Petition — U. S. Industries, Inc. v. Page

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: bupreme Court, U.S

FILED

OCT 25 1977

| iii RODAK, JR., CLERK

Supreme Court of the United States

OCTOBER TERM, 1977

0 47-595

U. S. INDUSTRIES, INC.,

Petitioner,

JOHN D. PAGE and DON THOMAS,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

SAMUEL E. HOOPER

777 South Post Oak Road

Suite 332

Houston, Texas 77056

(713/629-1800)

Attorney for Petitioner,

U. S. Industries, Inc.

Of Counsel:

NEEL, Hooper & KALMANS

Houston, Texas

SS AEE EE EEE” EARNS EET RS ED PE IT I SE EET

Alpha Law Brief Co., One Main Plaza, No. 1 Main St., Houston, Texas 77002

SUBJECT INDEX

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Statutory Provisions Involved ................ceeeeeeee

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Reasons for Granting the Writ ...................0008.

ii a aa eR

Appendix A (Order of the District Court for the Southern

District of Texas, Houston Division, dated June 16, 1975)

Appendix B (Order of the District Court for the Southern

District of Texas, Houston Division, dated October 8,

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Appendix C (Memorandum and Order of the District Court

for the Southern District of Texas, Houston Division,

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Appendix D (Order Amending Interlocutory Order of the

District Court for the Southern District of Texas, Houston

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Appendix E (Opinion of United States Court of Appeals,

Fifth Circuit, dated July 25, 1977) ...............44.

Appendix F (Judgment of the United States Court of Ap-

peals, Fifth Circuit, dated July 25, 1977) ............

Appendix G (Order of United States Court of Appeals,

Fifth Circuit, denying Petition for Rehearing and Sug-

gestion for Rehearing En Banc) .................5..

Appendix H (Portions of United States Statutes) ........

LIST OF AUTHORITIES

CASES

Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974)....

Brown v. General Service Administration, 425 U.S. 820

UE. 9:46 9 v:8600.6.060 66 056.05066000009 6000040450 KRK

CASES Page

Cleveland v. Douglas Aircraft Co., 509 F.2d 1027 (9th

Rs SE id Salat oe dg apd are dla ee te a De a ot 5,9

Eastland v. Tennessee Valley Authority, 547 F.2d 908

a ci nn ‘dod cage cudukdene bee ma dae ane ews 5,9

Electrical Workers (IUE), Local 790 v. Robbins & Meyers,

ee el ee 5, 6,7, 10

Evans v. United Air Lines, Inc., US. , 97 S.Ct.

Ces oe eee een ad bh ceased ite ado 5,6, 10

Genovese vy. Shell Oil Co., 488 F.2d 84 (Sth Cir. 1973) 5

Hinton v. CPC International, Inc., 520 F.2d 1312 (8th

cat : PE ead ack ss cen cls ek tus cee deena nenaoray 5,8

Lacy v. Chrysler Corp., 533 F.2d 353 (8th Cir. 1976),

cert. den. 429 U.S. 959 (1977) ........ Re ere we 5,8

Tuft v. McDonnell Douglas Corp., 517 F.2d 1301 (8th Cir.

1975), cert. den. 423 U.S. 1052 (1976) .......ccccecs 5

Wong v. Bon Marche, 508 F.2d 1249 (9th Cir. 1975) .... 5

UNITED STATES STATUTES

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IN THE

Supreme Court of the Huited States

OCTOBER TERM, 1977

NO.

U. S. INDUSTRIES, INC.,

Petitioner,

JOHN D. PAGE and DON THOMAS,

Respondents.

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioner, U. S. Industries, Inc., respectfully prays

that a writ of certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the

Fifth Circuit entered in this proceeding on July 25, 1977.

Petition for Rehearing denied September 13, 1977.

OPINIONS BELOW

The opinion of the Court of Appeals for the Fifth

Circuit, dated July 25, 1977, is reported at 556 F.2d

356, 15 FEP Cases 487, 14 EPD 4 7754, and is reprinted

in Appendix E hereto. The judgment of the Fifth Circuit

is reprinted in Appendix F and the Notice of Order on

the Petition for Rehearing dated September 13, 1977, is

reprinted in Appendix G. The orders of the United States

District Court for the Southern District of Texas dated

June 16, 1975, October 8, 1975, June 4, 1976, and

June 30, 1976, are reprinted in Appendix A, Appendix

B, Appendix C and Appendix D, respectively.

JURISDICTION

The judgment of the court of appeals herein was en-

tered on July 25, 1977. Petitioner’s timely Petition for

Rehearing was denied on September 13, 1977. This

Petition for Certiorari is filed within 90 days of that date.

This Court’s jurisdiction is invoked under 28 U.S.C.

§ 1254(1).

QUESTIONS PRESENTED

1. Whether the time period for filing a private civil

action under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-5(f)(1), is a jurisdic-

tional prerequisite to maintaining a Title VII

charge.

2. Whether the time period for filing a private civil

action under Title VII of the Civil Rights Act of

1964, 42 U.S.C. § 2000e-5(f)(1), can be ex-

tended by the federal courts because of an er-

roneous and improper notice issued by the Equal

Employment Opportunity Commission.

STATUTORY PROVISIONS INVOLVED

Title VII of the Civil Rights Act of 1964, as amended

(hereinafter “Title VII”), 42 U.S.C. § 2000e, et seg.,

specifically Sections 705(e), 706(f)(1) and 717(c) of

Title VIi which are set forth in their entirety in Ap-

pendix H.

STATEMENT OF THE CASE

Respondent John D. Page filed a charge of discrimina-

tion with the Equal Employment Opportunity Commis-

sion (hereinafter “EEOC”) on April 23, 1969 alleging

that Petitioner had discriminated against him because

of his race by paying him less than it paid similarily-

situated white employees. Four years later, on April 13,

1973, the EEOC issued a determination finding reason-

able cause to credit the charge. Thereafter, Petitioner

entered into conciliation efforts with the EEOC and, on

February 11, 1974, executed a conciliation agreement

with the EEOC with respect to Page’s charge which pro-

vided for significant affirmative action but did not provide

any monetary relief for Respondent. On February 15,

1974, the EEOC advised Respondent that the EEOC

had successfully conciliated his charge but that no specific

remedy had been provided for him. That letter further

stated that Respondent could request a “notice of Right

to Sue” at any time. Respondent contacted a lawyer and

entered into an attorney-client relationship on March 11,

1974 and, at that time, executed a form which authorized

his attorney to request and receive a “Notice of Right

to Sue” from the EEOC. On May 8, 1974, Respondent’s

attorney wrote the EEOC requesting a “Notice of Right

to Sue” and on May 21, 1974, the EEOC issued the

“Notice of Right to Sue” form to Respondent’s attorney.

The Complaint which initiated this cause of action was

filed on August 14, 1974, some six months after Re-

spondent had been advised that the EEOC had success-

fully conciliated his charge.

On June 16, 1975, the district court dismissed Re-

spondent’s Title VII action as not being timely filed

(App. A, p. 13). Thereafter, on October 8, 1975, on

Respondent’s motion to reconsider, the district court re-

instated the Title VII cause of action (App. B, p. 16).

Petitioner then sought reconsideration and, on June 4,

1976, the district court again ruled that Respondent's

Title VII cause of action could be maintained (App. C,

p. 19). Thereafter, on June 30, 1976, the district court

certified the issue for an interlocutory appeal (App. D,

p. 22). Petitioner perfected its interlocutory appeal and

on July 25, 1977, the court of appeals affirmed the dis-

trict court with respect to Respondent’s Title VII cause

of action and, on September 13, 1977, denied Petitioner’s

Petition for Rehearing and Suggestion for Rehearing En

Banc (App. E, p. 24; App. G, p. 45).

REASONS FOR GRANTING THE WRIT

Both the district court and the court of appeals below

specifically recognized in their holdings that the Febru-

ary 15, 1974 letter which the EEOC sent to Respondent

complied with the statutory prerequisites for commencing

the 90-day statutory period in which to file suit. How-

ever, the holding below is inconsistent with prior de-

cisions of this Court regarding the jurisdictional pre-

requisites to maintaining a Title VII action in that it

incorrectly concludes that the statutory 90-day period for

filing the action can be extended by the choice of words

the EEOC elected to use in that letter. Such ruling is

contrary to the express statutory language, decisions of

this Court’ and other circuit courts,’ including the circuit

court which rendered the decision.*

Petitioner is fully aware that this Court has previously

denied petitions for certiorari in Tuft v. McDonnell

Douglas Corp., 517 F.2d 1301 (8th Cir. 1975), cert. den.

423 U.S. 1052 (1976); and Lacy v. Chrysler Corp.,

533 F.2d 353 (8th Cir. 1976), cert. den. 429 U.S. 959

(1977). However, the circuit court decisions in those

cases involved the question of what is necessary to satisfy

the requirements of Section 706(f)(1) and thus initiate

the 90-day period. In this petition, the circuit court clearly

held that the requirements of Section 706(f)(1) were

satisfied and the February 15, 1974 letter commenced

the 90-day period running (App. E, p. 24). In spite

of that conclusion, the circuit court permitted the 90-day

period to be extended because the February 15 notifica-

tion included extraneous and erroneous advice to the

effect that Respondent could request a “Notice of Right

to Sue” at any time. Unlike Tuft and Lacy, the question

presented here is not when does the 90-day period begin

to run, but whether once that period commences. can

it be extended.

1. Alexander v. Gardner-Denver Co., 415 U.S. 36 (1974); Brown

v. General Service Administration, 425 U.S. 820 (1976); Electrical

Workers (IUE), Local 790 v. Robbins & Meyers, Inc., 429 US. 229

(1976); Evans v. United Air Lines, Inc., US. , 97 S.Ct.

1885 (1977).

2. Lacy v. Chrysler Corp., supra; Hinton v. CPC International,

Inc., 520 F.2d 1312 (8th Cir. 1975); Cleveland v. Douglas Aircraft

Co., 509 F.2d 1027 (9th Cir. 1975); Wong v. Bon Marche, 508 F.2d

1249 (9th Cir. 1975).

3. Eastland v. Tennessee Valley Authority, 547 F.2d 908 (Sth

Cir. 1977); Genovese v. Shell Oil Co., 488 F.2d 84 (Sth Cir. 1973).

Congress set out clear and precise requirements for

the initiation of a private Title VII action in Section

706(f)(1) of Title VII by providing, in relevant part:

“If . . . the Commission has not entered into a

conciliation agreement to which the person aggrieved

is a party, the Commission . . . shall so notify the

person aggrieved and within ninety days after the

giving of such notice a civil action may be

brought. . .” 42 U.S.C. § 2000e-5(f)(1).

The decision below correctly held that the February

15, 1974 letter the EEOC sent Respondent complied

with the Congressional mandate that the EEOC “shall

so notify the person aggrieved” that it had entered into a

conciliation agreement to which the person aggrieved was

not a party. However, the decision below erroneously

failed to give effect to the further Congressional mandate

that a civil action be filed “within ninety days after the

giving of such notice.”

This Court spoke clearly and unequivocally with re-

spect to the jurisdictional nature of the Congressionally-

established time period for filing a charge of discrimi-

nation in Electrical Workers (IUE), Local 790 vy. Rob-

bins & Meyers, Inc., supra, holding that compliance with

such time period for filing a charge of discrimination is a

jurisdictional requirement to the subsequent prosecution

of a Title VII action. Cf., Evans v. United Air Lines,

Inc., supra. The rationale of those decisions is equally

applicable with respect to the nature of the Congression-

ally-established time period for filing a Title VII suit,

the question which is herein presented.

Petitioner submits that the time period for filing a

complaint in federal court cannot be extended by pur-

ported reliance upon erroneous advice from the EEOC

any more than can the time period for filing a charge of

discrimination be extended by reliance upon exhaustion

of a contractual grievance procedure prior to filing a

charge. The reasoning of this Court in Robbins & Meyers

is equally applicable to this case:

“. . . Congress has already spoken with respect

to what it considers acceptable delay when it estab-

lished a 90-day limitations period, and gave no in-

dication that it considered a ‘slight’ delay followed

by 90-days equally acceptable. In defining Title

VII’s jurisdictional prerequisite ‘with precision,’

Alexander v. Gardner-Denver Co., supra, at 47,

Congress did not leave to courts the decision as to

which delays might or might not be ‘slight.’” 429

U.S. 229, at 240.‘

There is even less reason to extend the 90-day period

in which to file suit than there is to extend the 180-day

period in which to file a charge of discrimination. In the

instant appeal, the Congressionally-preferred policy of

informal compliance through conciliation had been

achieved long before the federal court complaint was

filed. Respondent and EEOC had actually entered into a

conciliation agreement acceptable to the Commission

but unacceptable to the aggrieved party. The broad poli-

cies of Title VII will not be furthered by permitting an

untimely Title VII action to proceed where the complaint

upon which the charge was based has been resolved to

the satisfaction of the agency charged with enforcement

of Title VII. Further, in the instant case there is no

4. Prior to the 1972 amendments to Title VII, 42 U.S.C. § 2000e-

5(d) provided for a 90-day period in which to file a charge with the

EEOC.

equitable justification for distinguishing from the Robbins

& Meyers principle. In the instant case the aggrieved

party was advised that the EEOC would do nothing more

to assist in obtaining relief. Whereupon Respondent re-

tained counsel. For more than two months after being

hired by Respondent his counsel chose to sit on Re-

spondent’s rights. Then he attempted to bring this action

almost six months after the 90-day period began to run.

This type of conduct was specifically condemned by the

Eighth Circuit in Lacy vy. Chrysler Corp. (Whitfield v.

Certain-Teed Products Co.), supra, where the Eighth

Circuit observed:

“At oral argument, Whitfield’s counsel conceded

that he had been retained between the first and

second letter—the determination by the EEOC that

it would not file suit—before even requesting a

formal right to sue letter. Upon receiving the second

letter, Whitfield knew that the EEOC’s administra-

tive procedures had terminated. . . . A contrary

determination would permit a knowledgable and in-

formed aggrieved party to postpone indefinitely the

issuance of a formal right to sue letter and thus

delay indefinitely the initiation of the 90-day period

prescribed by law. . . .” 533 F.2d at 361.

The decision of the Eighth Circuit in Hinton v. CPC

International, Inc., supra, is entirely consistent with the

rationale of this Court in Robbins & Meyers but is totally

inconsistent with the decision below. In Hinton, the

Eighth Circuit held that the 90-day time period for filing

a Title VII action could not be extended even though

the plaintiff delayed filing his complaint because he was

engaged in settlement discussions and the defendant

agreed to extend the time period for filing the complaint.

It simply is not for the parties to extend the mandatory

time periods by agreement or through use of a contrac-

tual grievance procedure and it is not for the federal

courts to permit the EEOC to extend the mandatory time

period for filing suit by including extraneous and erron-

eous language in its statutorily-required notification to

the aggrieved party.

See also the Ninth Circuit decision in Cleveland v.

Douglas Aircraft Co., supra, where the court stated:

“Appellant’s third argument, that he should not

be time-barred because of his reliance on the advice

of the EEOC, is without substance. In Pittman vy.

United States, 341 F.2d 739, 741 (9th Cir. 1965),

this court stated:

“*Federal Crop Insurance Corp. v. Merrill, 332

U.S. 380 . . . and Munro v. United States, 303 U.S.

36 . . ., simply preclude successfully relying on a

waiver of time limitation or a mistake of the gov-

ernment attorney on the applicable law.’

“Pittman involved an action against the govern-

ment from which the government stood to gain

from the erroneous advice and therefore it applies

with even greater force in the present appeal.” 509

F.2d at 1030.

Further, the opinion below is in direct conflict with a

prior decision of the same circuit. In Eastland v. Tennes-

see Valley Authority, supra, the Fifth Circuit held that

the time period for governmental employees to file a

Title VII complaint in federal court, Section 717(c) of

Title VII, could not be extended even though the notice

received did not comply with the administrative agency’s

own regulations. There the court of appeals recognized

that the 30-day time period in which governmental em-

ployces may file a Title VII suit is jurisdictional and

mandatory, relying upon prior decisions involving the

nature of the time period for private litigants to file a

Title VII suit. The court of appeals reasoned that to

replace the notice required by Section 717(c) “with the

notice specified in the Civil Service Commission’s own

regulations . . . would be an improper extension of the

jurisdiction of the federal courts by an administrative

agency .. . This we decline to do.” 553 F.2d 364, 369.

Thus, the government received the benefit of its erroneous

notification procedure. However, in the instant case, a

private employer is held not to be able to rely upon the

untimeliness of the filing of the complaint even though the

circuit court concluded that the sole effect of the action

of the EEOC was an “unlawful extension” of the statutory

period for filing a suit. Such a double standard must not

be permitted. The decision of the court of appeals in the

instant case is clearly erroneous and diametrically op-

posed to a prior decision of the same circuit.

This Court has not yet had before it the meaning of the

specific requirement of Title VII that a civil action must

be brought within 90 days. However, its previous de-

cisions in Alexander v. Gar. ner-Denver Co., supra; Brown

v. General Service Administration, supra; Electrical

Workers (IUE), Local 790 vy. Robbins & Meyers, Inc..,

supra; and Evans v. United Air Lines, Inc., supra, give

a clear logical roadmap as to the proper answer to the

question. This petition for certiorari presents the other

side of the coin of the Robbins & Meyers decision. “Con-

gress did not leave to the courts the decision as to which

delays might or might not be” excusable. Since this

2 es

action was not commenced within the 90-day period set

out in Title VII, Respondent has not met the jurisdic-

tional prerequisites to bringing this action and the court

of appeals was in error in attempting to engraft a ju-

dicial amendment to a legislative enactment.

CONCLUSION

For the foregoing reasons, a writ of certiorari should

issue to review the judgment and opinion of the Court

of Appeals.

Respectfully submitted,

SAMUEL E. HoopER ; 7

777 South Post Oak Road

Suite 332

Houston, Texas 77056

(713/629-1800)

Attorney for Petitioner,

U.S. Industries, Inc.

Of Counsel:

NEEL, Hooper & KALMANS

Houston, Texas

CERTIFICATE OF SERVICE

The undersigned certifies that on this al day of Oc-

tober, 1977, copies of the foregoing Petition for a Writ of

Certiorari were served upon Carol Nelkin, Nelkin &

Nelkin, 5417 Chaucer, Houston, Texas 77005, Attorney

for Respondents, and upon James R. Watson, Jr., Bray

& Watson, 500 Texas Professional Tower Building, 608

Fannin Street, Houston, Texas 77002, Attorney of Record

for International Brotherhood of Boilermakers, Iron Ship-

builders, Blacksmiths, Forgers and Helpers, AFL-CIO,

and its Affiliate Local 561, by depositing the same in

the United States Mail, postage prepaid, certified, return

receipt requested.

SAMUEL E. HOOPER

APPENDIX A

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION NO. 74-H-1097

JOHN D. PAGE and DON THOMAS, ET AL,

U. S. INDUSTRIES, INC.; INTERNATIONAL

BROTHERHOOD OF BOILERMAKERS, IRON

SHIPBUILDERS, BLACKSMITHS, FORGERS

AND HELPERS, AFL-CIO, and its affiliate

LOCAL UNION NO. 561,

Defendants.

(Filed June 16, 1975)

ORDER

The Court, having considered Defendant U. S. In-

dustries, Inc.’s Motion to Dismiss, hereby ORDERS:

Defendant’s Motion is granted as to Plaintiffs’ claims

under 42 U.S.C. § 2000e et seg. which were raised in

the charges of discrimination filed with the Equal Employ-

ment Opportunity Commission by Plaintiff John D. Page

on April 23, 1969, alleging that Defendant Company

had violated 42 U.S.C. § 2000e et seq., hereinafter re-

ferred to as “Title VII;” the charge of discrimination

filed by Plaintiff Don Thomas on January 17, 1972,

alleging that Defendant Union had violated Title VII;

and the charge of discrimination filed by Plaintiff Don

Thomas on November 29, 1973, alleging that Defendant

Company had violated Title VII. The claims raised under

42 U.S.C. § 2000e et seg. by virtue of the charge of

discrimination filed by Plaintiff Don Thomas on January

17, 1972, alleging that Defendant Company had violated

Title VII are not dismissed. Title VII claims raised by

virtue of the charges filed by Plaintiffs on April 23, 1969

(Page against Defendant Company), January 17, 1972

(Thomas against Defendant Union), and November 29,

1972 (Thomas against Company) must all be dismissed

because of Plaintiffs’ failure to institute a civil action in

an appropriate United States District Court within 90

days after notification that the Equal Employment Op-

portunity Commission had concluded its administrative

processes with respect to each charge. By letter dated

February 15, 1974, Plaintiff Page was advised that the

Equal Employment Opportunity Commission had con-

cluded processing the charge he filed on April 23, 1969.

In order for a timely Title VII suit to have been instituted,

a complaint would necessarily have been filed 90 days

after this letter was received by Plaintiff Page. This

action, however, was not filed until August 14, 1974,

approximately 180 days after receipt of the February 15,

1974 notification. Plaintiff Thomas was notified by a no

cause determination issued on February 21, 1974, that

the Equal Employment Opportunity Commission had

concluded processing the charge he had filed against

Defendant Union on January 17, 1972. This action was

not instituted within 90 days thereafter and Title VII

claims raised in that charge must be dismissed. Similarly,

Plaintiff Thomas was notified by a no cause determina-

tion issued on March 26, 1972, that the Equal Employ-

ment Opportunity Commission had concluded processing

the charge he had filed against Defendant Company on

November 29, 1973. This action was not instituted with-

in 90 days thereafter and Title VII claims raised by that

charge must be dismissed.

Defendant’s Motion to Dismiss Plaintiffs’ claims under

42 U.S.C. § 1981 is granted with respect to any alleged

illegal acts which occurred more than two years prior

to the filing of this action.

SIGNED AND ENTERED this 16th day of June,

1975.

/s/ WOODROW SEALS

United States District Judge

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION NO. 74-H-1097

JOHN D. PAGE and DON THOMAS, ET AL.,

Plaintiffs

vs.

U. S. INDUSTRIES, INC.; INTERNATIONAL

BROTHERHOOD OF BOILERMAKERS, IRON

SHIPBUILDERS, BLACKSMITHS, FORGERS

AND HELPERS AFL-CIO, and its affiliate

LOCAL UNION NO. 561,

Defendants

(Filed October 8, 1975)

ORDER

Plaintiffs have requested this Court to reconsider its

Order of June 16, 1975, dismissing Plaintiff Page’s Title

VII claims on the grounds that they were not timely filed

in this Court. In addition, Plaintiff seeks reconsideration

of another portion of the same order granting dismissal

of their 42 U.S.C.A. § 1981 claims. After due considera-

tion, the Court finds merit in the Plaintiffs’ arguments

and the motion to reconsider is GRANTED as to the

Title VII and § 1981 issues.

Plaintiffs quite properly have pointed out that through

oversight this Court has taken contrary positions in two

separate cases. The June 16, 1975 Order dismissed the

§ 1981 claims on the grounds that Johnson v. Railway

Express Agency, Inc., 421 U.S. ___, 43 U.S.L.W. 4623

(May 19, 1975), was retroactive and in Luther James

Bush v. Woods Bros. Transfer, Inc. et al, C.A. No. 73-

H-956, this Court concluded that it was not retroactive.

The Court adheres to the Bush Memorandum and Order

and the Page June 16, 1975 Order is revised accordingly.

In Bush the Court considered at length the proper

application of the retroactivity test expressed most re-

cently by the Supreme Court in Chevron Oil Co. vy.

Huson, 1971, 404 U.S. 97, to the Johnson problem

presented there. This same type of analysis provides a

satisfactory resolution to the additional problem pre-

sented here in Page—the appropriate disposition of a

Title VII Plaintiff misled by the administrative policies

of the EEOC into the belief that suit could be delayed

until the right-to-sue letter was requested. Each of the

Huson factors, (i) originality of a new rule of law, (ii)

the policy nature of the prior rule and the effect of retro-

spective readjustment, (iii) the degree of “injustice or

hardship” that would result from retroactive application,

Chevron Oil Co. v. Huson, supra, at 306, convinces this

Court that the Plaintiffs’ Title VII claim should not be

dismissed. The Court is convinced that the June 16,

1975 Order is correct insofar as it concludes that the

first letter from the EEOC commenced through the

ninety day statute of limitations. However, this Court

follows the Second Circuit in its conclusion that this

dismissal is improper where the Plaintiffs have been

misled. DeMatteis v. Eastman Kodak Co., 2nd Cir. 1975,

511 F.2d 306, Petition for Rehearing granted, ___F.2d

The Clerk will file this Order and furnish all parties

with a true copy.

Done at Houston, Texas, this 8th day of October,

1975.

/s/ WOODROW SEALS

United States District Judge

APPENDIX C

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION NO. 74-H-1097

JOHN D. PAGE and DON THOMAS, ET AL.,

Plaintiffs

VS.

U. S. INDUSTRIES, INC., INTERNATIONAL

BROTHERHOOD OF BOILERMAKERS, IRON

SHIPBUILDERS, BLACKSMITHS, FORGERS

AND HELPERS, AFL-CIO, AND ITS

AFFILIATE, LOCAL NO. 561,

Defendants

(Filed June 4, 1976)

MEMORANDUM AND ORDER:

Defendant, U. S. Industries, Inc., has requested this

Court to reconsider its Order of October 8, 1975 on

the grounds that:

(1) The Fifth Circuit case of Dupree v. Hutchins

Brothers, Sth Cir. 1975, 521 F.2d 236, has overridden

the Order of this Court to the effect that 42 U.S.C.A.

§ 1981 is not tolled while a charge is pending before

the EEOC because Johnson v. Railway Express Agency,

Inc., 1975, 421 U.S. 545, was retroactively applied, and

(2) That Plaintiffs’ Title VII complaints should not

have been preserved by this Court, despite the fact that

Plaintiffs were misled by the EEOC two-letter procedure,

because Plaintiffs filed suit after the requisite ninety-day

statute of limitations.

These issues have been well briefed by the parties and

after considering them at length the Court concludes that

Defendant cannot prevail on either issue and its motion

to reconsider is DENIED.

The question whether Jonson should be applicd retro-

actively is a difficult one. Defendant is quite correct

when it states that the Court of Appeals in Dupree

effectively applied the ruling retroactively. However, this

Court is not at all convinced that the issue was squarely

presented to the Court of Appeals by the litigants in

Dupree. Consequently, in the absence of a definitive

decision on the issue, this Court concludes that the most

judicious approach is to follow the decision of Judge

Carl O. Bue, Jr. in Helen Williams v. Phil Rich Fan

Manufacturing Co., Inc., Civil Action No. 74-H-1345

(S.D. Tex. May 6, 1976). In that Order Judge Bue

concluded that the proper resolution of this issue is that

the question of the retroactive application of Johnson

is an Open question even after the Dupree decision and

that the Supreme Court rule should not be applied

retroactively.

Similarly, despite Defendant’s vigorous arguments, this

Court remains convinced that where Plaintiffs such as

these have been misled by the EEOC two-letter pro-

cedure, Plaintiffs should not be jurisdictionally barred

from litigating their Title VII claims. This Court is con-

vinced that the remedial intent of the 1964 Civil Rights

Act mandates this much.

The Clerk shall file this Memorandum and Order, and

provide all parties with a true copy.

Done at Houston, Texas, the 4th day of June, 1976.

/s/ WOODROW SEALS

United States District Judge

APPENDIX D

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

HOUSTON DIVISION

CIVIL ACTION NO. 74-H-1097

JOHN D. PAGE and DON THOMAS, Individually

and on behalf of all others similarly situated,

Plaintiffs

VS.

U. S. INDUSTRIES, INC., INTERNATIONAL

BROTHERHOOD OF BOILERMAKERS, IRON

SHiPBUILDERS, BLACKSMITHS, FORGERS,

AND HELPERS, AFL-CIO, And Its Affiliate,

LOCAL NO. 561,

Defendants

(Filed June 30, 1976)

ORDER AMENDING INTERLOCUTORY ORDER:

This matter is before the Court on Defendant, U. S.

Industries, Inc.’s, Motion To Amend Interlocutory Order

of June 4, 1976, whereby this Court reconsidered its

Order of October 8, 1975, dismissing Plaintiff Page’s

Title VII claims on the grounds that they were not timely

filed and dismissing the Plaintiffs’ 42 U.S.C. § 1981

claims with respect to all allegations of discrimination

occurring prior to two years from the date of filing this

lawsuit. Defendant seeks to amend the June Order to

include a certification of questions pursuant to 28 U.S.C.

§ 1292(b) and Rule 5(a), Federal Rules of Appellate

Procedure. Accordingly, it is hereby ORDERED:

The Order of this Court on June 4, 1976, is amended

to include the following:

1. The two questions of law decided by this Court’s

Order of June 4, 1976 are controlling questions of law

as to which there is substantial ground for difference of

opinion, and an immediate appeal from this Order may

materially advance the ultimate termination of this liti-

gation.

2. The Order entered on June 4, 1976, as hereby

amended, shall be deemed entered as of the date indi-

cated below for purposes of computing the allowable

time for filing a petition for permission to appeal.

The Clerk will file this Order and provide counsel for

all parties with a true copy.

Done at Houston, Texas, this 30th day of June, 1976.

/s/ WOODROW SEALS

United States District Judge

APPENDIX E

John D. PAGE and Don Thomas et al.,

Plaintiffs-Appellees,

Vv.

'’. §. INDUSTRIES, INC., et al.,

Defendants-Appellants.

Rebecca WILLIAMS,

Plaintiff-Appellant,

CLE CORPORATION, d/b/a

Sheraton-Chateau Lemoyne,

Defendant-Appellee.

Nos. 76-3366, 75-3822.

UNITED STATES COURT OF APPEALS

Fifth Circuit.

July 25, 1977.

In two cases brought under federal civil rights statutes

and involving claims of racial discrimination in employ-

ment, an appeal and an interlocutory appeal were taken

from decisions entered in the United States District Court

for the Eastern District of Louisiana, R. Blake West, J.,

and in the United States District Court for the Southern

District of Texas, Woodrow B. Seals, J. The Court of

Appeals, Gee, Circuit Judge, held that: (1) letter from

Equal Employment Opportunity Commission to complain-

ant which only related that conciliation efforts had failed,

but did not inform complainant that Commission had

decided not to sue was insufficient to trigger 90-day

limitation within which civil rights racial discrimination

in employment case must be filed; (2) action on claim

of racial discrimination in employment and seeking back

pay and brought under federal civil rights statute con-

cerning equal rights under the law was governed by one-

year limitation provision of Louisiana statute concerning

“offenses and quasi-offenses”; (3) letter received by civil

rights complainant from Commission and which did not

stop at informing complainant that his case had in effect

been administratively closed but went on to inform him

in explicit terms that the 90-day time period within which

to bring suit would not run until he requested and

received notice of right to sue was insufficient to trigger

such 90-day limitation period; (4) Supreme Court deci-

sion that filing of a civil rights claim under equal em-

ployment opportunities title with Commission does not

toll the limitations applicable to a cause of action under

federal civil rights statute concerning equal rights under

the law would be given retrospective effect so as to

apply to action brought before decision was handed

down, and (5) action brought under civil rights statute

concerning equal rights under the law was governed by

Texas two-year limitations statute.

Affirmed in part and reversed in part in both cases.

Fay, Circuit Judge, filed a specially concurring opinion:

* * *

Appeal from the United States District Court for the

Eastern District of Louisiana.

Appeal from the United States District Court for the

Southern District of Texas.

Before WISDOM, GEE and FAY, Circuit Judges.

GEE, Circuit Judge:

In this opinion we dispose of two cases which, although

involving different facts and somewhat different issues,

are both concerned with procedures employed by the

Equal Employment Opportunity Commission (the EEOC)

in informing complaining individuals of their right to

seek judicial action. In each case the question is whether

the plaintiff timely filed suit after initially referring his

case to the EEOC. We hold that, by the law of this

circuit, the district court should hear each plaintiff's Title

VII action.

Congress has enacted a comprehensive scheme for the

resolution of Title VII claims, involving both administra-

tive and judicial action. Section 706(f)(1) of Title VII

of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-

5(f)(1) (1970), as amended, outlines the procedural

scheme:

(f)(1) If within thirty days after a charge is filed

with the Commission . . . the Commission has been

unable to secure from the respondent a conciliation

agreement acceptable to the Commission, the Com-

mission may bring a civil action against any re-

spondent not a government, governmental agency,

or political subdivision named in the charge... .

The person or persons aggrieved shall have the

right to intervene in a civil action brought by the

Commission. . . . If a charge filed with the Commis-

sion pursuant to subsection (b) of this section is

dismissed by the Commission, or if within one hun-

dred and eighty days from the filing of such charge

. .. the Commission has not filed a civil action under

this section . . . or the Commission has not entered

into a conciliation agreement to which the person

aggrieved is a party, the Commission . . . shall so

notify the person aggrieved and within ninety days

after the giving of such notice a civil action may

be brought against the respondent named in the

charge (A) by the person claiming to be aggrieved

or (B) if such charge was filed by a member of the

Commission, by any person whom the charge alleges

was aggrieved by the aileged unlawful employment

practice.

Initially the individual must rely on the EEOC either

to conciliate his claim or to file a civil action on his

behalf. Only after 180 days have passed from the filing

of his administrative complaint may he seek a judicial

remedy, and even then before he can sue he must receive

notice that the EEOC has failed to conciliate his claim

and has not sued. He has 90 days from this notice to

bring suit.

The common problem in these two cases is what suf-

fices to trigger the running of the 90-day period within

which an individual must file suit. Doubtless the Congress

contemplated that the EEOC would complete its investi-

gation, attempt to conciliate, and reach the decision

whether or not to sue within 180 days, and then notify

the complainant immediately. Unfortunately, the ava-

lanche of discrimination complaints to the EEOC has

prevented it from completing administrative action on

complaints within the 180-day period. See Zambuto v.

American Telephone & Telegraph Co., 544 F.2d 1333,

1334 n. 5 (Sth Cir. 1977); EEOC v. Louisville & Nash-

ville R. Co., 505 F.2d 610, 616-17 (Sth Cir. 1974),

cert. denied, 423 U.S. 824, 96 S.Ct. 39, 46 L.Ed.2d 41

(1975). These administrative delays have produced con-

sequent delays in notifying claimants of the failure of

the EEOC either to conciliate their claims or to file suit.

Because section 706(f)(1) requires that an individual

receive this notice before the 90-day period starts, ques-

tions of when the EEOC should send notice after com-

pletion of the 180-day period and what constitutes ade-

quate notice have become important. We have recently

condemned one EEOC practice designed to provide the

statutory notice.

In Zambuto v. American Telephone & Telegraph Co.,

supra, we ruled that the EEOC improperly extended the

period for filing suit when it gave notice that the adminis-

trative process was closed’ but then informed complain-

ants that they could request the required statutory notice

after which they must bring suit within 90 days. This

procedure invalidly placed in a claimant’s hands the power

to postpone the commencement of the 90-day period

after the administrative process had terminated. Congress

designed the 90-day period to protect employers from

stale claims, and the EEOC’s practice deprived them of

that protection. We went on to rule, however, that this

“two-letter” procedure was “patently misleading” so that

justice required that we make our ruling prospective only

1. In Zambuto we also stated that to be adequate as statutory

notice of right-to-sue, the notice must not only state that conciliation

efforts have failed but also that the EEOC has decided not to sue.

In essence, the notice must indicate that the administrative process

has terminated. 544 F.2d at 1335.

and allow Mrs. Zambuto to pursue her action. Against

this background we turn to the individual cases before us.

1. Williams v. CLE Corporation

Rebecca Williams, a black female, was employed as a

front-desk clerk at the Sheraton-Chateau Lemoyne Hotel

in New Orleans, Louisiana, in mid-1973. The hotel

management discharged her in October 1973, and she

filed a timely complaint of racial discrimination with the

EEOC. On January 27, 1975, the EEOC issued a deter-

mination that it had reasonable cause to believe the ap-

pellant’s charge was true. After the defendant rebuffed

its conciliation efforts, on March 25, 1975, the EEOC

sent Ms. Williams the following letter:

This is to advise you that conciliation efforts

. . . have failed to achieve voluntary compliance

with Title VII of the Civil Rights Act of 1964, as

amended. The Respondent Company has declined

the invitation to resolve the issues in your case.

In accordance with Section 706(f)(1) of the Act,

you have the right to file suit in Federal District

Courts. Should you decide to exercise such right

it must be done in writing. Please direct any com-

munications to the Director, New Orleans District

Office, EEOC.

Thank you for your cooperation and feel free to

call me if you have any questions.

On May 6, 1975, the EEOC sent Ms. Williams another

letter captioned “Conciliation Failure Notice of Right to

Sue” that provided in pertinent part:

The Commission has determined that it will not

bring a civil action against the respondent(s) and

accordingly is issuing you this Notice of Right to

Sue. The issuance of this Notice terminates the

Commission’s processing of your charge, except that

the Commission may seek status as intervenor if

you decide to sue on your own behalf as described

below.

If you want to pursue your charge further, you

have the right to sue the respondent named in this

case in the United States District Court for the area

where you live. IF YOU DECIDE TO SUE, YOU

MUST DO SO WITHIN NINETY (90) DAYS

FROM THE RECEIPT OF THIS NOTICE; OTH-

ERWISE YOUR RIGHT IS LOST.

Ms. Williams filed her suit on July 31, 1975, 132 days

after the March 25 letter but within 90 days of the

May 6, letter. Plaintiff appended to her Title VII

action a claim under 42 U.S.C. § 1981 alleging racial

discrimination in employment. This claim came approxi-

mately 18 months after her discharge.

The trial court dismissed plaintiff's suit. It held that

the EEOC’s March 25 letter began the 90-day prescrip-

tive period and that Ms. Williams failure to bring suit

within 90 days of that letter barred her Title VII claim.

The trial court dismissed the section 1981 suit on the

grounds that Louisiana requires suits for back pay to be

brought within one year, with the result that plaintiff's

suit was clearly filed too late.

A. The Title VII claim. The C.L.E. Corporation ar-

gues, and the district court apparently agreed, that the

March 25 letter gave sufficient notice of the EEOC’s

failure to conciliate her claim and its decision not to sue

to start the running of the 90-day period. CLE asserts

re o<

that the March 25 letter’s statement that “in accordance

with Section 706(f)(1) of the Act, you have the right

to sue in Federal District Courts (sic)” provides sufficient

notice. We disagree.

[1-3] To begin the 90-day limitation period, the com-

plainant must receive notice that the EEOC has com-

pleted its administrative efforts. See Zambuto, supra at

1335. The March 25 letter only related that conciliation

efforts had failed; it did not inform her that the EEOC

had decided not to sue. Perhaps she could have inferred

this from the EEOC’s reminder of her right to sue, but

the reminder was ambiguous. She could easily have read

it as saying that the EEOC still contemplated suit, but

she might choose to institute her own action. It is true

that, unlike Zambuto, the March 25 letter does not af-

firmatively mislead Ms. Williams as to when she may

file suit, but neither does it convey sufficient notice of

the termination of the administrative process.” The 90-

day period did not begin running from the date of Ms.

Williams’ receipt of the March 25 letter: only the May

6 letter provided adequate notice.

[4] Even were we to conclude that the March 25 letter

served as adequate notice, we could not ignore the mis-

leading effect of the May 6 letter. In the May 6 letter

the EEOC explicitly informed Ms. Williams that she had

90 days from the date of that letter to file suit. This

2. We reject Ms. Williams’ prc sition that an adequate statutory

notice must include the information that the complainant has only

90 days within which to file suit. Although other courts have required

such language, see Coles v. Penny, 174 U.S. App. D.C. 277, 531 F.2d

609 (1976); Gates v. Georgia Pacific Co., 492 F.2d 292 (9th Cir.

1974), we held in Zambuto that the statutory notice need only inform

the complainant that the administrative process is terminated. 544

F.2d at 1335.

action was no less “patently misleading,” perhaps more

so,” than the letters in Zambuto. Ms. Williams was en-

titled to rely on this seemingly authoritative statement by

the agency presumed to know the most about these mat-

ters. The same equitable considerations that led us to

allow Mrs. Zambuto to pursue her action convince us

that we should permit Ms. Williams to continue her ac-

tion. See Zambuto, supra at 1336; Reeb v. Economic Op-

portunity Atlanta, Inc., 516 F.2d 924, 929-30 (Sth Cir.

1975). See also DeMatteis v. Eastman Kodak Co., 520

F.2d 409, 410-11 (2d Cir.), on petition for rehearing

from 511 F.2d 306 (2d Cir. 1975); Gates v. Georgia

Pacific Corp., 492 F.2d 292, 295 (9th Cir. 1974);

Stebbins v. Nation:vide Mutual Ins. Co., 469 F.2d 268,

269 (4th Cir. 1972).

[5-7] B. The section 1981 claim. The district court

dismissed Ms. Williams’ claim under 42 U.S.C. § 1981

because it was not brought within one year of the alleged

act of discrimination. It ruled that the Louisiana statute

proscribing actions for back pay after one year applied

to section 1981 actions seeking back pay, so that Ms.

Williams’ section 1981 suit was untimely.* Because sec-

3. In Zambuto the letter ciearly informed the complainant that

her case was administratively closed but assured her in the next

paragraph that she could request a right-to-sue letter and have 90

days to sue upon its receipt. In this case the first letter, read in a

manner most favorable to the defendant, only implied that the

EEOC had completed its administrative efforts. Whatever Ms. Wil-

liams thought after the first letter, the second letter—like the next

paragraph of the Zambuto letter—assured her that she had 90 days

in which to act.

4. Although Ms. Williams argued that the filing of her Title VII

claim tolled the statute of limitations on the section 1981 action,

it is clear now that this is not the case. See Johnson v. Railway

tion 1981 states no limitations period, we must rely on

applicable state statutes of limitation. See 42 U.S.C.

§ 1988; Guerra v. Manchester Terminal Corp., 498 F.2d

641, 647 (Sth Cir. 1974). On appeal the parties have

suggested four Louisiana statutes that might provide the

appropriate prescriptive period—Louisiana Civil Code

arts. 3534 (one year for actions for workmen’s wages),

3536 (one year for actions resulting from “offenses or

quasi-offenses”), 3538 (three years for actions for clerks’

salaries), and 3544 (ten years for claims not specifically

covered in other articles). Before we can determine the

applicable statute of limitation, however, we first must

decide how Louisiana would chacterize the section 1981

cause of action.” See Ingram v. Steven Robert Corp., 547

F.2d 1260, 1261-62 (Sth Cir. 1977); Shaw v. McCorkle,

537 F.2d 1289, 1293 (Sth Cir. 1976). We conclude that

Louisiana law would characterize Ms. Williams’ action as

one sounding in tort—i.e., an “offense or quasi-offense.”

See La.Civ. Code art. 3536.

[8] In Sims v. Orleans Railway & Light Co., 134 La.

897, 64 So. 823 (1914), the Louisiana Supreme Court

defined “offenses and quasi-offenses” as infringements of

some right personal to the individual or the violation of

Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295

(1975). We have applied Johnson v. Railway Express retroactively.

See Williams v. Phil Rich Fan Co., 552 F.2d 596, 598 (Sth Cir.

1977): Dupree v. Hutchins Bros., §21 F.2d 236 (Sth Cir. 1975).

5. 42 U.S.C. § 1981 provides that:

All persons within the jurisdiction of the United States shall

have the same right in every State and Territory to make and

enforce contracts to sue, be parties, give evidence, and to the

full and equal benefit of all laws and proceedings for the security

of persons and property as is enjoyed by white citizens, and

shall be subject to like punishment, pains, penalties. taxes.

licenses, and exactions of every kind. and to no other.

some duty imposed by law. Louisiana federal district

courts have used this definition to hold that actions under

42 U.S.C. § 1983 for state deprivations of civil rights

constitute “offenses and quasi-offenses” with the prescrip-

tive period of one year found in La.Civ. Code art. 3536.

See Heyn v. Board of Supervisors, 417 F.Supp. 603,

604-05 (E.D.La. 1976); Whitsell v. Rodriguez, 351 F.

Supp. 1042, 1044 (E.D.La. 1972). Similarly, we believe

that the definition of “offenses and quasi-offenses” in-

cludes actions under section 1981. As we noted recently,

section 1981 cases arise independently of any contractual

agreement between employee and employer, see Ingram,

supra at 1263; instead, they arise from the employer's

violation of his duty not to violate the plaintiff's civil

rights secured under section 1981. Cf. Loggins v. Steel

Construction Co., 129 F.2d 118 (Sth Cir. 1942) (al-

ternative holding that art. 3536 applied to violation of

positive provisions of Fair Labor Standards Act). When

an employer discriminates on the basis of race in violation

of section 1981, he has violated a duty imposed by law—

he has committed an “offense or quasi-offense.” Thus,

actions giving rise to section 1981 claims are proscribed

by the one-year provision of Louisiana Civil Code art.

3536. See O'Sullivan v. Felix, 233 U.S. 318, 34 S.Ct.

596, 58 L.Ed. 980 (1914).

Ms. Williams argues that under Louisiana law we

must look to her pleadings: that the character she gives

them and the form of her action determine the nature

of her claim. See Federal Ins. Co. v. Ins. Co. of North

America, 262 La. 509, 263 So.2d 871, 872 (1972);

Importsales, Inc. v. Lindeman, 231 La. 663, 92 So.2d

574, 576 (1957); United Carbon Co. v. Mississippi

River Fuel Corp., 230 La. 709, 89 So.2d 209, 212

ee et ee

(1956). An examination of her pleadings only reinforces

the ex delictu nature of Ms. Williams’ claim. Ms.

Williams alleges several acts of discrimination and then

asserts that those acts violate section 1981. We cannot

characterize these allegations as stating a contractual

claim with a prescriptive period of ten years, as de-

scribed in Louisiana Civil Code art. 3544.° The plead-

ings allege violations of the duty not to discriminate

imposed by section 1981. They allege tortious activity—

“offenses or quasi-offenses” under Louisiana law.

[9,10] Ms. Williams also claims that the relief she

seeks in her pleadings should control the characteriza-

tion of her action. Because she seeks equitable relief only,

she argues that her claim is a personal action not enume-

rated in previous prescriptive provisions qualifying for

treatment under Louisiana Civil Code art. 3544 and its

ten-year prescriptive period. Louisiana does provide

special prescriptive periods for actions seeking certain

forms of relief. For example, actions seeking back wages

proscribe in one year. La. Civ. Code art. 3534. Neverthe-

less, Louisiana lays down no special prescriptive period

for any action seeking equitable relief, and a prayer for

injunctive relief does not automatically invoke the ten-

year period of art. 3544. The relief sought may help

characterize the cause of action expressed in the plain-

tiffs pleadings, see e.g., Importsales, Inc. v. Lindeman,

231 La. 663, 92 So.2d 574, 576-77 (1957), but under

6. We recognize that dicta in Boudreaux v. Baton Rouge Marine

Contracting Co., 437 F.2d 1011 (Sth Cir. 1971), suggested that

section 1981 claims are contractual and governed by the ten-year

prescriptive period. 437 F.2d at 1017 n. 16. But we are not bound

by dicta, and we have recently rejected these in favor of the analysis

we employ here. See Jngram v. Steven Robert Co., 547 F.2d 1260,

1263 (Sth Cir. 1977).

Louisiana law the relief sought, if not covered by a special

prescriptive period, does not control if the nature of the

cause of action is otherwise clear. It is now clear that

actions under section 1981 are ex delictu; the relief

sought can have no further impact on characterizing the

action unless ex delictu actions seeking equitable relief

fall under the ten-year prescriptive period of Louisiana

Civil Code art. 3544.’ Ms. Williams has not cited nor

have we found any Louisiana case involving ex delictu

action in which a claim for injunctive relief has been

held to transform the action into one eligible for the ten-

year prescriptive period. Without persuasive state author-

ity, we adhere to our conclusion that Louisiana Civil

Code art. 3536 sets out the proper prescriptive period

for section 1981 actions. See Smith v. Olinkraft, Inc., 404

F.Supp. 861, 864 (W.D.La. 1975).

At oral argument Ms. Williams’ counsel suggested

another prescriptive period that might prove applicable

in this case. He argued that if we agree with the trial

court that Ms. Williams’ suit was essentially an attempt

to seek monetary relief in the form of back salary, sez

n. 7 supra, the Louisiana Civil Code art. 3538"—provid-

ing a three-year prescriptive period for clerks’ salaries—

7. As part of her prayer for equitable relief, Ms. Williams asks

that the court make her whole by providing back pay, social security

and other benefits. Although we agree with the district court that

this part of the prayer more closely resembles a prayer for damages,

we will assume, for purposes of this argument, that it is a prayer

for equitable relief.

8. Art. 3538. The following actions are prescribed by three years:

* * *

That for the salaries of overseers, clerks, secretaries, and of

teachers of the sciences who give lessons by the year or quarter.

La. Civ. Code art. 3538.

a nll

A Se th AOE Ce ee LEA COA at Re at le mm ae

supplies the appropriate prescriptive period. Assuming

for purposes of argument that Ms. Williams qualifies as a

“clerk” under the statute, we nevertheless conclude that

the three-year statute does not apply.

[11] Ms. Williams’ claim for back pay is one for com-

pensatory damages arising from the employer’s violation

of his duty to her under section 1981. See Johnson vy.

Railway Express Agency, 421 U.S. 454, 460, 95 S.Ct.

1716, 44 L.Ed.2d 295 (1975). The three-year prescriptive

period refers to claims arising from contracts or quasi-

contracts for the payment of salary and bears no relation

to compensatory claims under section 1981. Although in

Boudreaux v. Baton Rouge Marine Contracting Co., 437

F.2d 1011 (Sth Cir. 1971), we suggested that an analo-

gous prescriptive period for back wages, Louisiana Civil

Code art. 3534, might apply when the plaintiffs sought

damages for loss of back pay, we made that statement

on the assumption that an action under section 1981 in

Louisiana was ex contractu. Our holding today that a

section 1981 action arises ex delictu in Louisiana termi-

nates the applicability of prescriptive provisions referring

to back pay in a contractual context. The plaintiff's prayer

that she be “made whole” for the consequences of the

defendant’s alleged discrimination is more analogous to

a prayer for compensatory relief than an attempt to

enforce a contractual right. If art. 3538 did apply it

would present an anomalous situation in which the

underlying cause of action—the “offense” of violating

section 1981—was proscribed but the remedy—back

salary—was not. Our reading of the Louisiana prescriptive

provisions presents a more coherent characterization of

the cause of action under section 1981 and the relief

available under it.

In summary, we hold that the district court erred in

dismissing Ms. Williams’ Title VII action but that Ms.

Williams’ action under 42 U.S.C. § 1981 proscribed under

Code art. 3536 when it was not brought within one year

of the offense.

II. U.S. Industries, Inc. v. Page

Page, a black employee at the Wyatt Division of U.S.

Industries in Houston, filed with the EEOC in 1969 a

charge alleging discrimination in paying him less than

similarly situated white employees. On April 13, 1973,

the EEOC issued its “reasonable cause” notice, and con-

ciliation efforts were begun, culminating in the execution

on February 11, 1974, of a conciliation agreement which

provided for affirmative action on the part of U.S. In-

dustries but no specific relief for Page. He was notified

of this outcome by a letter dated February 15, 1974,

from the Houston office of EEOC, which read as follows:

On February 13, 1974, the Equal Employment Op-

portunity Commission’s Houston District Office suc-

cessfully conciliated the above referenced matter.

However, no specific remedy was provided for you.

You may now request a “Notice of Right to Sue”

from this office at any time. If you so request and

the notice is issued, you will have ninety (90) days

from its receipt to file suit in Federal District Court.

It is advisable that if you wish to pursue this matter,

further that you have an attorney ready to proceed

with the case prior to issuance of the “Notice of

Right to Sue.” If you do not have an attorney

available and you wish to proceed further with your

case then call our General Attorney, for assistance

in securing one for you.

NAT NO Ae et ene AS I ee

Thus advised that the attack had carried but that he

was one of the casualties, Page did secure an attorney,

who on May 8 requested the notice from EEOC; it was

sent on May 21. Page’s suit was filed in the district court

on August 14, within 90 days of his receipt of the notice

of right to sue but some six months after the February 15

letter.

Page’s complaint charged violations of Title VII and

of 42 U.S.C. § 1981 (1970). On motion of U.S. Indus-

tries, the district court initially dismissed Page’s Title VII

claim because of his failure to file his suit within 90 days

after receipt of the February 15 letter and also dismissed

his section 1981 claim as to any acts of discrimination

alleged to have occurred more than two years before his

suit was filed. Later, on motion for reconsideration, the

district court reinstated both the section 1981 and Title

VII claims—the former because of its conclusion that

Johnson v. Railway Express Agency, 421 U.S. 454, 95

S.Ct. 1716, 44 L.Ed.2d 295 (1975), was not to be

applied retroactively, and the latter because of its con-

clusion that Page had been misled by the February 15

letter and should not suffer dismissal because of his

mistaken reliance upon it. Subsequently, two controlling

questions were certified pursuant to 28 U.S.C. § 1292(b)

(1970), and we granted leave for this interlocutory

appeal.

A. The Title VII claim. Whatever validity the two-

letter procedure might appear to possess when employed

in the situation where the EEOC has unsuccessfully

sought conciliation and is still in the process of deter-

mining whether to file its own suit, it is entirely inappro-

priate in the factual context presented by the case before

us. The logical import of the February 15 letter could

only be that the EEOC was satisfied with the outcome

of the conciliation process and would not be filing suit

against U.S. Industries, since one does not typically sue

to remedy the outcome of an administrative proceeding

he regards as successfully terminated. Thus, this letter

should have informed Page both that the conciliation

process had come to a close and that the EEOC did not

intend to file suit—as the statute has been read to require

before the 90-day period begins to run. See Zambuto,

544 F.2d at 1335. The only possible end to be served

by withholding the notice of right to sue was the un-

lawful extension of the statutory limitations period which

we condemned in Zambuto, a condemnation which we

reiterate in this case.

[12] As in Zambuto, however, the initial letter received

by Page did not stop at informing him that his case had

in effect been administratively closed; it went on to inform

him, in terms more explicit than those of Zambuto’s first

letter, that the 90-day time period would not run until

he requested and received a notice of right to sue. He

was carefully advised to secure an attorney, or ask EEOC’s

assistance in securing one, before starting the clock run-

ning by requesting the notice. Unless he had carefully

read Title VII with a prescience about forthcoming ap-

pellate decisions uncommon even among experienced civil

rights lawyers, Page would certainly have been misled

by the February 15 letter and would have assumed that

no deadline impended until his lawyer had requested and

received the notice. The affirmatively misleading character

of the February 15 letter requires our application of the

Zambuto rule and, as in that case, “we will not visit the

os oe alll

effects of EEOC’s erroneous practice on [Page] who

was misled by terminating [his] right to judicial examina-

tion of [his] employer’s conduct.” 544 F.2d at 1336.

The district court correctly reinstated Page’s Title VII

claim, which should now proceed to trial.

[13, 14] B. The section 1981 claim. In Johnson vy.

Railway Agency, Inc., 421 U.S. 454, 95 S.Ct. 1716, 44

L.Ed.2d 295 (1975), the Supreme Court held that the

filing of a Title VII claim with the EEOC does not toll

the statute of limitations applicable to a 42 U.S.C. § 1981

action. Page’s suit was filed before the Johnson decision

was handed down, so that the success of his section 1981

claim depends upon whether Johnson is to be given retro-

active application in this circuit. In reinstating Page’s

section 1981 claim below, the district court followed

the approach taken in another case in the same Southern

District of Texas, Williams v. Phil Rich Fan Mfg. Co.,

Inc., No. 74-H-1345 (S.D. Tex., May 6, 1976), holding

that Johnson did not apply retroactively. We recently re-

affirmed that Johnson’s no-tolling rule is, indeed, to be

given retrospective effect, by reversing the decision relied

on by the court below. Williams v. Phil Rich Fan Mfg.

Co., Inc., 552 F.2d 596 (Sth Cir. 1977). In Texas, the

appropriate limitations period for section 1981 actions is

the two-year period set out in Tex. Rev. Civ. Stat. Ann.

art. 5526 (1958). Dupree v. Hutchins Brothers, 521

F.2d 236, 238 (Sth Cir. 1975). Accordingly, Page’s

section 1981 claim must be dismissed insofar as it relates

to any acts alleged to have occurred more than two years

before his filing of suit in federal court.

In summary, in Williams v. CLE Corp., we affirm the

district court’s dismissal of the section 1981 claim but

reverse its dismissal of her Title VII claim, and in U.S.

Industries v. Page, we affirm the district court’s retention

of Mr. Page’s Title VII claim but hold that the section

1981 claim is time barred. We also note, in closing, the

extreme importance of EEOC’s heeding our admonition

in Zambuto and ceasing forthwith to deliver misleading

or incomplete notices to claimants; April 11, 1977, has

now long passed. IT IS SOQ ORDERED.

FAY, Circuit Judge, specially concurring:

Although joining in Judge Gee’s excellent opinion, I

feel compelled to note this concurrence recognizes the

binding effect of Zambuto v. American Telephone and

Telegraph Co., 544 F.2d 1333 (Sth Cir. 1977) upon all

panels of this court unless altered by en banc proceedings.

As the trial judge in Zambuto, I reluctantly concluded

that the “seemingly authoritative statement by the agency

presumed to know the most about these matters” was not

sufficient to abrogate the clear limitations and time periods

prescribed by Congress. Nothing has changed my mind.

The law, however, has been clearly established in Title

VII cases and such unfortunate incidents should not

occur in the future.

APPENDIX F

IN THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

NO. 76-3366

D. C. Docket No. CA74-H-1097

JOHN D. PAGE and DON THOMAS, ET AL..,

Plaintiffs-A ppellees,

versus

U. S. INDUSTRIES, INC., ET AL.,

Defendants-A ppellants.

Appeal from the United States District Court for the

Southern District of Texas

Before WISDOM, GEE and FAY, Circuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of the

record from the United States District Court for the

Southern District of Texas, and was argued by counsel;

ON CONSIDERATION WHEREOF, It is now here

ordered and adjudged by this Court that the judgment of

the said District Court in this cause be, and the same

is hereby, affirmed;

It is further ordered that defendants-appellants pay to

plaintiffs-appellees, the costs on appeal to be taxed by

the Clerk of this Court.

July 25, 1977

FAY, Circuit Judge, specially concurring.

Issued as Mandate:

a ee ee eee o

APPENDIX G

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

Tel. 504-589-6514

Edward W. Wadsworth 600 Camp Street

Clerk New Orleans, La. 70130

September 13, 1977

TO ALL PARTIES LISTED BELOW:

NO. 76-3366—JOHN D. PAGE, ET AL. v.

U.S. INDUSTRIES, INC.

Dear Counsel:

This is to advise that an order has this day been

entered denying the petition ( ) for rehearing**

and no member of the panel nor Judge in regular

active service on the Court having requested that

the Court be polled on rehearing en banc (Rule 35,

Federal Rules of Appellate Procedure; Local Fifth

Circuit Rule 12) the petition ( ) for rehearing en

banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure

for issuance and stay of the mandate.

Very truly yours,

EDWARD W. WADSWORTH,

Clerk

By /s/ BRENDA M. HAUCK

Deputy Clerk

** on behalf of appellants, U.S. Industries, Inc.,

Et. al.,

cc: Messrs. Samuel E. Hooper

Charles B. Gallagher

Ms. Carol Nelkin

ee eee eee

APPENDIX H

42 U.S.C. § 2000e-5(e)

A charge under this section shall be filed within one

hundred and eighty days after the alleged unlawful em-

ployment practice occurred and notice of the charge

(including the date, place and circumstances of the al-

leged unlawful employment practice) shall be served upon

the person against whom such charge is made within ten

days thereafter, except that in a case of an unlawful

employment practice with respect to which the person

aggrieved has initially instituted proceedings with a State

or local agency with authority to grant or seek relief

from such practice or to institute criminal proceedings

with respect thereto upon receiving notice thereof, such

charge shall be filed by or on behalf of the person ag-

grieved within three hundred days after the alleged un-

lawful employment practice occurred, or within thirty

days after receiving notice that the State or local agency

has terminated the proceedings under the State or local

law, whichever is earlier, and a copy of such charge shall

be filed by the Commission with the State or local agency.

* * *

42 U.S.C. § 2000e-5(f) (1)

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) or (d),

the Commission has been unable to secure from the

respondent a conciliation agreement acceptable to the

Commission, the Commission may bring a civil action

against any respondent not a government, governmental

agency, or political subdivision named in the charge.

In the case of a respondent which is a government,

governmental agency, or political subdivision, if the

Commission has been unable to secure from the respond-

ent a conciliation agreement acceptable to the Com-

mission, the Commission shall take no further action

and shall refer the case to the Attorney General who may

bring a civil action against such respondent in the

appropriate United States district court. The person or

persons aggrieved shall have the right to intervene in a

civil action brought by the Commission or the Attorney

General in a case involving a government, governmental

agency, or political subdivision. If a charge filed with

the Commission pursuant to subsection (b) is dismissed

by the Commission, or if within one hundred and eighty

days from the filing of such charge or the expiration of

any period of reference under subsection (c) or (d),

whichever is later, the Commission has not filed a civil

action under this section or the Attorney General has

not filed a civil action in a case involving a government,

governmental agency, or political subdivision, or the

Commission has not entered into a conciliation agree-

ment to which the person aggrieved is a party, the Com-

mission, or the Attorney General in a case involving

a government, governmental agency, or political sub-

division, shall so notify the person aggrieved and within

ninety days after the giving of such notice a civil action

may be brought against the respondent named in the

charge (A) by the person claiming to be aggrieved or

(B) if such charge was filed by a member of the Com-

mission, by any person whom the charge alleges was

sebadethi, Medea tet ee a ee Fe ee

aggrieved by the alleged unlawful employment practice.

Upon application by the complainant and in such circum-

stances as the court may deem just, the court may appoint

an attorney for such complainant and may authorize the

commencement of the action without the payment of fees,

costs, or security. Upon timely application the court may,

in its discretion, permit the Commission, or the Attorney

General in a case involving a government, governmental!

agency, or political subdivision. to intervene in such civil

action upon certification 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 subsections (c) or (d) of this

section or further efforts of the Commission to obtain

voluntary compliance.

42 U.S.C. § 2000e-16(c)

action taken by a department, agency, or unit referred to

in subsection 717(a), or by the Civil Service Commission

upon an appeal from a decision or order of such depart-

ment, agency, or unit on a complaint of discrimination

based on race, color, religion, sex or national origin.

brought pursuant to subsection (a) of this section Execu-

tive Order 11478 or any succeeding Executive orders,

or after one hundred and eighty days from the filing of

the initial charge with the department, agency, or unit

or with the Civil Service Commission on appeal from a

decision or order of such department, agency, or unit

until such time as final action may be taken by a depart-

ment, agency, or unit, an employee or applicant for em-

ployment, if aggrieved by the final disposition of his

complaint, or by the failure to take final action on his

complaint, may file a civil action as provided in section

706, in which civil action the head of the department,

agency, or unit, as appropriate, shall be the defendant.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.