
between his present rate of pay and the amount of money 
he would have earned with Defendant corporation, all of 
which your Plaintiff here now sues. In this regard Plain­
tiff would show that he has been continuously employed 
since June 19, 1967 for American Smelting and Refining 
Company at an average hourly rate of Two Dollars and 
Thirty Cents ($2.30) an hour for a Forty (40) hour week 
up until May 1,1969, at which time his salary was increased 
to Two Dollars and Fifty Eight Cents ($2.58) an hour, by 
virtue of union contract. Plaintiff would admit that De­
fendant is entitled to credit for such pay earned during the 
interim, but Plaintiff alleges that he is entitled to the dif­
ference between the money he has earned and the money he 
would have earned had he been employed by the Defendant 
Corporation.

VII.
Plaintiff would show that under the provisions of Para­

graph K of Title 42, Section 2000 E-5 that he is likewise 
entitled to recover a reasonable attorney fee as part of the 
costs herein, and Plaintiff would show that he has con­
tracted and agreed to pay the undersigned attorney, a mem­
ber of the Bar of the United States District Court for the 
Southern District of Texas, a fee of Seven Hundred Fifty 
($750.00) Dollars, and asks that in addition to the other 
damages that he recover that also.

W h er efo r e , P r em ises  C onsidered , Plaintiff invokes the 
jurisdiction of this Court under the applicable provisions



6a

Plaintiff’s Original Petition

of the United States Code, and prays for the relief herein 
requested, together with such other and further relief, 
special or general, legal or equitable, to which he may show 
himself justly entitled and for which he will ever pray, 
together with interest upon the judgment at legal rate, all 
costs of Court in his behalf expended, together with rea­
sonable attorney fees.

Respectfully submitted,

W . W . K ilga rlix  
W. W. Kilgarlin 
Attorney for Plaintiff 
500 State National Building 
Houston, Texas 77002 
CA 7-8201



D efendant’s Original Answer

(Filed July 18, 1969)

Now C omes Lone Star Lead Construction Corporation, 
Defendant in the above entitled action and answers Plain­
tiff’s complaint entitled “Plaintiff’s Original Petition” as 
follows:

F irst  D e f e n s e

The complaint fails to state a claim against Defendant 
upon which relief can be granted.

S econd  D efen se

This Defendant admits the allegations of Paragraph II 
of Plaintiff’s Original Petition to the effect that jurisdiction 
of this Court is invoked pursuant to Title 42, Section 
2000(e), et seq., U.S.C., but denies that such jurisdiction 
exists or that Plaintiff is entitled to any relief pursuant to 
any of such statutes or that Plaintiff has been deprived of 
any rights afforded by any statutes or that any such statutes 
afford any protection to Plaintiff with respect to any mat­
ters alleged in such complaint.

It is a jurisdictional prerequisite to maintain a suit un­
der the provisions of this statute that the Equal Employ­
ment Opportunity Commission find reasonable cause that 
a violation under Title VII of the Civil Rights Act of 1964, 
has occurred. In this case, the Equal Employment Oppor­
tunity Commission issued its decision, dated May 19, 1969, 
finding that there is not reasonable cause to believe that 
Defendant had committed any unlawful employment prac­
tice under Title VII. of the Civil Rights Act of 1964. There­
fore, Defendant denies that the Court has jurisdiction of 
this suit and same should be dismissed.



8a

Defendant’s Original Answer 

T h ir d  D e f e n s e

Further answering, Defendant would answer the allega­
tions of Plaintiff’s complaint entitled “Plaintiff’s Original 
Petition,” as follows:

I.

Defendant admits the allegations of Paragraph I.

H.
With respect to Paragraph II, Defendant denies that 

Plaintiff’s cause of action, if any, can be maintained pur­
suant to the provisions of Title 42, Section 2000(e), et seq., 
U.S.C. Defendant is without knowledge or information 
sufficient to form a belief as to the allegations that Plaintiff 
was notified by the Equal Employment Opportunity Com­
mission of its action and advised that he had a right to 
bring suit in a Court of competent jurisdiction within 
thirty (30) days from said date.

III.
With respect to Paragraph III, Defendant admits that 

it is a wholly owned subsidiary of American Smelting and 
Refining Company and that on or about January, 1967, 
Plaintiff was in the employ of American Smelting and 
Refining Company. Defendant denies each and every other 
allegation of Paragraph III.

IY.
With respect to Paragraph IV., Defendant admits that 

it hired additional employees after June 19, 1967. Defen­
dant denies each and every other allegation of Paragraph
IV.



9a

Defendant’s Original Answer

V.
With respect to Paragraph V, Defendant denies each 

and every allegation contained in Paragraph V.

VI.
With respect to Paragraph VI. Defendant denies each 

and every allegation contained in Paragraph VI.

VII.
With respect to Paragraph VII., Defendant denies each 

and every allegation contained in Paragraph VII.

VIII.
Defendant denies all allegations contained in Plaintiff’s 

complaint which are not herein specifically admitted by 
Defendant.

W h e r e f o r e , Defendant prays that this cause he dis­
missed, that Plaintiff be granted no relief herein against 
Defendant and that Defendant recover its costs, and such 
other relief to which it is entitled.

L one S tar L ead C o n stru ctio n  C orporation 
B y  / s /  F ra n k  J. K n a pp  

Frank J. Knapp 
T hom as R . B e e c h

Attorneys for Defendant

Of Counsel:
B u t l e r , B in io n , R ic e , C ook &  K n a pp  
1100 Esperson Building 
Houston, Texas 77002



10a

D efendant’s Motion for Summary Judgment

(Filed July 31, 1969)

To t h e  H onorable J udge of S aid C o u r t :

Lone Star Lead Construction Corporation, Defendant 
in the above styled and numbered cause (and herein called 
“Defendant”), moves this Court to enter, pursuant to Buie 
56 of the Federal Buies of Civil Procedure, a Summary 
Judgment in Defendant’s favor dismissing the cause of 
action alleged in Plaintiff’s complaint entitled “Plaintiff’s 
Original Petition” on the ground that there is no genuine 
issue as to any material fact and that Defendant is entitled 
to a Judgment as a matter of law. In support thereof 
Defendant would show as follows:

On June 26, 1967, Plaintiff filed a charge of unlawful 
discrimination against the Defendant, under Title VII of 
the Civil Bights Act of 1964, with the Equal Employment 
Opportunity Commission. On May 19, 1969, the Equal 
Employment Opportunity Commission issued its decision 
finding that there was not reasonable cause to believe that 
Defendant had committed any unlawful employment prac­
tices under Title VII of the Civil Bights Act with respect 
to the matters alleged by Plaintiff in the charge. A copy 
of the Decision of the Equal Employment Opportunity 
Commission is attached hereto as Exhibit “A” and made a 
part hereof for all purposes.

A finding by the Equal Employment Opportunity Com­
mission that there is no reasonable cause to believe that a 
violation of Title VII of the Civil Bights Act of 1964 has 
occurred precludes the issuance of the required statutory 
notice that is a jurisdictional prerequisite to maintaining 
a suit in the United States District Court. Since Plaintiff’s 
cause of action, if any, must be based on such statute and



11a

Defendant’s Motion for Summary Judgment

there can be no dispute that the Equal Employment Op­
portunity Commission has not found reasonable cause to 
believe that a violation of Title VII of the Civil Rights 
Act of 1964 has occurred, this action cannot be maintained 
as a matter of law.

W h er efo r e , P r em ises  C onsidered , Defendant, Lone Star 
Lead Construction Corporation, respectfully urges this 
Court to grant this Motion for Summary Judgment in 
favor of the Defendant.



12a

Exhibit “A” Annexed to D efendant’s Motion 
For Summary Judgment

(Letter dated May 19, 1969)

[ s e a l ]

E qual E m pl o y m e n t  Oppo r t u n it y  C o m m issio n  
W a sh in g t o n , D .C . 20506

19 May 1969

In Reply Refer to: 
File No AU 7-6-475 
William Beverly

Lone Star Lead Construction 
Corporation 
9200 Market Street 
Houston, Texas

Gentlemen:
We have received and investigated the charge of discrimi­
nation in employment for reason of race filed against your 
corporation on June 26, 1967.
The Commission has determined, after investigation, that 
there is not reasonable cause to believe you have committed 
an unlawful employment practice under Title VII of the 
Civil Rights Act of 1964 with respect to the matters alleged 
in the charge.
Therefore, the Commission has dismissed the charge and 
the complainant(s) have (has) been notified accordingly.

Sincerely yours,
/ s /  R obert L. R andolph  

Robert L. Randolph 
Director of Compliance

Enclosure



13a

Exhibit “A” (Continued)
(Decision of Commission)

EQUAL EMPLOYMENT OPPORTUNITY 
COMMISSION 

W a sh in g t o n , D.C. 20506
[sea l]

William Beverly Case No. AU 7-6-475
Charging Party

vs.

Lone Star Lead Construction Corporation 
Houston, Texas 

Respondent
Date of alleged violation: June 19, 1967
Date of filing: June 26, 1967
Date of service of charge: August 28, 1967

D ecisio n

S um m ary  of C harge

The Charging Party, a Negro, alleges unlawful discrimina­
tion under Title YII of the Civil Rights Act of 1964, in 
that he was denied employment, and Respondent refused 
to permit him to fill out an application form, because of 
his race.

S um m ary  of I nvestigation

The Charging Party is employed by American Smelting 
and Refinery Company, of which Respondent is a wholly 
owned subsidiary. The Respondent is engaged in lead burn­
ing construction (e.g., lining storage tanks with lead) in 
many parts of the country and employs between 8 and 40



14a

Exhibit “A ” (Continued)

persons (depending on the availability of work) most of 
whom are part-time employees and none of whom is Negro. 
Respondent’s headquarters are located on the same prem­
ises otherwise occupied by its parent corporation, Ameri­
can Smelting.1
Charging Party, while an employee of American Smelting, 
sought employment with Respondent on June 19, 1967 as a 
laborer. At that time he was told by Respondent’s Man­
ager that there were no opening's and that there were no 
application forms to fill out.
Inspection of records revealed that Respondent has not 
hired any employee as a laborer since June 19, 1967, and 
that it does not require that prospective employees fill out 
application forms. There are no racial distinctions fol­
lowed in this policy.

D ecisio n

Reasonable cause does not exist to believe that the Re­
spondent is in violation of Title VII of the Civil Rights 
Act as alleged.

Date APR 7 1969

/s /  (Illegible)
for Marie D. Wilson 

Marie D. Wilson 
Secretary

1 At American Smelting’s Houston facility 142 persons are em­
ployed, of whom 80 are Negro.



15a

Memorandum and Order

(Filed December 31, 1969)

This is an action brought pursuant to the 1964 Civil 
Rights Act, 42 U.S.C. §2000e et seq4 Plaintiff presented 
what he believed to be infractions of the equal employment 
opportunity provisions of the Civil Rights Act to the Equal 
Employment Opportunity Commission. After investigation 
the Commission determined that there was not probable 
cause to believe that a violation of the Act had occurred. 
The Commission sent plaintiff a notice of his right to pre­
sent these matters to a federal district court and plaintiff 
filed suit here within the required thirty days.

The basis of defendant’s motion for summary judgment 
is the contention that since the Equal Employment Oppor­
tunity Commission found that there was not reasonable 
cause to believe that a violation of the Act had occurred, 
it was precluded from issuing the required statutory notice. 
That statutory notice is a jurisdictional prerequisite to 
maintaining a suit in a United States District Court. In

1 “42 U.S.C. 2000e-5, in part, provides:
‘(a) Whenever it is charged in writing under oath by a per­
son claiming to be aggrieved . . . that an employer . . . has 
engaged in an unlawful employment practice, the Commis­
sion . . . shall make an investigation of such charge. . . .  If 
the Commission shall determine, after such investigation, that 
there is reasonable cause to believe that the charge is true, the 
Commission shall endeavor to eliminate any such alleged un­
lawful employment practice by informal methods of confer­
ence, conciliation and persuasion.

* * *
‘(e) If . . . the Commission has been unable to obtain volun­
tary compliance with this subchapter, 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. . . .
‘(f) Bach United States district court . . . shall have juris­
diction of actions brought under this subchapter.’ ”



16a

Memorandum and Order

response to this, plaintiff contends that the Equal Employ­
ment Opportunity Commission was not set up as a body 
to screen lawsuits from the federal courts, but rather was 
set up as machinery for conciliation. Plaintiff contends that 
he does not have to have a favorable ruling' from the Com­
mission in order that the Commission issue the statutory 
notice and plaintiff bring suit in federal court. Thus, the 
issue is clearly drawn: Must the Commission find reason­
able cause to believe that a violation of the Act has oc­
curred before it can issue the required statutory notice 
enabling plaintiff to bring suit in federal district court?

In support of its position defendant cites three cases. 
Dent v. St. Louis-San Francisco Ry., 406 F.2d 399 (5th 
Cir. 1969); Johnson v. Seaboard Air Line RR., 405 F.2d 
645 (4th Cir. 1968) ; Choate v. Caterpillar Tractor Co., 402 
F.2d 357 (7th Cir. 1968). Each of these cases differ from 
the present case in that in each instance the Commission 
had made a finding of reasonable cause. These cases basic­
ally stand for the proposition that efforts on the part of 
the Commission to arrive at conciliation of the equal em­
ployment dispute is not a jurisdictional prerequisite to 
suits in district court. In Dent, supra, the United States 
Court of Appeals for the Fifth Circuit, although ruling 
that conciliaiton efforts were not a jurisdictional prerequi­
site, did set forth what it considered to be two jurisdic­
tional prerequisites:

“Section 2000e-5(e), Title 42, U.S.C.A. very clearly sets 
out only two requirements for an aggrieved party be­
fore he can initiate his action in the United States 
District Court: (1) He must file a charge with the 
Equal Employment Opportunity Commission and (2) 
he must receive the statutory notice from the Commis-



17a

Memorandum and Order

sion that it has been unable to obtain voluntary com­
pliance.” Id. at 402.

Thus, defendant contends that Dent and the other cases 
cited stand for the proposition that notice by the Equal 
Employment Opportunity Commission that it has been un­
able to effect reconciliation is a jurisdictional prerequisite 
to civil suits. Defendant draws this conclusion from the 
second jurisdictional prerequisite listed in Dent—“He must 
receive the statutory notice from the Commission that it 
has been unable to obtain voluntary compliance.” Defen­
dant argues that since the Commission has found no rea­
sonable cause to believe that a violation has occurred, 
there is nothing to which the Commission could obtain 
voluntary compliance. Thus, the Commission would not 
be able to issue the statutory notice of its inability to 
obtain said compliance as required by Dent. The court in 
Dent was not faced with the issue of whether the Commis­
sion could issue the statutory notice when it had not found 
reasonable cause to believe that a violation of the Act had 
occurred. Defendant, however, does cite the case of Green 
v. McDonnell-Douglas Corp., 60 L.C. §9251 (JST.D. Mo. May 
13, 1969), where this issue was presented to the district 
court. The court, citing Dent, held that a finding of rea­
sonable cause by the Commission is necessary for the 
complainant to maintain a civil suit.

The court’s reasoning was as follows:
“The decisions of courts construing this statute have 
uniformly held that notice by the Equal Employment 
Opportunity Commission that it has been unable to 
effect reconciliation is a jurisdictional prerequisite to 
civil suit. If there has not been a finding of reason­
able cause to believe that the statute has been vio-



18a

Memorandum and Order

lated by a specific conduct, there would not have been 
any occasion for reconciliation. The findings of rea­
sonable cause would of necessity be part of the juris­
dictional element of notice that the Commission has 
been unable to effect reconciliation.” Id.

The court bolsters its reasoning by comparing the pro­
visions of the present Act with the provisions of one of 
the earlier versions, House Bill 7152. In that earlier ver­
sion the charging party needed the permission of a single 
member of the Commission to bring a civil suit, even if the 
charge were rejected by the Commission for lack of merit. 
The present Act has no such provision. The Green court 
interprets the absence of such a provision in the enacted 
legislation to mean that where the Commission has not 
found reasonable cause to believe that a violation of the 
Act has occurred a civil suit cannot be brought by the 
complainant.

Admittedly, the history of this hotly contested legisla­
tion is such that both sides can find solace in the pages 
of the Congressional Record. Compare Green v. McDonnell- 
Douglas Corp., supra, with Hall v. Werthan Bag Bag Corp., 
251 F.Supp, 184 (M.D. Tenn. 1956). However, this Court 
is convinced that a plain reading of the statute does not 
justify plaintiff’s position that the Commission need not 
make a finding of reasonable cause before issuing the 
statutory notice. The Act reads: “If . . . the Commission 
has been unable to obtain voluntary compliance with this 
subchapter, the Commission shall so notify the person 
aggrieved and a civil action may, within thirty days there­
after, be brought against the respondent named in the 
charge . . .” This section assumes that the Commission 
has found reasonable cause to believe that a violation of 
the Act has occurred and it has been “unable to obtain



19a

Memorandum and Order

voluntary compliance” with the Act. If the Commission 
has not found a violation there would be no need to seek 
“voluntary compliance.” If Congress had intended that 
the statutory notice be a pro forma matter that issued 
regardless of the Commission’s findings, it could have speci­
fied this with greater clarity. Instead, the issuance of the 
notice is conditioned on the Commission’s inability to gain 
voluntary compliance, and, by implication, upon a finding 
of reasonable cause.

While this Court is reluctant to grant motions for sum­
mary judgment, it is convinced in this case that a finding 
of reasonable cause is a jurisdictional prerequisite to suit 
in federal district court. Therefore, for the reasons given 
above, defendant’s motion for summary judgment should 
be granted.

The Clerk will notify defendant’s attorney to prepare an 
appropriate judgment in accordance with this Memoran­
dum and Order for submission to the Court by January 
19, 1970, after first obtaining approval of opposing coun­
sel.

D one at Houston, Texas this 31st day o f  December, 1969.



20a

Order Sustaining Defendant’s Motion for Summary 
Judgment and Final Judgment for Defendant

(Filed January 21, 1970)

The Motion of the Defendant for Summary Judgment 
pursuant to Buie 56(e) of the Rules of Civil Procedure, 
having been presented, and the Court having' considered 
all pleadings and exhibits on file finds that they show an 
absence of genuine issue of any material fact and that 
Defendant is entitled to a Summary Judgment as a matter 
of law, it is accordingly:

O rdered, A djudged  and  D ecreed  that the Defendant’s 
Motion for Summary Judgment be, and the same hereby is 
granted, that the Plaintiffs have and recover nothing by 
their suit, that the Defendant, Lone Star Lead Construc­
tion Corp., go hence without day, and that Defendant re­
cover its costs and charges in this behalf expended and 
have execution therefor.

E ntered  this the 21 day of January, 1970.

J o h n  V. S in g l e t o n , J r .
Judge

A pproved  :

B u tler , B in io n , R ic e , C ook & K n a pp  
B y  /s /  T hom as R. B eec h  

Thomas R. Beech 
Attorney for Defendant

A pproved  as to F orm :

/ s /  W illia m  W . K ilgarlin  
William W. Kilgarlin 

Attorney for Plaintiff 
William J. Beverly



21a

Notice o f Appeal

(Filed February 18, 1970)

I n  t h e

UNITED STATES DISTRICT COURT
F ob t h e  S o u t h e r n  D istr ic t  op T exas 

H ouston  D iv isio n

Civil Action No. 69-H-517

W il l ia m  J .  B everly 

vs.

L one S tab L ead C o n stru ctio n  C orp.

T o t h e  H onorable J udge of S aid C o u r t :

Notice is hereby given that William J. Beverly, Plaintiff 
in the above entitled Civil Action, hereby appeals to the 
United States Court of Appeals for the Fifth Circuit from 
the Order of the United States District Court, Southern 
District of Texas, Houston Division, dated January 21, 
1970, which granted Defendant’s Motion for Summary Judg­
ment.



22a

Notice of Appeal

D one this 17th day of February, 1970.

W il l ia m  W. K ilg a rlin  and 
J ack  Greenberg  
N orman  C. A m aker  
W illia m  L. R obinson  
Y ilm a  M a rtin ez  S in g e r  

10 Columbus Circle 
New York, New York 10019

and
G abrielle  K. Me D onald

1834 Southmore Boulevard 
Houston, Texas 77004

By /%/ W illia m  W . K ilg a rlin

William W. Kilgarlin
708 Houston Bar Center Building,
723 Main Street
Houston, Texas 77002 228-0757



23a

Stipulation re Record on Appeal

(Filed April 29, 1970)

April 29, 1970
Thomas R. Beech, Esq.
Butler, Binion, Rice, Cook & Knapp 
1100 Esperson Building 
Houston, Texas 77002

Re: Beverly v. Lone Star Lead 
Construction Cory. #29620

Dear Mr. Beech:
This will confirm our telephone conversation of this 

morning. I am very glad that we were able to agree upon 
the contents of the Appendix to be filed in the above- 
referenced case. The contents, pursuant to our agreement, 
will be as follows :

Complaint
Answer
Defendant’s Motion for Summary Judgment with At­

tached Exhibit
Memorandum and Order of the District Court 
Order Sustaining Defendant’s Motion and Granting 

Judgment for the Defendant 
Notice of Appeal 
Clerk’s Certificate

Sincerely,
V lL M A  M A R T IN E Z  S lN G E R

Attorney for Plaintiff-Appellant

sa
cc W il l ia m  C. K ilg a r lin , Esq. 

Gabbiblle K. M cD onald, Esq. 
H onorable E dward W . W adsworth



24a

Clerk’s Certificate

U n it e d  S tates of A m erica  )
S o u t h e r n  D istr ic t  of T exas )

I, V. B a iley  T hom as , Clerk of the United States District 
Court for the Southern District of Texas, in the Fifth Cir­
cuit and District aforesaid, do hereby certify the foregoing 
to be the O rig in a l  P apers of the record and all proceedings 
had in Cause No. 69-H-517 on the Civil Docket of this Court 
at Houston entitled:

W illia m  J .  B everly

vs.

L one S tar L ead C o n stru ctio n  Corporation

as the same now appears on file and of record in my office.

To c ertify  w h ic h , witness my hand and the Sea] 
of said Court at Houston in said District, 

(Seal) this the 3rd day of April, 1970.

Y . B ailey  T h o m a s , Clerk 
United States District Court,
Southern District of Texas

By /s /  W. P a u l  H arriss

W. Paul Harriss, Deputy



MEILEN PRESS INC. —  N. Y. C. 219