Johnson v. Seaboard Coastline Railroad Company Brief and Appendix for Appellants

    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