Johnson, Jr. v. Railway Express Agency, Inc Reply Brief for Petitioner

    Isr the

(Emtrf of tl|£ S>taf£B
October Term, 1973 

No. 73-1543

W illie J ohnson, J r.,
Petitioner,

— Y . — •

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

Respondents.

REPLY BRIEF FOR PETITIONER

J ack Greenberg 
J ames M. Nabbit, I I I  
Morris J. B aller 
Deborah M. Greenberg 

10 Columbus Circle 
Suite 2030
New York, New York 10019

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

525 Commerce Title Building 
Memphis, Tennessee 38103

Attorneys for Petitioner

Louis H. P ollak 
Of Counsel



TABLE OF CONTENTS

PAGE

I Federal Law Governs the Determination of 
Whether the Statute of Limitations Should 
be Tolled ............ ............................... .............  i

II The Determination of Congress to End Dis­
crimination in Employment, Its Preference 
for Conciliation and Its Intention to Preserve 
the Right of Action Under Section 1981 Can 
Best be Reconciled by Adopting the Tolling 
Rule Urged by Petitioner ............................ . 4

III The Issue of Whether Petitioner’s Section 
1981 Claims Against Respondent Locals Are 
Barred by the Doctrine of Res Judicata 
Should be Remanded to the Court of Appeals 6

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

Table of A uthorities

Cases

Alexander v. Gardner Co., 39 L.Ed. 147 (1974) ..........  5
American Pipe and Construction Co. v. Utah, 414 U.S.

538 (1974) .....      3
Atkins v. Sehmutz Manufacturing Company, 435 F.2d 

527 (4th Cir. 1970) (en banc), cert, denied, 402 U.S.
932 (1971) ..................     2

Boudreaux v. Baton Rouge Marine Construction Co.,
437 F.2d 1011 (5th Cir. 1971) 4



11

PAGE

Burnett v. New York Central R.R. Co., 380 U.S. 424 
(1965) ..........................................................................  3

Byrd v. Blue Ridge Cooperative, 356 U.S. 525 (1958) .. 2

Cates v. Trans World Airlines, Inc., 8 CCH EPD 
TT9755 (S.D.N.Y., October 1, 1974) ............................  5

Chamberlain v. Brown, 442 S.W. 2d 248 (1969) ....... . 3

Esplin v. Hirschi, 402 F.2d 94 (10th Cir. 1968), cert, 
denied, 394 U.S. 928 (1969) ..................................... . 2

Guerra v. Manchester Terminal Corp., 498 F.2d 641 
(5th Cir. 1974) ..................    3,4

Hanna v. Plumer, 380 U.S. 460 (1965) ......................... 2
Holmberg v. Armbrecht, 327 U.S. 392 (1946) ..............  2

Janigan v. Taylor, 344 F.2d 781 (1st Cir. 1965) ..........  2

Macklin v. Spector Freight Systems, Inc., 478 F.2d 
979 (D.C. Cir. 1973) .......     4

Moviecolor Limited v. Eastman Kodak Company, 288 
F.2d 80 (2d Cir. 1961), cert, denied, 368 U.S. 821 
(1961) ..........................................................................  2

Other Authorities

Legislative History of the Equal Employment Oppor­
tunity Act of 1972, Subcommittee on Labor of the 
Committee on Labor and Public Welfare, United 
States Senate, November 1972 ............... ...... ............  5



I n  the

i>uprm v  (Drmrt nf %  1  niteh t̂atTa
October T erm, 1973 

No. 73-1543

W illie J ohnson, J r .,

-v-
Petitioner,

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

Respondents.

REPLY BRIEF FOR PETITIONER

Petitioner submits this brief in reply to the briefs for 
respondent REA Express, Inc., and respondents Brother­
hood of Railway Clerks Tri-State Local and Brotherhood 
of Railway Clerks Lily of the Valley Local.

I
Federal Law Governs the Determ ination o f W hether 

the Statute o f Limitations Should he Tolled.

Respondent REA Express, Inc., erroneously contends 
that whether the period of limitations on petitioner’s Sec­
tion 1981 action was tolled by his filing of an EEOC charge



2

is controlled by Tennessee’s statutory and decisional law 
(EEA Br. 5-7).1 The principle is well established that when 
federal courts sit to enforce federally-created rights, they 
look to federal law to determine the circumstances under 
which a state statute of limitations should bar the action. 
Holmberg v. Armbreckt, 327 U.S. 392 (1946); Esplin v. 
Hirschi, 402 F.2d 94 (10th Cir. 1968), cert, denied, 394 U.S. 
928 (1969); Janigan v. Taylor, 344 F.2d 781 (1st Cir. 1965); 
Moviecolor Limited v. Eastman Kodak Company, 288 F.2d 
80 (2d Cir. 1961), cert, denied 368 U.S. 821 (1961). Even 
in diversity litigation, questions which are a matter of 
federal concern are answered by reference to federal law. 
Hanna v. Plumer, 380 U.S. 460 (1965); Byrd v. Blue Ridge 
Cooperative, 356 U.S. 525 (1958); Atkins v. Schmutz Manu­
facturing Company, 435 F.2d 527 (4th Cir. 1970) (en banc), 
cert, denied, 402 U.S. 932 (1971). In Atkins v. Sckmutz 
Manufacturing Company, supra, the court held that the 
tolling effect of the pendency of an identical suit in another 
federal court is to be determined as a matter of federal, 
rather than state law, pointing out that the state tolling 
rule, born of state court institutional considerations, has no 
relevance in the context of the federal system, 435 F.2d at 
538 n.48.

Judge Friendly’s rationale, in Moviecolor Limited v. 
Eastman Kodak Company, supra, for applying federal law 
in determining the tolling effect of concealment is equally 
applicable to the case at b a r:

1 The eases cited by REA in support of this proposition (REA 
Br. 5-6) involve the suspension of state statutes of limitations 
during periods of incarceration or other disability and the ap­
plicability of state savings statutes, matters with respect to which 
there are no federal “affirmative countervailing considerations”. 
Byrd v. Blue Ridge Cooperative, 356 U.S. 525 (1958). See Movie­
color Limited v. Eastman Kodak Company, 288 F.2d 80, 83-84 
(2d Cir. 1961), cert, denied, 368 U.S. 821 (1961).



3

Plainly Congress did not deem complete nation-wide 
uniformity of limitations essential in such cases, else it 
would have provided its own period, . . . But we still 
must endeavor to determine whether, on the narrower 
issue of the effect of the wrongdoer’s concealment, [or, 
in the instant case, the effect of the filing of an EEOC 
charge] Congress would have preferred uniformity 
among the federal courts with respect to the right it 
had created, a uniformity favorable to recoveries by 
plaintiffs, or uniformity as between the treatment of 
this right in federal courts and of rights of a related 
conceptual character in the courts of the state where 
the federal court sits.

We think the former, at least where, as here, the 
right not merely is federally created but is enforceable 
only in the federal courts.

288 F.2d at 84.

In Burnett v. New York Central R.R. Co., 380 U.S. 424 
(1965), this court suggested that in deciding whether a 
Congressionally imposed time-limit should in a given cir­
cumstance be tolled the proper question is whether Con­
gressional purpose will thus be effectuated. See also, Amer­
ican Pipe and Construction Co. v. Utah, 414 U.S. 538 (1974). 
A fortiori, this approach would be proper in dealing with a 
state statute of limitations, particularly where, as here, the 
state statute evidences hostility to the enforcement of the 
federally created rights.2 Guerra v. Manchester Terminal

2 The Supreme Court of Tennessee has held that Tennessee 
courts should not entertain actions brought under federal civil 
rights acts. Chamberlain v. Brown, 442 S.W.2d 248 (1969). Hence, 
as in Moviecolor, no purpose would be served by applying state 
tolling rules to actions seeking to enforce rights guaranteed by 
these acts.



4

Corp., 498 F.2d 641, 649-50 (5th Cir. 1974); Macklin v. 
Spector Freight Systems, Inc., 478 F.2d 979, 994-95 n.30 
(D.C. Cir. 1973).

II

The Determ ination o f Congress to End D iscrim ina­
tion in Em ploym ent, Its Preference for Conciliation and 
Its Intention to Preserve the Right o f  Action Under 
Section 1981 Can Best be R econciled by Adopting the 
Tolling R ule Urged by Petitioner.

The contention of respondents that the tolling of the 
state statute of limitations is “unnecessary” because peti­
tioner could have brought suit under Title VII as well as 
Section 1981 within the one-year period provided by Ten­
nessee Code Ann. §28-304 by requesting a right-to-sue let­
ter from the EEOC3 is completely unresponsive to peti­
tioner’s principal point, namely, that he should have been 
allowed to invoke the resources of the EEOC, including its 
investigatory and conciliatory processes, before resorting 
to litigation (Pet. Br. 10-11).

In Guerra v. Manchester Terminal Corp., supra, (5th Cir. 
1974), the Fifth Circuit Court of Appeals recently reaf­
firmed its previous decision4 * that the filing of a charge with 
the EEOC tolls the running of the statute of limitations 
applicable to actions brought under 42 U.S.C. §1981, stating:

The determination that attempts to invoke the as­
sistance of the EEOC should toll the §1981 limitations 
period rested on our recognition that Congress in­
tended Title VII to be an important, but not the only,

3 REA Br. at 9 n.2; BRAC Br. at 13.
4 Boudreaux v. Baton Rouge Marine Construction Co., 437 F 2d

1011, 1017 n.16 (5th Cir. 1971).



5

weapon in the arsenal against employment discrimina­
tion. We could find no expression of legislative inten­
tion to preempt or repeal §1981, and in fashioning a 
means of reconciling the two statutes we eschewed 
jurisdictional election or exhaustion of remedies doc­
trines. On the other hand, by using a tolling rule we 
could implement Title VIPs policy of encouraging ad­
justment and settlement of grievances short of court­
room litigation through use of an administrative body 
with a developing expertise in problems of employment 
discrimination, while at the same time preserving in­
tact the recently revivified remedy of §1981.

498 F.2d at 650. Accord: Cates v. Trans World Airlines, 
Inc., 8 CCH EPD 9755 (S.D.N.Y. October 1, 1974).

Petitioner submits that the best, and perhaps the only, 
way to effectuate, on the one hand, Congress’ clearly ex­
pressed preference for administrative proceedings,5 and, on 
the other, its no less clearly expressed intention to preserve 
for the individual his right of action under Section 19816 is

6 The section-by-section analysis of HJR. 1746, the Equal Em­
ployment Opportunity Act of 1972 as finally enacted, prepared 
by Senators Williams and Javits, states:

It is hoped that recourse to the private lawsuit will be the 
exception and not the rule, and that the vast majority of com­
plaints will be handled through the office of the EEOC or the 
Attorney General, as appropriate. However, as the individual’s 
rights to redress are paramount under the provisions of Title 
VII it is necessary that all avenues be left open for quick and 
effective relief.

Legislative History of the Equal Employment Opportunity Act of 
1972, Subcommittee on Labor of the Committee on Labor and Pub­
lic Welfare, United States Senate, November 1972, at 1847. See 
also, Alexander v. Gardner-Denver Go., 39 L.Ed.2d 147, 156 (1974).

6 In the Senate debate on Senator Hruska’s proposed amendment 
making Title VII the exclusive remedy for employment discrimina­
tion, Senator Javits pointed out:



6

by tolling the running of the statute of limitations on the 
latter during the pendency of the former.

I l l

The Issue o f  W hether Petitioner’s Section 1981  
Claims Against Respondent Locals Are Barred by the 
D octrine o f R es ju d ica ta  Should be Remanded to the 
Court o f  Appeals.

By order entered June 14, 1971, the District Court in 
petitioner’s first suit (No. C-71-72) granted summary judg­
ment to the respondent BRAC locals “on the grounds that 
from the undisputed facts plaintiffs have no grounds for 
relief against said Unions under the Civil Rights Act of 
1964” (92a). The District Court in petitioner’s second suit 
(No. C-72-183) held that petitioner’s claim against respon­
dent locals was barred by the doctrine of res judicata 
(101a). The Court of Appeals, in its original decision, did 
not reach this issue, but, in its opinion denying rehearing 
stated in a footnote its agreement with the District Court 
(115a).

One other aspect of the matter which is cut off [by the 
exclusive remedy amendment] is the possibility of using civil 
rights acts long antedating the Civil Rights Act of 1964 in a 
given situation which might fall, because of the statute of 
limitations or other provisions, in the interstices of the Civil 
Rights Act of 1964. This is rather infrequent, but it is a 
valuable protection.
. . . The idea is to enforce the law and not let people drop 
between two stools where they are actually violating the law.

Legislative History, supra, at 1400.
Senator Williams, in the same debate, added:

[T]he courts have specifically held that Title VII and the 
Civil Rights Acts of 1866 and 1871 are not mutually exclu­
sive, and must be read together to provide alternative means 
to redress individual grievances.

Id. at 1403.



7

In Ms Petition for a Writ of Certiorari, petitioner pre­
sented the question of whether, as to his causes of action 
under either Title VII or Section 1981, an interlocutory 
order granting unopposed motions for summary judgment 
in an action subsequently dismissed without prejudice for 
failure to obtain counsel has res judicata effect (Pet. at 3). 
Respondent locals contend that this Court’s denial of cer­
tiorari on this question constitutes a final judgment in favor 
of the respondent locals (BRAC Br. at 12; BRAC Reply 
Br. at 2-3). To the contrary, it is apparent from the record 
that petitioner’s Section 1981 claims against the locals have 
never been decided on the merits.

Respondent BRAC locals’ motion for dismissal or sum­
mary judgment in the first suit was based entirely on pro­
cedural grounds (72a-73a). In view of the fact that the 
record on which the District Court granted the motion con­
tained undisputed evidence that the BRAC locals were 
segregated and that dues in the black local were higher 
than dues in the white local,7 both of which are clearly viola­
tive of Section 703(c) of Title VII (42 U.S.C. §2000e-2(c)) 
the granting of summary judgment to the BRAC locals 
must have been on procedural grounds not applicable to 
Section 1981.

The Court of Appeals’ noting, in its opinion denying 
rehearing, that it agreed wdth the District Court on the 
res judicata issue does not constitute such a carefully con­
sidered judgment on a highly technical and critical issue 
that it should have the effect of a final disposition. It is 
respectfully submitted that should petitioner prevail on

7 Interrogatories No. 1 of Defendants Tri-State Local, etc. to 
Plaintiff Willie Johnson, Nos. 3 and 25 (78a, 81a-82a) and answers 
thereto (86a, 88a).



8

the tolling issue, the res judicata issue should be remanded 
to the Court of Appeals for reconsideration and clarifica­
tion.

CONCLUSION

For the reasons set forth in petitioner’s main brief and 
hereinabove, Congressional policy as reflected in Section 
1981 and Title VII, and federal concerns with respect to 
the efficient functioning of the federal courts, would best 
be served by holding that the filing of petitioner’s EEOC 
charge tolled the running of the state statute of limitations 
applicable to his cause of action under 42 U.S.C. §1981 and 
that the statute of limitations did not begin to run again 
until he received his notice of right to bring suit from the 
EEOC.

Respectfully submitted,

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

10 Columbus Circle 
Suite 2030
New York, New York 10019

W illiam E. Caldwell 
R ainer , Sugarman & L ucas

525 Commerce Title Building 
Memphis, Tennessee 38103

Attorneys for Petitioner
Louis H. P ollak 

Of Counsel



MEILEN PRESS IN C  —  N. Y. C  219