Johnson, Jr. v. Railway Express Agency, Inc. Petition for Writ of Certiorari

    I n  t h e

&>npxmx (Emxt nf tip lmt£& States
October T eem, 1973 

No. ..................

W illie J ohnson, J r.,

—v.—
Petitioner,

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

Respondents,

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

FOR THE SIXTH CIRCUIT

J ack Greenberg 
J ames M. Nabrit, III 
Morris J .  B aller 
Deborah M. Greenberg 

10 Columbus Circle 
New York, New York 10019

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

525 Commerce Title Building 
Memphis, Tennessee 38103

Attorneys for Petitioner
Louis H. P ollak 

Of Counsel



TABLE OF CONTENTS

Opinions Below ........... ........................ .........-.................  1

Jurisdiction .......... ............. ....................... ..... ...... ......... 2

Questions Presented ..................... ............................. .....  2

Statutory Provisions Involved .......................................  3

Statement of the Case....................... ............ ..... ..........  5
Reasons for Granting the W rit.......... ........... ...............  11

I—The Decision Below With Respect to the Tolling 
Effect of the Filing of an EEOC Charge Conflicts 
With Other Court of Appeals Decisions on an Issue 
Having Serious Implications For the Effective­
ness of Title VII and Judicial Administration of 
Important Federal Statutes ...... ...... ........................  13

II—The Failure of the District Court to Protect the 
Procedural Rights of Petitioner and the Sanction­
ing of That Failure by the Court of Appeals Make 
This a Compelling Case for the Exercise of This 
Court’s Supervisory Authority.......... ............. ......  15
a. Petitioner’s Section 1981 Claim Should Not Be

Barred by Term. Code § 28-304 ................... .....  15
b. A Claim Under 42 U.S.C. <§ 1981 Does Not Re­

quire Prior Exhaustion of Administrative 
Remedies Under the Railway Labor A ct..........  18

c. Petitioner’s Title VII Action Should Not Have 
Been Precluded by His Failure to Refile His 
Complaint Within 30 Days After Dismissal .... 19

PAGE



11

d. Petitioner’s Claims Against the Union Locals 
and Claim Against REA on the Issue of Super­
visory Training Are Not Barred by the Doc­

PAGE

trine of Res Judicata ................................... ..........  23

Conclusion.................... .................................................. „..... 25

Table op A uthorities
Cases:

Alexander v. Gardner-Denver Co., -----  U.S. ----- , 39
L.Ed.2d 147 (1974) .................................. ............ 11,15,18

American Pipe and Construction Co. v. Utah,----- U.S.
----- , 38 L.Ed.2d 713 (1974) ................................ ....15,20

Austin v. Reynolds Metal Co., 327 F. Supp. 1145 (E.D.
Ya. 1971) ....................................................................  21

Balsbaugh v. City of Westland, 458 F.2d 1358 (6th
Cir. 1972) .................. ...................................................  24

Boudreaux v. Baton Rouge Marine Contracting Co.,
437 F.2d 1011 (5th Cir. 1971) ................ ...... ......n ,  1 3 , 16

Brady v. Bristol-Myers, Inc., 459 F.2d 621 (8th Cir
1972)  ..................................................... .............. ......  19

Brown v. Gaston County Dyeing Machine Co., 457 F.2d 
1377 (4th Cir. 1972), cert, denied, 409 U.S. 982 (1972) 19 

Buckner v. Goodyear Tire & Rubber Co., 339 F. Supp.
1108 (N.D. Ala. 1972), affd. per curiam, 476 F.2d
1287 (5th Cir. 1973) ...... ........... .......... ......................  16

Burnett v. New York Central R. Co., 380 U.S 424 
(1965)  ............................................. .........................i 4,20

Caldwell v. National Brewing Co., 443 F.2d 1044 (5th
Cir. 1971), cert, denied, 405 U.S. 916 (1972) .............. 19

Culpepper v. Reynolds Metals, 421 F.2d 888 (5th Cir 
1970) 14



Denman v. Shubow, 413 F.2d 258 (1st Cir. 1969) ...... 22,

Gates v. Georgia Pacific Corp., 7 CCH EPD 9185 (9th
Cir. 1974) ............................................................... ....19,

Glover v. St. Louis & San Francisco B. Co., 393 U.S.
324 (1969) ..................... ..................... .......... ...............

Guerra v. Manchester Terminal Corp., 350 F. Supp. 
529 (S.D. Tex. 1972) .............................................. .....13,

Hamman v. United States, 399 F.2d 673 (9th Cir. 1968) 
Harris v. Walgreen’s Distribution Center, 456 F.2d 588

(6th Cir. 1972) .......................................................... 20,
Henderson v. First National Bank of Montgomery, 344

F. Supp. 1373 (M.D. xlla. 1972) .......... ....... ..... .........13,
Holmberg v. Armbrecht, 327 U.S. 392 (1945) ..............
Hunter v. Erickson, 393 U.S. 385 (1969) .....................
Hutton v. Fisher, 359 F.2d 913 (3rd Cir. 1966) ... .......

Jenkins v. General Motors Corp., 354 F. Supp. 1040
(D. Del. 1973) ............................................... .............

Johnson v. Georgia Highway Express, 417 F.2d 1122 
(5th Cir. 1969) ................ .......................................

Klaprott v. United States, 335 U.S. 601 (1949) .......... .

Love v. Pullman, 404 U.S. 522 (1972) .............................

Macklin v. Spector Freight Systems, Inc., 478 F.2d 979
(D.C. Cir. 1973) .................................. . . . . . . 11, 13,14,17,

Malone v. North American Rockwell Corp., 457 F.2d
779 (9th Cir. 1972) .............................. ........................

McAllister v. Magnolia Petroleum Co., 357 U.S. 221
(1958) ..........................................................................

McClendon v. North American Rockwell Corp., 2 CCH 
EPD 10,243 (C.D. Cal. 1970) ................................

23

,20

18

14

24

21

15
20
17
22

13

16

22

19

19

14

18

21



1Y

McDonnell v. Celebrezze, 310 F.2d 43 (5th Cir. 1962) .... 22 
McKnett v. St. Louis & S.F. R. Co., 292 U.S. 230 (1932) 17
McQueen v. E.M.C. Plastics Co., 302 F. Supp. 881 (E.D.

Tex. 1969) ..................... ................................... ........20,21

Newman v. Piggie Park, 390 U.S. 400 (1968) ..............  19

Patapoff v. Vollstedt’s, Inc., 267 F.2cl 863 (9th Cir.
1959) ............................ .................................... ........... 22

Prescod v. Ludwig Industries, 325 F. Supp. 414 (N.D.
111. 1971) .................. ............................................. . 21

Public Service Commission v. Brashear Freight Lines,
312 U.S. 621 (1941) ................................................ ......  24

Radaek v. Norwegian American Line Agency, Inc.,
318 F.2d 538 (2nd Cir. 1963)........ ..............................  22

Republic Pictures v. Kappler, 327 U.S. 757 (1946),
aff’g 151 F.2d 543 (8th Cir. 1945) .......................... . 17

Reynolds v. Daily Press Inc., 5 CCH EPD (] 7991 (E.D.
Va. 1972) ........ .................................... ...... ...... ..........  ! 3

Robinson v. Lorillard Corp., 444 F.2d 791 (4th Cir.),
cert, denied 404 U.S. 1006 (1971) __ __________ __  16

Rooks v. American Brass Co., 263 F.2d 166 (6th Cir. 
1959) .....    22

Sanders v. Dobbs Houses, Inc., 431 F.2d 1097 (5th Cir.
1970), cert, denied, 401 U.S. 948 (1971) .................  19

Sehiff v. Mead Corp., 3 CCH EPD 8043 (6th Cir.
1970) .................................................    14

Steele v. Louisville & Nashville Railroad Co., 323 U.S.
192 (1944) ....................................        18

Sullivan v. Delaware River Port Authority, 407 F.2d 
158 (3rd Cir. 1969) ..................................................... 24

PAGE



V

Town of Marshall v. Carey, 42 F. Supp. 630 (W.D. 
Okla. 1941) .....................     24

United States v. Jacobs, 298 F.2d 469 (4th Cir. 1961) .... 22 
U.S. v. N.L. Industries, Inc., 479 F.2d 354 (8th Cir.

1973) ....................................................,.......................  16
United States v. Wallace & Tiernan Co., 336 U.S. 793 

(1949) .....      24

Waters v. Wisconsin Steel Works of International 
Harvester Co., 427 F.2d 476 (7th Cir. 1970), cert.
denied 400 U.S. 911 (1970) ......... ..............................17,19

Wells v. Gainesville-Hall County Economic Opportu­
nity Organization, Inc., 5 CCH EPD 8541 (N.D.
Ga. 1973) ...............................................      14

PAGE

Young v. International Telephone & Telegraph Co.,
438 F.2d 757 (3d Cir. 1971) ........... ............................ 19

Statutes:
Civil Rights Act of 1866,

42 U.S.C. § 1981________ __
Title VII, Civil Rights Act of 1964, 

42 U.S.C. §§ 2000e et seq.___
Railway Labor Act,

45 U.S.C. §§ 151 et seq..........
Tennessee Code

§ 28-106 .............. ......................
§ 28-304 ....... ..................... ........
§ 28-309 .....................................
§28-310 .....................................

.passim

...... passim

3,10,18,19

.................... 21
5,10,12,15,16,17
.....................  16
................ ....16,17



V I

PA G E

Federal Rules of Civil Procedure
Rule 54(b) ...............................................................  24
Rule 60(b) .............. ............................................ 3,10,22

Other Authorities:

IB Moore’s Federal Practice If 0.401 (2d Ed. 1965) 24



I n  t h e

Supreme dlmtrt 0! tl?i> In xUb B utts
October T erm, 1973 

No....................

W illie J ohnson, J r., 

—y.—
Petitioner,

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

Respondents,

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

FOR THE SIXTH CIRCUIT

Petitioner prays that a writ of certiorari issue to review 
the judgment and opinion of the United States Court of 
Appeals for the Sixth Circuit entered in this case on 
November 27, 1973.

Opinions Below

1. District Court’s order in No. C-71-66 dismissing 
claims under 42 U.S.C. §1981 and granting summary judg­
ment to union locals and partial summary judgment to 
REA Express on Title VII claims, June 14, 1971, reported 
at 7 CCH EPD ^9108 (la-3a)J

1 This form of citation is to pages of the Appendix.



2

2. District Court’s order in No. C-71-66 dismissing ac­
tion without prejudice, February 16, 1972, reported at 7 
CCH EPD H9109 (4a-5a).

3. District Court’s opinion and order in No. C-72-183 
dismissing* refiled complaint, January 25, 1973, reported at 
7 CCH EPD 1J9110 (6a-12a).

4. Opinion of Court of Appeals, November 27, 1973, re­
ported at 489 F.2d 525 (13a-21a).

5. Order Denying Rehearing, January 15, 1974, reported 
at 489 F.2d 525, 530 (22a-26a).

Jurisdiction

The Court of Appeals entered judgment on November 
27, 1973. A timely request for rehearing was denied Jan­
uary 15, 1974, and this petition for certiorari has been filed 
within 90 days of that date. This Court’s jurisdiction is 
invoked under 28 TJ.S.C. §1254(1).

Questions Presented

1. Whether the timely filing of a charge of employment 
discrimination with the Equal Employment Opportunity 
Commission pursuant to Section 706 of Title YII of the 
Civil Rights Act of 1964, 42 TJ.S.C. §2000e-5, tolls the run­
ning of the period of limitation applicable to an action 
based on the same facts brought under the Civil Rights Act 
of 1866, 42 TJ.S.C. §1981?

2. Whether a person who claims that he has been dis­
criminated against in employment on account of his race



3

should be denied a hearing on the merits on any of the 
following grounds:

a) As to his cause of action under 42 U.S.C. §1981—
i) That Tennessee’s one-year statute of limita­
tions on “civil actions for compensatory or puni­
tive damages, or both, brought under the federal 
civil rights statutes” bars an employment dis­
crimination suit seeking injunctive relief and back 
pay;
ii) That failure to exhaust administrative rem­
edies under the Railway Labor Act bars a suit;

b) As to his cause of action under Title VII, a suit 
dismissed without prejudice for failure to obtain coun­
sel must be refiled within 30 days of the order of dis­
missal and the order may not be reopened under Rule 
60(b), F.R. Civ. P .; and

c) As to his causes of action under either statute, 
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.

Statutory Provisions Involved

1. United States Code, Title 42, Section 1981 (The Civil 
Rights Act of 1866) provides:

All persons within the jurisdiction of the United 
States shall have the same right in every State and 
Territory to make and enforce contracts, to sue, be 
parties, give evidence, and to the full and equal benefit 
of all laws and proceedings for the security of persons 
and property as is enjoyed by white citizens, and shall



4

be subject to like punishment, pains, penalties, taxes, 
licenses, and exactions of every kind, and to no other.

2. United States Code, Title 42, Section 2000e-5(e) (Sec­
tion 706(e) of Title VII of the Civil Eights Act of 1964, 
78 Stat. 259) (prior to its amendment by Pub.L. 92-261) 
reads as follows:

If within thirty days after a charge is filed with the 
Commission or within thirty days after expiration of 
any period of reference under subsection (c) (except 
that in either case such period may be extended to not 
more than sixty days upon a determination by the 
Commission that further efforts to secure voluntary 
compliance 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, within thirty days thereafter, 
be brought against the respondent named in the charge
(1) by the person claiming to be aggrieved, or (2) if 
such charge was filed by a member of the Commission, 
by any person whom the charge alleges was aggrieved 
by the alleged unlawful employment practice. Upon 
application by the complainant and in such circum­
stances as the court may deem just, the court may ap­
point an attorney for such complainant and may au­
thorize the commencement of the action without the 
payment of fees, costs, or security. Upon timely ap­
plication, the court may, in its discretion, permit the 
Attorney General to intervene in such civil action if he 
certifies that the case is of general public importance. 
Upon request, the court may, in its discretion, stay 
further proceedings for not more than sixty days pend­
ing the termination of State or local proceedings de­
scribed in subsection (b) or the efforts of the Com­
mission to obtain voluntary compliance.



5

3. Tennessee Code, Section 28-304, 5 Tennessee Code An­
notated 255, provides, in pertinent part:

Personal tort actions—Malpractice of Attorneys—Civil 
rights actions—Statutory penalties,—Actions for libel, 
for injuries to the person, false imprisonment, mali­
cious prosecntion, criminal conversation, seduction, 
breach of marriage promise, actions and suits against 
attorneys for malpractice whether said actions are 
grounded or based in contract or tort, civil actions for 
compensatory or punitive damages, or both, brought 
under federal civil rights statutes, and actions for 
statutory penalties shall be commenced within one (1) 
year after the cause of action accrued. . . .

Statement of the Case

Petitioner, Willie Johnson, Jr., is a black man who claims 
to have been subjected by respondents to racial discrimina­
tion in the terms and conditions of employment. Peti­
tioner’s claims have never received a determination of their 
merits by a federal court. The procedural vicissitudes of 
this litigation, therefore, form the basis of this petition.

Petitioner was employed by respondent Railway Express 
Agency Inc. (“REA”) in the spring of 1964 as an express 
handler in Memphis, Tennessee. Approximately thirty days 
after his hire date, and pursuant to respondent REA’s 
direction or referral, petitioner became a member of re­
spondent Brotherhood of Railway Clerks Lily of the Valley 
Local. More than one year after his initial employment 
petitioner became a truck driver with REA.

On May 31,1967, petitioner filed a timely charge with the 
Equal Employment Opportunity Commission (“EEOC”) 
charging respondent REA with discriminating against its



6

black employees with respect to seniority rules and job 
assignments. He also charged respondent union locals with 
maintaining racially segregated locals, Brotherhood of 
Railway Clerks Tri-State Local for whites and Lily of the 
Valley Local for blacks. On June 20, 1967 respondent REA 
terminated petitioner’s employment, and on September 6, 
1967 petitioner amended his EEOC charge to allege that he 
had been discharged because of his race.

The EEOC issued a report on December 22,1967 conclud­
ing that respondents had engaged in unlawful racially dis­
criminatory employment practices, in that REA directed 
black employees to membership in Lily of the Valley Local 
and white employees to membership in Tri-State Local, that 
membership dues were higher in the black local than in the 
white local, that REA maintained racially segregated job 
classifications, that respondent REA’s seniority system and 
job assignments were discriminatory, that REA discrimi­
nated against blacks in the imposition of disciplinary ac­
tion, and that petitioner was discriminatorily discharged. 
On March 31, 1970 the EEOC issued a decision finding 
reasonable cause to believe that respondent had violated 
Title VII of the Civil Rights Act of 1964, and on January 
10, 1971 petitioner received from the EEOC a notice of his 
right to bring suit within 30 days.

Petitioner was unable to obtain private counsel and Dis­
trict Judge Bailey Brown entered an order February 12, 
1971 appointing an attorney to represent petitioner and 
allowing petitioner’s notice of right to sue to be filed as a 
complaint on a pauper’s oath.

The court-appointed attorney filed a “Supplemental Com­
plaint” alleging violation of Title VII and 42 TJ.S.C. §§1981 
et seq., and invoking the Court’s jurisdiction under 28 
TJ.S.C. §1343(4) and 42 TJ.S.C. §2000e-5f. The complaint



7

filed March. 18, 1971 alleged that respondent REA, in con­
junction with respondent union locals, engaged in a policy 
and practice of discriminating against black employees with 
respect to promotional opportunities and that respondent’s 
job assignment and promotion practices served “to maintain 
a preexisting pattern of racial discrimination in employ­
ment.” Petitioner further alleged that he had been denied 
supervisory training and promotion opportunities which 
were accorded to white employees, that respondent union 
locals did not afford black members (including petitioner) 
the same quality of representation afforded to white mem­
bers, and that petitioner’s discharge was the result of re­
spondent REA’s racially discriminatory employment prac­
tices. Petitioner prayed for preliminary and permanent 
injunctive relief, back pay, costs and attorney’s fees.

Respondents REA and union locals filed their answers on 
March 29 and April 6,1971, respectively. The case was then 
scheduled for trial on August 18, 1971.

On April 30 and May 11, 1971, the unions and REA, re­
spectively, filed motions to dismiss or in the alternative 
for summary judgment.

Petitioner’s court-appointed attorney filed no memoranda 
or affidavits on behalf of petitioner in opposition to these 
motions.

Judge Brown entered an order June 30, 1971 which, 
inter alia, 1) dismissed all claims based on 42 U.S.C. §1981 
as barred by Tennessee’s one-year statute of limitations 
for actions “for compensatory or punitive damages, or 
both, brought under the federal civil rights statutes” ; 
2) granted summary judgment to the defendant unions; 
and 3) granted REA partial summary judgment on the 
issue of improper supervisory training (la-3a).



8

Thereafter, the case having been rescheduled for trial 
on February 2, 1972, respondent EE A served petitioner 
with interrogatories, filed a pre-trial memorandum as 
required by local rules of court, and took petitioner’s 
deposition. Petitioner’s court-appointed counsel took no 
discovery, by interrogatories, deposition, or otherwise, and 
filed no pre-trial memorandum.

EE A offered Johnson a settlement of one hundred and 
fifty dollars which Johnson refused. Petitioner’s counsel 
then filed, on January 5, 1972, a motion to be relieved as 
attorney of record on the grounds that petitioner’s case 
was “questionable,” petitioner had not substantiated money 
damages and had not expressed an intention of advancing 
the funds necessary for taking depositions, and because 
petitioner had refused EEA’s settlement offer. The clerk 
of the district court advised petitioner by letter dated 
January 14, 1972 that the motion to withdraw had been 
granted, and informed plaintiff that if he did “not obtain 
another counsel to represent [him] within 30 days from this 
date, [his] claim will be dismissed without prejudice.”2

Upon receipt of the clerk’s letter, petitioner, in an effort 
to obtain representation, contacted the Memphis EEOC 
field attorney, the Memphis & Shelby County Legal Services 
Association, the Shelby County Bar Association Legal Re­
ferral Service, and two private attorneys. Finally at the 
end of the 30 days he returned to the firm of Ratner, Sugar- 
mon & Lucas3 and explained his plight to William E. Cald­

2 Petitioner received no notice of a hearing on the motion to 
withdraw and was afforded no opportunity to state his position. 
The court made no finding that petitioner was either unable or 
unwilling to proceed pro se or that petitioner was responsible for 
any delay in bringing the case to trial. No order granting the 
motion to withdraw was ever entered.

3 Petitioner had first contacted this firm after receipt of his 
notice of right to sue. The firm was unable to undertake the repre­



9

well of the firm. On February 17, 1972 Caldwell wrote a 
letter to Judge Brown indicating that he was attempting 
to obtain financial support for the litigation and request­
ing an additional thirty days for petitioner to obtain 
counsel. However, the preceding day, February 16, Judge 
Brown had entered an order dismissing petitioner’s case 
“without prejudice” (4a-5a).

On May 5, 1972, Caldwell again wrote to Judge Brown 
indicating that the NAACP Legal Defense and Educational 
Fund had agreed to pay litigation costs for petitioner, 
entering an appearance for petitioner, and requesting that 
the order of February 16 be vacated and that the case be 
reinstated on the active docket of the court. Judge Brown 
replied on May 8, 1972 indicating that the “proper way to 
handle this matter would be to file a new action since the 
old one has long been dismissed.”

Pursuant to Judge Brown’s letter, Caldwell, on May 31, 
1972, filed a new complaint on petitioner’s behalf (Civil 
Action No. (1-72-183), assigned to District Judge Harry 
W. Wellford. The new complaint reiterated petitioner’s 
original allegations. Respondent REA and union locals 
moved for dismissal or for summary judgment on the 
grounds of untimeliness and res judicata. The district 
court, per Judge Wellford, entered an order of dismissal 
on the grounds that 1) Judge Brown’s interlocutory order 
of June 14, 1971 granting summary judgment to respon­
dent union locals and partial summary judgment to re­
spondent REA was a “final disposition” constituting res 
judicata, 2) that petitioner’s claims under 42 U.S.C. §§1981 
et seq. were barred by Tennessee’s one-year statute of limi­
tations on “actions for compensatory or punitive damages,

sentation of petitioner because of his inability to defray litigation 
expenses and because of the great number of pending Title VII 
cases to which the District Court has appointed the firm.



10

or both, brought under the federal civil rights statutes” 4 5 
and because plaintiff did not pursue his administrative 
remedies under the Railway Labor Act, and 3) that peti­
tioner had “failed to meet the statutory requirements” of 
Title YII because he failed to refile his suit within. 30 
days after Judge Brown’s February 16, 1972 order of dis­
missal without prejudice (6a-12a).

The Court of Appeals affirmed the order of dismissal, 
disposing of the case on timeliness grounds (13a-21a). 
First, the Court of Appeals held that the Title YII claims 
were jurisdictionally barred because “at a minimum [peti­
tioner] had to file the new case within thirty days from 
the date of dismissal without prejudice.” B Second, the 
court held that petitioner’s claims under 42 U.S.C. §1981 
were time-barred by the running of the statute of limita­
tions. In reaching this conclusion as to the Section 1981 
claims the Court of Appeals held: a) that the applicable 
statute was the one-year limitation contained in Tenn. Code 
§28-304; and b) that the running of the statute on the 
Section 1981 claims was not tolled by petitioner’s timely 
filing of charges with the EEOC.6 The Court of Appeals 
did not discuss the issues of res judicata, and exhaustion 
of remedies under the Railway Labor Act or the failure 
of the District Court to grant petitioner relief from the 
dismissal without prejudice pursuant to Rule 60(b).

In its opinion denying rehearing, the Court of Appeals 
reaffirmed its initial opinion, stating that Tennessee’s at­
tempted application of a one-year limitation period to all

4 Tenn. Code §28-304.
5 With regard to Judge Brown’s February 16, 1972 order of dis­

missal without prejudice, the Court of Appeals stated:
“We need not determine the propriety of this order because it 
was a final order from which no appeal was taken” (15a).

6 If the statute had been so tolled, petitioner’s second complaint, 
even if regarded as a new action, would have been timely filed.



11

civil rights actions, regardless of their nature, is not “arbi­
trary in a constitutional sense” and the statute does not 
create “an explicit racial classification . . . because citizens 
of all races are entitled to take advantage of the federal 
civil rights statutes” (22a-26a).7

Reasons for Granting the Writ

1. Assuming for purposes of argument that it was 
proper to apply to petitioner’s claim under 42 TJ.S.C. §1981 
the one-year limitation period provided in Tenn. Code 
§28-304, even petitioner’s second complaint (with respect 
to his Section 1981 claim) would have been timely had the 
court below held that the running of the period had been 
tolled by his filing of a charge with the EEOC.8 Its holding 
to the contrary squarely conflicts with decisions of the 
District of Columbia Circuit and Fifth Circuit Courts of 
Appeals9—indeed, the court below expressly acknowledged 
its disagreement with the Court of Appeals for the District 
of Columbia (25a). Moreover, the decision below is incom­
patible with the flexible approach to overlapping remedies 
in employment discrimination eases—viz., that pursuit of 
one does not preclude another—taken by this Court in 
Alexander v. Gardner-Denver Co., -----  TT.S. ----- , 39

7 In a footnote, the court stated that it agreed with the district 
court on the res judicata question.

8 Petitioner filed his charge with the EEOC on May 31, 1967, 
while still employed by REA. The discriminatory acts alleged 
therein were continuing in nature, so that none of the one-year 
period had run prior to said filing. The first complaint was filed 
25 days after termination of EEOC proceedings, that is, after 
petitioner received his notice of right to sue; and the second com­
plaint was filed 105 days after the first complaint was dismissed 
without prejudice. Hence only 130 days of the one-year period 
had run when the second complaint was filed.

9 Macklin v. Spector Freight Systems, Inc., 478 F.2d 979, 994-95 
n.30 (D.C. Cir. 1973) ; Boudreaux v. Baton Rouge Marine Con­
tracting Co., 437 F.2d 1011, 1017 n.15 (5th Cir. 1971).



1 2

L.Ed.2d 147 (1974) (pursuit of remedy under arbitration 
clause no bar to Title VII action). The holding of the court 
below would, if allowed to stand, interfere substantially 
with the successful administration of Title VII. Persons 
aggrieved by discriminatory employment practices would 
be discouraged from invoking the assistance of the EEOC 
and possibly achieving voluntary compliance, inasmuch as 
they could preserve their claims under Section 1981 only by 
filing suit, regardless of whether the EEOC had completed 
its investigation and its attempts at conciliation.

2. The ruling of the court below affirming the dismissal 
of (a) petitioner’s Section 1981 claims on the further 
grounds of failure to exhaust administrative remedies un­
der the Railway Labor Act and of untimeliness under a 
state statute, Tenn. Code § 28-304, imposing a one-year 
limitation period on “civil actions for compensatory or 
punitive damages, or both, brought under the federal civil 
rights statutes,” (b) petitioner’s Title VII claims on the 
grounds of his failure, when unrepresented by counsel, to 
refile within thirty days after dismissal without prejudice 
(petitioner having been given no notice of this require­
ment),10 and (c) petitioner’s claims, under both statutes, 
against the unions and, as to failure to train, against REA, 
on the ground of res judicata, so far sanctioned a departure 
from the accepted and usual course of judicial proceedings 
as to call for an exercise of this court’s power of super­
vision. This court should not allow the great national 
values expressed in the Civil Rights Acts of 1866 and 1964 
to be frustrated by technical rules which, woodenly applied,

10 In its order denying rehearing, the Court of Appeals makes 
an observation which suggests that petitioner was directed to refile 
his complaint within thirty days: “ [I]t is difficult to see why 
claimant should have more than thirty days to refile after dismissal 
without prejudice, particularly when said refiling is ordered by 
the Court” (24a). This suggestion that “said refiling [was] ordered 
by the Court” is wholly without support in the record.



13

deprive a plaintiff—inadequately represented by court- 
appointed counsel or wholly unrepresented because of the 
precipitate withdrawal of said counsel—of the opportunity 
to have his claims of racial discrimination at the hands of 
large corporations and powerful unions decided on the 
merits.

I
The Decision Below With Respect to the Tolling 

Effect of the Filing of an EEOC Charge Conflicts With 
Other Court of Appeals Decisions on an Issue Having 
Serious Implications For the Effectiveness of Title VII 
and Judicial Administration of Important Federal 
Statutes.

The Court of Appeals’ rejection of the rule that the 
period of limitation applicable to a Section 1881 action 
should be tolled for the period during which resolution 
through the conciliation procedures of the EEOC is at­
tempted (20a-21a, 25a-26a), is in conflict with the decisions 
of the only other courts of appeals, those for the District 
of Columbia and the Fifth Circuit, which have considered 
the question, and with the great majority of district court 
decisions.11 The Sixth Circuit’s holding also conflicts in 
principle with those decisions in the Fifth, Sixth and Ninth 
Circuits and various district courts holding that the period 
of limitations for the commencement of proceedings under 
Title VII should be tolled for the period during which the 11

11 Macklin v. Spector Freight Systems, Inc., supra, 478 F.2d at 
994-95 n.30 (D.C. Cir. 1973) ; Boudreaux v. Baton Rouge Marine 
Contracting Co., supra, 437 F.2d at 1017 n.16 (5th Cir. 1971); 
Guerra v. Manchester Terminal Corp., 350 F.Supp. 529 (S.D. Tex. 
1972) ; Henderson v. First National Bank of Montgomery, 344 
F. Supp. 1373 (M.D. Ala. 1972); Reynolds v. Daily Press Inc., 
5 CCH EPD 1)7991 (E.D. Va. 1972). Contra: Jenkins v. General 
Motors Corp., 354 F.Supp. 1040 (D. Del. 1973).



14

resolution through arbitration or through the National 
Labor Relations Board is attempted.12

The rationale of the decisions holding that the Section 
1981 period of limitation should be tolled by the filing of a 
charge is that Title VII indicates “a recent Congressional 
decision to favor informal methods of settlement and con­
ciliation short of litigation in employment cases” and that 
“ [pjlaintiffs, who often proceed initially without assistance 
of counsel and bring their complaint first to EEOC in ac­
cord with this legislative policy, should not be penalized 
for this action when they later sue for relief in District 
Court under both Title VII and § 1981, which overlaps 
Title VII.” Machlin v. Spector Freight Systems, Inc., 
supra, 478 F.2d at 994-95 n.30. Under the contrary rule 
adopted by the Sixth Circuit, in order for petitioner to have 
preserved both his Title VII and his Section 1981 claims, 
he would have to have both filed a charge with EEOC, and, 
within one year after his discharge (21 months before 
EEOC made its finding of reasonable cause and two and 
one-half years before it issued the right-to-sue letter), filed 
a lawsuit under Section 1981. Such a requirement, by dis­
couraging or rendering futile (by the prior determination 
of the Section 1981 action) recourse to the Congressionally 
favored policy of conciliation, would vitiate the administra­
tive procedures of the EEOC and be adverse to the interests 
of judicial economy.

The view that the Section 1981 limitation period should 
be tolled during the pendency of proceedings before the 
EEOC comports with the position adopted by this Court 
in Burnett v. New York Central B. Co., 380 U.S. 424 (1965)

12 Culpepper v. Reynolds Metals, 421 F.2d 888 (5th Cir. 1970); 
Schiff v. Mead Corp,. 3 CCH EPD (T8043 (6th Cir. 1970) ; Malone 
v. North American Rockwell Corp., 457 F.2d 779 (9th Cir. 1972); 
Wells v. Gainesville-IIall County Economic Opportunity Organiza­
tion, Inc., 5 CCH EPD (18541 (N.D. Ga. 1973); Guerra v. Man­
chester Terminal Corp., supra.



15

and reaffirmed in American Pipe and Construction Co., v.
Utah,----- U.S. ------, 38 L.Ed.2d 713 (1974), that where the
policies of ensuring essential fairness to defendants and of 
barring a plaintiff “who has slept on his rights” are 
satisfied, a statute of limitations should be tolled during 
the pendency of a related action the outcome of which could 
provide the relief plaintiff seeks. The filing of a charge 
with the EEOC puts the respondent on notice of the charg­
ing party’s substantive claims. There is neither surprise 
nor the dredging up of a stale claim, and duplicate adjudi­
cation is avoided. See Henderson v. First National Bank, of 
Montgomery, supra, 344 F. Supp. at 1377.

Finally, it is a necessary corollary to this Court’s recent 
holding in Alexander v. Gardner-Benver, supra, that at­
tempts to seek resolution by means other than litigation 
should be encouraged not only by rejection of the doctrine 
of election of remedies, but also by adoption of the rule 
that such attempts toll the applicable statutes of limitations 
for commencement of litigation.

II

The Failure of the District Court to Protect the 
Procedural Rights of Petitioner and the Sanctioning of 
That Failure by the Court of Appeals Make This a 
Compelling Case For the Exercise of This Court’s Super­
visory Authority.

a. Petitioner’s Section 1981 Claim Should Not Be 
Barred by Train. Code § 28-384.

Even if the period of limitation on petitioner’s Section 
1981 claim were not deemed tolled by the filing of his 
E.E.O.C. charge, the first action and the refiled action 
should have been held timely under Tennessee’s six-year



16

statute of limitations for actions on contracts13 or its ten- 
year statute for actions not otherwise provided for.14

In both his supplemental complaint filed in No. C-71-66 
and his complaint filed in No. C-72-183, petitioner sought 
injunctive relief from respondent’s discriminatory employ­
ment practices and an award of back pay and counsel fees. 
In both actions petitioner’s claims under Section 1981 were 
dismissed by the application of that portion of Tenn. Code 
§ 28-304 which provides a one-year limitation period on 
“civil actions for compensatory or punitive damages, or 
both, brought under the federal civil rights statutes” (2a, 
10a). The Court of Appeals affirmed, ignoring the point 
that this action was not one for compensatory or punitive 
damages, but an action in equity for injunctive relief and 
back pay.15 While Tenn. Code § 28-304 may be applicable 
to other types of civil rights actions, it is clearly inapplica­
ble by its very terms to the case at bar. The Tennessee 
limitation provision that would seem to apply is either its 
statute for actions on contracts,16 given that Section 1981

13 Tenn. Code §28-309.
14 Tenn. Code §28-310.
15 Courts of Appeals which have considered the question have 

rejected the contention that hack pay is “damages” :
“The demand for back pay [in a Title VII action] is not in the 
nature of a claim for damages, but rather is an integral part 
of the statutory equitable remedy, to be determined through 
the exercise of the court’s discretion, and not the jury.”

Johnson v. Georgia Highway Express, 417 F.2d 1122, 1125 (5th 
Cir. 1969). Accord: Robinson v. Lorillard Corp., 444 F.2d 791, 
802 (4th Cir.), cert, denied 404 TJ.S. 1006 (1971); see also, TJ.S. 
v. N .L . Industries, Inc., 479 F.2d 354, 380 (8th Cir. 1973).

16 Tenn. Code §28-309 (six years). See Boudreaux v. Baton 
Rouge Marine Contracting Co., supra, 437 F.2d at 1017 n.16 (5th 
Cir. 1971). But see Buckner v. Goodyear Tire & Rubber Co., 339 
F. Supp. 1108 (N.D. Ala. 1972), ajf’d per curiam, 476 F.2d 1287 
(5th Cir. 1973), in which the court applied a statute of limitations 
for actions for “injury to the person or rights of another, not aris­



17

protects the right “to make and enforce contracts,” or its 
residuary statute for civil actions not otherwise provided 
for.17 Under either of these, petitioner’s Section 1981 claim 
was timely filed.

Indeed if, contrary to its plain language, Tenn. Code 
§ 28-304 were applicable, it would be violative of both the 
supremacy clause of Article VI of the Constitution, in that 
it discriminates against rights arising under federal laws,18 
and the equal protection clause of the Fourteenth Amend­
ment, in that it creates an (ineptly camouflaged) explicit 
racial classification, drawing a distinction between those 
who seek the law’s protection against racial discrimination 
in employment and those who seek to vindicate their em­
ployment rights on other grounds.19

ing from contract,” but noted that “one may indeed ask whether, 
after all, the more appropriate standard should be the doctrine of 
laches.” 339 F. Supp. at 1117 n.9.

17 Tenn. Code §28-310 (ten years). See Waters v. Wisconsin Steel 
Works of International Harvester Co., 427 F.2d 476 (7th Cir. 
1970), cert, denied 400 U.S. 911 (1970); MacMiny. Spector Freight 
Systems, Inc., supra. In MacklAn the court noted that it did not 
have to decide whether the contract statute of limitations might be 
more closely analogous, since the limitation period would have 
been the same. 478 F.2d at 994-95 n.30.

18 Republic Pictures v. Kappler, 327 U.S. 757 (1946), aff’g 151 
F.2d 543 (8th Cir. 1945); McKnett v. St. Louis & S.F. B.Co., 
292 U.S. 230 (1934).

19 Hunter v. Erickson, 393 U.S. 385 (1969).



18

b. A Claim Under 42 U.S.C. § 1981 Does Not 
Require Prior Exhaustion of Administrative 
Remedies Under the Railway Labor Act.30

The ruling of the District Court that petitioner’s cause 
of action under Section 1981 was barred by his failure to 
pursue his administrative remedy under the Railway Labor 
Act (10a) is contrary to this Court’s holding in Glover v. 
St. Louis & San Francisco R. Co., 393 U.S. 324 (1969). 
In Glover, plaintiffs sued the railroad and the union, claim­
ing that they had been discriminated against on account 
of their race. Rejecting the contention that the complaint 
should have been dismissed for failure by plaintiffs to 
exhaust their remedies under the Railway Labor Act, this 
Court pointed out that “insistence that plaintiffs exhaust 
the remedies administered by the union and the railroad 
would only serve to prolong the deprivation of rights to 
which these petitioners according to their allegations are 
justly and legally entitled.” 393 U.S. at 331. See also, 
Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192 
(1944); Alexander v. Gardner-Denver Co., supra, 39 L.Ed. 
2d at 164, n. 19.

Furthermore, it has been recognized by the Courts of 
Appeals for the Third, Fourth, Fifth, Seventh, Eighth 
and District of Columbia Circuits that Section 1981 creates 
an independent right of action not requiring exhaustion 20

20 The Court of Appeals found it unnecessary to rule upon this 
question. However, since the District Court’s holding that peti­
tioner’s Section 1981 action should be dismissed for failure to 
exhaust his Railway Labor Act remedies would keep petitioner 
out of court even if he should prevail on the tolling issue, we ask 
the Court to rule on this question in furtherance of sound judicial 
administration. McAllister v. Magnolia Petroleum Co., 357 U S 
221, 226 (1958).



19

of administrative remedies under other federal statutes.21 
Clearly, the District Court was in error in ruling that 
petitioner was barred from suing on his Section 1981 claim 
for failure to exhaust administrative remedies under the 
Railway Labor Act.

c. Petitioner’s Title VII Action Should Not Have 
Been Precluded by His Failure to Refile His 
Complaint Within 30 Days After Dismissal.

After it permitted petitioner’s court-appointed attorney 
to withdraw, the District Court dismissed petitioner’s com­
plaint in C-71-66 sua sponte, without a hearing. Its order 
of dismissal contained no notice that petitioner must refile 
his complaint within thirty days. The subsequent dismissal 
by the District Court in No. 72-183 of petitioner’s Title VII 
complaint is in conflict with the principles enunciated by 
this Court with respect to liberal construction of the pro­
cedural requirements of Title VII22 and to the Congres­
sional policy against discrimination.23

With respect to the initial filing of a complaint under 
Title VII, “certain equitable principles may operate to 
toll the 30 day requirement.” Gates v. Georgia Pacific

21 Young v. International Telephone & Telegraph Co., 438 F.2d 
757 (3rd Cir. 1971); Brown v. Gaston County Dyeing Machine Co., 
457 F.2d 1377 (4th Cir. 1972), cert, denied, 409 U.S. 982 (1972) ; 
Caldwell v. National Brewing Co., 443 F.2d 1044 (5th Cir. 1971), 
cert, denied, 405 U.S. 916 (1972); Sanders v. Dobbs Houses, Inc., 
431 F.2d 1097 (5th Cir. 1970), cert, denied, 401 U.S. 948 (1971); 
Waters v. Wisconsin Steel Works of International Harvester Co., 
supra; Brady v. Bristol-Myers, Inc., 459 F.2d 621 (8th Cir. 1972) ; 
Macklin v. Spector Freight Systems, Inc., supra.

22 Love v. Pullman, 404 U.S. 522 (1972).
23 Newman v. Piggie Park, 390 U.S. 400 (1968).



20

Corp., 7 CCH EPD fl9185 (9th Cir. 1974).24 This Court has 
recently affirmed this principle, stating that “the mere fact 
that a federal statute providing for substantive liability 
also sets a time limitation upon the institution of suit does 
not restrict the power of the federal courts to hold that the 
statute of limitations is tolled under certain circumstances 
not inconsistent with the legislative purpose.” American 
Pipe and Construction Co. v. Utah, supra, 38 L.Ed. 2d at 
730.25 Where, as in the case at bar, the plaintiff has not 
had a clear notice of the time limitation on his right to 
sue and has acted with all of the diligence and promptness 
which could be expected, it has been held that the limita­
tion period does not start running until the plaintiff re­
ceives explicit notice.26 That rule should apply here: peti­
tioner’s time for refiling his complaint should not have 
started until the District Court, knowing that he was un­

24 Accord: Harris v. Walgreen’s Distribution Center, 456 F.2d 
588 (6th Cir. 1972); McQueen v. E.M.C. Plastics Co., 302 F.Supp. 
881 (E.D. Tex. 1969).

20 See also Burnett v. New York Central B. Co., supra; Holm- 
berg v. Armbrecht, 327 U.S. 392 (1945).

26 Gates v. Georgia Pacific Corp., supra, 7 CCH BPD f[9185 at 
6944. Indeed, the Sixth Circuit reversed a lower court’s failure 
to accept a renewed motion for the appointment of counsel made 
after the first motion had been denied and more than thirty days 
after the receipt of the notice of right to sue, stating:

[PJursuant to the Congressional purpose when after decision 
on the motion for counsel the time remaining is unreasonably 
short for securing a lawyer and filing the complaint, the 
District Judge’s order granting or denying the motion for 
appointment of Counsel should set a reasonable time.

Harris v. Walgreen’s Distribution Center, supra, 456 F.2d at 592. 
The only order made by the District Court in C-71-66 relating to 
dismissal of the aetion was that entered Mafefe 16, 1972 (4a-5a). 
That order set no time for the refiling of petitioner’s complaint.



21

represented by counsel, notified him that he had thirty days 
within which to refile.27

Similarly, courts have been liberal in their interpretation 
of what constitutes the commencement of a Title YII action, 
holding that a motion for appointment of counsel tolls the 
running: of the thirty-day period.28

The rationale of these cases applies with special vigor 
to the instant case. Here petitioner diligently sought to 
prosecute his action and obtain counsel. He had no notice 
of his duty to reinstitute suit within 30 days. More im­
portantly, petitioner would never have run afoul of any 
rule requiring him for a second time to meet the thirty-day 
filing requirement but for the District Court’s sua sponte 
dismissal of his complaint with full knowledge that peti­
tioner had at the outset relied on the court to appoint 
counsel. The equities here require treating Caldwell’s Feb­
ruary 17,1972 letter requesting an additional thirty days for 
petitioner to obtain counsel as the equivalent of a motion 
for the appointment of counsel, satisfying the revived 
thirty-day requirement.

After diligently pursuing his case from May 31, 1967, 
when he filed his charge with the EEOC, to January 24,

27 Respondents could not be said to be disadvantaged by this rule, 
since this was a case of first impression in the Sixth Circuit and 
the Tennessee savings statute, Tenn. Code §28-106 provides a one- 
year period for commencement of a new action when a “judgment 
or decree is rendered against the plaintiff upon any ground not 
concluding his right of action.” The only case holding that a Title 
VII case must be recommenced within 30 days after dismissal 
without prejudice was McClendon v. North American Rockwell 
Corp., 2 CCH EPD f|IQ,243 (C.D. Cal. 1970), where there was no 
such savings statute.

28 Harris v. Walgreen’s Distribution Center, supra; McQueen v.
E. M.C. Plastics Co., supra; Prescod v. Ludwig Industries, 325
F. Supp. 414 (N.D. 111. 1971); Austin v. Reynolds Metal Co., 327 
F.Supp. 1145 (B.D. Va. 1971).



22

1973, the date of dismissal of his second complaint, peti­
tioner found himself, in the words of the District Court, 
in the “regrettable” position of having his complaint “dis­
missed without a hearing on the merits by reason of the 
circumstances alluded to” (12a). The court below never 
discussed one of the questions assigned as error, namely 
that the District Court abused its discretion by failing to 
reopen the first action, C-71-66, pursuant to its powers 
under Rule 60(b), F.R. Civ.P. It could have done so either 
by treating Caldwell’s letters of February 17 or May 5, 
1972 or the refiled complaint as a motion, or by acting on 
its own motion.29

This court has established the principle that Rule 60(b) 
is to be liberally construed and that any doubt is to be 
resolved in favor of an application to set aside a default 
judgment or a dismissal for lack of prosecution in order 
that a case may be tried on the merits. Klaprott v. United 
States, 335 U.S. 601 (1949). Numerous courts of appeals 
have reversed the denial of relief under Rule 60(b) (1) and 
(6) as an abuse of judicial discretion.30

In Denman v. Shubow, supra, a case strikingly close on 
its facts to the case at bar, plaintiff, appearing pro se in a 
civil rights action, overslept because he had taken some 
prescribed medication and missed a calendar call, where­
upon Ms ease was dismissed without prejudice for lack of 
prosecution. In the afternoon of the same day, after calling 
the clerk to explain his absence and learning of the dis­
missal, he filed a handwritten motion for reconsideration, 29

29 McDonnell v. Celebrezze, 310 F.2d 43 (5th Cir. 1962) ; United 
States v. Jacobs, 298 F.2d 469 (4th Cir. 1961).

80 Denman v. Shubow, 413 F.2d 258 (1st Cir. 1969); Hutton v 
Fisher, 359 F.2d 913, 916 (3rd Cir. 1966); Badack v. Norwegian 
American Line Agency, Inc., 318 F.2d 538, 542 (2nd Cir. 1963) ; 
ftooks v. American Brass Co., 263 F.2d 166 (6th Cir. 1959) • 
Patapoff v. Vollstedt’s, Inc., 267 F.2d 863 ('9th Cir. 1959)



23

which the district court denied. The Court of Appeals for 
the First Circuit reversed, stating:

“When the circumstances surrounding plaintiff’s tardi­
ness were brought to the district court’s attention by 
the motion for reconsideration, we think the ends of 
.justice would have been better served if the district 
court had taken the necessary steps to assign the case 
for trial on the merits. This pro se plaintiff would 
thereby have been assured of his day in Court.” (413 
F.2d at 259.)

Similarly, in the instant case the District Court should have 
assured petitioner of a trial on the merits by reopening 
C-71-66 after Caldwell explained petitioner’s plight and 
asked for a thirty-day extension of the time to obtain coun­
sel or after he entered his appearance and asked that the 
order of dismissal be vacated.

d. Petitioner’s Claims Against the Union Locals 
and Claim Against REA on the Issne of Super­
visory Training Are Not Barred by the Doctrine 
of Res Judicata.

In its order of June 14, 1971, the District Court granted 
summary judgment to respondent union locals and partial 
summary judgment to respondent REA. (2a). Upon the 
filing of petitioner’s second complaint, following dismissal 
of the first without prejudice, respondents moved to dis­
miss on the ground, inter alia, that the interlocutory sum­
mary judgment order constituted res judicata. Accepting 
this contention, the District Court dismissed all of peti­
tioner’s claims against the union locals (9a) and his claim 
against REA on the issue of supervisory training (10a).

On appeal, the Court of Appeals did not discuss this 
issue, but in its opinion denying rehearing the Court of



24

Appeals, in a footnote, affirmed the District Court’s con­
clusion (23a).

These rulings are erroneous and should he reversed. It 
is hornbook law that res judicata effect can be given only 
to final decisions on the merits. See IB Moore’s Federal 
Practice 0.401 (2d Ed. 1965). The District Court’s sum­
mary judgment order dismissing fewer than all of the 
defendants was neither final nor appealable, Rule 54(b), 
F.R. Civ. P., as the Sixth Circuit itself has recognized. 
Balsbaugh v. City of Westland, 458 F.2d 1358 (6th Cir. 
1972). Accord: Sullivan v. Delaware River Port Authority, 
407 F.2d 58 (3rd Cir. 1969); Hamman v. United States, 399 
F.2d 673 (9th Cir. 1968). I t could not be given res judicata 
effect, unless by a subsequent order of the court. The only 
subsequent order, however, was Judge Brown’s order of 
February 16, 1972 dismissing the complaint without preju­
dice (4a-5a). Since dismissal without prejudice is not an 
adjudication on the merits, such an order cannot have res 
judicata effect.31 Public Service Commission v. Brashear 
Freight Lines, 312 U.S. 621 (1941). Even if it were thought, 
as respondents have argued below, that the interlocutory 
order merged into the subsequent order of dismissal without 
prejudice, it does not thereby acquire res judicata finality.32 
Petitioner, whose first complaint was dismissed solely be­
cause he did not have a lawyer, could hardly have been re­
quired to appeal a non-prejudicial order on the theory that 
an earlier order, unappealable at the time of its entry, had 
acquired a quality of finality which even the later order 
lacked.

31 As the court below noted in another context, “ [A]n action 
dismissed without prejudice leaves the situation the same as if the 
suit had never been brought” (17a).

32 United States v. Wallace & Tiernan Co., 336 U.S. 793 (1949); 
Town of Marshall v. Carey, 42 F. Supn. 630, 635 (WD Okla’ 
1941).



25

CONCLUSION

For these reasons, a writ of certiorari should issue to 
review the judgment and opinion of the Sixth Circuit,

Respectfully submitted,

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

10 Columbus Circle 
New York, New York 10019

W illiam E . Caldwell 
R atner, Sugarmon & L ijcas

525 Commerce Title Building 
Memphis, Tennessee 38103

Attorneys for Petitioner

Louis H. P ollak 
Of Counsel



APPENDIX



la

District Court’s Order Dismissing Claims Under 
42 U.S.C. §1981 and Granting Summary Judgment to 

Union Locals and Partial Summary Judgment to 
REA Express on Title A ll Claims

I n the U nited States District Court 
F or the W estern D istrict op T ennessee 

W estern Division

Civil C-71-2

T homas T hornton,

v.
Plaintiff,

REA E xpress, I nc. ; Brotherhood op R ailway Clerks 
Tri-State L ocal; and B rotherhood op R ailway Clerks 
L ily op the Valley L ocal,

Defendants,
■—and—

Civil C-71-66 

W illie J ohnson, J r.,
Plaintiff,

v.

REA E xpress, I nc. ; B rotherhood op Railway Clerks 
T ri-State L ocal; and B rotherhood of R ailway Clerks 
L ily op the Valley L ocal,

Defendants.

Order W ith  R espect to Motions to D ismiss and 
Motions por Summary J udgment



2a

Upon consideration, and after argument of counsel, it is 
hereby Ordered :

1. Insofar as plaintiffs in both cases sue under Civil 
Rights statutes other than the Civil Rights Act of 1964, 
such claims are dismissed for the reasons that there is no 
Federal statute of limitations governing these claims, that 
therefore the Tennessee statute of limitations of one year 
would apply, and both of these claims were barred by such 
statute at the time they were filed.

2. The motions to dismiss in both cases on the ground
that the thirty-day letter filed within the thirty-day period 
is not sufficient to satisfy the requirement that a complaint 
be filed within thirty days following the issuance of said 
letter are overruled. See opinion of Judge Harry W. Well- 
ford, Joeanna Beckum v. Tennessee Hotel, (W.D. Tenn. 
1971) attached hereto. Cf. Rice v. Chrysler Corp., 
----- F. Supp.------ , 3 FEP Cases 436 (E.D. Mich. 1971).

3. The motion of the defendant Union locals for sum­
mary judgment will be granted on the grounds that from 
the undisputed facts plaintiffs have no grounds for relief 
against said Unions under the Civil Rights Act of 1964.

4. The motions of REA Express, Inc, for summary judg­
ment with respect to the claim of dismissal for not giving 
plaintiffs supervisory training are granted on the ground 
that from the undisputed facts plaintiffs have not shown 
any discrimination in this respect.

5. The motions of REA Express, Inc. for summary 
judgment with respect to the claim of both plaintiffs of 
discriminatory discharge and with respect to plaintiff

D is tr ic t  C o u r t ’s  O r d e r  D is m is s in g  C la im s  U n d e r , etc.



3a

Johnson’s claim of denial of equal promotional opportuni­
ties and discrimination in job assignment be and the same 
are hereby denied.

E nter this 14th day of June, 1971.

D is tr ic t  C o u r t ’s  O rd e r  D is m is s in g  C la im s  U n d e r , e tc .

/ s /  Bailey Brown 
Chief Judge

A True Copy
W. Lloyd J ohnson, Clerk
B y: A. A. B reaux 

Deputy Clerk

F i l e d  

J un 14 1971
Clerk U.S. District Court 

Western Dist. of Tenn.



4a

District Court’s Order Dismissing Action 
Without Prejudice

I k the U nited States District Court 

F or the W estern District oe T ennessee 

W estern D ivision

Civil N o. C-71-66 

W illie J ohnson, J r.,

v .

Plaintiff,

Railway E xpress A gency, I nc., et al.,

Defendants.

Order Dismissing A ction W ithout P rejudice

In this cause, this Court heretofore appointed Robert 
Rose of the Memphis Bar to represent this plaintiff, as 
well as the plaintiff Thomas Thornton in C-71-2, which are 
EEOC claims by these plaintiffs against REA Express and 
others. Thereafter, after various proceedings in these 
matters, counsel for the plaintiffs appeared in court and 
stated that he had managed to obtain an offer of settlement 
from REA Express, that plaintiff Thornton had agreed 
to accept the settlement, but plaintiff Johnson was unwill­
ing to do so. Counsel further stated to the Court that in 
all frankness, in view of the staleness of the claim and 
other reasons, he had strongly recommended these settle­
ments, but had been unable to persuade plaintiff Johnson 
to accept. The cases were set for trial on February 2,



5a

D is tr ic t  C o u r t’s  O rd e r  D is m is s in g  A c t io n
W i th o u t  P r e ju d ic e

1972, and Mr. Hose filed a motion on or about January 7, 
1972 to be relieved as attorney for plaintiff Johnson, which 
the Court granted on January 14, 1972. On the latter date, 
the Clerk of this Court, under direction of the Court, wrote 
to plaintiff Johnson stating that Mr. Rose had been re­
lieved, that the setting for trial on February 2, 1972 would 
have to be reset, and that plaintiff Johnson was allowed 30 
days from that date to obtain other counsel or his case 
would be dismissed without prejudice. Since such 30 days 
have passed without plaintiff having obtained such counsel 
and so notifying the Clerk as he was directed, this cause 
should be dismissed without prejudice.

It is therefore Ordered and Adjudged that this action be 
and the same is hereby dismissed without prejudice.

E nter this 15th day of February, 1972.

/ s /  Bailey Brown 
Chief Judge

A True Copy.
Attest:
W . Lloyd J ohnson
(Illegible)

F i l e d  
F eb 16 1972

Clerk U.S. District Court 
Western Dist. of Tenn.



6a

I n the U nited States D istrict Court 

F or the W estern District of T ennessee 

W estern D ivision

District Court’s Opinion and Order
Dism issing Refiled Complaint

No. C-72-183 

W illie J ohnson, J r.,

vs.
Plaintiff,

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

Defendants.

Order on Defendant Motions for J udgment

This is an action brought by a former employee of Rail­
way Express Agency, Inc. (REA) against that carrier and 
two local lodges of the BRAC, i.e., the Tri-State Local and 
the Lily of the Valley Local (BRAC Locals) alleging viola­
tions of the civil rights of the plaintiff under federal statute. 
Jurisdiction is asserted pursuant to the provisions of Title 
VII of the Civil Rights Act of 1964 (42 U.S.C.A., Sec. 200Ge, 
et seq.), the provisions of other federal statutes protecting 
civil rights set forth in 42 U.S.C.A., Sections 1981,1982 and 
1988, and the provisions of Title 28 of the United States 
Code, Section 1343. The complaint asks for injunctive re­
lief, compensatory damages, and the award of costs of the 
action together with reasonable attorneys’ fees.



7a

Paragraph VIII of the present complaint states that 
“this is the second .complaint filed by plaintiff against de­
fendants REA and Union Locals concerning the matters 
set forth herein and seeking the relief requested herein.” 
Said paragraph VIII then goes on to recite the following 
facts with respect to the prior complaint:

“On February 12, 1971, this Court entered orders 
appointing Robert E. Rose as attorney for plaintiff and 
allowing plaintiff’s ‘Notice of Right to Sue’ letter be 
filed and treated as a complaint on a pauper’s oath, 
which documents were docketed as Civil No. C-71-66. 
Subsequently, on March 18,1971, a ‘Supplemental Com­
plaint’ was filed on plaintiff’s behalf by Ms court- 
appointed attorney. Defendant REA filed its answer 
on March 29, 1971, and defendant Union Locals filed 
their answer on April 6, 1971. Thereafter, the case was 
set for trial on August 18, 1971. On April 30, 1971, de­
fendants Union Locals filed a motion to dismiss or in 
the alternative for summary judgment, with supporting 
affidavits and memoranda of law. May 11, 1971, defen­
dant Union Locals propounded 43 numbered interroga­
tories to plaintiff. June 3, 1971, defendant REA filed 
a motion to dismiss or in the alternative for summary 
judgment, along with supporting affidavits and memo­
randa of law. No memoranda or affidavits were ever 
filed on behalf of plaintiff in opposition to defendants’ 
motions.

On June 30, 1971, the Honorable Bailey Brown, 
Chief Judge of this Court, entered an order on defen­
dants’ motions, which: (1) dismissed plaintiff’s claims 
insofar as they were based on statutes other than Title

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8a

VII of the Civil Rights Act of 1964; (2) granted sum­
mary judgment to defendant Union Locals; (3) granted 
summary judgment to defendant REA ‘with respect to 
the claim of dismissal for not giving plaintiffs super­
visory training’; (4) denied defendant REA’s motion 
with respect to plaintiff’s charge of discriminatory dis­
charge and plaintiff’s claim of denial of equal promo­
tion opportunities and discriminatory job assignments; 
(5) denied the defendants’ motions to dismiss on the 
grounds that filing the ‘Notice of Right to Sue’ letter 
did not constitute the filing of a complaint within the 
time allowed. This order was a consolidated ruling in 
plaintiff’s case and in No. C-71-2 (Thomas Thornton v. 
the same defendants).”

The complaint, with respect to prior history of this 
dispute, also sets out in substance that plaintiff’s appointed 
counsel, Mr. Rose, failed to take discovery and to prepare 
the case for trial, and being dissatisfied with plaintiff’s 
cause of action and his refusal to settle, was permitted by 
Judge Brown to withdraw as counsel (purportedly without 
notice to plaintiff) within a few weeks before the date fixed 
for trial. Plaintiff further asserts and the record bears out 
in the prior action that Judge Brown directed the Court 
Clerk to notify plaintiff that if he did not obtain another 
counsel within 30 days his claim would be dismissed without 
prejudice.

Plaintiff’s present counsel after being contacted (for the 
second time) by plaintiff within the prescribed 30 day 
period wrote to Judge Brown wuthin a day or two after this 
period had elapsed, requesting an additional 30 days for 
plaintiff to secure legal representation. The Court had,

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9a

however, on the 30th day (February 16, 1972) entered an 
order dismissing the case without prejudice. This action 
has been subsequently filed on May 31, 1972.

At no time did plaintiff Johnson appeal to the United 
States Court of Appeals for the Sixth Circuit the order of 
Judge Brown dated June 14, 1971, granting the BRAG 
Locals summary judgment with respect to the claims upon 
Title VII of the Civil Rights Act of 1964 and dismissing 
plaintiff Johnson’s claims based upon other federal statutes.

Plaintiff’s Claim Against Defendant Unions
This action clearly involves the same parties and the 

same subject matter of dispute as were before Judge 
Brown.1 Unless plaintiff can establish a basis for us to act 
otherwise, the doctrine of res adjudicata would bar his 
bringing this claim again after a final disposition by Judge 
Brown. Sopp v. Gehrlin, 236 F. Supp. 823 (W.I). Pa. 1964) 
and Burton v. Peartree, 326 F. Supp. 755 (E,D. Pa. 1971), 
Vassos v. Societa Trans-Oceania, 272 F.2d 182 (2nd Cir. 
1960), cert, denied, Haldane v. Wilhelmina Helen- King 
Chagnon, 345 F.2d 601 (9th Cir. 1965). We do not subscribe 
to any theory that because of alleged improper representa­
tion, absent fraud or wrongdoing on defendant’s part, that 
a civil litigant should be permitted a “second bite at the 
apple” after an adverse ruling in a prior proceeding result­
ing in an unappealed final decision of a court assertedly 
having proper jurisdiction. Of course, if Judge Brown had 
no such jurisdiction of thet parties, neither do we. The mo­
tion of defendant unions, either for dismissal, or for sum­
mary judgment, is granted on grounds of res adjudicata. 
Other grounds are discussed hereinafter. 1

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1 The complaints in both causes are substantially similar.



10a

Plaintiff’s Claim Against REA
1. Plaintiff’s claims of violation of his civil rights under 

42 U.S.C. 1981 through 1988 were properly dismissed and 
are here dismissed because barred by the applicable Ten­
nessee one year statute of limitations. Ellenburg v. Shep­
herd, 406 F.2d 1331 (6th Cir. 1968) and Mulligan v. Schlach- 
ter, 389 F.2d 231 (6th Cir. 1968). In addition, plaintiff’s 
cause of action under these sections would be subordinate 
to provisions of the Railway Labor Act which governs the 
defendant employer (and the defendant unions). See also 
Oliphant v. Brotherhood Firemen, et al., 262 F.2d 359 (6th 
Cir. 1958) cert, denied, 359 LT.S. 935. No effort was made 
by plaintiff to protect or assert his rights under the ad­
ministrative procedures available under that Act. As to all 
claims of plaintiff other than those asserted under Title VII 
of the 1964 Civil Rights Act, then, the cause of action is 
barred under the statute of limitations defense asserted 
by all defendants and because plaintiff did not pursue his 
administrative remedy under the Railway Labor Act. 2 3

2. Judge Brown’s previous order of June 14, 1971, 
granted defendant REA’s motion for summary judgment 
after a hearing with respect to plaintiff’s claim regarding 
lack of supervisory training “on the ground that from the 
undisputed facts plaintiff [s] have not shown any discrimi­
nation in this respect—” Judge Brown considered the affi­
davits and evidence before him and dismissed plaintiff’s 
claim in this particular. We hold that Judge Brown’s rul­
ing was a final disposition and constitute res adjudicata as 
to this aspect of plaintiff’s claim.

3. It is also asserted that plaintiff has failed to comply 
with jurisdictional requirements of the Equal Employment

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11a

sections of the Civil Bights Act. Judge Brown ruled that 
under the then circumstances of the case the “30 day pro­
vision” of the act did not bar plaintiff’s claim because he 
relied in part upon the Court for advice as to how to file his 
claim of unlawful racial discrimination and simply filed his 
notice or letter from Equal Employment Opportunity Com­
mission giving him the right to sue within the requisite 30 
day period. This Court in Beckum v. Tennessee Hotel, 
Cause C-70-417, ruled similarly on the same issue on May 
6, 1971. In Beckum, supra, however, we did not rule as to 
whether this procedure met minimal requirement of 
F.R.Civ. P. 8a(2). Further complications ensued in this 
case after Judge Brown’s initial ruling on the 30 day statu­
tory requirement and plaintiff’s suit was dismissed without 
prejudice,2 February 16, 1972. Plaintiff’s counsel wrote 
Judge Brown again on May 5, 1972,3 requesting reinstate­
ment of the cause explaining the financial inability of plain­
tiff, and also seeking vacation of the Court’s previous order. 
This Judge Brown declined to do since the case “has long 
since been dismissed”.2 3 4

Considering all the circumstances of the matter, we find 
reluctantly that plaintiff has failed to meet statutory re­
quirements and that his refiling should have taken place 
within 30 days after Judge Brown’s February 16, 1972 
order. The Chief Judge extended unusual consideration 
to plaintiff that would not have been granted ordinary civil 
litigants and we cannot hold under the circumstances that 
Title VII Civil Rights Act requirements imposed by Con­

2 It is noted, however, that notice had been issued to plaintiff 
that his case would be dismissed if he did not obtain a lawyer by 
the appointed time.

3 See Exhibit to complaint.
4 See Exhibit to complaint.

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12a

gress may be indefinitely extended by the Courts. Defen­
dant REA’s motion to dismiss will therefore be granted. 
See Goodman v. City Products Corp., 425 F.2d 702 (6th 
Cir. 1970), Brady v. Bristol-Myers, Inc., 332 F. Supp. 995 
(E.D. Mo. 1971).

It should also be observed that the Equal Employment 
Opportunity Commission in this case was perhaps partially 
at fault in the handling of plaintiff’s complaint because of 
the long 4 year delay involved in processing the complaint 
before issuance of the right to sue notice. It is regrettable 
that plaintiff’s complaint should be dismissed without a 
hearing on its merits by reason of the circumstances al­
luded to in this order.

We, nevertheless, grant all defendants’ motions and dis­
miss the complaint filed herein for the reasons stated, but 
at the cost, under the circumstances, of REA.

H arry W. W ellford 
United States District Judge
Date: 1/24/73
A True Copy.
Attest:

W. Lloyd J ohnson, Clerk 
By A. A. Breaux D.C.

F i l e d  
J an 25 1973

Clerk, U.S. Dist. Court 
Western Dist. of Tenn.

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13a

No. 73-1306

Opinion o f  Conrt o f  Appeals

U nited States Court op Appeals 

F or the S ixth Circuit

W illie J ohnson, J r.,

v.
Plaintiff-Appellant,

R ailway E xpress A gency, I nc., B rotherhood o p  R ailway 
Clerks Tri-State L ocal and B rotherhood op R ailway 
Clerks L ily op the Valley L ocal,

Defendants-Appellees.

APPEAL PROM UNITED STATES DISTRICT COURT 
FOR T H E  W ESTERN DISTRICT OP TENNESSEE 

W ESTERN DIVISION

Decided and Filed November 27, 1973.
Before W eick, Circuit Judge, O’Sullivan, Senior Circuit 

Judge, and Allen,* District Judge.
W eick, Circuit Judge. This appeal is from an order of 

the District Court dismissing plaintiff’s complaint which 
alleged employment discrimination.

Plaintiff-appellant, Willie Johnson, filed timely charges 
with Equal Employment Opportunity Commission (EEOC) 
in 1967 in which he alleged that his employer, Railway Ex­
press Agency, Inc. (REA), discriminated against him with

* The Honorable Charles M. Allen, Judge, United States District 
Court for the Western District of Kentucky, sitting by designation.



14a

regard to seniority rules and job assignments. Johnson fur­
ther asserted that he had been discharged by REA because 
of his race (black). Johnson also charged the Brotherhood 
of Railway Clerks Tri-State Local and the Lily of the Val­
ley Local with maintaining segregated Locals.

On December 22, 1967 EEOC filed a report concluding 
that the company and the unions had engaged in discrimi­
natory practices; however, it was not until January 15, 
1971 that Johnson received his notice of right to sue letter 
from EEOC. Initially Johnson was unable to retain a 
lawyer to file suit authorized by the letter. On February 
12, 1971 District Judge Bailey Brown allowed Johnson to 
file the EEOC notice-letter with the Clerk as satisfying the 
duty to institute suit within thirty days from date of re­
ceiving notice. Judge Brown further allowed Johnson to 
proceed in forma pauperis and appointed an attorney to 
represent him. The court-appointed attorney filed an 
amended complaint on March 18,1971, setting forth in more 
detail Johnson’s claims.

At this point both defendants moved for summary judg­
ment supported by affidavits. The unions also propounded 
to plaintiff interrogatories, which he answered. Plaintiff 
submitted no affidavits in opposition to these motions.

On June 14, 1971 the Court entered an order which—
(1) dismissed all claims based on statutes other than Title 
VII of the 1964 Civil Rights Act as barred by Tennessee’s 
one-year statute of limitations,
(2) denied the defendants’ claims that the filing of the 
EEOC notice-letter was insufficient to meet the thirty-day 
filing requirement,

(3) granted the two unions’ motions for summary judg­
ment, holding that the plaintiff had no claim against them 
under the 1964 Civil Rights Act,

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15a

(4) granted the motion of REA for summary judgment re­
garding improper supervisory training, and

(5) denied REA’s motion for summary judgment regarding 
Johnson’s claims of discriminatory discharge, denial of pro­
motional opportunities, and discrimination in job assign­
ment.

After this ruling, REA offered Johnson one hundred 
fifty dollars in settlement of the case: Johnson refused. 
Subsequently the case was assigned for trial and Johnson’s 
court-appointed attorney, with the Court’s permission, 
withdrew from the case on January 14, 1972. On that date 
the Clerk of the District Court, acting pursuant to the 
Court’s direction, wrote a letter to Johnson giving him 
thirty days in which to obtain a new attorney or have his 
case dismissed without prejudice. Johnson did not obtain a 
new attorney within such time, and on February 16, 1972 
Judge Brown entered an order dismissing the action with­
out prejudice. We need not determine the propriety of this 
order because it was a final order from which no appeal was 
taken.

On February 17, 1972 William Caldwell, now one of 
Johnson’s lawyers, wrote to Judge Brown informing him 
that he, Caldwell, was looking for financial support which 
would enable him to take Johnson’s case. The letter was 
clearly not an announcement that Caldwell was his counsel; 
the letter stated only that he might be Johnson’s counsel 
at some point in the future. Later Caldwell found such 
financial support and did undertake to represent Johnson. 
On May 31, 1972 a second complaint was filed against REA 
and the unions, with Caldwell acting as counsel for Johnson.

All of the defendants moved for dismissal or, in the 
alternative, for summary judgment. The case was assigned

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O p in io n  o f  C o u r t  o f  A p p e a ls

to District Judge Wellford, who ruled on these motions on 
January 25, 1973. First, the Court dismissed Johnson’s 
claims against the unions on grounds of res judicata, hold­
ing that the present suit involved the same parties and the 
same subject matter decided in the first action where sum­
mary judgment was granted by Judge Brown. Second, the 
Court held that Johnson’s claims of violation of his civil 
rights under 42 U.S.C. §§ 1981 through 1988, were barred 
by Tennessee’s one-year statute of limitations. Third, the 
Court found that Johnson did not pursue properly his ad­
ministrative remedies under the Railway Labor Act. 
Fourth, the Court held that res judicata barred Johnson’s 
claims against REA on the issue of supervisory training. 
Fifth, the Court ruled that Johnson’s failure to refile a law­
suit within thirty days from February 16, 1972 (the date of 
dismissal without prejudice) resulted in a failure to com­
ply with the thirty-day filing requirement.

We will deal first with the thirty-day filing requirement 
since failure to meet it results in a lack of jurisdiction. 
Goodmans. City Prods. Corp., 425 F.2d 702 (6th Cir. 1970).

Johnson contends that he was not required to file suit 
within thirty days after dismissal without prejudice. He 
argues that the only statutory requirement is that he file 
his original suit within thirty days after receipt of his 
notice-letter. We disagree. We rely on our decision in 
Bonier v. Ribicoff, 304 F.2d 427 (6th Cir. 1962), and the 
decision in McClendon v. North American Rockwell Corp., 
2 CCH Employment Prac. Dec., Par. 10,243 (C.D. Cal. 
1970).

In Bomer, plaintiff’s request for increased benefits under 
the Social Security Act was denied on August 4, 1959. He 
was advised that he could file a civil action within sixty 
days, challenging this determination, since there was a



17a

statutory procedure for such challenge within that time 
span. He filed such suit on September 30, 1959. On May 
5, 1960, on his motion his case was dismissed without prej­
udice. Plaintiff later refiled his action on May 1, 1961. The 
Government moved to dismiss, contending that the plain­
tiff failed to commence suit within sixty days after notice 
of the final decision on August 4, 1959. The District Judge 
granted the Government’s motion and dismissed the case. 
In affirming, Judge Shackelford Miller wrote for a unani­
mous court:

An action dismissed without prejudice leaves the 
situation the same as if the suit had never been brought. 
A. B. Dick Co. v. Marr, 197 F.2d 498, 502, C.A. 2nd; 
cert, denied, 344 U.S. 878, 73 S.Ct. 169, 97 L.Ed. 680, 
rehearing denied, 344 U.S. 905, 73 S.Ct, 282, 97 L.Ed. 
699; Bryan v. Smith, 174 F.2d 212, 214, C.A. 7th. In 
the absence of a statute to the contrary a party cannot 
deduct from the period of the statute of limitations 
the time during which the action so dismissed was 
pending. Humphreys v. United States, 272 F.2d 411, 
412, C.A. 9th; Willard v. Wood, 164 U.S. 502, 523, 17 
S.Ct. 176, 41 L.Ed. 531; DiSabatino v. Mertz, 82 
F. Supp. 248, 249-250, M.D.Pa,

The right of action here sought to be enforced is 
one created by statute and is limited by the provisions 
thereof as to the time within which the right must be 
asserted. Such conditions operate as a condition of 
liability rather than as a period of limitation and there 
can be no recovery unless the condition precedent is 
fulfilled. Zeller v. Folsom, 150 F. Supp. 615, 617, 
N.D.N.Y.; Coy v. Folsom, 228 F.2d 276, 279-280, C.a ! 
3rd; Ewing v. Risher, 176 F.2d 641, C.A. 10th; Scott v.

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18a

Railroad Retirement Board, 227 F.2d 684, 686, C.A. 7th. 
(304 F.2d at 428, 429)

Additionally, in Kington v. United States, 396 F.2d 9 (6th 
Cir. 1968), we held that filing of previous actions in state 
and federal courts, which were voluntarily dismissed, did 
not toll the two-year statute of limitations of the Federal 
Tort Claims Act, 28 U.S.C. § 2401 (b).

McClendon, supra, is the case factually closest to the one 
at bar. There, plaintiff received a right to sue letter on 
January 15, 1968, and filed an action on January 19, 1968 
which was dismissed without prejudice on September 9, 
1969. On October 29,1969, fifty days later, the plaintiff filed 
another complaint, identical to the first. Defendant moved 
for dismissal on the ground that the court lacked subject 
matter jurisdiction since the complaint was not filed within 
thirty days following receipt of the right to sue letter.

In McClendon the District Court noted that the effect of 
voluntary dismissals without prejudice, absent a savings 
statute, was to create a situation the same as though the 
suit had never been brought. The Court stated:

Even assuming that the jurisdictional time period 
should begin to run anew as of the date of voluntary 
dismissal was entered, such a position would be of no 
benefit to plaintiff in this case. Dismissal was ordered 
on September 9, 1969. Suit, however, was brought on 
October 29, some fifty days later. Thus even if the 
Section 706(e) time period of thirty days was tolled 
by the first suit, plaintiff’s new suit would still be 
jurisdictionally defective. 2 CCH E. P. Dee. at 974.

Although Bomer and McClendon are authority for the 
proposition that the filing of a suit which was dismissed

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19a

without prejudice did not toll the thirty-day filing require­
ment of Title VII, the District Court was of the view that 
the complaint should have been refiled within thirty days 
after such dismissal. But, even extending the time an ad­
ditional thirty days, the new suit was still jurisdictionally 
defective because it was not filed within that time.

We are of the opinion that the District Court was clearly 
correct in holding that at a minimum Johnson had to file 
the new case within thirty days from the date of dismissal 
without prejudice.

Any other holding would result in plaintiff’s having no 
time limitation to refile in this type of an action after the 
action had been dismissed without prejudice. Such latitude 
for a plaintiff would create uncertainty, delay in processing 
his claim, and the possibility of stale claims being pursued. 
Here, the claim was already stale before the initial suit 
was filed. 42 U.S.C. §2000e-5(e) was meant to eliminate 
such possibilities.

Any error that was committed was an error in favor of 
appellant Johnson. He failed to comply even with the 
District Court’s liberal interpretation of the requirement 
by his failure to file within thirty days after dismissal. 
The Title VII claims are thus barred since the Court was 
without jurisdiction to hear the charges set forth in the 
new complaint filed on May 31, 1972.

The second question for consideration is whether John­
son’s claims under 42 U.S.C. §§ 1981, 1982 and 1983, were 
time-barred by a Tennessee statute of limitations. Both 
Judge Brown’s first ruling and Judge Wellford’s later order 
found- that these claims were time-barred. We agree. It is 
the duty of Federal Courts to apply the state statute of limi­
tations most analogous to these actions. Appellant agrees

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20a

with this but differs only as to what is the most analogous 
statute.

We feel that the most analogous statute is Title 28, Sec­
tion 304, of the Tennessee Code. It reads as follows:

Personal tort actions—Malpractice of attorneys—• 
Civil rights actions—Statutory penalties.—Actions for 
libel, for injuries to the person, false imprisonment, 
malicious prosecution, criminal conversation, seduction, 
breach of marriage promise, actions and suits against 
attorneys for malpractice whether said actions are 
grounded or based in contract or tort, civil actions for 
compensatory or punitive damages, or both, brought 
under the federal civil rights statutes, and statutory 
penalties shall be commenced within one (1) year after 
cause of action accrued.

Appellant contends that while this state statute, Section 
304, is appropriate for Sections 1983 and 1985 actions, it 
is not appropriate for § 1981 actions. However, Snyder v. 
Swann, 313 F. Supp. 1267 (E.D. Tenn. 1970), held this pre­
cise statute applicable to a Section 1981 action.

Appellant further contends that his complaint sounds in 
contract and is governed by a six-year statute of limitations. 
In our opinion, the complaint sounds in tort rather than in 
contract. Moreover, the very language of the state statute 
refers to “civil actions . . . brought under the federal civil 
rights statutes.” Thus, the tort-contract dichotomy does 
not have to be resorted to, given the preciseness of the state 
statute.

Finally on this point, appellant argues that filing of the 
charges with the EEOC tolls the statute of limitations un­
der 42 IT.S.C. § 1981. We reject this claim. In Williams v. 
Hollins, 428 F.2d 1221 (6th Cir. 1970), we declined to toll

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21a

the statute in a section 1983 action during the time when 
plaintiff was in a Tennessee jail, since Section 301 of Title 
28 of the Tennessee Code did not contain any such savings 
clause. In addition, appellant concedes the Title VII and 
Section 1981 claims are independent. Thus, no reason 
exists for stopping the running of a state statute of limita­
tions while a charge is pending before the EEOC.

We have considered other points assigned as error, but in 
view of our disposition of the case they do not require dis­
cussion.

The judgment of the District Court is affirmed.

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22a

No. 73-1306

U nited States Court of Appeals 

F or the S ixth Circuit

Order D enying Rehearing

W i l l i e  J ohnson, J r.,

vs.
Plaintiff-Appellant,

R ailway E xpress Agency, I nc., B rotherhood of Railway 
Clerks Tri-State L ocal and B rotherhood of R ailway 
Clerks L ily of the Valley L ocal,

Defendants-Appellees.

Order on P etition for R ehearing

Before W eick, Circuit Judge, O’Sullivan, Senior Cir­
cuit Judge, and Allen,* District Judge.

This cause came on to be beard on the petition for re­
hearing, with a suggestion that it be heard en banc; and 
no Judge having requested that a vote be taken on whether 
said petition should be heard en banc, the petition for 
rehearing was referred to and was considered and deter­
mined by the panel.

The basis of the first part of our opinion was that when 
a Title VII (1964 Civil Rights Act) action was dismissed 
without prejudice, the plaintiff against whom the order was

* The Honorable Charles M. Allen, Judge, United States District 
Court for the Western District of Kentucky, sitting by designation.



23a

entered had thirty days to refile the complaint.1 Failure 
to meet this requirement was held to result in a jurisdic­
tional defect.

Appellant’s basic argument in his brief supporting the 
petition for rehearing is that the Tennessee Savings Stat­
ute, T.C.A. 28-106, grants an entire year after such dis­
missal without prejudice to refile in the State Court. Ap­
pellant argues that this state statute is applicable because 
the federal statiite involved gives no guidance as to time 
limitations.

It is clear that in civil rights actions brought under 
42 U.S.C. §§ 1981 through 1988, a state statute of limita­
tions is looked to because the federal statute is silent. 
Madison v. Wood, 410 F.2d 564 (6th Cir. 1969). However, 
Title VII of the 1964 Civil Rights Act is far from silent 
in regard to a limitations period for actions brought pur­
suant to the Act. It grants to claimants thirty days from 
the date of receipt of a right-to-sue letter from the Equal 
Employment Opportunity Commission (hereinafter re­
ferred to as EEOC) within which to file suit in the Fed­
eral District Court.

The state statute of limitations and its savings clause 
are never reached in this case because the federal statute 
is not silent, While the language of the federal statute 
may not cover the situation precisely, it indicates a clear 
policy that should be looked to before a state statute is

1 The District Court held that many of the issues raised by the 
plaintiff in his second suit were decided against him in the first 
action in which the Court granted summary judgment against the 
plaintiff, and reconsideration was barred by the doctrine of res 
judicata. Johnson did not appeal from these summary judgments. 
We agree with the District Court that the unions have a complete 
defense on the ground of res judicata, and that the company like­
wise has such defense only so far as the claim of improper super­
visory training is concerned.

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24a

embraced. The federal statute provides that claimants 
have thirty days from receipt of a right-to-sue letter, to 
file law suits. If they have only thirty days to file ini­
tially, it is difficult to see why claimants should have 
more than thirty days to refile after dismissal without 
prejudice, particularly when such refiling is ordered by 
the Court.

The requirement of refiling within thirty days seems 
ample time. A complaint is easily drawn and filed; indeed, 
in this case all that need be done is to refile the original 
complaint. In these cases of alleged employment discrim­
ination, there is no latent injury waiting to be discovered 
which would justify an extended period of time in which 
to refile. The complainant already knew what his grievance 
was, as it had been pending before EEOC for more than 
three years before he was authorized to file suit in the 
District Court. There is no reason not to expect expedi­
tious processing of such claims in accord with a thirty-day 
requirement.

The second basis for our decision was that appellant’s 
civil rights claims under 42 U.S.C. § 1981 were barred by 
the Tennessee one-year statute of limitations, T.C.A. 28- 
304. Appellant’s employment was terminated in June, 1967, 
and the complaint was not filed until March 18, 1971. 
T.C.A. 28-304 applies to “civil actions for compensatory 
or punitive damages, or both, brought under the federal 
civil rights statutes. . . .” Appellant appears not to attack 
the controlling nature of this statute but rather its con­
stitutionality. Appellant argues that the statute is arbi­
trary since it places the same limitations period on all 
federal civil rights statutes.

We see nothing about the statute that violates equal 
protection or due process rights of any individual. T.C.A.

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25a

28-304 is not directed solely at civil rights claims, and even 
if it were, it would not necessarily be arbitrary in a con­
stitutional sense. The statute applies also to a wide variety 
of personal tort actions and to claims of malpractice against 
attorneys.

Appellant relies on Hunter v. Erickson, 393 U.S. 385 
(1969) and suggests that this statute of limitations creates 
an explicit racial classification. This contention is ob­
viously unfounded because citizens of all races are entitled 
to take advantage of the federal civil rights statutes.

Finally, appellant argues that the filing of Ms Title YII 
claim with the EEOC tolls the state statute regarding his 
claims under 42 U.S.C. § 1981. In a letter supplementing 
his brief supporting his petition for reconsideration, appel­
lant cites Macklin v. Spector Freight Systems, Inc., 478 
F.2d 979, 994-95 (D.C. Cir. 1973), in which the Court stated 
in a footnote (n.30) that the filing of charges with the 
EEOC tolled the statute of limitations on a Section 1981 
action. We decline to adopt this position.

It appears to us that the footnote in Macklin v. Spector, 
supra, is inconsistent with the rationale in the text of the 
opinion. Spector had argued that since no complaint had 
been lodged with the EEOC, plaintiff’s Section 1981 action 
had to be dismissed. The Court held, and we think cor­
rectly, that no exhaustion of EEOC procedures was neces­
sary to bring a Section 1981 claim, because § 1981 consti­
tutes a cause of action separate and independent from a 
Title YII claim. The Court said:

“ . . . Section 1981 and Title VII, in truth, provide for 
such radically different schemes of enforcement and 
differ so widely in their substantive scopes that using 
the policies behind the latter to create procedural 
barriers to actions under the former would stretch

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26a

to the breaking point courts’ customary duty to ac­
commodate allegedly conflicting legislation.” 478 F.2d 
at 996.

If the two actions “differ so widely in their substantive 
scopes” the filing of one should not toll the statute of 
limitations on the other. The Court suggested in the 
relevant footnote that the basic reason for such tolling 
was a Congressional desire to favor informal means of 
accommodation provided for under Title VII. We think 
that there is enough flexibility in the federal trial system 
so that conciliation processes will not be destroyed if a 
Section 1981 case is heard while a Title VII claim is being 
processed. Jenkins v. General Motors Corp., 354 F.Supp. 
1040 (D.Del. 1973).

In Jenkins the Court also held that no tolling effect 
on § 1981 claims took place with the filing of Title VII 
charges with the EEOC. The Court relied heavily on the 
reasoning in Young v. International Tel. & Tel. Co., 438 
F.2d 757 (3d Cir. 1971). Young held that Title VII claims 
and § 1981 claims were separate and independent, and that 
Title VII imposed no jurisdictional barriers to a § 1981 
action. We agree with this reasoning and with that in­
cluded in the text of the opinion in Maeklin v. Spector, 
supra.

The petition for rehearing is denied.

E ntered by Order oe the Court

/ s /  J ames A. H iggins 
Clerk

F i l e d  
J an 15 1974

J ames A. H iggins, Clerk

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