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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 434 U.S. 1045

## Text

: 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,

v.

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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NS Chk idee h eink sh KOKO 6 6kdee eek 648
PIPES Te eT Tere Te eee Tree ee
Statutory Provisions Involved ................ceeeeeeee
EP I as cave eae 6eekbsesudsesadeenas
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,
ROR EEE eer ay amp Sera eene hea ae Pere aa

Appendix C (Memorandum and Order of the District Court
for the Southern District of Texas, Houston Division,
ey Se SEE & 66.06 4.9'0-:6 60.0004 0050s ckseseease%

Appendix D (Order Amending Interlocutory Order of the
District Court for the Southern District of Texas, Houston
Se, GD ED A OED wee cccctcecceesveceaes

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

15

19

22

24

43

45
47

II

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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OP i Ec bi caniuaxdendeccedbsskvesbns 3, 9, 10

IN THE

Supreme Court of the Huited States

OCTOBER TERM, 1977

NO.

U. S. INDUSTRIES, INC.,
Petitioner,

V.

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

2

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.,

3

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-

4

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

5

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).

6

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-

7

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.

8

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.

9

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

10

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

11

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

12

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.
hl

SAMUEL E. HOOPER

13
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,
V.

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

14

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

15

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

16
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

17

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,

18

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

19
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

20

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.

21

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

22
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.

23

§ 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

24
APPENDIX E

John D. PAGE and Don Thomas et al.,
Plaintiffs-Appellees,

Vv.

'’. §. INDUSTRIES, INC., et al.,
Defendants-Appellants.

Rebecca WILLIAMS,
Plaintiff-Appellant,

V.

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-

25

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:

* * *

26

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

27

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.

28

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.

29

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

30

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<

31

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.

32

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

33

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.

34

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

35

(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).

36

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

37

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.

38

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.

a

NAT NO Ae et ene AS I ee

39

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

40

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

41

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

42

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.

43
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;

44

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

45
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.

46

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

47
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

48

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

49

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)

(c) Within thirty days of receipt of notice of final
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

50

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385004_2721%3A1. Public record. Not legal advice.