Johnson, Jr. v. Railway Express Agency, Inc Brief for Respondents

    IN  TH E

Supreme OXmtrt of %  Mtttfeii States
October Term, 1973

No. 73-1543

W illie J ohnson, J r., Petitioner,
y.

Kailway E xpress Agency, I nc., Brotherhood op 
Railway Clerks Tri-State L ocal and Brother­
hood of R ailway Clerks L ily of the Valley 
Local, Respondents.

BRIEF FOR RESPONDENTS BROTHERHOOD OF 
RAILWAY CLERKS TRI-STATE LOCAL AND 
BROTHERHOOD OF RAILWAY CLERKS LILY 
OF THE VALLEY LOCAL

J ames L. H ighs aw 
H ighsaw & Mahoney 
Suite 506
1015 Eighteenth Street, N. W. 
Washington, D. C. 20036

Attorney for Respondents Brother­
hood of Railway Clerks Tri-State 
Local and Brotherhood of Railway 
Clerks Lily of the Valley Local.

August, 1974

P ress of B yron S. Adams P rinting, I nc., Washington, D . C.



TABLE OF CONTENTS
Page

Opinions Below .....................................................................  1
J urisdiction ..............................................................................  1
Statutes I nvolved ...............................      2
Questions P resented ...............................    2
Statement op the Ca s e ......................................................... 2
Argument

I. Final Judgment Has Been Rendered With Re­
spect To The Petitioner’s Claims Against The 
Respondent Unions ......................................   11

II. The Running Of The Tennessee Statute Of Limi­
tations Should Not Be Tolled By Petitioner’s 
Filing Of A Charge Of Employment Discrimina­
tion With The Federal EEOC Under The Civil 
Rights Act Of 1964 ..........................................  12

Conclusion .............................................................................. 17

A ppendix “ A ” .

INDEX TO CITATIONS
Cases :

Holliday v. Railway Express Co., Inc., 306 F.Supp.
898, 901 (N.D. Ga., 1969) ..........    15

Johnson v. ITT-Thompson Industries, Inc., 323 F.Supp.
1259 (N.D. Miss., 1971) ....................................... 15

Logan v. General Fireproofing Co., 309 F.Supp. 1096
(W.D. N.C., 1969) ..................    15

Macklin v. Spector Freight Systems, Inc., 478 F.2d 979
(D.C. Cir., 1973) ................................................. 16

McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 93
S.Ct. 1817 (1973) ...........................................   13

Mendes, et al. v. Brotherhood of Railway and Airline 
Clerks, 353 F.Supp. 137, 141 (D.C. S.D. N.Y.), 471 
F.2d 1370 (2nd Cir., 1973), cert. den. 411 U.S. 971, 
reh. den. 412 U.S. 963 ..........................................  5,6



11 Table of Contents Continued

Page
Pellicer v. Brotherhood of Railway and Steamship 

Clerks, 118 F.Snpp. 254 (D.C. S.D. Fla,, 1953), 
atf’d 217 F.2d 205 (5th Cir., 1954), cert. den. 349
TJ.S. 912 ............................................................. 3

Pullen v. Otis Elevator Co., 292 F.Snpp. 715 (N.D. Ga.,
1968) .................................................................. 15

Railway Express Agency, Inc. v. Brotherhood of Rail­
way and Airline Clerks, 437 F.2d 388 (5th Cir.,
1972), cert. den. 403 TJ.S. 919' (1972) ....................  2

Rota, et al. v. Brotherhood of Railway, Airline and 
Steamship Clerks, 489 F.2d 998 (7th Cir., 1973),
cert. den. 414 U.S. 1144 (1974) ..............................  5

Sanchez v. Standard Brands, Inc,, 431 F.2d 455 (5th
Cir., 1970) .........................................................  15

Tipler v. E. I. duPont deNemours & Co., 443 F.2d 125 
(6th Cir., 1971) ..................................................  15

Statutes:
Civil Rights Act of 1866 (42 U.S.C.A., Sec. 1981, et

seq.) ....................................... 2,4,11,13,14,15,16,17
Civil Rights Act of 1964, Title YII (42 U.S.C.A., Sec.

2000e, et seq.) ...........................3,4, 7, 9,11,13,15,16
Interstate Commerce Act (49 U.S.C.A., Sec. 1, et seq.) 2 
Railway Labor Act (45 U.S.C'.A. Sec. 151, et seq.) . . . .  2,3 
Tennessee Code Ann. § 28-304 ............2, 9,11,12,13,14,17



IN  TH E

ihtjirem? ( ta r t nf %
October Term, 1973

No. 73-1543

W illie J ohnson, J r., Petitioner,
v.

R ailway Express Agency, I nc., Brotherhood op 
R ailway Clerks Tri-State Local and Brother­
hood of Railway Clerks L ily or the Valley 
Local, Respondents.

BRIEF FOR RESPONDENTS BROTHERHOOD OF 
RAILWAY CLERKS TRI-STATE LOCAL AND 
BROTHERHOOD OF RAILWAY CLERKS LILY 
OF THE VALLEY LOCAL

OPINIONS BELOW

References to the opinions below are adequately set 
forth in petitioner’s brief.

JURISDICTION

The jurisdictional requisites are adequately set forth 
in petitioner’s brief.



2

STATUTES INVOLVED

This case involves the provisions of Section 1981 of 
Title 42 of the United States Code and Section 304 of 
Title 28 of the Tennessee Code. These statutory pro­
visions are set forth in Appendix “ A ” to this brief.

QUESTIO NS PRESENTED

This Court’s order of June 3, 1974, granted the peti­
tion for a writ of certiorari limited to a single question 
which is set forth in petitioner’s brief.

STATEM ENT OF THE CASE

Petitioner is a Negro citizen of the United States 
and a resident of the State of Tennessee. He was an 
employee of respondent Railway Express Agency, Inc. 
(REA Express), from the spring of 1964 until June 
20, 1967, wdien his employment was terminated by the 
company (16a-62a).1 REA Express is a carrier 
engaged in the express transportation of property by 
railroad, truck and air. I t  is subject to the provisions 
of the Interstate Commerce Act (49 U.S.C.A., Sections 
1, et seq.) and of the Railway Labor Act (45 U.S.C.A., 
Sections 151, et seq.). See: Railway Express Agency, 
Inc. v. Brotherhood of Railway and Airline Clerks, 
437 F.2d 388 (5th Cir., 1972), cert. den. 403 U.S. 919 
(1972).

While petitioner was an employee of REA Express, 
he was a member of respondent Lily of the Valley 
Local, a subordinate unit of the Brotherhood of Rail­
way, Airline and Steamship Clerks, Freight Handlers, 
Express and Station Employes (BRAC) (61a-63a, 
88a). BRAC is the duly authorized representative

1 Reference is to pages of the printed Appendix in  this Court.



3

under the provisions of Section 2, Ninth, of the Railway 
Labor Act (45 U.S.C.A., Section 152, Ninth) of most 
of the employees of REA Express. In 1952, BRAC 
and REA Express amended their collective bargaining 
agreement to fully integrate the seniority rights of 
REA Express members regardless of race. 'This in­
tegration was sustained by the Federal Courts. 
Pellicer v. Brotherhood of Railway and Steamship 
Clerks, 118 F.Supp. 254 (D.C.SJD. Fla., 1953), aff’d 
217 F.2d 205 (5th Cir., 1954), cert. den. 349 U.S. 912. 2 3 
I t  was under this seniority system that petitioner 
became an employee of REA Express in 1964. Under 
this seniority system he was able to bid for any job 
within his seniority district for which he was qualified. 
His employment began as a freight handler and he bid 
for and obtained a job as a driver of REA Express 
vehicles in the Memphis area. He was holding this 
job when his employment was terminated by the 
carrier (86a-89a). On May 31, 1967, petitioner and 
six other black employees of REA Express at Memphis 
filed a charge with the Federal Equal Employment Op­
portunity Commission (EEOC) under Title V II of 
the Civil Rights Act of 1964 (42 U.S.C.A., Sections 
2000e, et seq.) against REA Exiaress and the two 
respondent local unions alleging discrimination against 
the charging parties because of their race (15a). The 
EEOC investigator made no contact with any officer of 
the respondent unions. Instead, he queried only 
local officials of the carrier with respect to the unions 
(29a-30a). On the basis of this hearsay information,

2 The validity of this integration was also recently sustained in 
a case under Title VII of the Civil Rights Act of 1964. Barbour v. 
BE A Express, et al. (Civil Action No. 72-235, D.C. N.D. Ala. S.D.,
decided October, 1973), not rejsorted.



4

an investigative report was issued on December 22, 
1967 (14a). This report showed, among other things, 
that at that time the petitioner had obtained as legal 
counsel Mr. Lewis R. Lucas of the law firm of Ratner, 
Thomson, Sugarmon, Lucas & Willis of Memphis who 
wished to be informed of any contact made with peti­
tioner (31a, 32a). On March 31, 1970, the EEOC is­
sued a decision finding reasonable cause to believe that 
“ respondent had violated Title V II of the Civil Rights 
Act of 1964, and that on or about January 15, 1971, 
petitioner received from EEOC a notice of his right to 
bring suit within 30 days” (Pet. Br., 3).

No complaint was filed pursuant to the right-to- 
sue letter until the filing of the original complaint in 
Civil Action No. C-71-66 in the United States District 
Court for the Western District of Tennessee at 
Memphis on March 18, 1971 (60a).3 This complaint 
was filed by an attorney appointed by the District 
Court on February 12,1971, at the request of petitioner 
(8a). The complaint invoked the jurisdiction of the 
Court under Title V II of the Civil Rights Act of 1964 
and Sections 1981, 1982, 1983, and 1988 of Title 42 of 
the United States Code. Paragraph VI of the com­
plaint alleged that the petitioner had been denied 
membership in BRAC Tri-State Local, that the 
respondent unions did not defend the rights of Negro 
members in the same manner as they defended the 
rights of white members, and that petitioner was denied 
equal labor representation because of his race (63a). 
The respondent BRAG locals filed an answer to the 
complaint setting forth various legal defenses and

8 The filing date of “ March 18, 1973“ appearing in the printed 
copy of this complaint beginning at page 60a of the Appendix 
is in error.



5

denying the allegations of racial discrimination (67 a- 
71a).

On May 11,1971, respondent BRAC locals filed writ­
ten interrogatories to be answered by petitioner. The 
petitioner’s answers to these interrogatories showed 
that the complaint was enfimlx n ^ ^  (77a-
90a). Interrogatory Ho. 39 requested information as 
to the specific acts of the respondent BRAG locals 
which the petitioner sought to enjoin. The answer 
set forth three alleged discriminatory acts. These 
were (1) an alleged practice of discrimination in 
charging higher dues for black employees than for 
white employees; (2) alleged failure to give grievances 
of black employees proper and diligent consideration; 
and (3) failure to give black employees equal oppor­
tunity for advancement to supervisory positions. 
With respect to the dues claim, Article 27 of the BRAG 
Constitution provides a n on-discriminatory dues struc­
ture unrelated to race. See: Rota, et al. v. Brotherhood 
of Railway, Airline and Steamship Clerks, 489 F.2d 
998 (7th Cir., 1973), cert. den. 414 U.S. 1144 (1974). 
As to the grievance claim, petitioner at no time had 
ever requested either one of the respondent locals to 
prosecute any grievance on his behalf. In Mendes, 
et al. v. Brotherhood of Railway and Airline Clerks, 
353 F.Supp. 137 (D.C. S.D. N.Y., 1973), District Judge 
Gfagliardi granted BRAG summary judgment on a 
complaint alleging unfair handling of grievances by a 
plaintiff who had never submitted a grievance to the 
union for handling. In so doing, the District Court 
spoke as follows (page 141) :

“ The facts underlying Evenger’s suit are even 
less persuasive. Evenger joins Mendes in al­
leging unfair representation of his grievances



6

concerning job abolishment, promotions and over­
time and, in all but the first matter, he has not 
even submitted a grievance to his union. The 
question posed is obvious: how can a member 
accuse his collective bargaining agent of unfair 
representation when he fails to inform his agent 
that he is aggrieved % The answer is likewise self- 
evident. He cannot. ’ ’

This decision was affirmed on appeal by the Second 
Circuit, 471 F.2d 1370 (1973), on the basis of the 
District Court’s opinion, and a petition for certiorari 
was denied by this Court, 411 IDS. 971, petition for 
rehearing denied, 412 ILS. 963. Moreover, the peti­
tioner did not cite any other black employee who had 
a grievance not prosecuted (62a, 63a, 92a).4

Likewise the claim concerning supervisory positions 
was not supported. Petitioner answered that he had 
no knowledge of any white employee provided training 
for supervisory positions with REA Express. The al­
legation in the complaint also related solely to the car­
rier and not to the respondent unions with respect to 
wThich REA Express obtained summary judgment (63a, 
91a). Supervisory positions are, with a few exceptions, 
non-contract positions which are filled without refer­
ence to any union contract.

BRAC filed a motion to dismiss the original com­
plaint, which was designated a “ supplemental com­

4 The petitioner did not mention in the answers to interrogatories 
the claim in his complaint that he had been denied membership in 
BRAC Tri-State Local. However, the answers of petitioner to the 
interrogatories of the BRAC locals—questions nos. 7, 8, 9, 10, and 
15—show that petitioner never sought membership in the Tri-State 
Local and had no knowledge of any by-law or rule barring him 
from such membership (77a-87a).



7

plaint”, or in the alternative for summary judgment 
(72a). REA Express filed a similar motion (92a). 
On June 14, 1971, the District Court, after argument 
on the motions, granted the motion of the respondent 
BRAC locals for summary judgment on the grounds 
that on the basis of the undisputed facts petitioner had 
no grounds for relief against said respondents under 
the Civil Rights Act. of 1964. The Court also found 
that insof ar as petitioner sued under statutes other than 
the Civil Rights Act of 1964 such claims were dismissed 
because of failure to comply with the applicable Ten­
nessee statute of limitations. The Court also granted 
REA Express summary judgment with respect to the 
petitioner’s claim of alleged discrimination with respect 
to providing training for supervisory positions (92a).

The petitioner did not appeal the order of the Dis­
trict Court which eliminated the BRAC locals from the 
case. On January 14,1972, the District Court granted 
the motion of petitioner’s attorney to be relieved of his 
representation. Under the direction of the Court, the 
Clerk advised petitioner in writing of this action and 
he was allowed 30 days from January 14, 1972, to 
obtain other counsel or his case would be dismissed 
without prejudice. The 30 days went by without the 
Court hearing anything from petitioner and on 
February 15, 1972, the District Court entered an order 
“ that this action be and the same is hereby dismissed 
without prejudice” (47a-48a).

The petitioner took no appeal from this order. Two 
days after the entry of the order of February 15, 1972, 
attorney William E. Caldwell wrote Chief Judge Bailey 
Brown of the District Court stating that petitioner 
had contacted counsel, that counsel was unable to rep­
resent petitioner because of the apparent discovery



8

expense that would be involved, that counsel had agreed 
to seek financial support for petitioner, and that if 
such support could be obtained, counsel would be 
willing to represent him. The letter concluded by 
stating that although counsel did not represent peti­
tioner he had agreed to ask the Court to grant an ad­
ditional 30 days to secure legal representation (45a). 
No further action was taken until May 5, 1972, when 
Mr. Caldwell again wrote to Chief Judge Brown stating 
that financial support had been obtained, that counsel 
was now prepared to represent petitioner, and requested 
that the dismissal order of February 15, 1972, be 
vacated and that the cause be reinstated on the docket 
of the Court. This letter spoke only of the action of 
the petitioner against the carrier REA Express and 
made no mention of the respondent unions (49a). 
Chief Judge Brown responded that since the old action 
had long since been dismissed the proper way to handle 
the matter would be the filing of a new action (51a).

Thereafter, on May 31, 1972, petitioner filed a second 
complaint against both REA Express and the re­
spondent unions which contained substantially the same 
allegations as the complaint with respect to which the 
respondent BRAC locals had been granted summary 
judgment on June 14, 1971 (4a). The BRAC locals 
filed a motion to dismiss this new complaint or in the 
alternative for summary judgment on the grounds that 
the District Court’s order of June 14, 1971, was res 
judicata with respect to the claims asserted in the new 
complaint and that such claims were barred by that 
order. Subsequently, the respondent BRAC locals 
amended the motion to include as grounds for dismissal 
of the new complaint the absence of jurisdiction of the 
Court of the subject matter thereof because the new 
complaint did not conform to the requirements of Sec­



9

tion 706(e) of the Civil Rights Act of 1964 (94a-97a). 
REA Express filed a similar motion (94a).

Petitioner opposed these motions by brief and in 
oral argument before the District Court. Petitioner 
made no contention to the District Court that the 
Tennessee statute of limitations applied by the Court 
in its order of June 14,1971 (Section 304 of Title 28 of 
the Tennessee Code), to petitioner’s claims under civil 
rights statutes other than Title Y II of the Civil Rights 
Act of 1964 was tolled by reason of a filing of a charge 
with the Federal EEOC pursuant to Section 706 of the 
1964 Act. Petitioner’s arguments to the District 
Court on the application of the Tennessee statute of 
limitations were limited to the contentions that the 
wrong statute had been applied. On January 25, 1973, 
the District Court issued its opinion and order 
granting the motions of the carrier and of the re­
spondent HR AC locals (98a-104a).

The judgment of the District Court was affirmed by 
the Court of Appeals for the Sixth Circuit. In its 
original opinion, the Court of Appeals did not spe­
cifically deal with the action of the District Court with 
respect to its holding that the order of June 14, 1971, 
was res judicata with respect to the claims of the 
petitioner against the respondent locals. The obvious 
reason was that the petitioner all but abandoned any 
argument he had on this point as his brief to the 
Court of Appeals contained only two short para­
graphs dealing with the issue in cursory fashion. 
Hownver, the Court of Appeals did specifically deal 
with and reject the argument of the petitioner to the 
Court that the Tennessee statute of limitations was 
tolled by the filing of a charge with the Federal EEOC



10

(lG5a-113a). Moreover, in its opinion and order on 
rehearing the Court of Appeals specifically affirmed the 
holding of the District Court that the respondent 
BRAG locals had a complete defense to the second 
complaint on the grounds of res judicata. The holding 
of the Court of Appeals on this issue reads as follows 
(115a) :

\ ‘ 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 likewise has such defense only so far as 
the claim of improper supervisory training is con­
cerned.” (Emphasis supplied).

As a consequence, the petition for certiorari set forth 
as one of the questions for review the following issue 
(Pet., page 3):

“ As to his causes of action under either statute,5 
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.”

This Court granted the petition for certiorari only 
with respect to the issue of the tolling of the application

6 In the context of the petition the reference is to Section 1981 of 
Title 42 of the United States Code and Title VII of the Civil 
Rights Act of 1964. It should also be observed that the statement 
of petitioner that the motion of the respondent BRAG locals for 
summary judgment was unopposed was incorrect. The District 
Court’s order of June 14, 1971, specifically states that the motion 
was granted upon consideration and after argument of counsel 
(92a).



11

of the Tennessee statute of limitations to an action 
under Section 1981 by the filing of a charge with the 
EEOC under Title V II of the Civil Eights Act of 
1964.

ARGUMENT
I

F inal Judgm eni Has B een  R endered W ith R espect to the  
P etitioner's C laim s A gainst the R espondent U nions

The District Court granted the motion of the 
respondent BRAC locals to dismiss the second com­
plaint or for summary judgment thereon on the 
grounds that the Court’s order of June 14, 1971, was 
res judicata with respect to the claims of the petitioner 
against these respondents set forth in said second com­
plaint (101a). The Court of Appeals affirmed this 
holding stating that “ We agree with the District Court 
that the unions have a complete defense on the grounds 
of res judicata” (115a). The petitioner in his petition 
for certiorari asked this Court to review this holding 
of the Court of Appeals. This Court denied this 
request by limiting its grant of the petition to the 
single issue of the tolling of the Tennessee statute of 
limitations. In his brief the petitioner states that the 
res judicata issue should he remanded to the Court of 
Appeals for reconsideration and clarification. The 
reason given for this contention in footnote 7 on page 
8 of the brief is that- the order of summary judgment 
was interlocutory and was limited to petitioner’s Title 
V II claims. However, the claims of petitioner under 
both statutes were identical as the decision of the 
Court of Appeals recognized when it said that the Dis­
trict Court’s order of June 14, 1971, constituted a com­
plete defense for the respondent unions to petitioner’s 
claims. Petitioner himself also recognized this fact



12

by asking the Court to review this judgment in his 
petition for certiorari and described the judgment as 
a “ ruling of the court below affirming the dismissal of 
* * * (c) petitioner’s claims, under both statutes, 
against the unions and, as to failure to train, against 
REA, on the ground of res judicata * * * ” (Pet., page 
12).

The denial by this Court of the petition for certiorari 
on the res judicata issue constitutes a final judgment 
in the case in favor of the respondent BRA'C locals.

II

The R unning  of th e  T ennessee S ta tu te  of L im ita tions Should 
Not Re Tolled b y  P e titio n er 's  F iling  of a C harge of E m ­
p loym ent D iscrim ination, w ith  the  F ed era l EEOC U nder 
the  C ivil R ights Act of 1984

The petitioner was discharged from employment by 
the carrier on June 20, 1967. His original complaint 
was filed with the United States District Court, for the 
Western District of Tennessee on March 18, 1971, or 
approximately three years and nine months later. 
This was long after the limitation provided by the 
applicable Tennesse statute of limitations. The sec­
ond complaint, upon -which the petitioner now wishes 
to proceed, was not filed until May 31, 1972, or almost 
five years after the petitioner’s employment with the 
carrier ceased.

Petitioner filed his charge with the EEOC on Sep­
tember 6, 1967.6 Petitioner’s brief (pp. 9, 10) argues 
that if the applicable Tennessee statute of limitations 
was not deemed tolled by the filing of this charge, peti­
tioner would have had to file suit under Section 1981

6 The original charge was filed on May 31, 1967, bnt was amended 
on September 6, 1967.



13

without waiting for the resolution of his charge to the 
EEOC. Petitioner argues that this would be unfair be­
cause Title Y II is in some instances a better remedy 
under which to litigate employment discrimination 
claims. However, a holding that the Tennessee statute 
of limitations was not deemed tolled by the filing of the 
EEOC charge does not mean that the petitioner could 
not have taken advantage of Title Y II to litigate his 
employment discrimination claims. Under the statute 
as it stood at the time the original complaint was filed 
in this case, an individual who had filed a charge with 
the EEOC of employment discrimination could request 
a right-to-sue letter when that charge had been pending 
for 60 days before the EEOC.7 As a practical matter, 
a substantial part of all litigation under Title Y II has 
been based upon such right-to-sue letters without any 
processing of the charge by the EEOC. Indeed, it 
has become a matter of public knowledge that the 
channels of EEOC are clogged with so many thousands 
of charges of discrimination in employment practices 
that it is impossible for it to deal with these charges 
within the time limits provided by the statute. This 
court in McDonnell-Douglas Corp. v. Green, 411 U.S. 
792, 93 S.Ct. 1817 (1973), limited the legal prerequi­
sites to the bringing of a Title Y II action to the filing 
of an EEOC charge and a right-to-sue letter. Thus, 
the tolling of the state statute of limitations with re­
spect to a 'Section 1981 action i.s neither legally nor, 
practically necessary in order to bring a Title Y II 
action.

Petitioner’s brief (pp. 11, 12) also argues that from 
the point of view of an individual with limited re-

7 Under the amendments effective March 24, 1972, an individual 
is entitled to such a right-to-sue letter after a period of 180 days.



14

sources it is more desirable to file a charge under Title 
Y II and thus have made available to him the full re­
sources of the EEOC than to commence litigation under 
Section 1981. The fact that the statute recognizes the 
need to bring suits without the EEOC fully processing 
discrimination charges and the fact that a substantial 
number of such suits are brought substantially weakens 
this argument. However, in the case of this particular 
statute of limitations, there is a whole year period dur­
ing which Title Y II relief can be undertaken and under 
other state statutes the period is longer. Nor is the 
only public interest involved the interest of a person 
claiming employment discrimination. The public in­
terest bases of statutes of limitations is to require the 
prompt and orderly processing of claims before they 
have become stale. I t is not in the interest of individ­
uals claiming employment discrimination or in the pub­
lic interest to establish a rule of law which permits the 
processing of stale claims. Yet, it is clear that this 
would be the practical effect of petitioner’s position. 
In the present case, even if the original complaint had 
gone to trial on February 2, 1972, as scheduled, the 
petitioner’s claim would have been before the Court 
almost five years after the events took place. The 
need to process employment discrimination claims be­
fore they become stale is recognized by Title Y II itself 
by authorizing individuals to seek a right-to-sue letter 
after the expiration of a period of time which was 
originally two months and now extends to six months. 
With the well established log jam which exists with 
respect to the processing of employment discrimina­
tion claims before the EEOC, the petitioner’s position 
would mean even longer periods of time wTould elapse 
before a claim was brought to Court.



15

The petitioner’s argument that the filing of the 
EEOC charge meets the policies underlying statutes 
of limitations of fairness to defendants with respect 
to stale claims by providing notice is wholly without 
merit. In the first place, Federal Courts have consist­
ently held that the claims set forth in a Title Y II 
Court complaint are not limited to those contained in 
the EEOC charge. Sanchez v. Standard Brands, Inc., 
431 F.2d 455 (5th Cir., 1970) ; Tipler v. E. I. duPont 
deNemours & Go., 443 F.2d 125 (6th Cir., 1971). This 
means that a defendant, as a practical matter, may 
not have notice of what will ultimately be the essence 
of the Court complaint. Second, under the 1972 amend­
ments to Title Y II the EEOC is no longer required to 
serve copies of charges upon respondents so that all 
that the respondent receives is a notice that a charge 
of discrimination has been filed. Third, there are de­
cisions holding that a Title Y II complaint can proceed 
in a Federal Court even if the respondent is never 
served at all. Johnson v. ITT-Thompson Industries, 
Inc., 323 F.Supp. 1259 (N.D. Miss., 1971) ; Pullen v. 
Otis Elevator Go., 292 F.Supp. 715 (Nil). (la., 1968); 
Holliday v. Railway Express Go., Inc., 306 F.Supp. 
898, 901 (N.I). (la., 1969); Logan v. General Fireproof­
ing Go., 309 F.Supp. 1096 (W.D. NIC., 1969). The fil­
ing of a Title Y II charge clearly does not guarantee 
any kind _of notice to a. respondent.

The petitioner argues that the decision of the Court 
of Appeals not recognizing the tolling of the state stat­
ute of limitations is incompatible with the flexible ap­
proach to overlapping remedies in employment dis­
crimination cases and if allowed to stand would 
interfere substantially with the successful administra­
tion of Title YII. However, the fact is that Section



16

1981 is commonly thrown into complaints based on 
Title V II principally for the purpose of avoiding de­
fects in the complaint arising out of failure to comply 
with one or more of the requirements of Title VII. 
Such is the present case. I t  would be a rare case, if 
any, in which a Section 1981 action was based upon 
some facts other than those involved in the Title V II 
claim. This is clearly demonstrated by the present 
case. Petitioner’s whole argument is simply an effort 
to keep alive claims which have been dismissed by the 
District Court under Title VII, affirmed by the Court 
of Appeals, and which this Court refused to review on 
a petition for certiorari. Thus, the use which would 
be made of a ruling tolling the application of a state 
statute of limitations to a Section 1981 action would 
be the further encouragement of litigation of stale 
claims, not advancement of the purposes of Title VII.

Petitioner also cites the decision in Macklin v. Spec- 
tor Freight Systems, Inc., 478 F.2d 979 (1973), to sup­
port an argument that the tolling principle should be 
recognized in the situation here involved to carry out the 
Congressional policy in Title V II of favoring informal 
methods of settling and conciliation. Such undoubt­
edly was the purpose of Congress in enacting Title VII. 
However, this principle has been more honored in the 
breach than it has been applied. The statute itself 
discourages conciliation by allowing petitioners to re­
quest right-to-sue letters after a minimum lapse of 
time. The 1972 amendments to the statute discourage 
conciliation by not requiring the charge to be served 
on the respondent. The decisions applying Title V II 
holding that conciliation is not a legal requirement for 
a suit discourage conciliation. Title V II has become 
not much more than a vehicle for filing a charge and



17

after a minimum length of time requesting a right-to- 
sue letter. Finally, conciliation is impossible in a sub­
stantial number of cases because the clogged docket of 
the EEOC prevents it from getting that far. A de­
cision supporting the petitioner’s position on tolling 
will not change any of these decisions or any of these 
problems, all of which have combined t o make the Con­
gressional objective of conciliation almost meaningless.

CONCLUSION

I t is respectfully submitted that for the foregoing 
reasons the judgment of the Court of Appeals on the 
issue of tolling the Tennessee statute of limitations 
with respect to petitioner’s claim under Title 42, -Sec­
tion 1981, of the United States Code should be affirmed.

Respectfully submitted,

J ames L. H ighsaw 
H ighsaw & Mahoney 
Suite 506
1015 Eighteenth Street, N. W. 
Washington, D. C. 20036 

Attorney for Respondents Brother­
hood of Railway Clerks Tri-State 
Local and Brotherhood of Railway 
Clerks Lily of the Valley Local.

August, 1974



APPENDIX



l a

A PPE N D IX  A

1. Provisions of Section 1981 of Title 42 of the United 
States Code:

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

2. Provisions of Section 304 of Title 28 of Tennessee 
Code:

28-304. P ersonal to rt actions—M alpractice of atto rneys—Civil
rig h ts  actions— S ta tu to ry  penalties.—Actions for libel, for 
injuries to the person, false imprisonment, malicious 
prosecution, criminal conversation, seduction, breach 
of marriage promise, actions and suits against at­
torneys 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. For the purpose of this sec­
tion, insofar as products liability cases are concerned, 
the cause of action for injury to the person shall 
accrue on the date of the personal injury not the date 
of the negligence or the sale of a product. The pre­
ceding sentence shall not apply to causes of action 
accruing prior to May 20, 1969. [Code 1858, § 2772 
deriv. Acts 1715, ch. 27, § 5); Shan., § 4469; mod. Code 
1932, § 8595; Acts 1967, ch. 283, § 1; 1969, ch. 28, § 1; 
1969, ch. 293, §§ 1,2. ]



9 8 1  8 , 8 - 7 4