Mosley v. St. Louis Southwestern Railway Co. Motion for Leave to File and Brief Amicus Curiae

    UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

NO. 80-1447

AARON MOSLEY, et al.,
Plaintiffs-Appellants, 
v.

ST. LOUIS SOUTHWESTERN RAILWAY CO.
Defendant-Appellee

On Appeal From The United States 
District Court For the Eastern District of Texas

MOTION FOR LEAVE TO FILE BRIEF AMICUS CURIAE 
and BRIEF OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

JACK GREENBERG 
CHARLES STEPHEN RALSTON 

10 Columbus Circle 
Suite 2030
New York, New York 10019

Attorneys for Amicus Curiae



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

NO. 80—1447

AARON MOSLEY, et al.,
Plaintiffs-Appellants,

v.

ST. LOUIS SOUTHWESTERN RAILWAY CO.
Defendant-Appellee.

On Appeal From The United States 
District Court For The Eastern District Of Texas

MOTION FOR LEAVE TO FILE 
BRIEF AMICUS CURIAE

The NAACP Legal Defense and Educational Fund, Inc., is a 
non-profit corporation, incorporated under the laws of the State 
of New York in 1940. It was formed to assist Blacks to secure 
their constitutional rights by the prosecution of lawsuits.
Its charter declares that its purposes include rendering legal 
aid gratuitously to Blacks suffering injustice by reason of race 
who are unable, on account of poverty, to employ legal counsel 
on their own behalf. The charter was approved by a New York



Court, authorizing the organization to serve as a legal aid
society. The NAACP Legal Defense and Educational Fund, Inc.
(LDF), is independent of other organizations and is supported 
by contributions from the public. For many years its attorneys 
have represented parties and has participated as amicus curiae 
in the federal courts in cases involving many facets of the 
law, including many Title VII cases. See, e.g., Albermarle 
Paper Co. v. Moody, 422 U.S. 405 (1975); Bernard v. Gulf Oil,
619 F.2d 459 (5th Cir. 1980); Johnson v. Georgia Highway 
Express, 417 F.2d 1122 (5th Cir. 1969).

A particular concern of amicus is the relationship between 
the administrative processing of EEO complaints and the rights 
employees have in court. Thus, we have been involved in earlier 
cases relating to the effect EEOC conciliation attempts may have 
on the right to maintain Title VII suits (Bernard v. Gulf Oil, 
supra; United States v. Allegheny Ludlum Industries, Inc., 517
F. 2d 826 (5th Cir. 1975)), as well as cases dealing with the 
interplay between the administrative processing of federal 
section EEO complaints and Title VII actions (e.g., Brown v.
G. S.A., 425 U.S. 820 (1976); Chandler v. Roudebush, 425 U.S.
840 (1976)). Because of amicus' long experience in Title VII 
litigation, we believe our view will be helpful to the Court in 
resolving the important issues presented by this case.

2



WHEREFORE, for the foregoing reasons, we pray that the 
motion for leave to file the attached brief amicus curiae be

granted.
Respectfully submitted,

JACK GKEKJN£5£KG 
CHARLES STEPHEN RALSTON 

10 Columbus Circle 
Suite 2030
New York, New York 10019 

Attorneys for Amicus Curiae

3



IN THE
UNITED STATES COURT OP APPEALS 

FOR THE FIFTH CIRCUIT

NO* 80-1447

AARON MOSLEY, et al..
Plaintiff5-Appellants,

v.
ST. LOUIS SOUTHWESTERN RAILWAY CO.

Defendant-Appellee.

On Appeal Front The United States 
District Court For The Eastern District Of Texas

BRIEF OF THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC.. AS AMICUS CURIAE

As shown above, amicus Legal Defense and Educational Fund, 
Inc., has a long-standing interest in the effective enforcement 
of Title VII of the Civil Rights Act of 1964. Since the Act 
was passed there have been difficulties with its administrative 
enforcement under the procedures and policies of the Equal 
Employment Opportunity Commission. For many years the central 
problem was inordinant delays in the processing of complaints, 
and this Court was critical of the EEOC as a result. Thus, 
in Jonas v. 3ell Helicopter Co., 614 F .2d 1389, 1391 (5th Cir.



1980), the Court said:
We cannot forbear from pointing out the 

ineptitude, sloth, and indifference with 
which the E.E.O.C. processed Jone’s complaint.
The Commission was designed to protect sub­
stantive rights, not shield discrimination in 
a bureaucratic milieu where enforcement is 
passed on to the second and third generation.
This Commission is no doubt understaffed and 
overworked. So are many federal agencies.
That does not persuade us to accept the 
E.E.O.C.'s behavior in this case, so contrary 
to the purposes for which the Commission was 
designed. Jones himself was not without 
fault, for he showed a singular lack of interest 
in pressing his claim, but he did not deserve 
to be penalized by the E.E.O.C.'s failure to 
provide decent governmental process.

With the advent of a new administration in 1977, new pro­
cedures were adopted by the EEOC which, it was hoped, would 
alleviate the backlog problem and lead to the expeditious pro­
cessing of administrative complaints. The Legal Defense Fund 
along with civil rights organizations in general, have fully 
supported the principle of speeding up the process. However, 
we have also cautioned that so much attention might be given 
to disposing of cases quickly, that the vindication of the 
rights of those persons sought to be protected by Title VII 
could be adversely affected. Thus, we are concerned that the 
present case is illustrative of what can happen when an agency 
becomes so focused on processing as many cases as quickly as 
possible, that it loses sight of the ultimate purpose of the 
system, viz., the enforcement of the substantive rights

2



established by Congress.
We have no quarrel with the proposition that the concilia­

tion and settlement of Title VII claims is of the greatest 
importance and that the administrative process may have as its 
primary orientation such conciliation. See, e.q., Alexander v. 
Gardner-Denver, 415 U.S. 36 (1974); United States v. Allegheny 
Ludlum Industries, Inc., 517 F.2d 826 (5th Cir. 1975). However, 
when, as in the present case, the end result of the process is 
that individual Title VII complainants receive essentially no 
relief, then the courts must take a hard look at the procedures 
and make it clear to the agency what its primary role is.

Amicus suggests that the resolution of the present case 
can best be addressed by focusing on the so-called "relief" 
obtained by the plaintiffs in light of the claims they raised. 
This case was brought on behalf of two black workers accepted 
into an apprenticeship program by a railroad. After forty-five 
days in the program, they were given a test which they failed, 
resulting in their dismissal from the program. There is no 
question as to any misconduct or other reason that might have 
justified their dismissal.

Plaintiffs filed complaints with the EEOC in alleging that 
the test had an adverse impact on minorities and so that its 
use was unlawful under Title VII. Under the new "rapid charge" 
processing system, the EEOC charge was assigned to an Equal

3



Opportunity Specialist. No investigation was conducted to 
determine whether the test had an adverse impact, whether it 
had been validated, or whether there were other means of 
evaluating apprenticeship program participants that would not 
have resulted in any adverse impact. See, Albermarle Paper Co. 
v. Moody, 422 U.S. 405 (1975). In other words, no attempt was 
made to make any initial determination as to whether there 
might be a violation of Title VII that would support the granting 
of significant relief to the plaintiffs.

A case conference was held without notifying the plaintiffs' 
attorneys, even though the EEOC had been informed that they were 
represented. The plaintiffs notified their lawyer on the morning 
of the conference; one attorney was able to attend for a relative­
ly short period of time, but had to leave because of prior court 
commitments that could not be rescheduled on so short notice.
The entire focus of the case conference was settlement.

Although the testimony was in dispute as to what was said 
by whom and when, it is clear that the plaintiffs were convinced 
by the EEOC investigator irrevocably to sign away Title VII 
claims that were clearly substantial for a settlement that gave 
them virtually nothing. The company agreed to eliminate from 
the complainant's personnel records any documents relating to 
the filing of the charge of discrimination; but since the 
giving of any such information to another employer would probably 

constitute an independent violation of Title VII, the company

4



was not agreeing to anything that it was not already under a 
legal obligation to do. The company also agreed to give a 
"neutral" response to any inquiries from other potential 
employers. Since the plaintiffs were not discharged for mis­
conduct, it is again difficult to see what they were gaining 
from this provision. Finally, the company agreed to give 
plaintiffs what was already their right, i.e., to reapply for 
employment and to be given careful consideration for the same. 
Again, any failure to allow the plaintiffs to apply for employ­
ment or to consider their applications fairly would constitute 
an independent violation of Title VII.

The EEOC convinced the plaintiffs to sign this one-sided 
agreement after their counsel had left and without notifying 
him that such a settlement was contemplated. When the present 
lawsuit was filed the company interposed this "agreement" as a 
bar not only to the Title VII claims but to all claims under 
42 U.S.C. §1981. The District Court held that the settlement 
barred all claims including the §1981 one, even though the 
agreement specifically states that the only consideration for 
the agreement was that the plaintiffs would not "institute" a 
lawsuit under Title VII of the Civil Rights Act of 1964, as 
amended. Thus, the net result of the district court's decision 
is that not only did the plaintiffs give up their Title VII 
rights in exchange for nothing, but they also gave up their

5



§1981 rights without even knowing it.
This Court, of course, has held that claims under Title 

VII, as well as the other statutory bases for employment dis­
crimination, may be waived as part of a reasonable settlement. 
United States v. Allegheny-Ludlum Industries, supra. The 
Supreme Court has also indicated that a settlement of Title VII 
rights may bar a claim based on similar facts provided that the 
settlement results in some substantial benefits to the employee. 
Alexander v, Gardner-Denver, supra. Neither court however, 
has indicated that an uncounselled plaintiff may irrevocably 
waive all statutory rights in exchange for little or nothing.

It must be re-emphasized that the present case is not an 
instance where an arguably frivolous Title VII claim was made 
in an attempt to blackmail an employer into settling. On their 
face, plaintiff's claims were not only substantial, but, in 
light of the many decisions striking down a variety of tests, 
highly likely to be vindicated. Therefore, their merits deserve 
some exploration before settlement was even discussed, let alone 
proposed to uncounselled plaintiffs. Certainly any waiver of 
rights can only be finding if it is knowing and meaningful.
As important as EEOC conciliation of Title VII claims %  this 
Court has held that it cannot override the right of a complainant 
to receive legal advice or the right of attorneys to consult 
with complainants before a settlement is completed. See Bernard 
v. Gulf Oil. 619 F .2d 459 (5th Cir. 1980). Complainants must be

6



informed of what they may receive if they were to pursue their 
claims, and any settlement proposed by the EEOC should be 
grounded or some exploration of the factual bases for the com­
plaint and of any defenses to it. Finally, any settlement 
must be strictly limited to its terms, so that plaintiffs do 
not discover that they have given up much more than their rights 
under Title VII.

Quite simply, the agreement reached in this case was uncon­
scionable under any definition of the term. Uncounselled 
plaintiffs, faced with the power of a large company, and in the 
absence of their attorney, were talked into signing an agree­
ment by an agent of the federal government which provided them 
no relief that had any meaning. Thus, the decision in the 
present case must be reversed.

We respectfully urge, moreover, that the Court take this 
opportunity to establish guidelines for parties, the lower 
courts, and the responsible agencies in judging the propriety 
and adequacy of any settlement of a Title VII claim. Such 
guidelines should include, inter alia, the following:

1. If a complainant is represented by counsel, the 
attorney must be informed that settlement proposals will be 
discussed and no agreement may be signed if a complainant has 
not consulted his attorney.

7



2. Prior to proposing or signing a settlement, some 
independent inquiry must be made that is tailored to the facts 
of the case and the nature of the claim. E.g., if, as in the 
present case, a test is challenged, some investigation as to 
its adverse impact and validity must have taken place.

3„ A complainant must know precisely what he is giving up. 
If the settlement only purports to extinguish Title VII claims, 
it cannot be extended to other causes of action.

4. If a settlement is one-sided, in that it only gives 
the complainant already existing rights (e.g., as here, to be 
free from future acts of reprisal), it must be carefully 
scrutinized in light of the potential remedies available if 
the case had been litigated.

5. As a corollary, the complainant must be fully informed 
of what could result from litigation, e.g., reinstatement, back 
pay, injunctive relief enforcible without further exhaustion of 
administrative remedies, etc. If these principles are fully 
established, the admirable goal of encouraging settlement and 
conciliation will be protected, without sacrificing the pro­
tection of substantive Title VII rights that is the ultimate 
purpose of the EEOC.

8



CONCLUSION

For the foregoing reasons, the decision of the Court 
below should be reversed.

Respectfully submitted,

^TACK GREENBERG
CHARLES STEPHEN RALSTON

10 Columbus Circle, Suite 2030 
New York, N.Y. 10019

Attorneys for Amicus Curiae

CERTIFICATE OF SERVICE
I hereby certify that the foregoing brief was served on

the parties in this action by depositing the same in the United
States mail, first class postage prepaid, addressed to:

Joe K. Crews, Esq.
Daves, McCabe & Crews

603 Bryant Petroleum Bldg.
Tyler, Texas 75710

Attorney for Plaintiff-Appellant
Joseph R. Weeks, Esq.
Baker & Botts

3000 One Shell Plaza 
Houston, Texas 77002

Attorney for Defendant-Appellee

Dated: August 1980,

Attorney for Amicus Curiae

9