Pilot Freight Carriers, Inc. v. Walker Brief in Opposition to Certiorari

    IN THE

gutprmp (Cmtrt of tip T&nxtib BtnUs
October Term, 1968 

Nos. 981, 1000, 1001

PILOT FREIGHT CARRIERS, INC.,
Petitioner,

v.

CHARLES W . W ALKER,
Respondent.

THE OBSERVER TRANSPORTATION COMPANY,
Petitioner,

v.

DANIEL LEE, et al.,
Respondents.

GASTON COUNTY DYEING MACHINE COMPANY,
Petitioner,

v.

M ARVIN W . BROWN,
Respondent.

BRIEF IN OPPOSITION TO CERTIORARI

JACK GREENBERG  
JAMES M. NABRIT, III 
NORMAN C. AM AKER  
ROBERT BELTON  
GABRIELLE A. KIRK  

10 Columbus Circle 
New York, New York 10019

J. LeVONNE CHAMBERS 
ADAM  STEIN

216 West Tenth Street 
Charlotte, N. C.

CONRAD O. PEARSON  
2031/2 E. Chapel Hill St.
P. O. Box 1428 
Durham, N. C.

JOSEPH W . BISHOP, Jr.
127 Wall Street
New Haven, Connecticut

ALBERT J. ROSENTHAL  
435 West 116 Street 
New York, New York 10027 

Attorneys for Respondents



INDEX

Question Presented for Review ......................................  1

Statement of the Cases ...................................................  2

Argument .........................................................................  4

Conclusion .......................................................................................  8

A ppendix—

Opinion of the Court of Appeals for the Fifth 
Circuit in Dent v. St. Louis-San Francisco By.
Co............................................................................. la

Opinion of the Court of Appeals for the Fifth 
Circuit in Burrell v. Kaiser Aluminum..............  12a

Table of Cases

American Construction Co. v. Jacksonville, T.&K.Ry.
Co., 148 U.S. 372 ..........................................................  7

Anthony v. Brooks, 65 L.R.R.M. 3074 (N.D. Ga. 1967) .... 5

Bowe v. Colgate-Palmolive Co., 272 F. Supp. 332 (S.D.
Ind. 1967) ...................................................................... 5

Burrell v. Kaiser Aluminum & Chemical Co., 287
F. Supp. 289 (E.D. La. 1968) ........................................ 4

Burrell v. Kaiser Aluminum & Chemical Co.,------F.2d
------ (5th Cir. 1969) .....................................................  4

Choate v. Caterpillar Tractor Co., 402 F.2d 357 (7th
Cir. 1968) ...................................................................... 4

Cox v. U. S. Gypsum Co., 284 F. Supp. 74 (N.D. Ind. 
1968)

PAGE

5



11

Dent v. St. Louis-San Francisco Ry. Co.,------F.2d-------
(5th Cir. 1969) ............................................................  4

Dent v. St. Louis-San Francisco Ry. Co., 265 F. Supp.
56 (N.D. Ala. 1967) ..................................................... 4

Edwards v. North American Rockwell Corp., 58 L.C.
H 9153 (C.D. Calif. 1968) ............................................ 5

Evenson v. Northwest Airlines, Inc., 268 F. Snpp. 29 
(E.D. Va. 1967) ....    5

Hall v. Werthan Bag Corporation, 251 F. Supp. 184
(M.D. Tenn. 1966) ....................................................... 6

Hamilton-Brown Shoe v. United States, 240 U.S. 251 .... 7
Harris v. Orkin Exterminating Co., 58 L.C. 1f 9134

(N.D. Ga. 1968) ..........................................................  5
Hayes v. Seaboard Coast Line Ry. Co., 59 L.C. If 9196 

(S.D. Ga. 1969) ............................................................  5

Kendrick v. American Bakery Co., 58 L.C. If 9146 (N.D.
Ga. 1968) .....................................................................  5

Mickel v. South Carolina State Employment Service,
377 F.2d 239 (4th Cir. 1967) ......................................  6

Mickel v. South Carolina State Employment Service,
291 F. Supp. 910 (D.S.C. 1968) ................................. 5

Mondy v. Crown Zellerbach Corp., 271 F. Supp. 258
(E.D. La. 1967) ........................................................... 5

Moody v. Albemarle Paper Co., 271 F. Supp. 27 (E.D.
N.C. 1967) ...................................................................... 5

Pena v. Hunt Tool Co., 58 L.C. 11 9123 (S.D. Tex., 1968) 5
Pullen v. Otis Elevator, 292 F. Supp. 715 (N.D. Ga. 

1968)

PAGE

5



Ill

PAGE

Quarles v. Philip Morris, Inc., 271 F. Supp. 842 (E.D.
Va. 1967) and 279 F. Supp. 505 (E.D. Va. 1968) ....... 5

Reese v. Atlantic Steel Co., 282 F. Supp. 905 (N.D. Ga.
1967) .............................................................................  5

Sokolowski v. Swift and Co., 286 F. Supp. 775 (D. Minn.
1968) .............................................................................  5

Wheeler v. Bohn Aluminum & Brass Co., 58 L.C. H 9137 
W.D. Mich. 1968) ..........................................................  5

Statutes

Title VII, Civil Rights Act of 1964, 42 U.S.C. §§ 2000e
et seq., section 706(e) ........................................1, 2, 3, 4, 6

Other Authorities

110 Cong. Rec. 14191 (June 17, 1964) ...........................  6
Stern and Gressman, Supreme Court Practice (3rd 

ed. 1962) ....................................................................... 7



I n t h e

irtynmte CEmtrl nf tlw Unitrii
October Term, 1968 
Nos. 981, 1000, 1001

P ilot P eeight Cabeiers, I nc .,

v.
Petitioner,

Charles W . W alker,
Respondent.

T he Observer T ransportation Company,

Petitioner,
v.

Daniel L ee, et al.,
Respondents.

Gaston County Dyeing M achine Company,

v.
Petitioner,

M arvin W . B rown,
Respondent.

BRIEF IN OPPOSITION TO CERTIORARI

Question Presented for Review

Was the Court of Appeals for the Fourth Circuit correct 
in holding that conciliation efforts by the Equal Employ­
ment Opportunity Commission (hereinafter referred to as



2

“the Commission” ) are not a jurisdictional prerequisite to 
the institution of a civil action under section 706(e) of the 
Civil Rights Act of 1964 by a person aggrieved, who has 
exhausted his administrative remedy?

Statement of the Cases

These three cases are before the Court on petitions for 
writs of certiorari from the same Court of Appeals; they 
present the same legal issue with no substantial factual 
differences. This Brief in Opposition, therefore, covers 
all three cases. Cf. Rule 23(5) of the Rules of the Supreme 
Court of the United States.

None of the facts in the cases are in dispute.

No. 981, Pilot Freight Carriers, Inc. v. Charles W. Walker

On February 28, 1966, the Respondent, Charles W. 
Walker, filed with the Commission a charge (amended on 
March 15, 1966) alleging a violation of Title VII of the 
Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. The 
Commission investigated the charge and on July 20, 1966, 
found reasonable cause to believe that its allegations were 
true. By letter dated August 5, 1966, the Commission noti­
fied the Respondent that due to its heavy workload it had 
been “impossible to undertake or conclude conciliation,” 
and that he had a right to institute a civil action within 
thirty days of receipt of the letter. The Respondent com­
menced this action by filing a complaint in the District Court 
for the Western District of North Carolina on August 23, 
1966. That court dismissed his complaint on January 25, 
1968, on the sole ground that an effort to conciliate by the 
Commission is a jurisdictional prerequisite to the right of 
a person aggrieved to file a civil action. On October 29, 
1968, the Court of Appeals for the Fourth Circuit reversed 
the District Court.



3

No. 1000, Gaston County Dyeing Machine Company v. 
Marvin W. Brown

On February 1, 1966, Respondent Brown filed a charge 
of employment discrimination against Gaston County Dye­
ing Machine Company with the Commission alleging 
violation of Title VII of the Civil Rights Act of 1964. The 
Commission investigated the charge and rendered a deci­
sion on May 5, 1966, finding “reasonable cause” to believe 
the charge to be true. Brown was duly notified of the deci­
sion by a letter dated May 12, 1966. By a letter also dated 
May 12,1966, the Commission notified him that it had “been 
impossible to undertake or conclude conciliation efforts” 
in his case and that he had a right to institute a civil ac­
tion within 30 days of the receipt of the letter. Brown com­
menced an action by filing a complaint in the District Court 
on May 31, 1966.

No. 1001, The Observer Transportation Company v.
Lee, et al.

Each Respondent herein filed a charge of employment 
discrimination against The Observer Transportation Com­
pany on or about February 28, 1966, alleging a violation of 
Title VII. By a letter dated May 19, 1966, each was notified 
by the Commission that the charge was still being processed; 
that sixty days had elapsed since the filing of the charge; 
and that he had a right to institute a civil action within 30 
days from receipt of the letter. On June 9, 1966, the Com­
mission found reasonable cause to believe that petitioner 
had violated Title VII. Suit was filed on June 20, 1966, in 
the District Court.

On March 22, 1968, the District Court dismissed the com­
plaints in No. 1000 (Gaston County Dyeing Machine Co.) 
and No. 1001 (The Observer Transportation Co.) on the 
sole ground that an effort at conciliation is a jurisdictional



4

prerequisite to suit. On November 1, 1968, the Court of 
Appeals for the Fourth Circuit reversed the dismissals of 
these complaints.

Argument

The decision of the court below follows the plain language 
of the statute. The explicit language of section 706(e) of 
the Act places just two conditions upon the aggrieved per­
son’s right to bring suit: that he have filed charges with 
the Commission in proper form and that he have been 
notified by the Commission that it has been unable (for 
whatever reason) to obtain voluntary compliance. As the 
court below pointed out, “ ‘Unable’ is not defined by statute 
to give it a narrow or special meaning. We think ‘unable’ 
means simply unable—and that a commission prevented by 
lack of appropriations and inadequate staff from attempt­
ing persuasion is just as ‘unable’ to obtain voluntary com­
pliance as a commission frustrated by the recalcitrance of 
an employer or a union.” (Petition No. 981, p. 7a).

Both of the other Circuit Courts of Appeal which have 
considered the question have reached the same conclusion 
as the court below. Dent v. St. Lonis-San Francisco Ry. Co.,
------F.2d-------(5th Cir. 1969); Burrell v. Kaiser Aluminum
<& Chemical C o.,------F .2d-------  (5th Cir. 1969), reversing
287 F. Supp. 289 (E.D. La. 1968)* Choate v. Caterpillar 
Tractor Co., 402 F.2d 357 (7th Cir. 1968). The Dent case 
reversed one of the few district court decisions to reach 
an opposite conclusion, reported at 265 F. Supp. 56 (N.D. 
Ala. 1967), a decision which was much relied upon by the 
District Court and by the dissenting Circuit Judge in the

* The opinions of the Fifth Circuit in Dent v. St. Louis-San 
Francisco Ry. Co., and Burrell v. Kaiser Aluminum & Chemical 
Co., are not yet officially reported. A copy of Dent is reprinted 
in the Appendix hereto at pp. la -lla , infra, and a copy of Burrell 
is reprinted in the Appendix hereto at pp. 12a-13a, infra.



5

instant case. The great majority of district court decisions 
are in accord with that of the Court of Appeals in the 
present case. Mondy v. Crown Zellerbacli Corp., 271 F. 
Supp. 258 (E.D. La. 1967); Bowe v. Colgate-Palmolive Co., 
272 F. Supp. 332 (S.D. Ind. 1967); Moody v. Albemarle 
Paper Co., 271 F. Supp. 27 (E.D. N.C. 1967); Evenson v. 
Northwest Airlines, Inc., 268 F. Supp. 29 (E.D. Va. 1967); 
Quarles v. Philip Morris, Inc., 271 F. Supp 842 (E.D. Va.
1967) and 279 F. Supp. 505 (E.D. Va. 1968); Reese v. 
Atlantic Steel Co., 282 F. Supp. 905 (N.D. Ga. 1967); An­
thony v. Brooks, 65 L.R.R.M. 3074 (N.D. Ga. 1967); Sokol- 
owski v. Sivift and Co., 286 F. Supp. 775 (D. Minn. 1968); 
Cox v. U.S. Gypsum Co., 284 F. Supp. 74 (N.D. Ind. 1968); 
Harris v. Orkin Exterminating Co., 58 L.C. H 9134 (N.D. 
Ga. 1968); Pullen v. Otis Elevator, 292 F. Supp. 715 (N.D. 
Ga. 1968); Pena v. Hunt Tool Co., 58 L.C. If 9123 (S.D. Tex.
1968) ; Wheeler v. Bolm Aluminum <& Brass Co., 58 L.C. 
If 9137 (W.D. Mich. 1968); Kendrick v. American Bakery 
Co., 58 L.C. fl 9146 (N.D. Ga. 1968); Edwards v. North 
American Rockwell Corp., 58 L.C. If 9153 (C.D. Calif. 1968); 
Hayes v. Seaboard Coastline Railroad Co., 59 L.C. 9196 
(S.D. Ga. 1969).

The only district court decision to the contrary which 
has not yet been reversed is Mickel v. South Carolina State 
Employment Service, 291 F. Supp. 910 (D.S.C. 1968), which 
is pending on appeal in the Fourth Circuit.

While the legislative history of the Act is, as the court 
below recognized, less than clear and consistent, it certainly 
does not compel a contrary construction. Overall, it sup­
ports the Court of Appeals’ conclusion. Most of the state­
ments cited to support the view that an effort by the Com­
mission to conciliate is a prerequisite to the institution of 
suit were made at a time when the bill contemplated judi­
cial enforcement by the Commission itself. The more per­



6

tinent statements made after the bill had been amended to 
its present form, which places the burden of enforcement 
on the alleged victim of discrimination rather than the 
Commission, support the view that “ the Commission does 
not hold the key to the court room door.” Statement by Sen­
ator Javits at 110 Cong. Rec. 14191 (June 17, 1964).

The language and the legislative history of the Act make 
it quite clear, and the Respondents certainly do not dispute, 
that Congress intended the Commission, if it found reason­
able cause to believe that a charge of discrimination was 
true, to do what it could to correct the situation by concili­
ation and persuasion. They make it equally clear that per­
sons aggrieved by discrimination must have recourse to 
the state and federal administrative remedies available to 
them before resorting to the judicial remedy granted by sec­
tion 706(e). This was in fact the holding of Michel v. South 
Carolina State Employment Service, 377 F.2d 239 (4th Cir. 
1967), which the Petitioners wrongly describe as incon­
sistent with the Court of Appeals’ decision in the present 
case. (Petition No. 981, p. 8.) But it is no less clear that 
Congress did not intend the extreme unfairness of depriv­
ing a victim of discrimination, who has exhausted the ad­
ministrative remedies afforded him, of his judicial remedy 
because of a circumstance wholly beyond his control: the 
inability of the Commission to endeavor to effect concilia­
tion. The Petitioners (Petition No. 981, p. 16; Petition No. 
1000, pp. 13-14) seem to concede that, as Senator Javits 
said, “The Commission may find the claim invalid; yet the 
complainant can still sue.” 110 Cong. Rec. 14191 (June 17, 
1964). See also the remarks of Senator Morse, Ibid.-, Hall 
v. TVerthan Bag Corporation, 251 F. Supp. 184, 188 (M.D. 
Tenn. 1966). The Petitioners thus appear to make the pre­
posterous contention that Congress denied the Commission 
power to deprive a complainant of judicial remedy by a



7

deliberate finding that bis complaint lacked merit, but em­
powered it to achieve the same result by doing nothing.

Furthermore, the decisions below in which the Court of 
Appeals reversed the granting of motions to dismiss and 
ordered the cases remanded for trial are plainly interlocu­
tory non-final judgments. While this Court plainly has the 
power to review non-final judgments of the federal courts, 
“ . . .  in the absence of some . . . unusual factor, the inter­
locutory nature of a lower court judgment will result in a 
denial of certiorari.” Stern and Gressman, Supreme Court 
Practice (3rd ed. 1962), p. 150. “This court should not 
issue a writ of certiorari to review a decree of the circuit 
court of appeals on appeal from an interlocutory order, 
unless it is necessary to prevent extraordinary inconven­
ience and embarrassment in the conduct of the cause.” 
American Construction Co. v. Jacksonville, T.&K.R.Co., 
148 U.S. 372, 384. See Hamilton-Brown Shoe Co. v. United 
States, 240 U.S. 251, 258 (lack of finality “of itself alone 
furnished sufficient ground for the denial” ). These cases 
have none of the exceptional characteristics that might 
justify a review on certiorari at the present interlocutory 
stage.



8

CONCLUSION

For the foregoing reasons, the petitions for writs of 
certiorari should be denied.

Respectfully submitted,

Jack Greenberg

James M. N abrit, III
N orman C. A maker

Gabrielle A . K irk

10 Columbus Circle 
New York, N. Y. 10019

J. L eV onne Chambers

A dam S tein

216 West Tenth Street 
Charlotte, N. C.

Conrad O. Pearson

2031/2 E. Chapel Hill St. 
P. 0. Box 1428 
Durham, N. C.

Joseph W. B ishop, Jr.
127 Wall Street 
New Haven, Connecticut

A lbert J. R osenthal 
435 West 116 Street 
New York, N. Y. 10027

Attorneys for Respondents



APPENDIX



IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

N o . 2 4 8  1 0

JAMES C. DENT and UNITED STATES EQUAL 
EMPLOYMENT OPPORTUNITY COMMISSION,

Appellants,
versus

ST. LOUIS-SAN FRANCISCO RAILWAY 
COMPANY, ET AL,

Appellees.

N o . 2 4 7 8 9

JOHN A. HYLER, ET AL,
Appellants,

versus

REYNOLDS METAL COMPANY, ET AL,
Appellees.

N o . 2 4 8  1 1

ALVIN C. MULDROW, ET AL,
Appellants,

versus

H. K. PORTER COMPANY, INC., ET AL,
Appellees.



-a DENT. ET AL v. ST. LOUIS-S. F. RY.. ET AL

N o .  2 4 8  1 2

WORTHY PEARSON, ET AL,
Appellants,

versus

ALABAMA BY-PRODUCTS CORPORATION, ET AL,
Appellees.

N o .  2 4 8 1 3

RUSH PETTWAY, ET AL, Individually and on behalf of 
others similarly situated, and UNITED STATES EQUAL 

EMPLOYMENT OPPORTUNITY COMMISSION,
Appellants,

versus

AMERICAN CAST IRON PIPE COMPANY,
Appellees.

Appeals from the United States District Court for the 
Northern District of Alabama

(January 8, 1969)

Before COLEMAN and CLAYTON,* Circuit Judges, 
and JOHNSON, District Judge.

•Judge Clayton, the third judge constituting the court, participated 
in the hearing and the decision of this case. The present opinion 
is rendered by a quorum of the court pursuant to 28 U.S.C.A. 
§ 46, Judge Clayton having taken no part in the final draft of 
this opinion.



DENT, ET A L  v. ST. LOUIS-S. F. RY., ET A L  3a

COLEMAN, Circuit Judge: Because they present the 
same legal issue, with no substantial factual differ­
ences, these cases were consolidated for appellate dis­
position. The District Court held that actual concilia­
tion attempts by the Equal Employment Opportunity 
Commission [proceeding under Title VII of the Civil 
Rights Act of 1967, 42 U.S.C.A., §2000e et seq.] was 
jurisdictionally prerequisite to the maintenance of an 
action in the courts under Title VII, 265 F.Supp. 56 
(N.D. Ala., 1967). We reverse.

The facts in the Dent case may be taken as illustra­
tive of the group.

September 10, 1965, Dent filed with the Equa Em­
ployment Opportunity Commission a charge that +he St. 
Louis-San Francisco Railway Company and the Broth­
erhood of Railroad Carmen of America were violating 
Title VII of the Civil Rights Act of 1964. The substance 
of the complaint was that the railway company had on 
account of race, terminated the employment of Dent 
and other Negroes, eliminated the job classifications m 
which they were employed and excluded them from 
employment in and training programs for other rb 
classifications; that the railway company maintains 
racially segregated facilities, and that the Brotherhood 
of Railroad Carmen maintains racially segregated 1o- 
cal unions, with Local No. 60 being all-white and Locai 
No. 750 being all-Negro — these locals being the x- 
clusive bargaining representatives of the employees 
of the railway company.



4a DEN T, ET AL v. ST. LOUIS-S. F. RY., E T  AL

October 8, 1965, copies of Dent’s charges were served 
on the company and the Brotherhood.

December 8, 1965, the Commission issued a decision, 
after investigation, to the general effect that there was 
reasonable cause to believe that the company and the 
Brotherhood were violating Title VII.

December 15, 1965, the company was informed of this 
decision by letter from the Commission’s executive di­
rector. This letter also discussed the Commission’s de­
sire to engage in conciliation, but advised the com ­
pany that an action would possibly be filed before con­
ciliation could be undertaken. On this point, the ex­
ecutive director wrote:

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

* * * *

“Since the charges in this case were filed in 
the early phases of the administration of Title 
VII of the Civil Rights Act of 1964, the Com­
mission has been unable to conciliate the mat­
ter during the sixty (60) day period provided in 
Section 706. The Commission is, accordingly, 
obligated to advise the charging party of his 
right to bring a civil action pursuant to Section 
706 (e).



DENT, ET AL v. ST. LOUIS-S. F. R Y „ ET AL 5a

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

“ We are hopeful that you will cooperate with 
us in achieving the objectives of the Civil Rights 
Act and that we will be able to resolve the mat­
ter quickly and satisfactorily to all concerned.”

There was no conciliation.

Neither the company nor the Brotherhood made any 
effort to promote conciliation. Because of the unex­
pectedly large number of complaints that were filed 
with the Commission and the extremely small staff 
available, the Commission made no further effort to 
promote conciliation.

By letter dated January 5, 1966, the Commission ad­
vised Dent that “ the conciliatory efforts of the Com­
mission have not achieved voluntary compliance with 
Title VII of the Civil Rights Act of 1964” . The letter 
continued:

“Since your case was presented to the Com­
mission in the early months of the administra­
tion of Title VII of the Civil Rights Act of 1964, 
the Commission was unable to undertake ex­
tensive conciliation activities. Additional con­
ciliation efforts will be continued by the Com­
mission . . . .  Under Section 706 (e) of the Act, 
you may within thirty (30) days from the re-



6a DEN T, E T A L v. ST. LOUIS-S. F. RY., E T AL

ceipt of this letter commence a suit in the Fed­
eral district court.”

The action was filed in the District Court on Feb­
ruary 7, 1966. As stated, the district court dismissed on 
the ground that “conciliation . . . .  is a jurisdictional 
prerequisite to the institution of a civil action under 
Title VII” .

Section 706 (e), 42 U.S.C. 2000e-5 (a), after making 
reference to the receipt by the Commission of a charge 
of unlawful employment practice, provides:

“The Commission shall . . . make an investi 
gation 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 unlawful employ­
ment practice by informal methods of con­
ference, conciliation and persuasion.”

Section 706 (e), 42 U.S.C. 2000e-5 (e), provides:

“ If, within thirty days after a charge is filed 
with the Commission . . . (except that . . . such 
period may be extended to not more than sixty 
days upon a determination by the Commission 
that further efforts to secure voluntary com ­
pliance are warranted), the Commission has 
been unable to obtain voluntary compliance 
with this title, the Commission shall so notify 
the person aggrieved, and a civil action may,



DENT, ET AL v. ST. LOUIS-S. F. RY., ET AL 7a

within thirty days thereafter, be brought a-
gainst the respondent named in the charge 

)>

Section 706 (e) further provides:

“Upon request, the court may, in its discre­
tion, stay further proceedings for not more 
than sixty days pending . . . .  the efforts of the 
Commission to obtain voluntary compliance.”

Thus it is quite apparent that the basic philosophy of 
these statutory provisions is that voluntary compliance 
is preferable to court action and that efforts should be 
made to resolve these employment rights by concilia­
tion both before and after court action. However, we 
are of the opinion that a plain reading of the statute 
does not justify the conclusion that, as a jurisdictional 
requirement for a civil action by the aggrieved em­
ployee under Section 706 (e), the Commission must 
actually attempt and engage in conciliation.

The United States Court of Appeals for the Fourth 
Circuit recently considered and decided this issue in 
companion cases, Ray Johnson v. Seaboard Coast Line 
Railroad Company and Charles W. Walker v. Pilot 
Freight Carriers, Inc.,____ F.2d-------- That Court held:

“ It seems clear to us that the statute, on its 
face, does not establish an attempt by the Com­
mission to achieve voluntary compliance as a 
jurisdictional prerequisite. Quite obviously, 42 
U.S.C. §2000e-5 (a) does charge the Commis­



DENT, ET A L v. ST. LOUIS-S. F. RY., ET A L

sion with the duty to make such an attempt if 
it finds reasonable cause, ‘but it does not pro­
hibit a charging party from filing suit when 
such an attempt fails to materialize’. Mondy v. 
Crown Zellerbach Cory., 271 F.Supp. 258, 262 
(E.D. La. 1967). Subsection (e), which contains 
the authorization for civil actions, provides on­
ly that the action may not be brought unless 
within 30 days ‘the Commission has been un­
able to obtain voluntary compliance.’

“The defendants argue that Section 2000e-5 
must be read as a whole and that, so read, the 
use of the word, ‘unable’, in subsection (e) im­
plies that the duty imposed by subsection (a) 
must be fully performed before a civil action is 
authorized. We do not agree. ‘Unable’ is not 
defined by statute to give it a narrow or special 
meaning. We think ‘unable’ means simply un­
able — and that a commission prevented by 
lack of appropriations and inadequate staff 
from attempting persuasion is just as ‘unable’ 
to obtain voluntary compliance as a commis­
sion frustrated by the recalcitrance of an em­
ployer or a union. Contra, Dent v. St. Louis-San 
Francisco Ry. Co., 265 F.Supp. 56, 61 (N.D. Ala. 
1967). At most, we think, a reading of the two 
sections together means only that the Commis­
sion must be given an opportunity to persuade 
before an aggrieved person may resort to court 
action. See Stebbins v. Nationwide Mut. Ins. 
Co., 382 F.2d 267 (4th Cir. 1967); Mickel v. South



DENT, ET AL v. ST. LOUIS-S. F. RY., ET AL 9a

Carolina State Employment Serv., 377 F.2d 239 
(4th Cir. 1967).”

Similarly, the United States Court of Appeals for the 
Seventh Circuit considered and decided the same issue
in Choate v. Caterpillar Tractor C o.,____ F .2d_____ In
the following language, the Seventh Circuit rejected the 
no-jurisdiction argument:

“ In the present case, although the complain­
ant makes no allegation concerning the con­
ciliation efforts of the Commission, it is clear 
from the face of the complaint that the Com­
mission had the opportunity to investigate and 
conciliate, in that the Commission could have 
investigated and attempted to conciliate be­
tween the filing of the charge on March 14, 1966 
and the issuance of its October 5, 1966 letter 
stating that it had reasonable cause to believe 
that a violation had occurred.

“We believe that these allegations are suf­
ficient to state a claim under section 706. A 
complainant may have no knowledge when he 
received the required notification of what con­
ciliation efforts have been exerted by the Com­
mission. And more importantly, even if no ef­
forts were made at all, the complainant should 
not be made the innocent victim of a derelic­
tion of statutory duty on the part of the Com­
mission.”



10a DENT, ET AL v. ST. LOUIS-S. F. RY., ET AL

We particularly agree with the reasoning of the 
majority in the Fourth Circuit cases and it is upon that 
reasoning that we leverse the judgment below. See also 
Oatis v. Crown Zellerbach Corp., 5 Cir., 1968, 398 F.2d 
496, and Jenkins v. United Gas Corp., 5 Cir., 1968, 400 
F.2d 28.

In arriving at the conclusion that actual conciliatory 
efforts are jurisdictionally prerequisite, the District 
Court relied heavily on the legislative history of the 
Act. The majority and the dissenting opinions in John­
son and Walker, 4 Cir., supra, extensively analyze this 
aspect of the problem, obviating any necessity for 
prolonged repetition here. As a matter of fact, the 
Congressional committee reports and floor debates 
lend great comfort to both sides. This, we believe, 
leaves no clearly discernible Congressional intent, 
certainly not enough to avoid plain statutory language. 
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 dis­
trict court: (1) he must file a charge with the Equal 
Employment Opportunity Commission and (2) he must 
receive the statutory notice from the Commission that 
it has been unable to obtain voluntary compliance. It 
is extremely important in these cases that both the 
spirit and the letter of Title VII reflect an unequivocal 
intent on the part of Congress to create a right of 
action in the aggrieved employee. The dismissal of 
these cases deprived the aggrieved employee of that 
right of action, not because of some failure on his part 
to comply with the requirements of the Title, but for 
the Commission’s failure to conciliate — a failure that



DEN T, E T AL v. ST. LOUIS-S. F. RY., ET A L  11a

was and will always be beyond the control of the ag­
grieved party.

We do not overlook the fact that in November, 1966, 
the Commission issued a regulation stating that it 
“ shall not issue a notice * * * where reasonable cause 
has been found, prior to efforts at conciliation witn 
respondent,” except, that, after sixty (60) days from 
the filing of the charge, the Commission will issue a 
notice upon demand of either the charging party or 
the respondent, 29 C.F.R. § 1601, 25a.

It may be that this regulation will generally put an 
end to cases in the posture of that here decided.

In any event, these appeals are decided on the facts 
and circumstances herein reported. The Court does not 
have before it, and it is not now passing upon, a 
situation, if there were to be one, in which the Com­
mission as a matter of routine simply abandons all 
efforts at actual conciliation.

It is not to be doubted that Congress did intend that 
where possible these controversies should be settled 
by conciliation rather than by litigation. The statute 
ought to be so administered.

For the reasons herein enumerated, the judgment of 
the District Court will be reversed and remanded for 
further proceedings not inconsistent herewith.

REVERSED AND REMANDED.
Adm. Office, U.S. Courts— Scofields’ Quality Printers, Inc., N. O., La.



12a

IN THE

United States Court of Appeals
FOR THE FIFTH CIRCUIT

N o . 2 6 8 9 3  
Summary Calendar

A. J. BURRELL, ET AL,
Plaintiff s-Appellants,

versus

KAISER ALUMINUM AND CHEMICAL COMPANY,
ET AL,

Defendants-Appellees.

Appeal from the United States District Court for the 
Eastern District of Louisiana

i February 12, 1969)

Before BROWN, Chief Judge, THORNBERRY and 
MORGAN, Circuit Judges.

PER CURIAM: Judicial pre-calendar screening un­
der our new Rules 17-20 revealed that the District 
Court dismissed this case' on the ground that “ Dent

'Burrell v. Kaiser Aluminum and Chemical Corp., E.D.La., 1968, 
287 F.Supp. 289, 290.



B U R R E LL , ET AL v. K AISER ALM ., ETC., ET AL 13a

v. St. Louis-San Francisco Railway Co., D.C.. 265 F. 
Supp. 56 (1967) is controlling here.”

Because Dent has been categorically overruled. Dent 
v. United States Equal Employment Opportunity Com­
mission, 5 Cir., 1969,____  F.2d ____  [Nos. 24810. 24789,
24811, 24812, 24813, January 8, 1969], we have conc’uded 
that summary disposition of this appeal without oral 
argument is appropriate. Accordingly, the Clerk has 
been directed, pursuant to new Rule 18, to transfer this 
case to the summary calendar and notify the parties 
thereof.2

It follows, as in Dent, supra, the judgment must be 
reversed and remanded for further consistent proceed­
ings.

REVERSED AND REMANDED.

2ln order to establish ?. docket control procedure, the Fifth Circuit 
adopted new Rules 17-20 on December 6, 1968. All four of 
these new rules are reproduced in the Appendix to this opin­
ion. For a general discussion of the need for and propriety of 
summary review of certain appeals, see Groendyke Transport,
Inc. v. Davis, 5 Cir., 1969, ---------F.2d ----------  [No. 26812, Jan. 2,
1969],

For cases heretofore placed on the summary calendar see
Wittner v. United States, 5 Cir., 1969 ---------  F.2d --------- [No.
25781,------------------ , 1969]; United States v. One Olivetti Elec. 10-
Key Adding Machine, 5 Cir., 1969, --------- F.2d --------- [No.
26676 ,------------------ , 1969]; United States v. One 6.5 mm. Mann-
licher-Carcano Military Rifle, 5 Cir., 1969, --------- F.2d ---------
[No. 26620, ------------------ , 1969]; NLRB v. Great A. & P. Tea Co.,
5 Cir., 1969, --------- F.2d --------- [No. 26134, ----------------- , 1969];
Thompson v. White, 5 Cir., 1989, --------- F.2d --------- [No. 26696,
------------------ , 1969]; Diffenderfer v. Homer, 5 Cir., 1969, — —
F.2d --------- [No. 26566, ------------------ , 1969]; Cohen v. Meadows,
5 Cir., 1969, --------- F.2d --------- [No. 26674, ----------------- , 1969];
Byrd v. Smith, 5 Cir., 1969, --------- F.2d --------- [No. 26683,
____________, 1969]; Hall v. United States, 5 Cir., 1969, ---------
F.2d ______ [No. 2G774, ____________, 1969]; Montos v. Smith, 5
Cir., 1969, --------- F.2d ---------  [No. 26231, ------------------ , 1969],



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