Johnson v. Seaboard Coastline Railroad Company Brief and Appendix for Appellants
Public Court Documents
July 18, 1966

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Brief Collection, LDF Court Filings. Johnson v. Seaboard Coastline Railroad Company Brief and Appendix for Appellants, 1966. 4868751a-b69a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/eaf775e8-19db-4d5e-b933-987b93a613de/johnson-v-seaboard-coastline-railroad-company-brief-and-appendix-for-appellants. Accessed May 13, 2025.
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IN THE Intteis States Court ni Appeals FOR THE FOURTH CIRCUIT No. 12,154 RAY JOHNSON, —v.— Appellant, SEABOARD COAST LINE RAILROAD COMPANY, Appellee. No. 12,155 CHARLES W. WALKER, Appellant, PILOT FREIGHT CARRIERS, INC., Appellee. APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA AT CHARLOTTE BRIEF AND APPENDIX FOR APPELLANTS JOSEPH W. BISHOP, JR. 127 Wall Street New Haven, Connecticut. ALBERT ROSENTHAL 435 West 116th Street New York, New York 10027 SANFORD JAY ROSEN 500 West Baltimore Street Baltimore, Maryland 21201 Of Counsel JACK GREENBERG JAMES M. NABRIT, III ROBERT BELTON GABRIELLE A. KIRK 10 Columbus Circle New York, New York 10019 J. LeVONNE CHAMBERS 405% E. Trade Street Charlotte, North Carolina CONRAD O. PEARSON 203% East Chapel Hill Street Durham, North Carolina Attorneys for Appellants I N D E X Statement of the Cases .................. ..................... ........ 1 Statement ...................... ................................................ 3 Question Involved ........................................... .......... — 4 Summary of Argument .... ................................ ............ 4 A r g u m en t I. Nothing in the Language of Title VII of the Civil Eights Act of 1964 Conditions the Eight of the Person Aggrieved to File Suit Upon the Commis sion’s Having Undertaken Efforts to Conciliate .... 6 II. Nothing in the Legislative History of Title VII Justifies Heading Its Language in Such a Way as to Make the Commission’s Compliance With the Direction of Section 706(a) a Jurisdictional Pre requisite to the Eight of the Person Aggrieved to File a Civil Action Under Section 706(e) ...... 8 III. It Would Be Unfair and Unreasonable to Construe the Act in Such a Way as to Make the Eight of One Who Is Denied the Eights Which It Confers to Seek Judicial Enforcement of Such Eights Upon Circumstances Altogether Beyond His Control .... 10 IV. The EEOC’s Contemporaneous Interpretations of Title VII, Which Are Entitled to Great Weight, Eequire the Conclusion That the Provisions in the Statute for “Conference, Conciliation and Persua sion” by the Commission Are Directory and Do Not Constitute a Jurisdictional Prerequisite to the Eight of the Person Aggrieved to Bring Suit .... 13 PAGE V. With a Single Exception, Courts Considering the Issue Here Presented Have Beached a Conclusion Contrary to That of the Court Below ................. 15 C o n c lu sio n ......................................................... ............... ................ 19 A ppe n d ix — No. 12,154 Letter dated August 8, 1966 from EEOC ............. la Decision by EEOC ........ *................... ... ................ 3a Letter dated August 8, 1966 from EEOC ............ 6a Complaint...... ................. ........... ...................... 7a Motion to Dismiss .... —-_________...i_________ 13a Motion to Amend Motion to Dismiss ................... 14a Order Granting Substitution .......... ....................... 16a Letter dated November 3, 1967 of Judge Gordon .... 17a Order Denying Motion to Dismiss in Shirley Lea, et al. v. Cone Mills Corporation __ __ 22a Order Denying Motions to Dismiss in Dorothy P. Robinson, et al. v. P. Lorillard Company, et al. ........ ............................................... ........ 24a Order Granting Motion to Dismiss ..... ......... ....... 26a Memorandum of Decision ....................... ............... 27a Notice of Appeal ......... .................... ................... . 34a No. 12,155 Letter dated August 5, 1966 from EEOC_______ 37a ii PAGE I l l Decision by EEOC.................................................. 39a Letter dated August 5, 1966 from EEOC............. 42a Complaint ....................................... 43a Motion for Preliminary Injunction ...................... 50a Motion to Dismiss .............. .......... ... ........... ........ 52a Order Dismissing Action ....................................... 53a Notice of Appeal..................................................... 54a Extracts From Statutes ......... 55a PAGE T able of C ases Anthony v. Brooks, 65 L.R.R.M. 3074 (N.D. Ga. 1967) 16 Bowe v. Colgate Palmolive Co., 212 F.Supp. 332 (S.D. Ind. 1967) ........ 15 Choate v. Caterpillar Tractor Co., 274 F.Supp. 776 (S.D. 111. 1967) .......................................................... 17 Dent v. St. Louis-San Francisco Railway Co., 265 F. Supp. 56 (N.D. Ala. 1967) .........................................8,15 Ethridge v. Rhodes, 268 F.Supp. 83 (S.D. Ohio, 1967) 12 Evenson v. Northwest Airlines, Inc., 278 F.Supp. 29 (E.D. Va. 1967) ..................................................7,10,16 Hall v. Werthan Bag Corporation, 251 F.Supp. 184 (M.D. Tenn. 1966) .......................................... 8,9,10,18 International Chemical Workers Union v. Planters Mfg. Co., 259 F.Supp. 365 (N.D. Miss. 1966) 13 IV Lea v. Cone Mills, Civ. No. 2145 (W.D. N.C. June 27, . (1967) ...................... ................................ .................. 15 Miekel v. South. Carolina State Employment Service, 377 F.2d 239 (4th Cir. 1967) ......................... ......... 1.7 Mondy v. Crown Zeilerbach Corporation, 271 F.Supp. 258 (E.D. La. 1967) ...................... .................. 7,10,11,15 Moody v. Albemarle Paper Co., 271 F.Supp. 26 (E.D. N.C. 1967) .............. (.......................... ....................... 8 Quarles v. Philip Morris, Inc., 271 F.Supp. 842 (E.D. Va. 1967) ........ .................... .................. .......... ........11,16 Reese v. Atlantic Steel Co., 56 L.C. 119096 (N.D. Ga. July 21, 1967) __________________ ___ _________ 11 Robinson v. P. Lorillard, Civ. No. C-141-G-66 (M.D. N.C. Jan. 26, 1967) .......... ............ ............................ 15 Skidmore v. Swift, 323 U.S. 134 (1944) ..................... 13 Stebbins v. Nationwide Mutual Ins. Co., 382 F.2d 267 (4th Cir. 1967) ..... .............. ............................ .......... 17 United States v. American Trucking Associations, 310 U.S. 534 (1940) ........................................................... 13 United States v. Jefferson County Board of Education, 372 F.2d 836 (5th Cir. 1966), aff’d oil rehearing en bane, 380 F.2d 385 (1967) ........ ....................... ......... 13 Ward v. Firestone Tire & Rubber Co., 260 F.Supp. 579 (W.D. Tenn. 1966) PAGE 1 1 IV S tatutes page 42 U.S.C. §2000e, et seq. Title VII, Civil Rights Act of 1964 Section 706 (a) 42 U.S.C. §2000e -5(a) ....6, 7,10,11 Section 706 (e) 42 U.S.C. §2000e -5(e) ..2, 3, 4, 5, 6, 7, 8,14,15,16 O t h e r A u t h o r it ie s 29 C.F.R. §1601.25a(b) ................................................. 14 110 Cong. Rec. 14191, June 17, 1964 .... ......... ............. 9 110 Cong. Rec. 14188, June 17, 1964 ............................ 9 88 Congress, 1st Sess. H.R. Rep. No. 914, Nov. 20, 1963 ........................ 8 H.R. Rep. No. 540, July 22, 1963 ......................... 8, 9 G-.C. Opins. 10/22/65 and 11/1/65 (reprinted in Com merce Clearing House, Employment Practices Guide, 1117,252.32) ........... ........... .............................. 14 31 Fed. Reg. 14255 (Nov. 4, 1966) .............................. 14 I n T H E luifcft States Court of Appeals F ob t h e F o u r th C ir c u it No. 12,154 E ay J o h n so n , Appellant, — v .— S eaboard C oast L in e R ailroad C o m pany , Appellee. No. 12,155 C h arles W . W a lk er , Appellant, P ilot F r eig h t C arriers, I n c ., Appellee. appeals from t h e u n it e d states district court for t h e W E S T E R N D ISTR IC T OF N O R T H CAROLINA AT CH A RLO TTE BRIEF FOR APPELLANTS Statement of the Cases These are appeals, in two similar eases, from final judg ments of the United States District Court for the Western District of North Carolina, dismissing the complaint in each case. 2 In each, ease the appellant filed a complaint with the Equal Employment Opportunity Commission (hereinafter sometimes referred to as “EEOC” or “the Commission”), alleging violation of Title VII of the Civil Eights Act of 1964, 42 IT.S.C. §§2000e et seq. In each case the Commis sion found reasonable cause to believe that the appellee had violated Title VII by denying the appellant equal employment opportunities, and so informed the appellee in writing, stating that a conciliator appointed by the Commission would contact it in order to discuss means of correcting the discrimination. The District Court found, however, that the Commission did not attempt conciliation in either case prior to the filing of suit. In each case the Commission sent the appellant a letter informing him that due to the Commission’s heavy workload it had been im possible to conclude conciliation efforts in his case and that he was entitled to bring an action in the Federal Dis trict Court within thirty days after receipt of the letter. Appellant Johnson filed his complaint with the Commis sion on January 14, 1966; was notified by the Commission on August 9, 1966, that he was entitled to bring suit within thirty days; and filed his complaint in the present action on September 7, 1966. Appellant Walker filed his complaint with the Commission on February 28, 1966, and amended it on March 15, 1966; he was notified by the Commission on August 5, 1966, that he was entitled to bring suit within thirty days, and filed suit on August 23, 1966. In each case the appellee moved to dismiss the action for lack of jurisdiction on the ground, inter alia, that the Commission had not prior to the filing of the action at tempted to eliminate the alleged violations of the Act by informal methods of conference, conciliation, and persua sion. Appellants’ Appendix pages 14a, 52a (hereinafter cited as “App. p. —”). 3 On January 25, 1968, the District Court entered Orders dismissing each action, on the sole ground that “resort to the remedy of conciliation is a jurisdictional prerequisite to the right to file and maintain a civil action under the Civil Rights Act of 1964, and that since there was no such effort made, the motion should be allowed.” Each Order was based upon a Memorandum of Decision filed in the Johnson case (App. pp. 26a, 53a). The question involved in each case is whether one who has allegedly been denied his rights under Title VII of the Civil Rights Act of 1964 is barred from instituting suit under section 706(e) of the Act because of the Com mission’s failure to attempt to secure voluntary compliance from the defendant by conciliation. Statements Johnson v. Seaboard Coast Line Railroad Company (No. 12,154) On January 14, 1966, appellant Johnson filed a charge of employment discrimination with the Commission against the Seaboard Coast Line Railroad Company alleging a violation of Title VII of the Civil Rights Act of 1964. The Commission investigated the charge and on July 18, 1966 found “reasonable cause” to believe the charge was true (App. pp. 3a-5a). By letter dated August 8, 1966, the Com mission notified Johnson that it had found it “impossible to undertake or conclude conciliation,” and that he had a right to institute a civil action within thirty days of re ceipt of the letter (App. pp. la-2a). Johnson then com menced an action by filing a complaint in the court below on September 7, 1966. 4 W alker v. Pilot Freight Carriers, Inc. (No. 12,155) Appellant Walker filed a charge of employment dis crimination with the Commission against Pilot Freight Carriers on February 28, 1966, and amended it on March 15, 1966 alleging a violation of the Civil Eights Act of 1964. The Commission investigated the charge and on July 20, 1966, found “reasonable cause” to believe the allegations made in the charge were true (App. pp. 39a-40a). By letter dated August 5, 1966, the Commission notified Walker that it had been “impossible to undertake or conclude con ciliation,” and that he had a right to institute a civil action within thirty days of receipt of the letter (App. pp. 37a-38a). Walker commenced this action by filing a com plaint in the court below on August 23, 1966. Question Involved Did the District Court err in holding that conciliation efforts by the Commission are a jurisdictional prerequisite to the institution by the person aggrieved of a civil action under section 706(e) of the Civil Rights Act of 1964! Summary o f Argument 1. The plain language of the statute does not make con ciliation by the Commission a jurisdictional prerequisite to an individual’s right to bring a civil action to enforce his rights under Title VII of the Civil Rights Act of 1964. Section 706(e) of the Act governs the prerequisites to such an action, and it requires Only that the aggrieved person have filed a charge with the Commission; that the Commis sion have “been unable to obtain voluntary compliance” ; that it shall so notify the person aggrieved; and that he 5 have filed suit within thirty days of such notification. All of these requirements wTere met in the instant cases. There is no warrant for reading into the conditions imposed by section 706(e) on suit by the person aggrieved the direc tion of section 706(a) to the Commission to endeavor to effect compliance by conciliation. 2. The legislative history of the Act does not justify a construction which makes attempted conciliation by the Commission a condition precedent to the right of a per son aggrieved to seek judicial enforcement of his statutory rights. Most of the statements relied upon by the court below were made at a time when the bill contemplated judicial enforcement by the Commission arid are not rele vant to the question of what Congress intended under the Act as passed, which places the burden of judicial enforce ment upon the person aggrieved, who has no control over (and may have no knowledge of) the Commission’s action or inaction. They are contradicted by authoritative state ments made after the bill had been amended to shift the burden of enforcement from the Commission to the alleged victim of discrimination. 3. It is highly unlikely that Congress intended the ex treme unfairness of making the judicial remedy which it granted to an individual for violation of his rights under the Act depend upon actions of an administrative agency which he could neither control nor influence. 4. The administrative construction of the Act which the court below ascribed to the Commission is inconsistent with the Commission’s own statements and policies, which fully support the construction urged by the appellants. 5. With a single exception, every other court which has decided the question here presented has reached a conelu- 6 sion contrary to that of the court below. That exception, which was chiefly relied upon by the court below, rests upon what other courts and the appellants regard as a mis reading of the Act’s legislative history. Other cases cited by the court below deal with the totally different question of the effect of the complainant’s own failure properly to invoke or exhaust his administrative remedies. ARGUMENT I. Nothing in the Language of Title VII of the Civil Rights Act of 1964 Conditions the Right of the Person Aggrieved to File Suit Upon the Commission’s Having Undertaken Efforts to Conciliate. Section 706(a) of the Act, 42 U.S.C. §2000e—5(a), upon which the court below chiefly relied, undoubtedly directs the Commission, if it finds reasonable cause to believe that a charge of discrimination is true, to ‘‘endeavor to elim inate any such alleged unlawful employment practice by informal methods of conference, conciliation and persua sion.” But the statute as finally passed places the burden of judicial enforcement not on the Commission but on the person aggrieved by the alleged violation, and it is section 706(e) which governs his right to file suit. That section provides in pertinent part that: If within thirty days after a charge is filed with the Commission . . . (except that . . . such period may be extended to not more than sixty days upon a de termination by the Commission that further efforts to secure voluntary compliance are warranted), the Commission has been unable to secure voluntary com pliance with this title, the Commission shall so notify 7 the person aggrieved, and a civil action may, within thirty days thereafter, be brought against the respon dent named in the charge. . . . It is apparent that the word “thereafter” refers to the Commission’s notification to the person aggrieved. Noth ing in the language of either section 706(a) or section 706(e) requires him to ensure that the Commission has obeyed the direction of section 706(a), or conditions his right to bring suit upon any action on the Commission’s part other than its notifying him of its inability to secure voluntary compliance within the statutory period. “42 U.S.C. §20Q0e—5 [Sec. 706(a)] does command E.E.O.C. to attempt conciliation, but it does not prohibit a charg ing party from filing suit when such an attempt fails to materialize.” Mondy v. Crown Zellerbach Corporation, 271 F. Supp. 258, 262 (E.D. La. 1967). “Section 2000e [Sec. 706(e)] of the Act expressly gives the aggrieved party the right to sue if the Commission has been unable to obtain voluntary compliance with this sub-chapter.” Even- son v. Northwest Airlines, Inc., 278 F. Supp. 29, 32 (E.D. Va. 1967). In sum, the explicit language of the Act places only two conditions upon the aggrieved person’s right to bring suit; that he have filed charges with the Commis sion in proper form and that he have been notified by the Commission of its inability (for whatever reason) to ob tain voluntary compliance. The statutory scheme of enforcement is entirely consistent with this plain language. Section 706(e) makes it clear the Commission’s action or inaction should not postpone for more than sixty days the right of the person aggrieved to file suit, even if the Commission should desire additional time for conciliation, section 706(e) permits it only to re quest, after the person aggrieved has filed suit, that the court in its discretion grant a stay of sixty days. Indeed, 8 it appears that not even the Commission’s refusal to find reasonable cause to believe that his charges are true can deprive the person aggrieved of his right to bring suit. See Moody v. Albemarle Paper Co., 271 F. Supp. 26 (E.D. N.C. 1967); Hall v. Werthan Bag Corporation, 251 F. Supp. 184, 188 (M.D. Tenn. 1966). II. Nothing in the Legislative History of Title VII Jus tifies Reading Its Language in Such a Way as to Make the Commission’s Compliance With the Direction of Section 706(a) a Jurisdictional Prerequisite to the Right of the Person Aggrieved to File a Civil Action Under Section 706(e). The court below bottomed its construction of the statute largely upon its reading of its legislative history, citing in support of its views the only other case to reach the same result, Dent v. St. Louis-San Francisco Railway Company, 265 F. Supp. 56 (N.D. Ala. 1967). Other courts have found the legislative history considerably less illuminating. See, e.g., Mondy v. Crown Zellerbach Corporation, supra, at 271 F. Supp. 262; Hall v. Werthan Bag Corporation, supra, 251 F. Supp. at 186. The legislative remarks quoted in the memorandum decision of the court below, which undoubt edly express the view that the Commission would have to try conciliation before it could seek judicial enforcement, were made at a time when the bill still provided for judicial enforcement only at the suit of the Commission. The same thing is true of most of the other items of legislative history cited in the Dent case to support its conclusion that efforts by the Commission to conciliate were a jurisdictional pre requisite to suit under the Act. E.g., H.R.Rep. No. 540, 88th Cong., 1st Sess., July 22, 1963; H.R.Rep. No. 914, 88th 9 Cong,, 1st Sess., Nov. 20, 1963. “Congressional machinery, however, turned the enforcement provisions of Title VII inside out. The Commission was stripped of its authority to issue orders by the House Judiciary Committee and stripped of its power to prosecute court actions by the leadership compromise in the Senate. The emphasis shifted toward the vindication of individual rights, and the burden of enforcement shifted from the Commission to the ‘person aggrieved.’ ” Hall v. Werthan Bag Corporation, supra, at 251 F. Supp. 186. The change made largely irrelevant the views on jurisdictional prerequisites expressed at a time when the legislators were discussing a wholly different sys tem of enforcement. While it was perfectly reasonable and natural for the legislators to assume that the Commission’s right to bring suit was conditioned upon its compliance with the statutory direction to try conciliation first, there is no warrant for assuming that the Congressmen would have expressed similar views as to the aggrieved person’s right to bring suit under the substituted scheme of enforce ment. After the shift, Senator Javits, a principal sponsor of the revised bill, expressed his understanding unequivo cally (110 Cong. Rec. 14191, June 17, 1964): “In short, the Commission does not hold the key to the courtroom door. The only thing this title gives the Commission is time in which to find that there has been a violation and time in which to seek conciliation . . . [T]his provision gives the Commission time in which to find that there exists in the area involved a pattern or practice, and it also gives the Commission time to notify the complainant whether it has or has not been successful in bringing about conciliation. # # # * But . . . that is not a condition precedent to the action of taking a defendant into court. A complainant has an 1 0 At least two district courts have found this statement by one who was intimately connected with the sponsorship of the new bill more persuasive than an earlier inconsistent statement by Senator Ervin (110 Cong. Eec. 14188, June 17, 1964), which Senator Javits apparently intended to correct. See Hall v. Werthan Bag Corporation, supra, at 251 F. Supp. 188; Mondy v. Crown Zellerbach Corporation, supra, at 271 F. Supp. 262-263. III. It Would Be Unfair and Unreasonable to Construe the Act in Such a Way as to Make the Right of One Who Is Denied the Rights Which It Confers to Seek Judicial Enforcement of Such Rights Upon Circumstances Al together Beyond His Control. The fundamental purpose of the Act is to give to the per sons for whose protection it was enacted rights which they can enforce by resort to the federal courts. Such persons are required first to do what lies in their power to enforce their rights through the Commission’s good offices. These appellants have done that. They filed complaints in proper form with the Commission and were notified that it had been unable to effect voluntary compliance. No further steps were open to the appellants. “To require more would be to deny a complainant the right to seek redress in the courts, resulting wholly from circumstances beyond her con trol.” Evenson v. Northwest Airlines, Inc., 268 F. Supp. 29, 31 (E.D. Va. 1967). Other district courts have similarly refused to “read the requirement of §2000e-5(a.) into § 2000e-5(e)” because of absolute right to go into court, and this provision does not affect that right at all.” 1 1 the obvious unfairness of such an interpretation. “Surely Congress could not have intended for an aggrieved party to be denied his remedy under Title VII because of the failure of the E.E.O.C. to notify him within 60 days.” Mondy v. Crown Zellerbach Corporation, 271. F. Supp. 258, 261, 262 (E.D. La. 1967); see Ward v. Firestone Tire & Rubber Co., 260 F. Supp. 579, 580 (W.D. Tenn. 1966) (“the result contended for by defendants would be anomalous in that plaintiff would in a sense be penalized because of the failure of the Commission to perform its statutory duties within the time allowed”) ; Reese v. Atlantic Steel Co., 56 L.C. Tf9096 (N.D. G-a. July 21, 1967): (“This Court cannot escape the conclusion that the plaintiff has done all that is humanly possible to comply with the statute. His statu tory rights cannot go unprotected due to the failure of the Commission”). In Quarles v. Philip Morris, Inc., 271 F. Supp. 842, 846-7 (E.D. Va. 1967), a case substantially identical with the present ones, Judge Butzner phrased the argument co gently: “It is apparent that Quarles and Briggs did all within their power to exhaust their administrative remedies. Complaints were made to the Commission in writing. Quarles filed suit and Briggs intervened only after they were advised by the Commission in writing that “con ciliation efforts of the Commission have not achieved volntary compliance with Title VII of the Civil Bights Act of 1964.” . . . Quarles and Briggs fully complied with 42 U.S.C. § 2000e-5. They are not required to prove what efforts, if any, the Commission made to conciliate. Indeed, § 2000e-5(a) severely restricts information concerning conciliation. 1 2 The plaintiff is not responsible for the acts or omis sions of the Commission. He, and the members of his class, should not be denied judicial relief because of circumstances over which they have no control. The plaintiff exhausted administrative remedies and satis fied the requirements of the Act by filing a complaint with the Commission and awaiting its advice. He is not required to show that the Commission has endeav ored to conciliate. To insist that he do so, would re quire him to pursue an administrative remedy which may be impossible to achieve. If the Commission makes no endeavor to conciliate, the remedy is ineffective and inadequate. In this circuit the rule is clear. Judge Sobeloff wrote, in Marsh v. County School Bd. of Roanoke Co., Va., 305 F.2d 94, 98 (4th Cir. 1962): “The requirement that a plaintiff shall exhaust his ad ministrative remedies before applying for judicial re lief presupposes that the remedy to which he is referred is an effective one. As we said in McCoy v. Greensboro City Board of Education, 283 F.2d 667, 670 (4th Cir. 1960), ‘It is well settled that administrative remedies need not be sought if they are inherently inadequate or are applied in such a manner as in effect to deny the petitioners their rights.’ ” The results of the Orders below is to, at least, postpone for several months the plaintiffs’ vindication of their rights. Such postponement would weaken and, perhaps, altogether frustrate congressional purpose. See Ethridge v. Rhodes, 268 F. Supp. 83, 88 (S.D. Ohio, 1967). 13 IV. The EEOC’s Contemporaneous Interpretations of Title VII, Which Are Entitled to Great Weight, Require the Conclusion That the Provisions in the Statute for “Con ference, Conciliation and Persuasion” by the Commis sion Are Directory and Do Not Constitute a Jurisdic tional Prerequisite to the Right of the Person Aggrieved to Bring Suit. The primary responsibility for determining when the Commission is unable to obtain compliance with Title VII is imposed upon the Commission itself. When it makes this determination it sends the person aggrieved a letter so advising him, and that person has thirty days thereafter in which to bring an action. The Commission sent such letters to the appellants in these cases. These letters constitute administrative findings of inability. This practice consti tutes a contemporaneous construction of the statute by the administrative agency empowered to apply it, and there fore is entitled to great •weight. E.g., Skidmore v. Swift, 323 U.S. 134, 137, 139-40 (1944); United States v. American Trucking Associations, 310 U.S. 534 (1940); United States v. Jefferson County Board of Education, 372 F.2d 836 (5th Cir. 1966), aff’d on rehearing en banc, 380 F.2d 385 (1967); International Chemical Workers Union v. Planters Mfg. Co., 259 F. Supp. 365, 366-67 (N.D. Miss. 1966) (EEOC’s construction of Title VII). At the time the appellants received their notices and filed suit, the Commission’s practice was as follows: “Where the Commission is unable to conduct a complete investigation or issue its findings during the statutory periods, or where the Commission finds no reasonable cause to believe that the charge is true, the charging party 14 can nonetheless file a suit pursuant to section 706(e).” G-.C. Opins. 10/22/65 and 11/1/65 (reprinted in Commerce Clearing House, Employment Practices Guide, 1)17,252.32) (Emphasis supplied). After the appellants received their notices, the Com mission changed its rule to provide that it “shall not issue a notice . . . where reasonable cause has been found, prior to efforts at conciliation with respondent, except that the charging party or the respondent may upon the expiration of 60 days after the filing of the charge or at any time thereafter demand in writing that such notice issue, and the Commission shall promptly issue such notice to all parties.” 29 C. F. E. §1601.25a(b) (Emphasis supplied). This is the “new regulation” upon which the court below relied. In promulgating this “new regulation,” the Commissi on expressed its view “that in general the purposes of Title YII are better served by delaying the notification under section 706(e) until the proceedings before the Commis sion have been completed.” 31 Fed. Eeg. 14255 (Nov. 4, 1966). Nevertheless, it recognized “that there may be cir cumstances under which either the charging party or the respondent may desire that the right to bring an action accrue as promptly as possible upon the expiration of the 60-day period, and where such a desire is clearly mani fested, we believe it consistent with the statutory scheme that notification issue irrespective of the status of the case before the Commission.” 31 Fed. Eeg. 14255 (Nov. 4, 1966). The current rule, and the earlier one, are plainly more consistent with the purposes and language of Title VII than an interpretation requiring actual efforts at con ciliation as a jurisdictional prerequisite to the filing of a civil action by the person aggrieved. 15 y. With a Single Exception, Courts Considering the Issue Here Presented Have Reached a Conclusion Contrary to That of the Court Below. There are eight other reported decisions involving the question here at issue—i.e., whether the Commission’s fail ure to comply with the directions of section 706(a) respect ing conciliation is a bar to the filing of a civil action by a victim of discrimination who has himself met all of the statutory prerequisites to suit. One, Dent v. St. Louis-San Francisco Railway Company, 265 F. Supp. 56 (N.D, Ala. 1967), held that it is. That case is now on appeal to the Court of Appeals for the Fifth Circuit. The district court’s decision in the Dent case results principally from a reli ance on the Act’s legislative history prior to the decision to switch the burden of enforcement from the Commission to the individual victim of alleged discrimination. (App. p. 31a.) As indicated in Part II of this Argument, supra, the appellants believe this reliance to be misplaced. Sec ondarily, the court pointed to what it regarded as the Com mission’s administrative construction. (App. p. 33a.) For the reasons given in Part IV of this Argument, the appel lants believe that the Dent court’s understanding of the Commission’s construction of the Act is erroneous. The other seven cases in which the question has been decided all support the appellants’ position.* Mondy v. Crown Zellerbach Corp., 271 F.Supp. 258 (E.D. La. 1967); Rowe v. Colgate-Palmolive Co., 272 F.Supp. 332 (S.D, Ind. 1967); Moody v. Albemarle Paper Co., 271 F.Supp. * Several unreported decisions support appellants’ position also: Robinson v. P. Lorillard, Civ. No. C-141-G-66 (M.D. N.C. January 26, 1967) (App. pp. 22a-23a); Lea v. Cone Mills, Civ. No. 2145 (W.D. N.C. June 27, 1967) (App. pp. 24a-25a). 16 27 (E.D. N.C. 1967); Evens on v. Northwest Airlines, Inc., 268 F.Supp. 29 (E.D. Ya. 1967); Quarles v. Philip Morris, Inc., 271 F.Supp. 842 (E.D. Va. 1967); Reese v. Atlantic Steel Co., 56 L.C. 119096 (N.D. Da. 1967); Anthony v. Brooks, 65 L.R.R.M. 3074 (N.D. Ga. 1967). The con sideration which seemed compelling to these courts was the unlikelihood that Congress intended such unfairness as penalizing the persons aggrieved for administrative action or inaction of the Commission, which was quite beyond their control. The court below attempted to distinguish the Quarles, Evenson and Moody cases on the basis of what it per ceived to be differences in the wording of the Commis sion’s notifications to the parties that voluntary com pliance had not been effected and that they were free to sue (App. pp. 30a-31a). In fact, however, the wording of the notifications to the defendants in Quarles and in Evenson is exactly the same as that received by the de fendant in the Johnson case. Each defendant was advised that “since the charges were filed in the early phases of the administration of Title VII, the Commission had been unable to conciliate the matter within sixty (60) days” and therefore was obligated to advise the charging party of his right to bring a civil action (Quarles, supra at 845; Evenson, supra at 31). Likewise, the facts in Johnson and in Moody are indistinguishable. In Moody, as in Johnson, no attempt at conciliation had been made prior to suit; moreover, the Commission in Moody had not even com pleted its investigation of the charge at the time suit was filed. Additionally, a reading of the opinions in Quarles, Evenson and Moody makes it obvious that the courts did not attach any importance to the wording of the notice. 17 The other eases cited by the court below (App. p. 32a) are not in point, and none is inconsistent with the. appel lants’ position. In each, suit was dismissed because the person aggrieved had himself failed properly to invoke the administrative remedies available to him. In Michel v. South Carolina State Employment Service, 377 F.2d 239 (4th Cir. 1967), the complainant attempted to sue an employer whom she had not charged before the Com mission. This Court affirmed a grant of summary judg ment for the defendant employer on the explicit ground “that Exide [the employer] was not ‘named in the charge’ filed with the Commission, and the Commission was not required to enter into any conciliatory negotiations with Exide.” 377 F.2d at p. 242. In Stebbins v. Nationwide Mutual Ins. Co., 382 F.2d 267 (4th Cir. 1967), the com plainant, after being informed by the Commission that it could not take jurisdiction until after he had invoked the aid of the Maryland State Commission, filed suit without any further effort to invoke EEOC’s aid. This court reached the same conclusion as in Michel, for the same reason: “ . . . The plaintiff could not bypass the federal agency and apply directly to the courts for relief. Congress established comprehensive and detailed procedures to afford the EEOC the opportunity to attempt by ad ministrative action to conciliate and mediate unlawful employment practices with a view to obtaining volun tary compliance. The plaintiff must, therefore, seek his administrative remedies before instituting court ac tion against the alleged discriminator.” (Emphasis in original). Id. at p. 268. Choate v. Caterpillar Tractor Co., 274 F. Supp. 776 (S.D. 111. 1967), rests on essentially similar grounds: the charges 18 which the plaintiff had filed with the Commission were not “under oath”, as required by section 706(a), and she had therefore failed properly to invoke the conciliation proc esses of the Commission. Hall v. Werthan Bag Corpora tion, 251 F. Supp. 184 (M.D. Tenn. 1966), describing the jurisdictional prerequisite as “the requirement that a ‘per son aggrieved’ exhaust his remedies before the Commis sion”, held that persons who had not invoked their admin istrative remedies against an employer could intervene in a class action brought by one who had exhausted such rem edies against the same employer, who, the Commission had found reasonable to cause to believe, was engaged in dis criminatory employment practices and with whom its ef forts to conciliate had failed. The case in effect holds that the Act does not condition the right of a person aggrieved to seek his judicial remedy upon his resort to a futile ad ministrative proceeding. A fortiori, the Act does not re quire the impossible—i.e., that he force the Commission to do what it says it cannot do. 19 CONCLUSION For the foregoing reasons, it is respectfully submitted that the order below should be reversed. Respectfully submitted, J ack G reenberg J am es M. N abrit , III R obert B elto n G abrielle A . K ir k 10 Columbus Circle New York, New York 10019 J . L eV o n n e C ham bers 4051/2 E. Trade Street Charlotte, North Carolina C onrad O. P earson 2031/2 East Chapel Hill Street Durham, North Carolina Attorneys for Appellants J o se ph W . B is h o p , J r . 127 Wall Street New Haven, Connecticut A lbert R o sen th a l 435 West 116 Street New York, New York 10027 S anford J ay R osen 500 West Baltimore Street Baltimore, Maryland 21201 Of Counsel APPENDIX la [ E m b l e m ] E qual E m pl o y m e n t O ppo r t u n it y C om m issio n W a sh in g t o n , D.C. 20506 A ug. 8, 1966 Ce r t ifie d M ail R e t u r n R e c e ipt R equested In Reply Refer to File No. 5-12-3850 Respondent: Seaboard Air Line Railroad Riebmond, Virginia Mr. Ray Johnson 503 Boyte Street Monroe, North Carolina 28110 Dear Mr. Johnson: Due to the heavy workload of the Commission, it has been impossible to undertake or to conclude conciliation efforts in the above matter as of this date. However, the concilia tion activities of the Commission will be undertaken and continued. Under the provisions of Section 706(e) of Title VII of the Civil Rights Act of 1964, the Commission must notify you of your right to bring an action in Federal District Court within a limited time after the filing of a complaint. This is to advise yon that you may within thirty days of the receipt of this letter, institute a civil action in the Letter dated August 8 , 1966 from Equal Employment Opportunity Commission 2a appropriate Federal District Court. If you are unable to retain an attorney, the Federal Court is authorized in its discretion, to appoint an attorney to represent you and to authorize the commencement of the suit without payment of fees, costs or security. If you decide to institute suit and find you need such assistance, you may take this letter, along with the enclosed Commission determination of rea sonable cause to believe Title VII has been violated, to the Clerk of the Federal District Court nearest to the place where the alleged discrimination occurred, and to request that a Federal District Judge appoint counsel to represent you. Please feel free to contact the Commission if you have any questions about this matter. Very truly yours, / s / K e n n e t h F. H olbert Kenneth F. Holbert Acting Director of Compliance Letter dated August 8, 1966 from Equal Employment Opportunity Commission Enclosure 3a [ E m b l e m ] E qual E m pl o y m e n t O ppo r t u n it y C o m m issio n W a sh in g t o n , D.C. 20506 Case No. 5-12-3850 Ray Johnson Charging Party D ecision by Equal Employment Opportunity Commission vs. Seaboard Air Line Railroad Richmond, Virginia Respondent Date of Filing: January 14, 1966 Date of service of charge: March 3, 1966 D ec isio n S u m m ary of C harges The Charging Party, a Negro, alleges discrimination on the basis of race in that he was discharged for filing com plaints with various federal agencies protesting the dis criminatory treatment given him as a porter in the Re spondent Company’s employ. S um m a ry oe I nvestigation The investigation establishes that the Charging Party had been in the Respondent’s employ as a porter from 1940 to 1965 when he was dismissed by the Respondent allegedly because of a misdemeanor conviction. The misdemeanor was probably that of drunk and disorderly conduct, al- 4a Decision by Equal Employment Opportunity Commission though the record is not clear on this. It occurred when the Charging Party was off duty and not on Company property. The conviction did not occasion any loss of time by the Charging Party from his job. The record of investigation shows that prior to being dismissed, the Charging Party had sent letters of pro test to the President’s Committee on Equal Employment, the National Railroad Adjustment Board and the United States Attorney G-eneral on the issue of racial discrimina tion by the Respondent against the Negro train porters. In those letters, he alleged that Negro train porters are excluded from the collective bargaining unit for brakemen, that they are required to work longer than their white counterparts and that they enjoy fewer fringe benefits than they should. The reasons for the dismissal given by the officials of the Respondent Company were that the “best interest of the Company would be served” thereby. The Respondent fur ther justified its action to the investigator citing a prior incident of a similar sort. The record shows that this prior incident had occurred some 11 years before. When questioned as to the company practices and regula tions used to discipline white employees for behavior similar to that of the Charging Party, the Superintendent of the Georgia Division of the Respondent firm remained silent, indicating that such records w’ere kept in the Rich mond office and were not available for inspection. The investigator was similarly unable to gain any information on the ethics or conduct standards used for Seaboard employees generally. The copy of the collective bargaining agreement submitted in the Record did not contain any section pertaining to conduct, either on or off the job. 5a Decision by Equal Employment Opportunity Commission D ec isio n There is reasonable cause to believe that the Respondent violated Title YII of the Civil Rights Act of 1964 in dis missing the Charging Party from its employ. For the Commission: / s / M arie D. W ilso n Marie D. Wilson Secretary July 18, 1966 Date 6a [ E m b l e m ] E qual E m plo y m en t O ppo r t u n it y C om m issio n W a sh in g t o n , D.C. 20506 A ug . 8, 1966 In Reply Refer to File No. 5-12-3850 Respondent: Seaboard Air Line Railroad Richmond, Virginia Mr. Ray Johnson 503 Boyte Street Monroe, North Carolina 28110 Dear Mr. Johnson: The Commission has investigated your charge of employ ment discrimination and has found reasonable cause to believe that an unlawful employment practice within the meaning of Title VII of the Civil Rights Act of 1964 has been commited. The Commission will attempt to eliminate this practice by conciliation as provided in Title VII. You will be kept informed of the progress of conciliation efforts. Very truly yours, / s / K e n n e t h F. H olbert Kenneth F. Holbert Acting Director of Compliance Letter dated August 8 , 1966 from Equal Employment Opportunity Commission 7a IN T H E U n it e d S tates D istr ic t C ourt for THE W estern D istr ic t of N o rth Carolina C h arlotte D iv isio n Civil Action No. 2171 Filed September 7, 1966 Complaint R ay J o h n s o n , v . Plaintiff, S eaboard A ir L in e R ailroad Co m pa n y , a c o rp o ra tio n , Defendant. C o m pla in t I This is a proceeding for a permanent injunction restrain ing the defendant from maintaining a policy, practice, custom and usage of withholding, denying or attempting to withhold or deny and depriving or attempting to deprive or otherwise interfering with the rights of the plaintiff and others similarly situated to equal employment because of race or color. II Jurisdiction of this Court is invoked pursuant to 28 U. S. C. §1343. This is a suit in equity authorized and in 8a stituted pursuant to Title VII of the Civil Eights Act of 1964, 42 U. S. C. §§2000e et seq. Jurisdiction is invoked to secure protection of and to redress deprivation of rights secured by Title VII of the Civil Eights Act of 1964, 42 U. S. C. §2000e, providing for injunctive and other relief against racial discrimination in employment. III Plaintiff brings this action on his own behalf and on behalf of others similarly situated pursuant to Ernie 23(a)(3) of the Federal Eules of Civil Procedure. There are common questions of law and fact affecting the rights of other Negroes seeking equal employment opportunities without discrimination on the ground of race or color who are so numerous as to make it impracticable to bring them all before this Court. A common relief is sought for each member of the class and the plaintiff adequately represents the interests of the class. IV The plaintiff, Eay Johnson, is a Negro citizen of the United States and the State of North Carolina, residing in Union County, North Carolina. The plaintiff is a former employee of defendant, having worked for the defendant from July 1940 until he was discriminatorily discharged in December 1965. V The defendant, Seaboard Air Line Eailroad Company, is a Virginia corporation, domesticated pursuant to the laws of the State of North Carolina, with power to sue and to be sued in its corporate name. The defendant is a rail road company, engaged in the business of transporting passengers and goods for hire in interstate commerce, in Complaint 9a eluding the State of North Carolina and Mecklenburg and Anson Counties, North Carolina, VI The defendant is an employer engaged in an industry which affects commerce and employs more than one hun dred (100) employees. VII The defendant has discriminated and is presently dis criminating against plaintiff and other Negro employees and members of plaintiff’s class with respect to the terms, wages, conditions, privileges, advantages and benefits of employment with defendant, to wit: A. Negro employees are hired primarily for and re stricted to the job classification of train porter and are paid lower wages and denied privileges and benefits of employment given to white employees performing the same or similar jobs. B. Defendant maintains spearate lines of seniority for Negro and white employees and denies Negro employees the opportunity of advancement to higher paying positions and conditions of employment, the design, intent, purpose and effect being to continue and preserve the defendant’s long standing policy, practice, custom and usage of limiting the employment and promotional opportunities of Negro employees of the defendant because of race or color. C. Defendant maintains separate facilities and condi tions for its Negro and white employees, the design, pur pose and effect being to maintain and perpetuate the sep arate job opportunities, conditions and provileges of the employees on the basis of race and color. Complaint 10a D. Prior to and since the effective date of Title VII of the Civil Eights Act of 1984, 42 U. S. C. §§2000e et seq., the plaintiff has protested the racially discriminatory em ployment practices of the defendant and sought to obtain better working conditions and terms of employment for himself and other Negro employees of the defendant, but without avail. Because plaintiff had protested defendant’s discriminatory employment practices and solely to dis courage plaintiff and other Negro employees from seeking to exercise their rights under this Act, the defendant dis charged the plaintiff as an employee, all in violation of plaintiff’s rights under the Act. VIII Defendant’s discrimination against the plaintiff and others of the class with respect to compensation, terms, conditions, advantages, privileges and benefits of employ ment and with respect to plaintiff’s dismissal because he had opposed defendant’s discriminatory employment prac tices and sought better conditions and terms of employ ment were intended to deny and had the effect of denying the plaintiff and others of the class equal employment op portunities and to otherwise adversely affect their status as employees solely because of their race and color. IX Neither the State of North Carolina nor any other state, county or city agency having jurisdiction of the defendant has a law prohibiting the unlawful practices alleged herein. On January 14, 1966, the plaintiff filed a complaint with the Equal Employment Opportunity Commission alleging denial by defendant of his rights under Title VII of the Complaint 11a Civil Rights Act of 1964, 42 U. S. C. §§2000e et seq. On August 8, 1966, the Commission found reasonable cause to believe that violations of the Act had occurred by de fendant and advised the plaintiff that the defendant’s com pliance with Title VII had not been accomplished within the maximum period allowed to the Commission by Title VII and that plaintiff was entitled to maintain civil action for relief in the United States District Court. X Plaintiff has no plain, adequate or complete remedy at law to redress the wrongs alleged, and this suit for in junctive relief is his only means of securing adequate relief. Plaintiff and the class he represents are now suffering and will continue to suffer irreparable injuries from defendant’s policy, practice, custom and usage as set forth herein until and unless enjoined by the Court. W h e r e fo r e , plaintiff respectfully prays this Court ad vance this case on the docket, order a speedy hearing at the earliest practicable date, cause this case to be in every way expedited, and upon such hearing to: 1. Grant plaintiff and the class he represents injunctive relief, permanently enjoining defendant, Seaboard Air Line Railroad Company, its agents, successors, employees, attorneys, and those acting in concert or participation with them or at their direction from continuing or maintaining any policy, practice, custom and usage of denying, abridg ing, withholding, conditioning, limiting or otherwise inter fering, with the rights of plaintiff and others of his class secured to them by Title VII of the Civil Rights Act of 1964, 42 U. S, C. §§2000e et seq. Complaint 12a 2. Grant plaintiff injunctive relief ordering his rein statement in employment with defendant and awarding plaintiff back pay. 3. Allow plaintiff his costs herein, including reasonable attorney fees and such other additional relief as may appear to the Court to be equitable and just. / s / J. L eV o n n e C h a m bers C onrad 0 . P earson 203% East Chapel Hill Street Durham, North Carolina J. L eV o n n e C h a m bers 405% East Trade Street Charlotte, North Carolina J ack Greenberg L eroy D. Clark 10 Columbus Circle New York, New York 10019 Attorneys for Plaintiff Complaint 13a (Filed October 3, 1966) Defendant moves the court to dismiss the action because: 1. The complaint fails to state a cause of action upon which relief can be granted in a class action, in that it is not a class action within the meaning and requirements of Rule 23 of the Rules of Civil Procedure. 2. The court lacks jurisdiction over the subject matter alleged in the complaint, in that it does not set forth a claim upon which relief can be granted by the court for that plaintiff’s alleged complaint against defendant is a matter within the exclusive primary jurisdiction of the National Railroad Adjustment Board under the Railway Labor Act, 45 U.S.C. 151 et seq. 3. The court lacks jurisdiction over the subject matter alleged in the complaint, in that plaintiff did not file timely his charge as prescribed by 42 U.S.C. §§ 2000e et seq., pre requisite to the institution of this action and jurisdiction of this court. Motion to Dismiss /s / John S. Cansler J o h n S . Ca n sler Of counsel for Defendant 910 N.C.N.B. Building Charlotte, N. C. 28202 /s / Thomas Ashe Locbart T hom as A s h e L ockhart Of counsel for Defendant 910 N.C.N.B. Building Charlotte, N. C. 28202 14a (Filed September 19, 1967) Defendant moves the court to amend its Motion to dismiss the action, filed herein on October 3, 1966, by adding thereto the following additional and separate grounds: 4. The complaint is barred for the reason that, as the provisions of Sections 706(a) and 706(e) of Title VII of the 1964 Civil Rights Act provide for and require the exercise of “informal methods of conference, conciliation, and persuasion” by the Commission with respect to a charge filed by a person claiming to be aggrieved with the Commission, which methods and procedures are a prerequisite and condition precedent to the institution of a civil action thereunder, no such methods and proce dures were followed either within the period of time pro vided therefor or at any time with respect to either the charge filed by the plaintiff with the Commission or the subject matter of the complaint in this action. 5. The complaint fails to name and join a necessary and indispensable party defendant to this action, the International Association of Railway Employees, here inafter referred to as the “Union”, in that, (a) the Union has a substantial interest in the subject matter of the complaint; (b) the Union would be directly and vitally affected by any decree on the merits of this action; (c) this action could not be completely determined with out the presence of the Union as a party because the complaint seeks to annul, hinder, abridge, inter- Motion to Amend Motion to Dismiss 15a fere with or affect the contract between this defen dant and the Union entered into April 1, 1954, which as thereafter modified and amended is hereto at tached and made a part hereof as Exhibit “A”, which contract between the defendant and the Union was arrived at after collective bargaining with re spect to matters of the compensation, terms, condi tions, advantages, privileges and benefits of em ployment of the plaintiff, a former employee of the defendant and a member of such Union; (d) the maintenance of this action without the presence of the Union would leave the action in such condi tion that its final determination would be incon sistent with equity. / s / J o h n S . Cansijer, J o h n S. C a n sler / s / T hom as A s h e L ockhart T h o m a s A s h e L ockhart / s / W . T hom as R ay W . T h o m a s R ay Attorneys for Defendant Seaboard Air Line Railroad Company Motion to Amend Motion to Dismiss 1 6 a Order Granting Substitution, etc. This cause coming on to be heard before the undersigned upon motion of plaintiff for leave to substitute the Sea board Coast Line Railroad Company as party-defendant in the above entitled proceeding, pursuant to Rule 25 of the Federal Rules of Civil Procedure, and it appearing to the Court that there is good cause therefor; I t is , t h e r e fo r e , Ordered and D ecreed that the Seaboard Coast Line Railroad Company be substituted as party- defendant in lieu of the Seaboard Air Line Railroad Com pany. I t is f u r t h e r Ordered t h a t a l l p le a d in g s h e r e in be a m e n d e d to c o n fo rm to th e s u b s t i tu t io n o f th e p a r ty - d e f e n d a n t. T his...... day of October, 1967. Judge, United States District Court Approved as to form: Counsel for Defendant Seaboard Coast Line Railroad Company 17a Letter dated November 3 , 1967 November 3, 1967 The Honorable Woodrow Wilson Jones, Judge United States District Court for the Western District of North Carolina Rutherfordton, North Carolina Re: Lee v. Observer Transportation Company, Charlotte Division Civil No. 2145 Johnson v. Seaboard Coast line Railroad Company Charlotte Division Civil No. 2171 Black v. Central Motor Lines Charlotte Division Civil No. 2152 Brown v. Gaston Dyeing Machine Company, Charlotte Division, Civil No. 2136 Walker v. Charlotte Freight Carriers, Inc., Charlotte Division, Civil No. 2167 Dear Judge Jones: I am enclosing a copy of the recent Orders entered by Judge Gordon in Robinson v. P. Lorillard and Lea v. Cone Mills in connection with the pending motions in the above 1 8 a cases. I am also enclosing a copy of the Court’s letter to counsel in connection with the two cases. By copy of this letter I am also sending copies of the enclosed Orders and letter to opposing counsel. Sincerely yours, Letter Dated November 3, 1967 J. LeVonne Chambers 19a U n ited S tates D istr ic t C ourt M iddle D ist r ic t of N o rth Carolina Eugene A. Gordon U. S. District Judge Winston-Salem, North Carolina 27102 October 25, 1967 Mr. Thornton H. Brooks, Attorney 440 West Market Street Greensboro, North Carolina 27402 Mr. Larry Thomas Black, Attorney Suite 323 Law Building Charlotte, North Carolina 28202 Mr. J. LeVonne Chambers, Attorney 405% East Trade Street Charlotte, North Carolina 28202 Mr. C. O. Pearson, Attorney 2031/2 East Chapel Hill Street Durham, North Carolina 27702 Mr. Sammie Chess, Jr., Attorney 622 East Washington Drive High Point, North Carolina 27260 Be: No. C-141-G-66 Dorothy P. Robinson, et al v. P. Lorillard Co., et al Shirley Lea, et al v. Cone Mills Memorandum o f D ecision Gentlemen: For convenience, I am taking the liberty of briefly giv ing my views on the respective motions to dismiss filed in 20a the above cases in this Single communication. An inter vening term of court has prevented earlier consideration of the motions. Michel v. South Carolina State Employment Service, 4 Cir., 377 F. 2d 239 (1967) is certainly factually distinguish able from the subject cases. There the plaintiff had not filed a charge with the Commission against Eside. Judge Boreman states: “ [1] It seems clear from the language of the statute that a civil action could be brought against the re spondent named in the charge filed with the Commis sion only after conciliation efforts had failed, or, in any event, after opportunity had been afforded the Commission to make such efforts.” It seems clear that in the cases before this Court oppor tunity was afforded the Commission to initiate conciliation efforts. Also, there is merit to the contention that actual affirm ative effort on the part of the Commission to gain compli ance is not necessary by reason of the language in § 706(e) as follows: “ , the Commission has been unable to obtain voluntary compliance with this title.” Apparently, such was the court’s opinion in Moody v. Albemarle Paper Company, 271 F. Supp. 27 (1967). With much respect for the opinions expressed by coun sel for each party, I must deny the motion to dismiss in both cases. Counsel for the plaintiffs will accordingly Memorandum of Decision 2 1 a forthwith prepare and present to me an order for signa ture denying the motions to dismiss. With kindest regards and best wishes, I am Sincerely yours, EAG Eugene A. Gordon United States District Judge EAG/nat Memorandum of Decision IN' THE U n it e d S tates D istr ic t C ourt FOR THE M iddle D istrict of N o rth Carolina Greensboro D iv isio n R E C E I V E D Nov 2 1967 C iv il A ction No. C-176-D-66 Order Denying Motion to Dismiss S h ir l e y L ea, et al., v. Plaintiffs, C o n e M il l s C orporation , a corporation, Defendant. ORDER This cause came on to be heard before the undersigned upon Motion of defendant to dismiss on the ground that the Court lacks jurisdiction over the action in that the Equal Employment Opportunity Commission did not en deavor to settle or eliminate the alleged unlawful employ ment practices by conference, conciliation and persuasion prior to plaintiffs’ constitution of this action, and it appear ing to the Court upon the pleadings, exhibits briefs and 23a Order Denying Motion to Dismiss arguments of counsel for both parties that the Motion should he denied; I t, is , th e r e fo r e , ordered, adjudged and decreed that the Motion to dismiss be and the same is hereby denied. This 1 day of November, 1967. /s / E u g e n e A. G ordon Judge, United States District Court A True Copy Teste: Herman Amasa Smith, Clerk By: A lbert L. V a u g h n Deputy Clerk 24a Bf THE U n ited S tates D istr ic t C ourt for THE M iddle D istr ic t of N o rth C arolina Greensboro D iv isio n R E C E I V E D Nov 2 1967 C iv il A ction No. C-141-G-66 Order Denying Motions to Dismiss D orothy P. R o bin so n , et al., Plaintiffs, v. P. L orillard C o m pa n y , et al., Defendants. ORDER This cause came on to be heard before the undersigned upon Motions of defendants, P. Lorillard Company, To bacco Workers International Union, AFL-CIO and Tobacco Workers International Union, AFL-CIO, Local No. 317, to dismiss the action as to alleged discrimination by de fendants on the basis of sex on the ground that the Court lacks jurisdiction since the Equal Employment Opportunity Commission did not attempt to settle the matter by con ferences, conciliation and persuasion prior to the institu- 25a Order Denying Motions to Dismiss tion of this action, and it appearing to the Court upon the pleadings, exhibits, briefs and arguments of counsel that the Motion should be denied; I t, is , th er efo r e , ordered, adjudged and decreed that the Motions to dismiss be and they are hereby denied. This 1 day of November, 1967. / s / E u g en e A. G ordon Judge, United States District Court A True Copy Teste: Herman Amasa Smith, Clerk By: A lbert L. V a u g h n Deputy Clerk 26a F I L E D J an 25 1968 ORDER T h is cause coming on to be heard before the undersigned, United States District Judge, and being heard upon defen dant’s Motion to Dismiss the action for lack of jurisdic tion on the grounds that prior to the institution of the action there was no attempt or endeavor made by the Equal Employment Opportunity Commission to eliminate any such alleged unlawful employment practice by in formal methods of conference, conciliation, and persuasion as required by the Civil Rights Act of 1964; and, after considering the pleadings, affidavits, admissions, briefs and oral argument of counsel, the Court is of the opinion that resort to the remedy of conciliation is a jurisdictional pre requisite to the right to file and maintain a civil action under the Civil Rights Act of 1964, and that since there was no such effort made, the Motion should be allowed, I t is , t h e r e fo r e , ordered t h a t th e a c tio n be a n d th e sam e is h e re b y d ism isse d . This the 25th day of January, 1968. / s / W oodrow W . J ones United States District Judge A True Copy Teste : Thos. E. Rhodes, Clerk By: Gl e n n G am m Deputy Clerk Order Granting Motion to Dismiss 27a (Filed January 25,1968) The plaintiff brought this action on his own behalf and on behalf of other negro citizens similarly situated, under Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. Sec tion 2000e-5, against the defendant alleging racial discrimi nation in terms and conditions of employment against him self and the class which he claims to represent, and charging that he was discriminatorily discharged from employment. The defendant has moved to dismiss the action for lack of jurisdiction on the grounds that prior to the institution of the action there was no attempt or endeavor made by the Equal Employment Opportunity Commission to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion as re quired by the Act. The issue before this Court is whether it is a prerequisite to the institution and maintenance of a civil action under the Civil Rights Act that there be compliance with the direction of 42 U.S.C.A. Section 2000e-5(a) which reads in part as follows: “Whenever it is charged in writing under oath by a per son claiming to be aggrieved, . . . that the employer . . . has engaged in unlawful employment practice, the Commission shall furnish such employer . . . with a copy of such charge and shall make an investigation of such charge . . . If the Commission shall determine after such investigation, that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of con ference, conciliation, and persuasion . . . ” The facts necessary for this decision are not in dispute and may be briefly summarized. The plaintiff in this action Memorandum of D ecision 28a filed his complaint with the Equal Employment Opportunity Commission on January 14, 1966, alleging a violation of the Act, and by order dated July 18, 1966, the Commission found “There is reasonable cause to believe that the re spondent violated Title VII of the Civil Eights Act of 1964 in dismissing the charging party from its employ.” That by letter dated August 8, 1966, the Commission advised the defendant in pertinent parts, as follows: “This will inform you that, after investigation, the Equal Employment Opportunity Commission has determined that there is reasonable cause to believe that you have engaged in an unlawful employment practice within the meaning of Section 703 of the Civil Rights Act of 1964. A copy of the Commission’s decision is enclosed. “A Conciliator appointed by the Commission will contact you soon to discuss means of correcting this discrimination and avoiding it in the future. “ . . . Since the charges in this case were filed in the early phases of the administration of Title YII of the Civil Rights Act of 1964, the Commission has been unable to conduct a conciliation during the 60-day period provided in Section 706. The Commission is, accordingly, obligated to advise the charging party of his right to bring a civil action pur suant to Section 706(e). “Nevertheless, we believe it may serve the purposes of the law and your interests to meet with our Conciliator to see if a just settlement can be agreed upon and a law suit avoided. “We are hopeful that you ean cooperate with us in achieving the objectives of the Civil Rights Act and that we will be able to resolve the matter quickly and satisfactorily to all concerned.” Memorandum of Decision That no Conciliator from the Commission called npon the defendant and no effort at any time has been made by anyone to conciliate this matter. Upon a hearing on the Motion, the Court inquired of plaintiff’s counsel whether the Court could assist in a conciliation of the matter and was advised that no such assistance was desired. 42 U.S.C.A. Section 2000e-5(e) provides in part as fol lows: “If within thirty days after the charge is filed with the Commission or within thirty days after the expiration of any period of reference under sub-section (c) of this section (except that in either case such period may be extended to not more than sixty days upon a determination by the Com mission that further efforts to seek voluntary compliance are warranted), the Commission has been unable to obtain voluntary compliance with this subchapter, the Commission shall so notify the person aggrieved and a civil action may within thirty days thereafter, be brought against the re spondent named in the charge (1) by the person claiming to be aggrieved . . .” Several District Courts have recently reached different conclusions about jurisdictional prerequisites for institu tion of an action under Title VII of the 1964 Civil Eights Act. The cases of Quarles v< Phillip Morris, Inc., 271 F. Supp. 842, E.D. Va. April 11, 1967; Evenson v. Northwest Air lines, Inc., 268 F. Supp. 29, E.D. Va., March 17, 1967, and Moody v. Albermarle Paper Cb-, 271 F. Supp. 27, E.D.N.C. July 5, 1967, seem to hold that an attempt or endeavor at conciliation by the Commission is not a prerequisite to the institution of a civil action by an aggrieved party. How ever, the factual situation in these cases is somewhat dif ferent from the case at bar. In the Quarles case the Com 29a Memorandum of Decision 30a mission stated it had been unable to undertake “extensive” conciliation and it would make additional efforts. In the Evenson case the Commission advised the aggrieved party that conciliation efforts had failed, and in the Moody case the Commission reported that voluntary compliance within sixty days from receipt of the complaint by the Commission had not been effected. In the case at bar the Commission reports that no effort, endeavor or attempt was made to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and per suasion. The words of the statute are clear that “if the Commis sion shall determine . . . there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and per suasion. Is there any doubt the Congress, the legislative body of our government, charged the Commission which it created, with the duty to endeavor to eliminate the alleged wrongful practice by informal methods of conciliation and persuasion! After this effort is made by the Commission it then becomes its duty to report its failure to the aggrieved party who may then institute action in court. The language of the Act clearly provides that if within sixty days after the charge is filed, “the Commission has been unable to ob tain voluntary compliance . . . the Commission shall so notify the person aggrieved and a civil action may . . . be brought against the respondent named in the charge . . . bv the person claiming to be aggrieved . . . ” The legislative branch of our government in passing this measure had some purpose in the use of this language. There is no doubt the Congress intended this procedure be followed in these cases. Did it mean that the court action Memorandum of Decision 31a could not be maintained before this procedure was com pleted! This Court has done considerable research on this ques tion and has had the benefit of exhaustive briefs from the attorneys on both sides and has reached the conclusion that Congress intended that an endeavor at conciliation be a prerequisite to the institution of a civil action under this Act. The case of Dent v. St. Louis S.F. Railway Co., 265 F. Supp. 56, N.D. Ala. March 10, 1967, clearly holds that con ciliation attempts were a “jurisdictional prerequisite to the institution of a civil action under Title VII and that actions instituted without this prerequisite must accordingly be dismissed.” The court in the Dent case discusses in detail legislative history of this portion of the Civil Rights Act and presents overwhelming authority gathered from the Congressional Committee reports and the debate on the floor of the House and Senate. The most convincing evi dence to support this contention is that the bill as reported to the House from the Judiciary Committee contained a clause which would have permitted the institution of a civil action before conciliation efforts, but that this clause was eliminated from the bill during the debate on the floor by an amendment offered by Representative Celler, Chair man of the House Judiciary Committee and author and in troducer of the measure. Chairman Celler offered the amendment and stated “the language is stricken out to make certain that there will be a resort by the Commission to conciliation efforts before it resorts to a court for en forcement.” While the bill at this stage permitted the action to be brought only by the Commission, it was amended fur ther in the Senate to permit the action to be brought by the aggrieved party. Everybody admits that the House Amend ment made the conciliation attempt a condition precedent Memorandum of Decision 32a to the Commission’s right to bring action, but it is argued that when the Senate substituted the “person aggrieved” for the Commission as the party authorized to bring the civil action, the necessity for a conciliation attempt as a prerequisite to the institution of an action was eliminated. The Court in the Dent case held that this argument was entirely contrary to logic and to legislative intent. In the case of Mickel v. South Carolina State Employ ment Service, 377 F.2d 239 (4th Cir. 1967), the Court after quoting with approval the Dent case, said: “It seems clear from the language of the statute that a civil action could be brought against the respondent named in the charge filed with the Commission only after conciliation efforts had failed, or, in any event, after opportunity had been afforded the Commission to make such efforts.” In the case of Steb- bins v. Nationwide Mutual Insurance Company, 382 F.2d 267 (4th Cir. 1967), the Court said: “Congress established comprehensive and detailed procedures to afford the Equal Employment Opportunity Commission the opportunity to attempt by administrative action to conciliate and mediate unlawful employment practices with a view to obtaining voluntary compliance.” In the case of Choate v. Caterpillar Tractor Co., 274 F. Supp. 776, (S.D. 111. November 1, 1967), the Court reviewed the cases of Dent, Mickel, and Hall v. Werthan Bag Corp., 251 F. Supp. 184 (M.D. Tenn.), and said: “All of those de cisions are considered as consistent in holding that resort to the remedy of conciliation is a jurisdictional prerequisite to the right to file a civil action. This Court agrees with that construction of the Act. The plain, language of the statute requires it, as does the established principle ..that statutes creative of remedies not known to the common law are to be strictly construed . . . Under such a statute, the Memorandum, of Decision 33a right of action itself is conditioned upon strict compliance with all the conditions imposed by the statute as a basis for assertion of a right of redress by resort to court processes.” After the case at bar was instituted and as an apparent result of the question being raised in several suits through out the country with some adverse decisions, the Commis sion changed its policy and issued new regulations pertain ing to conciliation. The new regulation provides that the Commission shall not issue a notice where “reasonable cause has been found, prior to efforts at conciliation with respondent.” This change in policy by the Commission after this question had been raised and passed upon by the Courts, clearly indicates the Commission recognized its re sponsibility under the law to attempt conciliation before advising the aggrieved party to institute action. This Court is of the opinion and so holds, that Congress intended that conciliation efforts be made prior to the in stitution of civil actions and that this is a jurisdictional prerequisite to the right to file a civil action. Since the Commission made no effort or endeavor to eliminate the alleged unlawful employment practice by informal methods of conference, conciliation and persuasion in this case, the same must be dismissed. The motion of the defendant is therefore allowed. This the 25th day of January, 1967. / s / W oodrow W . J ones United States District Judge A True Copy T este : T h o s . E. R ho d es , Clerk By: (Illegible) Deputy Clerk Memorandum of Decision 34a Notice o f Appeal and Designation o f Record on Appeal IN THE U n it e d S tates D istr ic t C ourt for THE W ester n D istr ic t of N o r th C arolina C harlotte D iv isio n Civil Action No. 2171 R ay J o h n s o n , -v .- Plaintiff, S eaboard C oast L in e R ailroad C o m pa n y , a c o rp o ra tio n , Defendant. I N otice of A ppe a l Notice is hereby given that Ray Johnson, plaintiff above named, on this 29th day of January, 1968, hereby appeal to the United States Court of Appeals for the Fourth Circuit from the Order of the United States District Court for the Western District of North Carolina, Charlotte Division, entered on January 25,1968, dismissing the above- styled action. 35a Notice of Appeal and Designation of Record on Appeal n D esig n a tio n of R ecord on A ppe a l Plaintiff, by bis undersigned counsel, pursuant to Rule 75(a) of the Federal Rules of Civil Procedure, hereby designate the original files for inclusion in the record on appeal, including all pleadings, exhibits, affidavits, orders, notice of appeal and this designation. This day of January, 1968. J. L eV o n n e C ham bers 405% East Trade Street Charlotte, North Carolina C onrad 0 . P earson 203% East Chapel Hill Street Durham, North Carolina J ack Greenberg L eroy D . Clark R obert B elto n 10 Columbus Circle New York, New York Attorneys for Plaintiff 3 6 a The undersigned hereby certifies that he has this day served a copy of the foregoing Notice of Appeal and Desig nation of Record on Appeal upon counsel for the defendant by depositing a copy of same in the United States mail, postage prepaid, addressed to, Thomas A. Lockhart, Esq., and W. Thomas Ray, Esq. Cansler & Lockhart Attorneys at Law 910 North Carolina National Bank Building Charlotte, North Carolina 28202 this 29th day of January, 1968. Notice of Appeal and Designation of Record on Appeal C e r t i f i c a t e o f S e r v i c e / s / J. L eV o n n e C ham bers Attorney for Plaintiff 37a [ E m b l e m ] E qual E m pl o y m e n t O ppo r tu n ity C o m m ission W a sh in g t o n , D.C. 20506 A u g . 5, 1966 Ce r t ifie d M ail R e t u r n R e c e ipt R equested In Reply Refer to File No. 6-3-1041 Respondent: Pilot Freight Carriers, Charlotte, N. C. Charles W. Walker 2843 Burbank Drive Charlotte, North Carolina Dear Mr. Walker: Due to the heavy workload of the Commission, it has been impossible to undertake or to conclude conciliation efforts in the above matter as of this date. However, the concilia tion activities of the Commission will be undertaken and continued. Under the provisions of Section 706(e) of Title VII of the Civil Rights Act of 1964, the Commission must notify you of your right to bring an action in Federal District Court within a limited time after the filing of a complaint. This is to advise you that you may within thirty days of the receipt of this letter, institute a civil action in the appropriate Federal District Court. If you are unable Letter dated August 5 , 1966 from Equal Employment Opportunity Commission 38a to retain an attorney, the Federal Court is authorized in its discretion, to appoint an attorney to represent you and to authorize the commencement of the suit without payment of fees, costs or security. If you decide to institute suit and find you need such assistance, you may take this letter, along with the enclosed Commission determination of rea sonable cause to believe Title YII has been violated, to the Clerk of the Federal District Court nearest to the place where the alleged discrimination occurred, and to request that a Federal District Judge appoint counsel to represent you. Please feel free to contact the Commission if you have any questions about this matter. Very truly yours, / s / K e n n e t h F. H olbert Kenneth F. Holbert Acting Director of Compliance Enclosure Letter dated August 5, 1966 from Equal Employment Opportunity Commission 39a E qual E m pl o y m e n t O p p o r t u n it y C om m issio n Washington, D.C. 20506 Charles W. Walker Case No. 6-3-1041 Charging Party vs. Pilot Freight Carriers, Inc. Charlotte, North Carolina Respondent Date of alleged violation: February 16, 1966 Filing date: March 15, 1966 (perfected) Date of service of charge: March 16, 1966 S u m m ary of C harge Charging party alleges discrimination on the basis of race as follows: He applied at the respondent company for a job as an over-the-road (long-haul) truck driver. He was ad vised that the company was not accepting applications due to a shortage of equipment. He further alleged that the respondent company does not hire Negro over-the-road truck drivers. S um m ary op I n vestigation The Charlotte Terminal of the responding company is one of thirty pilot terminals, and is within the jurisdiction of Title VII of the Civil Rights Act of 1964. The respondent is a unionized company holding two sepa rate contracts with Local 71 of the International Associa- Decision by Equal Employment Opportunity Commission 40a Decision by Equal Employment Opportunity Commission tion of Teamsters. One agreement covers the over-the- road drivers; the other covers short-haul drivers, switch ers, lifters, checkers, and dockmen. North Carolina has a right to work law. The respondent company, therefore, is not restricted to hiring only union referrals. The Charlotte Terminal employs approximately 300 per sons, including 177 long-haul drivers. At the time of the investigation, no Negro males were employed by the re spondent, nor has a Negro been employed in the past in other than “casual” positions. There are no Negro females employed. The six white females work as office and clerical workers. The respondent company Policy and Procedures manual specifies that an applicant must have one and one-half years tractor-trailer experience [or] must be a graduate of the North Carolina Truck Driver Training School. A review of the current seniority list and other records disclosed the following*: a. One hire on January 28, 1966, prior to the date the charging party applied. b. Five long-haul drivers hired since March 28, 1966. Examination of the applications of the five long-haul driv ers hired since March 8, 1966, indicated: a. Three of the five applications had been filed for as long as a year prior to the individual’s actual hire. b. Two of the applications were dated from two to five days after the charging party had tried to file an application. 41a Decision by Equal Employment Opportunity Commission e. Only one of the five men hired met the respondent company’s qualifications. d. None of the other four hires had the required one and one-half years trailer-tractor experience-—one only had three months experience. e. No effort appears to have been made to determine the charging party’s qualifications. F in d in g The Commission finds reasonable cause to believe the allegations of the charging party to be true and that the respondent is in violation of Title VII. Date July 20, 1966 For the Commission /s / Marie D. Wilson M arie D. W il so n , Secretary 42a [ E m b l e m ] E qual E m pl o y m e n t Opp o r t u n it y C om m issio n W a sh in g t o n , D.C. 20506 In Reply Refer to File No. 6-3-1041 Respondent: Pilot Freight Carriers Charlotte, N. C. Letter dated August 5 , 1966 from Equal Employment Opportunity Commission Charles W. Walker 2843 Burbank Drive Charlotte, North Carolina Dear Mr. Walker: The Commission has investigated your charge of employ ment discrimination and has found reasonable cause to believe that an unlawful employment practice within the meaning of Title VII of the Civil Rights Act of 1964 has been commited. The Commission will attempt to eliminate this practice by conciliation as provided in Title VII. You will be kept informed of the progress of conciliation efforts. Very truly yours, / s / K e n n e t h F. H olbert Kenneth F. Holbert Acting Director of Compliance 43a Complaint (Filed August 23, 1966) m THE U n it e d S tates D istr ic t C ourt for THE W estern D istrict of N orth C arolina C h a rlotte D iv isio n C iv il A ction N o. 2167 C h a rles W . W a lk er , v. Plaintiff, P ilot F r e ig h t Carriers, I n c . Defendant. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. §1343(4) and 42 U. S. C. §2000e-5(f). This is a suit in equity, authorized and instituted pursuant to Title VII of the Civil Rights Act of 1964, 42 U. S. C. §§2000e, et. seq. Jurisdiction of this Court is invoked to secure the protection of and redress the deprivation of rights secured by 42 U. S. C. §2000e, providing for injunctive and other relief against racial discrimination in employment. II. Plaintiff brings this action on his own behalf and on behalf of others similarly situated pursuant to Rule 23 (a) and (b) of the Federal Rules of Civil Procedure. There 44a are common questions of law and fact affecting the rights of others seeking employment opportunities without dis crimination on the basis of race and color, who are so numerous as to make it impracticable to bring them all individually before the Court; the claims and defenses of the plaintiff are typical of the claims and defenses of the class, and plaintiff will fairly and adequately protect the interests of the class. The defendant has adopted rules and policies, and has refused to eliminate same, which have deprived, and will continue to deprive, the plaintiff and others of the class of their rights to equal employ ment opportunities without regard to race and color as secured to them by Title VII of the Civil Eights Act of 1964, 42 U. S. C. §2000e. Complaint in. This is a proceeding for a preliminary and permanent injunction restraining the defendant from maintaining a policy, practice, custom and usage of withholding, denying, attempting to withhold or deny, and depriving or attempt ing to deprive, and otherwise interfering with the right of plaintiff and others similarly situated to equal employment opportunities at the facilities owned and operated by Pilot Freight Carriers, Inc. without discrimination on the basis of race or color. IV. Plaintiff Charles W. Walker is a Negro citizen of the United States and of the State of North Carolina, residing in Charlotte, North Carolina. V. The defendant, Pilot Freight Carriers, Inc., is a corpo ration incorporated pursuant to laws of the State of North 45 a Carolina with power to sue and to be sued in the corpo rate name and is doing business in the State of North Carolina and the City of Charlotte, North Carolina. De fendant owns and operates a trucking business and makes deliveries of shipments in the State of North Carolina and interstate. Defendant has a place of business in the City of Charlotte, North Carolina (hereinafter referred to as the “Charlotte Terminal”). Complaint VI. Defendant is an employer engaged in an industry which affects commerce and employs more than one hundred (100) employees. VII. A. On or about February 16, 1966, plaintiff applied for employment as a long-haul truck driver with defendant at defendant’s Charlotte Terminal. In the course of plaintiff’s inquiry for the position of long-haul truck driver, plain tiff was told by defendant’s agent that there was a short age of equipment and defendant was not accepting appli cations. No effort was made by the defendant’s agent to determine plaintiff’s qualifications, nor was plaintiff given the opportunity to make application for employment at a future date, nor was plaintiff invited to apply at a later date. B. Subsequent to February 16, 1966, defendant em ployed five white persons for the position of long-haul truck driver, two of which such persons, had applied sub sequent to the date of plaintiff’s application. Several of the white employees hired for the position of long-haul driver subsequent to the date of plaintiff’s application had 46a been referred to the North Carolina Driver Training School in order to be considered for employment. The statement of defendant’s agent and defendant’s failure to refer plaintiff to the North Carolina Driver Training School were intended to deny and had the effect of deny ing plaintiff an equal opportunity for employment on the same basis as white applicants because of his race and color. C. On information and belief, plaintiff alleges that de fendant has no Negroes employed at the Charlotte Ter minal and that the defendant has not employed Negroes at the Charlotte Terminal in other than casual positions. VIII. Negroes other than plaintiff have sought employment at defendant’s Charlotte Terminal and have been refused em ployment on the basis of race and color. Defendant pur sues a practice of limiting the employment opportunity of Negro persons. IX. Plaintiff was refused employment on the basis of race and color pursuant to defendant’s long-standing practice, policy, custom and usage of limiting employment of Ne groes as long-haul drivers on the basis of race and color. Pursuant to this policy, practice, custom and usage, Ne groes other than plaintiff have also been denied equal employment opportunities by defendant on the basis of race and color. X. Plaintiff is fully qualified for consideration of employ ment as a long-haul driver. Plaintiff was denied an equal Complaint 47a opportunity for employment because of Ms race and color in violation of Title YII of the Civil Eights Act of 1964, 42 U. S. C. §2000e. XI. Neither the State of North Carolina, the County of Meckleburg, nor the City of Charlotte has a law prohibit ing the unlawful practices alleged herein. On Februry 28, 1966, and as amended on March 15, 1966, plaintiff filed a complaint with the Equal Employment Opportunity Com mission, alleging violation of Title YII of the Civil Eights Act of 1964 in that defendant failed to consider his appli cation for employment as a long-haul driver on the same basis as white persons. On July 20, 1966, the Commission found reasonable cause to believe that a violation of the act had occurred by defendant as alleged in plaintiff’s com plaint to the Commission. Subsequently, plaintiff received a letter from the Commission under the date of August 5, 1966, in which the Commission advised the plaintiff that the defendant’s compliance with Title VII had not been accomplished and that plaintiff was entitled to maintain a civil action for relief in a United States District Court. Plaintiff has no plain, adequate or complete remedy of law to redress the wrongs alleged herein, and this suit for a preliminary and permanent injunction is the only means of securing adequate relief. Plaintiff and the class he rep resents are now suffering, and will continue to suffer, ir reparable injuries from defendant’s policies, practices, custom and usage as set forth herein. W h er efo r e , plaintiff respectfully prays this Court ad vance this case on the docket, order a speedy hearing at the earliest practicable date, cause this case to be in every way expedited, and upon such hearing to : Complaint 48a 1. Grant plaintiff and the class he represents a pre liminary and permanent injunction enjoining defendant Pilot Freight Carriers, Inc., its agents, successors, em ployees, attorneys, and those acting in concert with de fendant and at its direction from conducting or maintain ing any policy, practice, custom and usage of denying, abridging, withholding, conditioning, limiting or otherwise interfering with the right of plaintiff and others of his class to equal employment opportunities, including equal rate of pay, terms, conditions and privileges of employ ment as white persons similarly situated without regard to race and/or color. 2. Grant plaintiff and the class he represents a prelim inary and permanent injunction enjoining defendant, its agents, successors, employees, attorneys and those acting in concert with defendant and at its direction from con tinuing or maintaining the policy, practice, custom and usage of denying, abridging, withholding, conditioning, limiting, or otherwise interfering with the right of the plaintiff and others similarly situated to enjoy equal em ployment opportunities as secured by Title VII of the Civil Rights Act of 1964, 42 TT.S.C. §2000e, without dis crimination on the basis of race and color. 3. Grant plaintiff back pay from the time of defendant’s wrongful denial of employment opportunities to the plain tiff, and 4. Allow plaintiff his costs herein, including reasonable attorneys’ fees and other such additional relief as may appear to the Court to be equitable and just. Complaint 49a Respectfully submitted, C onrad 0 . P earson 203% East Chapel Hill Street Durham, North Carolina J . L eV o n n e C ham bers 405% East Trade Street Charlotte, North Carolina J ack G reenberg L eroy D. Clark R obert B elto n 10 Columbus Circle New York, New York Attorneys for Plaintiff Complaint 50a (Filed August 23, 1966) Plaintiff moves the Court to advance this case on the docket, order a speedy hearing at the earliest practicable date, cause this case to be in every way expedited, and upon such hearing to : 1. Grant plaintiff and the class he represents a prelimi nary and permanent injunction enjoining defendant, Pilot Freight Carriers, its agents, successors, employees, attor neys, and those acting in concert with them and at their direction from continuing or maintaining any policy, prac tice, custom and usage of denying, abridging, withholding, conditioning, limiting or otherwise interfering with the rights of plaintiff and others of his class to equal employ ment opportunities including equal rate of pay, terms, con ditions and privileges of employment as white persons similarly situated without regard to their race or color. 2. Grant plaintiff and the class he represents a prelimi nary and permanent injunction enjoining defendant, its agents, successors, employees, attorneys, and those acting in concert with them and at their direction from continuing or maintaining the policy, practice, custom and usage of denying, abridging, withholding, conditioning, limiting or otherwise interfering with the right of plaintiff and others similarly situated to enjoy equal employment opportunity as secured by Title VII of the Civil Bights Act of 1964, 42 U. S. C. §§2000e et seq., without discrimination on the basis of race or color. 3. Grant the plaintiff back pay from the time of defend ant’s wrongful denial of equal employment opportunities to the plaintiff. Motion for Preliminary Injunction 51a 4. Allow plaintiff Ms costs herein, including reasonable attorneys’ fees and such other additional relief as may ap pear to the Court to be equitable and just. Eespectfully submitted, Motion for Preliminary Injunction C onrad 0 . P earson 203% East Chapel Hill Street Durham, North Carolina J . L eV o n n e C h a m bers 405% East Trade Street Charlotte, North Carolina J ack Greenberg L eroy D. Clark R obert B elto n 10 Columbus Circle New York, New York Attorneys for Plaintiffs 52a It appearing that a jurisdictional prerequisite to the maintenance of the above-entitled suit is lacking in that no conciliation effort was engaged in by the Equal Employ ment Opportunities Commission prior to the institution of this action, the defendant moves that it be dismissed pur suant to Eule 12(h)(8) of the Federal Rules of Civil Pro cedure. Respectfully submitted, /s / J. W. A lexander , J r. J. W. Alexander, Jr. B l a k e n e y , A lexander & M a c h e n 1410 North Carolina Bank Bldg. Charlotte, North Carolina Attorneys for Defendant Motion to Dismiss 53a Order Dismissing Action T h is C ause coming on to be heard before the undersigned, United States District Judge, and being heard upon defend ant’s Motion to Dismiss the action for lack of jurisdiction on the grounds that prior to the institution of the action there was no attempt or endeavor made by the Equal Em ployment Opportunity Commission to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion as required by the Civil Rights Act of 1964; and, after considering the pleadings, admissions, briefs and oral argument of coun sel, the Court is of the opinion that resort to the remedy of conciliation is a jurisdictional prerequisite to the right to file and maintain a civil action under the Civil Rights Act of 1964, and that since there was no such effort made, the Motion should be allowed, I t is , t h e r e fo r e , Ordered t h a t th e a c tio n be a n d th e sam e is h e re b y d ism isse d . The foregoing Order is based upon a Memorandum of Decision filed in the case of Ray Johnson v. Seaboard Air Line Railroad Company, copy of which Decision is attached hereto. This the 25th day of January, 1968. / s / W oodrow W. J ones United States District Judge 54a Notice of Appeal and Designation of Record on Appeal I N o tice of A ppe a l Notice is hereby given that Charles W. Walker, plaintiff above named, on this 29th day of January, 1968, hereby appeal to the United States Court of Appeals for the Fourth Circuit from the Order of the United States District Court for the Western District of North Carolina, Charlotte Division, entered on January 25,1968, dismissing the above- styled action. II D esig n a tio n of R ecord on A ppe a l Plaintiff, by his undersigned counsel, pursuant to Rule 75(a) of the Federal Rules of Civil Procedure, hereby designate the original files for inclusion in the record on appeal, including all pleadings, exhibits, affidavits, orders, notice of appeal and this designation. This 29th day of January, 1968. 55a E x tra c ts F ro m S ta tu te s [If 706] P r ev en tio n of U n l a w fu l E m pl o y m e n t P ractices S ec . 706. (a) Whenever it is charged in writing under oath by a person claiming to be aggrieved, or a written charge has been filed by a member of the Commission where he has reasonable cause to believe a violation of this title has occurred (and such charge sets forth the facts upon which it is based) that an employer, employ ment agency, or labor organization has engaged in an unlawful employment practice, the Commission shall fur nish such employer, employment agency, or labor organi zation (hereinafter referred to as the “respondent”) with a copy of such charge and shall make an investigation of such charge, provided that such charge shall not be made public by the Commission. If the Commission shall deter mine, after such investigation, that there is reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion. Nothing said or done during and as a part of such endeavors may be made public by the Commission without the written consent of the parties, or used as evidence in a subsequent proceeding. Any officer or employee of the Commission, who shall make public in any manner whatever any information in viola tion of this subsection shall be deemed guilty of a mis demeanor and upon conviction thereof shall be fined not more than $1,000 or imprisoned not more than one year. # * # (e) 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 5 6 a Extracts From Statutes 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 re spondent named in the charge (1) by the person claiming to be aggrieved, or (2) if such charge was filed by a mem ber 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 circumstances as the court may deem just, the court may appoint an attorney for such complainant and may au thorize the commencement of the action without the pay ment of fees, costs, or security. Upon timely application, the court may, in its discretion, permit the Attorney Gen eral 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 pending the termination of State or local proceedings described in subsection (b) or the efforts of the Commission to obtain voluntary compli ance. MEILEN PRESS INC. — N. Y. C.«^J^>219